sedeas thereon, for the reversing of any judgment in debt upon a single [sic] bond, or a bond with condition for the payment of money only, or in debt for rent, or upon any contract, unless the plaintiff in error, with two sufficient sureties, should first be bound to the plaintiff in the judgment, "by recognizance, in double the sum recovered by the former judgment, to prosecute the writ of error with effect, and also to satisfy and pay, if the said judgment should be affirmed, or the writ of error non-prossed, all and singular the debts, damages, and costs, adjudged upon the former judgment; and all costs and damages to be awarded for the delaying of execution." This statute was specific as to the cases in which bail in error (as it was called) was required, and it was frequently held that it could not be required in any other cases. 2 Sellon's Pract. 367-374; 2 Tidd, 1150. Subsequently by the statute of 13 Car. II., c. 2, as enlarged by 16 & 17 Car. II., c. 8, the same recognizance was required to stay execution in all personal actions in which a judgment was rendered upon a verdict, and in most cases double costs were given in case the judgment was affirmed; and in writs of error upon judgment after verdict in dower and ejectment it was provided that execution should not be stayed unless the plaintiff in error should be bound to the plaintiff, in such reasonable sum as the court below should think fit, with condition, that if the judgment should be affirmed, or the writ of error discontinued, in default of the plaintiff in error, or he should be nonsuited therein, that then he should pay such costs, damages, and sum or sums of money as should be awarded upon or after such judgment affirmed, discontinuance, or nonsuit; and to ascertain the sum and damages to be awarded, it was provided that the court should issue a writ of inquiry as well of the mesne profits as of the damages by any waste committed after the first judgment in dower or ejectment, and give judgment therefor and for costs. This was the form in which the law stood for more than a century prior to our Revolution, and is believed to have generally prevailed in this country either by force of the English statutes, or similar statutes adopted by the Colonies themselves down to the time of the passage of the Judiciary Act by Congress in 1789. See 1 Rev. Laws of N. Y. (1813), p. 143, act of 1801; Acts of New Jersey, Feb. 1, 1799, and Feb. 28, 1820, Elmer's Dig. 159, 160; Act of Maryland, 1713, c. 4, 1 Kilty's Laws; and Alexander's British Statutes in force in Maryland, 16 & 17 Car. II., c. 8. In Virginia, by the act of 1788, it was provided that before granting any appeal from a county to a district court, or issuing any writ of error or supersedeas, the party praying the same should enter into bond with sufficient security, in a penalty to be fixed by the court or judge, with condition to pay the amount of the recovery, and all costs and damages awarded, in case the judgment or sentence should be affirmed; and the damages were fixed at ten per cent per annum upon the principal sum and costs recovered in the inferior court; and the same provisions were applied to appeals and writs of error to the

court of appeals. By the act of 1794, on appeal from a decree in equity to the High Court of Chancery, the condition of the appeal bond required was, to satisfy and pay the amount recovered in the county court, and all costs, and to perform in all things the decree, if the same should be affirmed. Laws of Virginia, ed. 1814, pp. 87, 115, 448. In Massachusetts, as appears by an early case (1804), a supersedeas was granted upon the plaintiff in error giving bond to respond all damages and costs in case the judgment should be affirmed. Bailey v. Baxter, 1 Mass. 156. In Pennsylvania, where the judgment was affirmed upon a writ of error, the execution included the interest from the date of the original judgment. Respublica v. Nicholson, 2 Dall. 256.

It is thus seen that, in the case of money judgments, bail in error was required to secure, 1, the amount of the original judgment; 2, the costs and damages occasioned by the delay of execution. In the case of dower and ejectment, where the main thing in controversy was land, bail was required to secure only such costs, damages, and money as should be awarded after affirmance of judgment, for mesne profits and waste pending the appeal." 1

1

MURRAY v. EMMONS.

SUPERIOR COURT OF JUDICATURE, NEW HAMPSHIRE. 1853.

26 New Hampshire 523.

[ERROR to reverse a judgment against the plaintiff in error for $112.86 costs. The appellate court decided that the judgment should have been for $87.24, and entered judgment in favor of the defendant in error for that amount].2

Chapman, for the plaintiff in error, suggested that execution had been issued in the common pleas for the amount of the judgment there recovered, and that the same had been satisfied by his client.

EASTMAN, J. If that be so, then the plaintiff in error must have judgment of restitution. When a judgment is reversed upon a writ of error, the party against whom the judgment was rendered in the court below, must be restored to all that he has lost by the erroneous judgment. If an execution has issued against him, and has been extended upon his lands, he is entitled to his possession and seizen, together with the mesne profits. If the execution has been satisfied

1 Statutes in the United States ordinarily require a party seeking appellate review to file a bond, generally called an appeal bond.

2 This statement is much condensed, and the opinion of the court on the question of costs is omitted.

by his goods or money, he is to have restitution of the defendant in error, in money.

