Cowden v. Hureord

Ohio Supreme Court

Cowden v. Hureord

4 Ohio 342

DecidedDecember 15, 1829

StatusPublished

This text of 4 Ohio 342 (Cowden v. Hureord) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cowden v. Hureord, 4 Ohio 342 (Ohio 1829).

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Opinion

By the Court :

A judgment of restitution is strictly a judgment which the court have inherent power to execute. 12 Serg, & Rawle, 292. And the [343]*343court, in the case cited, hold that where this judgment of restitution is rendered, assumpsit will not lie for the money.

But the court are now called upon to point out the manner of executing this judgment. If the judgment of reversal contain-evidence of the precise thing to be restored, the writ of restitution may be awarded. Cro. Car. 699. But where the matter to be restored is not specified in the judgment, but depends upon evidence dehors the record, it is inconsistent with the policy of the law to permit execution without an opportunity given to the other-party to make his defense.

The proper remedy in such ease is the writ of scire facias. Saund. 101, y; 2 Salk. 583.

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By the Court :

A judgment of restitution is strictly a judgment which the court have inherent power to execute. 12 Serg, & Rawle, 292. And the [343]*343court, in the case cited, hold that where this judgment of restitution is rendered, assumpsit will not lie for the money.

But the court are now called upon to point out the manner of executing this judgment. If the judgment of reversal contain-evidence of the precise thing to be restored, the writ of restitution may be awarded. Cro. Car. 699. But where the matter to be restored is not specified in the judgment, but depends upon evidence dehors the record, it is inconsistent with the policy of the law to permit execution without an opportunity given to the other-party to make his defense.

The proper remedy in such ease is the writ of scire facias. Saund. 101, y; 2 Salk. 583.

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Bluebook (online)

4 Ohio 342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cowden-v-hureord-ohio-1829.