Byrnes v. Hoyt , 12 Me. 458 ( 1835 )

Weston C. J.

The rule laid down la Parker v. Harris, 1 Salk. 262, that where judgment is given for the plaintiff, and the defendant brings error, there shall only be judgment to reverse the former judgment, for it is to be eased and discharged of that only that the suit is brought, was cited as a subsisting one in Clements v. Waller, 4 Burrow, 2154, and was expressly recognised by Lord Mansfield, in Cummings v. Sibley, 4 Burrow, 2489. Dane also states this as a general rule, in his abridgment. 5 Dane, ch. 137, art. 13, <§> 23. And this we understand, upon inquiry, to have been our practice, whieh we are not at liberty to change, whatever it may have been elsewhere.

The plaintiff in error, then, by the reversal, is entitled to be restored to what he lost directly by the judgment, which he succeeded in reversing; and not to his costs in the original suit, to which he would have been entitled, if judgment had been rendered in his favor. This is the measure of relief, which our law allows to a defendant, aggrieved by an erroneous judgment. It restores to him what he has paid, but does not give him the costs, which if the right judgment had been originally rendered, he would have been entitled to have received.

As the amount paid by the plaintiff in scire facias, who was also plaintiff in error, appears of record, by the return of the original execution against him, he is to have judgment for that sum, with the costs of the present suit.