Upon establishing the fact of the satisfaction of an erroneous judgment, either by a return of the execution issued, or by affidavits, the court will grant leave for a suggestion of the fact upon the record, and that judgment of restitution be awarded. Eames v. Stevens, 26 N. H. 119.

Accordingly, upon the facts stated by the counsel being made to appear by evidence, a judgment for the plaintiff in error will be made up according to the views here expressed.1

1 See Sympson v. Juxon, Cro. Jac. 699 (C. P. 1625) (restitution of profits of land); Ashton v. Heydenfeldt, 124 Cal. 14 (1899); Haebler v. Myers, 132 N. Y. 362 (1892).

Suppose that a judgment for $100 is recovered against defendant, and is collected by levy on the defendant's property pending the decision on a writ of error brought by him. If the judgment is reversed, can the defendant recover $100 from the plaintiff in general assumpsit? See Hosmer v. Barrett, 2 Root 156 (Conn. 1794); Clark v. Pinney, 6 Cow. 298 (N. Y. 1826). Suppose defendant had voluntarily paid the judgment? Compare Scholey v. Halsey, 72 N. Y. 578 (1878), with Gould v. McFall, 118 Pa. 455 (1888). See Restatement, Restitutions (1937) § 74.

ERROR to the Circuit Court of the United States for the District of Oregon.2

MR. JUSTICE FIELD delivered the opinion of the court.

This is an action to recover the possession of a tract of land, of the alleged value of $15,000, situated in the State of Oregon. The plaintiff asserts title to the premises by a patent of the United States issued to him in 1866, under the act of Congress of Sept. 27, 1850, usually known as the Donation Law of Oregon. The defendant claims to have acquired the premises under a sheriff's deed, made upon a sale of the property on execution issued upon a judgment recovered against the plaintiff in one of the circuit courts of the State. The case turns upon the validity of this judgment.

It appears from the record that the judgment was rendered in February, 1866, in favor of J. H. Mitchell, for less than $300, including costs, in an action brought by him upon a demand for services as an attorney; that, at the time the action was commenced and the judgment rendered, the defendant therein, the plaintiff here, was a non-resident of the State; that he was not personally served with process, and did not appear therein; and that the judgment was entered upon his default in not answering the complaint, upon a constructive service of summons by publication.

The Code of Oregon provides for such service when an action is brought against a non-resident and absent defendant, who has property within the State. It also provides, where the action is for the recovery of money or damages, for the attachment of the property of the non-resident. And it also declares that no natural person is subject to the jurisdiction of a court of the State, "unless he appear in the court, or be found within the State, or be a resident thereof, or

1 See Scott, Fundamentals of Procedure (1922) 34-69; Note, 50 Harv. L. Rev. 1119, 1124-1136 (1937).

2 The detailed statement of facts is omitted.

have property therein; and, in the last case, only to the extent of such property at the time the jurisdiction attached." Construing this latter provision to mean, that, in an action for money or damages where a defendant does not appear in the court, and is not found within the State, and is not a resident thereof, but has property therein, the jurisdiction of the court extends only over such property, the declaration expresses a principle of general, if not universal, law. The authority of every tribunal is necessarily restricted by the territorial limits of the State in which it is established. Any attempt to exercise authority beyond those limits would be deemed in every other forum, as has been said by this court, an illegitimate assumption of power,,and be resisted as mere abuse. D'Arcy v. Ketchum et al., 11 How. 165. In the case against the plaintiff, the property here in controversy sold under the judgment rendered was not attached, nor in any way brought under the jurisdiction of the court. Its first connection with the case was caused by a levy of the execution. It was not, therefore, disposed of pursuant to any adjudication, but only in enforcement of a personal judgment, having no relation to the property, rendered against a non-resident without service of process upon him in the action, or his appearance therein. The court below did not consider that an attachment of the property was essential to its jurisdiction or to the validity of the sale, but held that the judgment was invalid from defects in the affidavit upon which the order of publication was obtained, and in the affidavit by which the publication was proved.1 . . .

If, therefore, we were confined to the rulings of the court below upon the defects in the affidavits mentioned, we should be unable to uphold its decision. But it was also contended in that court, and is insisted upon here, that the judgment in the State court against the plaintiff was void for want of personal service of process on him, or of his appearance in the action in which it was rendered, and that the premises in controversy could not be subjected to the payment of the demand of a resident creditor except by a proceeding in rem; that is, by a direct proceeding against the property for that purpose. If these positions are sound, the ruling of the Circuit Court as to the invalidity of that judgment must be sustained, notwithstanding our dissent from the reasons upon which it was made. And that they are sound would seem to follow from two well-established principles. of public law respecting the jurisdiction of an independent State over persons and property. The several States of the Union are not, it is true, in every respect independent, many of the rights and powers which originally belonged to them being now vested in the government created by the Constitution. But, except as restrained and

1 A majority of the court were of opinion that the judgment could not be attacked collaterally because of defects in these affidavits. So much of the opinion as deals with this matter is omitted.