Opinion
(February Term, 1882.)
This is an application made by the defendant to this court for an order of restitution, upon the following state of facts disclosed in his affidavit and in the record of the case:
At June Term, 1878, the plaintiff recovered judgment for two hundred dollars, interest and costs. See 79 N.C. 528. Execution was issued to the sheriff of Halifax County, and the defendant paid and satisfied the same in full. The plaintiff received the money, except so much thereof as was applied to the payment of costs.
Upon petition of defendant to rehear the cause, the former judgment of this court was reversed, and a venire de novo awarded, with a reservation to the defendant of a right to make such motion as he might be advised in reference to the fund collected from him under the final process issued upon said judgment. See 85 N.C. 363.
The defendant is entitled to the order of restitution. The law is, when a judgment is reversed, the party shall be restored to all (726) that he has lost by occasion of the judgment, and a writ of restitution shall be awarded. Cro. James, 699; Perry v. Tupper, 70 N.C. 538; Rollins v. Henry, 77 N.C. 467. And where the plaintiff has execution and the money is levied and paid, and that judgment is afterwards reversed, the party shall have restitution without a scire facias, because it appears on the record that the money is paid, and there is a certainty of what is lost. 2 Salk., 588; 2 Saun. Rep., Williams' notes, z; Tidd's Pr., 1033.
It is therefore ordered that a writ of restitution be issued to the sheriff of Halifax County, to the end that Thaddeus Vaughan may be restored to all things he hath lost on occasion of the judgment aforesaid erroneously rendered against him in favor of J. E. Boyett.
PER CURIAM. Judgment accordingly.