The opinion of the Court was pronounced by
Hutchinson, C. J.On general principles the effect of the reversal of a judgement is to do atvay that judgement, and place *172the parties in the same situation they were in before the judgement was rendered. If the debtor has paid the judgement before ai.reversal he can recover it back afterwards. Upon the same principle, if he has given his note for the amount of the judgement, and the judgement is afterwards reversed, the consideration of the note fails, and no action can be sustained upon it. And, in' these respects, it makes no difference, whether the reversal is because of error merely, or because of irregularity. Otherwise, when an officer is called to account for his proceedings under an execution, and the judgement upon which such execution issued is afterwards reversed.
We must now consider, whether the singular shape in which this dispute is presented,varies it from the cases above mentioned. If Brown and Gleason were bound by the agreement of Broiori to discharge their joint complaint, their after prosecuting the same was a fraud upon the plaintiff, if they were not thus bound, it would not so operate. But it appears by the audita querela, and pleadings and decision therein, that the plaintiff made use of the discharge given by Broiun, in his defence to that complaint ; and the Supreme Court decided against that defence. They must have done so in reversing the judgement. It is easy to conceive a possible case, in which such a discharge ought not to prevail as a defence. Gleason might have been the principal, and Brown only his surety ; and Brown's interference might have been wrong as to Gleason, especially if Brown would afterwards claim an indemnity from Gleason. In such a case, Gleason would have the equitable right to pursue the audita querela, as well to reverse the plaintiffs judgement, as to prevent all appearance of his being hoklen to indemnify Brown.
That judgement of reversal remains in full force, and we must now consider it a correct decision between the parties. It may well have been so, as the issues were presented to the Court. It appears on inspection, that the present plaintiff interposed two pleas in thatcase¡ One was a payment in full to Broivn. This was not pleading according to the legal effect of the evidence relied upon* and was demurred to; and correctly adjudged td be ail insufficient plea. The other plea was that of payment to both the complainants. This, if true, presented a good defence. But it was traversed, and found not true. If the discharge of Brown was presented as evidence of payment, it may have been met with testimony showing that Brown had no right to make such a settlement, and leave it binding upon Gleason. In this, or *173some other way, the plea Was met* and the judgement was reversed, and this changes the situation of the parties. If Brown pays the demand now, he has no claim upon Gleason for an indemnity even if he had acted with strict integrity in making his settlement with the plaintiff, but with incorrect views of his power so to act. Moreover, if the plaintiff ever had any cause of action against Broivn and Gleason, when he sued them, and recovered hisjudgement, that cause of action was revived, the moment that judgement was reversed. The giving of the note and paying the same, might amount to a defence to the original cause of action : but the giving the note alone to satisfy the judgement, can have no such effect, after the judgement is reversed. The plaintiff must have known that he run some risk in thus settling with Brown, without th^ concurrence of Gleason, unless he knew that Brown was principal, or that the settlement would conform to the wishes of Gleason.
Fletcher & J. Mattocks, for plaintiffs. Cushman & Shaw, for defendant.The judgement of the county court is affirmed.