10 N.J.L. 61 | N.J. | 1828
Two questions are presented to os upon this application. First. Whether the judgment being reversed on writ of error, we can order restitution. Second. For what sum restitution should be awarded, whether to the full amount, which has passed out of the bands of the defendant, into the hands of the officer, or only for that sum which has passed from the officer into the hands of the plaintiff As to the first point, where it appears upon record that the money has been levied and paid over to the plaintiff, the court will order the restitution. But where it does not appear by the record, there the party seeking-restitution, must sue out a scire facias guare restitutionm. non j
In this case, ii does not appear upon the record that the' money has been paid, and at the common law a scire facias would be required ; and we see no authority to change this practice. The affidavits cannot be said to be such record.
As to certioraris, to justices courts, upon the reversal of a justice’sjudgment, we do not put the party to the necessity of suing out a scire facias quare restiiutionem non, because it would be' too expensive. But as to proceedings in this court, we must pursue the common law practice. As to the second point, it is not necessary to give any opinion at present; but-the court would refer the counsel to the case of Montgomery v. Bruere, where it appeared that the whole money had passed into the hands of the sheriff, and neither a part or the whole of the money had been paid, by the sheriff to the plaintiff ; and Mr. Montgomery’s counsel resisted the application on that ground, and the court ordered restititution for the whole amount which had been paid into the hands of the sheriff.
Rule refused,;
