5 Footman v. Stetson, 32 Me. 17; 52 Am. Dec. 634; Thatcher v. Gammon, 12 Mass. 268.

6 Williams v. Shelbourne, 102 Ky. 579; 44 S. W. 110.

7 West v. Kerby, 4 J. J. Mar. (Ky.) 55.

8 Ellis v. Kelly, 8 Bush. (Ky.) 621.

9 Ogle v. Baker, 137 Pa. St. 378; 21 Am. St. Rep. 886; 20 Atl. 998. (Where the judgment was entered on a warrant of attorney contained in a forged note.)

10McConville v. St. Paul, 75 Minn. 383; 74 Am. St. Rep. 508; 43 L. R. A. 584; 77 N. W. 993.

1 Green v. Stone, 1 Har. & J. (Md.) 405.

2 Crane v. Runey, 26 Fed. 15; Field v. Anderson, 103 111. 403; Smith v. Zent, 83 Ind. 86; 43 Am. Rep. 61; Sturm v. Fleming, 31 W. Va. 701; 8 S. E. 263.

3Metzner v. Bauer, 98 Ind. 425; In re Home Provident, etc., Association, 129 X. Y. 288; 29 N. E. 323.

4 United States Bank v. Bank. 6 Pet. (U. S.) 8; Wright v. Nos-trand. 100 N. Y. 616; 3 N. E. 78; Travelers' Ins. Co. v. Heath, 95 Pa. St. 333.

5Stevens v. Fitch, 11 Met. (Mass.) 248. Contra, Gould v. McFall, 118 Pa. St. 455; 4 Am. St. Rep. 606; 12 Atl. 336. (In this case the judgment was reversed for technical reasons.)

6 Lewis v. Hull, 39 Conn. 116; Travelers' Ins. Co. v. Heath, 95 Pa. St. 333.

7 United States Bank v. Bank, 6 Pet. (U. S.) 8.

8 Chapman v. Sutton, 68 Wis. 657; 32 N. W. 683.

9Effinger v. Kenney, 92 Va. 245; 23 S. E. 742.

10 As where the return "money made: paid by John Heath," left it in doubt whether a levy had been made or not. Travelers' Ins. Co. v. Heath, 95 Pa. St. 333.

11"He may as well pay the amount at one time as at another and save the expense of delay." Peyser v. Mayor, 70 N. Y. 497, 501; 26 Am. Rep. 624; quoted in Chapman v. Sutton, 68 Wis. 657; 32 N. W. 683.

12Seholey v. Halsey, 72 N. Y. 578. "It is not necessary in order to maintain the action that the payment should have been coerced by execution." Scholey v. Halsey, 72 N. Y. 578.

13 Gates v. Brinkley, 4 Lea (Tenn.) 710.

14 Gregory v. Litsey, 9 B. Mon. (Ky.) 43; 48 Am. Dec. 415.

15 Groves v. Sentell, 66 Fed. 179; Cohen v. Laundry Co., 99 Ga. 289; 25 S. E. 689; Estes v. Thompson, 90 Ga. 698; 17 S. E. 98; Lowis v. Brewing Co., 63 111. App. 345; Gould v. McFall, 118 Pa. St. 455; 4 Am. St. Rep. 606; 12 Atl. 336.

16Perryman v. Pope, 94 Ga. 672; 21 S. E. 715.

17 Estes v. Thompson, 90 Ga. 698; 17 S. E. 98.

18 Weaver v. Stacy, 93 la. 683; 62 N. W. 22; Kalmbach v. Foote, 86 Mich. 240; 49 N. W. 132; Ditman v. Raule, 134 Pa. St. 480; 19 Atl. 676.

19 79 Mich. 236; 44 N. W. 603.

20 Kalmbach v. Foote, 86 Mich. 240; 49 N. W. 132.

21 Weaver v. Stacy, 93 la. 683; 62 N. W. 22.

22 Knox County Bank v. Doty, 9 O. S. 506; 75 Am. Dec. 479.

23 Van Dusen v. King, 106 Mich. 133; 64 N. W. 9. This is "fraud and coercion." It is "not so much a question of individual right as of public policy."

24Cowdery v. Bank, 139 Cal. 298; 96 Am. St. Rep. 115; 73 Pac. 196; Teasdale v. Stoller, 133 Mo. 645; 54 Am. St. Rep. 703; 34 S. W. 873.

25 Gould v. McFall, 118 Pa. St. 455; 4 Am. St. Rep. 606; 12 Atl. 336.

26 Teasdale v. Stoller, 133 Mo. 645; 54 Am. St. Rep. 703; 34 S.

W. 873. In these cases, however, the payment is looked upon as, to some extent, a voluntary payment.

27 For judgment of reversal see London, etc., Bank v. Bandmann, 120 Cal. 220; 65 Am. St. Rep. 179; 52 Pac. 583.

28Cowdery v. Bank, 139 Cal. 298; 96 Am. St. Rep. 115; 73 Pac. 196.

