Wright v. Aldrich

60 N.H. 161

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1880
• Status: Published

Opinion

Allen, J.

In Little v. Bunce, 7 N. H. 485, it was decided that when a judgment in favor of one party is reversed upon error or review, the only remedy for restitution is against a party to the record. The defendant here was neither party of record nor in interest in the case of Arthur R. Aldrich v. Wright, but only attorney for the plaintiff in that action. When he collected the avails of the original judgment and applied them to his own claim and the claims of others under the direction of his client, he was acting in good faith, in the ordinary course of business, under a judgment not then vacated, and which he could have had no reason to suppose would be vacated. The title to chattels purchased at an execution sale is not affected by a subsequent reversal of tbe judgment, and the voluntary assignment of a note, or the payment of money by the execution debtor to the plaintiff’s attorney, in satisfaction of the debt, cannot, for reasons equally good, be impeached, when afterwards the judgment may have been vacated. Little v. Bunce, supra, citing Soe's Case, 8 Coke (London, 1826) 181; Drury's Case, 4 id. 418; 2 Tidd Prac. 1138. Even if the application of the money by the defendant to the payment of a part of his own claim had not been made, but remained in his hands as a collector for Arthur R. Aldrich, it could not be recovered in this action, for the defendant was not a party to the original suit. Rex v. Leaver, 2 Salk. 587. In such a case it would be necessary for the plaintiff to proceed by trustee process, or some other equitable form of action.

Judgment for the defendant.

Bingham and Smith, JJ., did not sit: the others concurred.