16 mnamn nmrommn.
$1,216.25, had and received by the defendant to the use of the plain-
tiff. The defendant demurs to the complaint, for that it does not
state facts sufficient to constitute a cause of action. It is alleged in
the complaint that on March 19, 1878, the defendant received from
the county clerk of Clatsop county, to and for the use and beneht of
the plaintid, said sum of money, which of right should have been paid
to him; that such clerk received said money as the clerk of the cir-
cuit court for said county from the sheriff thereof, as a part of the
proceeds of the sale of certain real property theretofore sold by him
to G. W. Parker, on a decree of said court, in a suit wherein- J. C.
Trullinger was plaintiff, and N. Kofoed, Mary Kofoed, G. W. Parker,
and the parties hereto weredefendants ; that the money. paid to de-
fendant as aforesaid was so paid in accordance with an erroneous
provision in said decree, which, on appeal to the supreme court of
Oregon, was thereafter, on August 25, 1879, so modified that the
plaintiff was thereby adjudged to be entitled to the said$1,216.25,
but the defendant still retains the same and refuses to pay it over to
_ the plaintiff, although often requested so to do.
. The law is well settled that on the reversal of a judgment an obli-
gation arises on the part of the party to the record who has received
the benefit of the erroneous judgment to make restitution to the other
party of or for what he has thereby lost. The reversal of the judg-
ment gives a right of action as between the parties thereto, and cre-
ates an obligation against the one who has had the benefit of the
same to restore to the other what he has thereby lost. At one time
it was the practice to obtain this restitution, either by a writ of resti-
tution when the record showed what had been lost or what money had
been paid, and in other cases by a scirefacias quam restitutionem non,
issued out of the court where the judgment was given. But with the
growth of the action for money had and received, these proceedings
fell into disuse, and the obligation to restore has long since been en-
forced by action; `and under the Code there is no other remedy that
I am aware of. Bunk of U. S. V. Bank of Washington, 6 Pet. 17, 19;
.Clark v. Pinncy, 6 Cow. 299. And see Yates v. Joyce, 11 Johns. 140;
Hcxter v. Pcppleton, 9 Or. 482; Bapalje & S. Law Dict., "Restitu-
tion," “Scirc Facia.;."
Upon the facts stated in the complaint, this seems to be a' clear
case for recovery. There appears to have been a decree of the cir-
cuit court for Clatsop county, ascertaining and determining the rights
_ of the parties in the suit mentioned therein, in a fund then in court
or to be there, arising from the sale or disposition of certain property
in pursuance of the order of the court, which decree erroneously gave
the sum now sued for to the defendant herein instead of the plaintiff,
and for that reason was reversed on an appeal to the supreme court.
By this erroneous decree the plaintiff lost the $1,216.25 that the de-
fendant obtained; but, as soon as it was reversed, thelaw created
an obligation against the latter. to return what it then appeared did