#### Morgan *vs*Hart.

Appeal prom the Mercek Circuit.

*Rule for restitution of money. Sheriffs' returns. Evidence.*

Chancery. *Cuse*30.

*January*4.

Case stated.

Chief Justice Makshali

delivered tlie opinion of the Court.

This Court having, at the December term, 1847, reversed a decree in favor of Morgan against Hart and others, under which Morgan had received divers sums of money due from the other defendants to Hart, but decreed to Morgan, in part payment of his alleged demand against Hart, and Morgan’s bill attaching those debts, and praying for a personal decree, having been dismissed, under the mandate of this Court, Hart obtained a rule against Morgan, to show cause why the money collected under the decree should not be restored. In response to that rule, Morgan set up a claim against Hart, who is alleged to be insolvent, for one half of a debt which he had paid upon' a judgment against Hart and himself, on a note executed by Hart in 1819, in the name of John Hart & Co., a firm of which Morgan and Hart were the only members, and which was dissolved in 1819. The note was for $500, payable five years after date. The judgment was obtained in 1841 and paid off by Morgan after a replevy, in the course of the yean 1842. Morgan also insisted that this was not a proper remedy for obtaining restitution, but that Hart should resort to his action.

In reply to the response of Morgan, Hart relied upon the statute of limitations as barring the demand for one half of the money paid by Morgan as above stated, and also insisted that the same demand was litigated in the principal suit, and was barred by the dismissal of the bill; and moreover, that the process of the Court having been resorted to to coerce an unjust demand, restitution should not be refused, even if the party had some other just demand. On the hearing of the rule, the re*80cozd *of*the judgment against *Hart and*Morgan, was read, and it was proved that Morgan paid the debt in 1842, and that Hart was insolvent. The z-ecoi’d of the suit in chancery, and the executions on the dpcz’ee against the several guanrishees, with thez'eturns of the Slzeriff thereon, were read by Hazt, though objected to by Moz’gan, and an *order*of restitution was made for the sum of $390. Exceptions were taken by Moi’gan, and he has appealed to this .Court for a revez'sal of the order or decz’ee of restitution, assigning various errors, •of which such only will be noticed as ai’e deemed material,

Courts 'of law have power to ■order the repayment of money paid under its ■authority where its judgment is •subsequently reversed. The ■same power exists with the Chancellor, in a ■proceeding by rule.

Upon a.proceeding by .rule to compel restitution ^ of money received under a ■decree which was subsequently received, the •court should not .permit the party •to set up as a •restitution any claim outside of the original suit •and not disposed ■of by the decree, but the party ■should be put to •his independent •suit.

1. The pz’oceeding by rule or motion for restitution of money or propei-ty obtained under the diz-ect opez-atiozi of a judgment which has beezz revez-sed, is well known in Courts of law, and we have no doubt it is equally allowable and appi’opriate in the Court of equity, where ■in the practice In this State, it is often resorted to. The Chancellor certainly has power to remedy the injustice which may have been done under his own orders, when vacated by an appellate ti’ibunal. And no *objection is*perceived to tbe summary mode of proceeding by rule,

2. Although the Chancellor should not, upon the mere reversal of a decree under which money has beezi collected, make an order of restitution as a matter of ■course, but may, if further proceedings are to be taken in the principal suit for ascertaining the equities of the parties, make such order as will secure its proper application under the final decree; yet we az’e satisfied that when the decree of reversal extends, as it did in this case, to a dismissal of the bill for want of equity in the demand set up, or for want of jurisdiction in the Court, ■the order for restitution cannot be resisted on the ground of any equity thus disposed of by the dismissal of the bill. And we are also satisfied that it would be an inconvenient pz’actice to allow any other demand •outside of the original suit, and not disposed of by the decree, to be brought into litigation on the rule or motion for restitution. Such demand, if just and subsisting, should be set up in an independent suit, and if there he any equitable reason for not coercing the order or *81decree for restitution, it should be made available as a ground for enjoining and not for preventing or modifying the order of restitution.

The return ofthe Sheriff on execution that the money was made & paid to plaintiff, is sufficient evidence of the receipt of the money by plaintiff *82upon a rule to restore it to defendant. But a bare return of *satisfied,'*without stating that it was paid to plaintiff — or a return that the money was paid by the defendant to plaintiff, or his attorney, is not sufficient.

*81On looking into the record of the suit in chancery, on which the present proceeding is founded, we are of opinion that the particular demand now set up by Morgan, was not litigated in that suit; and that although it might have been embraced in the general charges and prayer of the original bill, it was not otherwise disposed of in that case, than as not being a proper subject for the jurisdiction of the Chancellor, under any facts stated in reference to it. The Chancellor in making his decree, expressly states, that on the original bill, the Court had no jurisdiction, but took jurisdiction on the amended bill, and on a ground not applicable to this demand, which was not in fact embraced in any allegation, special or general, in the amended bill. We are, therefore, of opinion that this demand is not barred by the final decree of dismissal. And we are clearly of opinion that the statute of limitations is not applicable to it as a set-off, except for the time that elapsed between the payments made by Morgan on the judgment referred to, and the reception by him of the sums collected under the decree. But if this demand might be brought into litigation on the rule for restitution, so might any other, however complicated or contested. And, as already intimated, the obvious inconvenience of such a practice with the delay, the confusion of jurisdiction, and the departure from the ordinary and regular modes of proceeding which would ensue, constitute a serious and sufficient objection to its introduction, and to the allowance of the claim in the present case. Hart, therefore, was entitled to an order for the restitution of such sums as Morgan had received under the reversed decree.

With regard to the amount received by Morgan, and ordered'to be repaid, the principle question is, whether the returns on the executions in his favor are evidence against him. We are of opinion that where they state that the money was made and paid to the plaintiff, they are, in this contest, sufficient *prima facie*evidence of the *82fact, but that the return that the money was paid by the defendant to the plaintiff or his attorney, is not evidence of that fact; and that the returns of satisfied merely, without stating that the money was paid to the plaintiff, arc not sufficient evidence of such payment. But as to the returns of this latter sort, made by the Deputy Sheriff, McMordie, the response of Morgan being evasive, we think he was properly chargeable with the amount of the executions so returned. And upon the response, in connection with all the returns, we think neither party has a right to complain of the sum ordered to be re-paid.

*J. W. L. Harlan*for appellant; *Ballinger and P. B. Thompson*for appellee.

Wherefore, the order and decree of restitution is affirmed.