29 Cowdery v. Bank, supra (quotation: 139 Cal. 309; 96 Am. St. Rep. 124; 73 Pac. 196).

30 Ex parte Walter, 89 Ala. 237; 18 Am. St. Rep. 103; 7 So. 400. (In this case the trial court was resulted in judgment which he had been compelled to pay: and this judgment had subsequently been reversed, not because the premiums did not belong to the company, but because the company, not having complied with the statute authorizing it to do business in that state, was not allowed to enforce rights growing out of such business.31 Under the former practice recovery of what a judgment-debtor had lost by reason of the judgment was effected by a writ of restitution, if the record disclosed what he had lost or by an action in scire facias if it did not.32 Under modern practice the reversing court may order restitution,33 even if the judgment is reversed because the trial court lacked jurisdiction.34 Even where a judgment has been reversed on the ground that the trial court had no jurisdiction,35 the trial court may retain the case for the purpose of enforcing restitution.36 If the judgment of reversal contains an order of restitution the judgment-debtor may recover independent of any question whether payment by him was voluntary or involuntary.37 Such question of voluntary payment should be raised as a ground for refusing to reverse. The judgment of reversal and restitution "establishes beyond further question the right of plaintiff in error to be restored to all things which he has lost by reason of the erroneous judgment. Its justice cannot be rejudged in any collateral proceeding."38 compelled by mandamus to order restitution after reversal without reference to the probable result of a new trial.) Murray v. Berdell, 98 N. Y. 480.

31 Travelers' Ins. Co. v. Heath, 95 Pa. St. 333.

32 Anonymous, 2 Salk. 588; United States Bank v. Bank, 6 Pet.

(U. S.) 8.

33 Ex parte Morris, 9 Wall. (U. S.) 605; Morris's Cotton, 8 Wall.

(U. S.) 507; Market National Bank v. Bank, 102 X. Y. 464; 7 X. E. 302.

34 O'Reilly v. Henson, 97 Mo. App. 491: 71 S. W. 109.

35 Brock v. Fuel Co., 139 U. S. 216. (Since, except in case of negotiable instruments and the like, an assignee could not bring an action in the United States courts on the ground of being a citizen of another state from that in which the defendant was domiciled unless his assignor could have so brought an action.)

36 Northwestern Fuel Co. v. Brock. 139 U. S. 216.

37 Hiler v. Hiler, 35 O. S. 645; Breading v. Blocher, 29 Pa. St. 347.

38 Breading v. Blocher, 29 Pa. St. 347, 349; quoted in Hiler v. Hiler. 35 O. S. 645.

An action in scire facias or a writ of restitution are neither indispensable at modern practice. A direct action for money had and received may be maintained.39 This right, however, has been limited in some states to cases where no order of restitution was made on reversal.40 The fact that restitution is asked and refused in the proceedings which result in reversal does not prevent a separate action in assumpsit.41 The statutory method of restitution is not exclusive and does not prevent an action in assumpsit.42 Trespass, however, will not lie if the judgment upon which the execution issued under which the judgment debtor's property was taken and sold was merely erroneous and not void. The debtor's remedy is in assumpsit.43 The right of action for money paid exists in favor of the real party in interest whose money has been paid to the judgment creditor, even if he is not a party of record.44 It lies against the judgment creditor to whom or on whose behalf money has been paid. Thus if money of a judgment debtor is applied to paying witness fees which should have been paid by the judgment creditor, the debtor's action on reversal is against the sheriff and he cannot recover from the witness.45 In an action for money had the debtor may recover the amount of the proceeds of his property, if it has been sold on execution, paid over to or on behalf of the judgment creditor.46 If the property sells for less than its value, or its seizure has caused other damage to the judgment debtor, it is evident that this right of recovery is inadequate. Accordingly in some jurisdictions the

39 Raun v. Reynolds, 18 Cal. 275; Haebler v. Myers, 132 N. Y. 363; 28 Am. St. Rep. 589; 15 L. R. A. 588; 30 N. E. 963; Clark v. Pin-ney, 6 Cow. (N. Y.) 298.

40 Duncan v. Kirkpatrick, 13 S. & R. (Pa.) 292.

41 Travelers' Ins. Co. v. Heath, 95 Pa. St. 333.

42 Haebler v. Myers, 132 N. Y. 363; 28 Am. St. Rep. 589; 15 L. R. A. 588; 30 N. E. 963.

43 Field v. Anderson, 103 111. 403.

44 Stevens v. Fitch, 11 Met. (Mass.) 248.

45 Gray v. Alexander, 7 Humph. (Tenn.) 16.

46 Thompson v. Reasoner, 122 Ind. 454; 7 L. R. A. 495; 24 N. E. 223; Martin v. Woodruff, 2 Ind. 237; Peck v. McLean, 36 Minn. 228; 1 Am. St. Rep: 665; 30 N. W. 759; Lewis v. Ry., 97 Wis. 368; 72 N. W. 976.

80 judgment debtor is not limited to this measure of damages, but may recover the value of his property so seized on execution.47