Bank of the United States v. Bank of Washington. 6 P. tion, with respect to a variance between the contract, or cause of action, and the evidence to maintain it, that objection does not exist as to the second count. It is to be borne in mind that it forms no part of the question upon which the opinion of the judges was opposed, whether the evidence was admissible under the count upon an insimul computassent. The point of objection was that the cause of action as stated in the declaration arose against the defendants and William Turner, and the evidence only showed a cause of action against the two defendants unconnected with William Turner, and which arose since his decease. The only allegation in the second count in the declaration, from which it is argued that the contract declared upon was one including William Turner with Josiah and Philip, is that the said defendants accounted with the plaintiffs, &c. But this [ 7 ] does not warrant the conclusion drawn from it. The de fendants were Josiah and Philip Turner. William Turner was not a defendant, and the reference by the terms the said defendants could not include him. It does not even describe the defendants as survivors, or allege that they accounted, as such, or in the lifetime of William Turner. But the whole cause of action, as set out in this count, arose against Josiah and Philip, entirely unconnected with William. The evidence, therefore, showing that William Turner died before the first transaction took place between the defendants and plaintiffs, did not show any variance between the contract declared upon in this count, and the contract proved. The one declared upon in the second count was between the plaintiffs and the defendants Josiah and Philip Turner, and the evidence did not show a contract varying from it. We are accordingly of opinion that there was no variance between the contract declared upon in the second count, and the contract proved upon the trial, with respect to the parties thereto. THE BANK OF THE UNITED STATES, Plaintiffs in Error, v. The BANK OF WASHINGTON, Defendants in Error. 6 P. 8. An execution having regularly issued on an erroneous judgment was sent by one of the judg ment creditors to the plaintiffs in error, to be collected for his account, with an indorsement thereon, "Use and benefit of the office of discount and deposit, U. S., Washington city. C. Neale." The plaintiffs in error received the amount, and when it was paid, the defendants in the judgment informed the agent of the plaintiffs in error they intended to appeal to the supreme court, and should expect the plaintiffs in error to refund. The judgment having been reversed-Held, the plaintiffs in error were not liable for the money thus collected. Bank of the United States v. Bank of Washington. 6 P. Though, after the reversal of an erroneous judgment, the defendant has a right to recover back what he may have paid, by a writ of restitution, or scire facias, or an action at law against the creditor, yet what is done under the execution pursuant to its precept is valid, and, so far as strangers or third persons are concerned, is final. THE case is stated in the opinion of the court. Lear and Sergeant, for the plaintiffs. Dunlap and Key, contrà. * [* 15 ] THOMPSON, J., delivered the opinion of the court. This case comes up on a writ of error to the circuit court of the United States for the District of Columbia. The judgment in the court below was given upon a statement of facts agreed upon between the parties, substantially as follows: Triplett and Neale, in April, 1824, recovered a judgment against the Bank of Washington for $881.18. A writ of error was prosecuted by the Bank of Washington, and that judgment was reversed by this court at the January term, 1828. 1 Pet. 25. But whilst that judgment was in full force, and before the allowance of the writ of error, Triplett and Neale, on the 30th of August, 1824, sued out an execution against the Bank of Washington, and inclosed it to Richard Smith, cashier of the office of discount and deposit of the Bank of the United States at Washington, with the following indorse ment: Triplett and Neale v. The Bank of Washington. "Use and benefit of the office of discount and deposit, United States, Washington city." Chr. Neale. "Pay to Mr. Brooke Mac"Received $881.18." B. Mackall. kall." Rd. Smith, cashier, B. Mackall, who was the runner in the branch bank, presented the execution to the Bank of Washington, and received the amount due thereon, on the 9th of September, 1824. At the time of receiving the same, William A. Bradley, cashier of the Bank of Washington, verbally gave notice to said Mackall, that it was the intention of the Bank of Washington to appeal to the supreme court, and that the said office of discount and deposit would be expected, in case of reversal of the judgment, to refund the amount. Mackall paid the money over to Smith, who entered it to the credit of Neale, one of the plaintiffs in the execution. Before the execution was sent to Smith, Neale had promised him to appropriate the money expected to be recovered from the Bank of Washington, to reduce certain accommodation discounts, which he had running in the office of discount and deposit. Smith, when he received the execution with the Bank of the United States v. Bank of Washington. 6 P. indorsement thereon, understood and considered that it was for collection, and the money when received by him was deposited to Neale's credit generally, and he would have sent the money to him * at Alexandria, if he had requested him to do so, or would [ 16 ] have paid his check for the amount. Immediately on the receipt of the money, Smith wrote to Neale informing him thereof, and asking him for specific directions how to apply it, which letter Neale immediately answered, giving him directions, and the money was applied according to such directions. Upon this statement of facts, the court below gave judgment for the plaintiffs; to reverse which, the present writ of error has been brought. That the Bank of Washington, on the reversal of the judgment of Triplett and Neale, is entitled to restitution in some form or manner, is not denied. The question is, whether recourse can be had to the Bank of the United States, under the circumstances stated in the case agreed. When the money was paid by the Bank of Washington, the judgment was in full force, and no writ of error allowed, or any measures whatever taken, which could operate as a supersedeas or stay of the execution. Whatever, therefore, was done under the execution, towards, enforcing payment of the judgment, was done under authority of law. Had the marshal, instead of the runner of the bank, gone with the execution and received the money, or coerced payment, he would have been fully justified by authority of the execution; and no declaration or notice on the part of the Bank of Washington of an intention to appeal to the supreme court, would have rendered his proceedings illegal, or made him in any manner responsible to the defendants in the execution. Suppose it had become necessary for the marshal to sell some of the property of the bank to satisfy the execution, the purchaser would have acquired a good title under such sale, although the bank might have forbid the sale; accompanied by a declaration of an intention to bring a writ of error. This could not revoke the authority of the officer, and while that continued, whatever was done under the execution would be valid. It is a settled rule of law, that upon an erroneous judgment, if there be a regular execution, the party may justify under it until the judgment is reversed; for an erroneous judgment is the act of the court. 