Page:John P. Branch Historical Papers - Volume 2.djvu/307

160 can be relinquished by a release of all suits and actions. This is the case of a writ of error. That writ of error is to be released as a suit and therefore is a suit, by means of which the plaintiff is to recover or be restored to anything ; although it is otherwise, as in the case of the reversal of an outlawry, &c., in which nothing had been recovered against the plaintiff. The plaintiff in error is restored to the thing recovered against him by the mere reversal of the judgment. It is not necessary that his money should have been taken from him and put into the pocket of the defend. ant. There need not be a change of possession or constitute a restoration of the property. And in some cases as where the goods are sold to a stranger, there cannot be a literal restoration of the property of the plaintiff in error. In those cases he is only restored to the money, No argument can be drawn against this construction from the form of the judgment. It is true the judgment in this case is only “quoad judicium reverseter,” and no positive judgment is rendered by the appellate court for anything. Its effect is however the same. I retain my own property, and in fact recover it from you as well by destroying your judgment for it, as by obtaining a judgment against you in my own name.

The court, for the purpose of softening the case, and withdrawing writs of error from operation of the eleventh amendment, is pleased to style a writ of error “a commission,” &c., yet it is also obliged to admit that it is an action, by admit. ting that a release of all actions will release a writ of error by which a party “recovers” or “is restored to" any thing. As plaintiffs, failing to recover anything in the