Freeman v. Norwell , 25 Ga. 359 ( 1858 )

By the Court.

Benning, J.

delivering the opinion.

Norwell, the defendant in the original action, having failed to give the bond required to be given by the Act, (of 1821,) Yancy G. Freeman, the plaintiff in that action, gave it, and thereupon, received the possession of the negroes for which the action was brought, Yancy G. Freeman then dismissed his action, (a judgment of dismissal being entered,) and, instead of restoring the negroes to Norwell, held on to them.

Was this a breach of that condition of his bond, which required, that he should “ produce said negroes, to answer such judgment, execution, or decree, as” might “ be issued or rendered in the case ?”

I think that it was. I think, that the judgment of dismissal by itself, gave to Norwell the right to an immediate restitution of the negroes, and rendered it the duty of Freeman,, to make the restitution. This, I think, was the legal effect of the judgment.

Such, I understand to be the effect of the reversal of a judgment under which money has been paid. “ If judgment be reversed, the party shall be restored to all that he has lost by occasion of the judgment; and a writ of restitution shall be awarded. When the plaintiff has execution, and the money is levied and paid, and the judgment is afterwards reversed, there, because it appears on the record, that the money is paid, the party, we have seen, shall have restitution without a scire facias ; for there is a certainty of what was lost: otherwise where it was levied but not paid; for there must then be a scire facias, suggesting the matter of fact, viz: the sum levied, &c.” 2 Tidd’s Pr. 1186.

Here, it seems, that the right to have restitution on the one part, and the duty to make it on the other, is the direct result of the mere judgment of reversal, per se.

Indeed, I believe, that we are all agreed, that the judgment of dismissal did have the effect, to confer on Norwell the right to an immediate restoration of the negroes, and to impose on Freeman the duty of making that restoration.

Freeman failed to restore them, was not that a failure to “ produce” them “to answer” the “judgment” “rendered in the case?” I think it was. The judgment of dismissal in legal effect, said to Freeman, restore the negroes. He failed to restore them. This was failing to produce the negroes, to answer the judgment.

I think, then, that the judgment of dismissal, followed by the failure to restore, was a breach of the condition of the bond: and therefore, that the demurrer to the declaration, was well overruled by the Court below.

I admit, that Norwell might have entered up a judgment for restitution against Freeman, or have had a writ of restitution against him without entering up such a judgment; ■"but, I think, that there was no necessity for Norwell’s doing either, in order to make it his right to have, and Freeman’s duty to render restitution; this right and this duty, having already, as I conceive, resulted from the judgment of dismissal. Indeed, if they had not, Norwell could not be entitled to enter up judgment of restitution, or entitled to causei to be issued, the writ of restitution without entering up such a judgment; the title to do either, depending entirely upon such right as he derived from the judgment of dismissal.

Judge McDonald thinks, if I understand him aright, that a judgment of restitution, or, at least, a writ of restitution, was necessary, before there could be a breach of the condition.

I have given my reasons for thinking neither necessary. I think, that requiring either, in cases of this kind, would also be inexpedient. If either were required^ it would also be necessary to require, that it should be founded on notice to the party in possession; otherwise requiring it, would be worthless to him; and in many cases, as in this, (according to the declaration which is admitted by the demurrer,) he would be out of the State, beyond the reach of notice. In. such cases therefore, requiring a notice, would be denying redress; and that would, practically, be taking part with one who, armed with his wealth alone, has abused the very law itself, to wrench from the hand of poverty, what is, perhaps, its all. ,

I'think the judgment ought to be affirmed.

Judgment affirmed.

Lumpkin, J. concurred.