1 Stra. 509. 1 Ver. 195. If the marshal might have sold the property of the bank and given a good title to the purchaser, it is difficult to discover any good reason why a payment made by the bank should not be equally valid, as it respects [ 17 ] the rights of third persons. In neither case does the party against whom the erroneous judgment has been enforced, lose his Bank of the United States v. Bank of Washington. 6 P. remedy against the party to the judgment. On the reversal of the judgment, the law raises an obligation in the party to the record, who has received the benefit of the erroneous judgment, to make restitution to the other party for what he has lost. And the mode of proceeding to effect this object must be regulated according to circumstances. Sometimes it is done by a writ of restitution, without a scire facias, when the record shows the money has been paid, and there is a certainty as to what has been lost. In other cases, a scire facias may be necessary to ascertain what is to be restored. 2 Salk. 587, 588. Tidd's Prac. 936, 1137, 1138. And no doubt circumstances may exist where an action may be sustained to recover back the money. 6 Cowen, 297. But as it respects third persons, whatever has been done under the judgment whilst it remained in full force, is valid and binding. A contrary doctrine would be extremely inconvenient, and in a great measure tie up proceedings under a judgment, during the whole time within which a writ of error may be brought. If the bare notice or declaration of an intention to bring a writ of error will invalidate what is afterwards done, should the judgment at any future day be reversed, it would virtually, in many cases, amount to a stay of proceedings on the execution. No such rule is necessary for the protection of the rights of parties. The writ of error may be so taken out as to operate as a supersedeas. Or, if a proper case can be made for the interference of a court of chancery, the execution may be stayed by injunction. It has been argued, however, on the part of the defendants in error, that the Bank of the United States stands in the character of assignees of the judgment, and is thereby subjected to the same responsibility as the original parties, Triplett and Neale. Without entering into the inquiry whether this would vary the case, as to the responsibility of the plaintiff in error, the evidence does not warrant the conclusion that the Bank of the United States stands in the character of assignees of the judgment. There is nei ther the form nor the substance of an assignment of the [ 18 ] judgment. No reference whatever, either * written or verbal, is made to it. The mere indorsement on the execution, "use and benefit of the office of discount and deposit of the United States, Washington city," cannot, in its utmost extent, be considered any thing more than an authority to receive the money, and apply it to the use of the party receiving it. It is no more an assignment of the judgment, than if the authority had been given by a power of attorney in any other manner, or by an order drawn on the Bank of Washington. The whole course of proceeding by the cashier of the office of discount and deposit, shows that he understood the in Bank of the United States v. Bank of Washington. 6 P. dorsement on the execution merely as an authority to receive the money, subject to the order of Neale, with respect to the disposition to be made of it. He did not deal with it as an assignee, having full power and control over the money, but as an agent, subject to the order of his principal. He passed it to his credit on the proper books of the office, and wrote to him asking specific directions how the money should be applied. He received his directions and applied it accordingly, and all this was done six months before the allowance of the writ of error. It is said, however, that although Mr. Smith might have considered himself a mere agent to collect the money, the Bank of Washington had no reason so to consider him. There is nothing in the case showing that the Bank of Washington had any information on the subject, except what was derived from the indorsement on the execution, and if that did not authorize such conclusion, the plaintiff in error is not to be prejudiced by such misapprehension. It was a construction given to a written instrument, and if that construction has been mistaken by the defendant in error, it is not the fault of the opposite party. But again, it is said the payment of the money was accompanied with notice of an intention to appeal to the supreme court, and that, in case of reversal, it would be expected that the office of discount and deposit would refund the money. If the plaintiff in error could be made responsible by any such notice, given even in the most direct and explicit manner, that which was given could not reasonably draw after it any such consequence. It is vague in its terms, and does not assert that the office of discount and deposit would be held responsible to refund the money, but only that it would be expected that it would be done. [* 19 ] This is not the language of one who was asserting a legal right, or laying the foundation for a legal remedy. And there is no evidence that even this was communicated to the office. But the answer to the argument is, that no notice whatever could change the rights of the parties, so as to make the Bank of the United States responsible to refund the money. When the money was paid, there was a legal obligation on the part of the Bank of Washington to pay it, and a legal right on the part of Triplett and Neale to demand and receive it, or to enforce payment of it under the execution. And whatever was done under that execution, whilst the judgment was in full force, was valid and binding on the Bank of Washington, so far as the rights of strangers or third persons are concerned. The reversal of the judgment cannot have a retrospective operation, and make void that which was lawful when done. |