Cowden v. Hureord

4 Ohio 342

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 court, 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.

(a)

Por the form of a scire facias guare restitutionem non, see Bill. Ent. 641, 650; and for the form of a restitution, see Tidd’s Prao. Porms, 541, 542.