Federal Insurance v. Robinson , 82 Pa. 357 ( 1876 )

Mr. Justice Shakswood

delivered the opinion of the court, October 10th 1876.

While it is well settled, as a general principle, that money voluntarily paid upon a claim of right cannot be recovered back, an exception has been recognised in the case of usury so paid. The reason of this exception is stated to be that it is money obtained by oppression and by taking advantage of the distresses of others, in violation of a law made for their protection. It is not therefore a voluntary payment; for the parties are not in pari delicto : Thomas v. Shoemaker, 6 W. & S. 183. The Act of Assembly of May 22d 1858, Pamph. L. 622, has not changed this rule, but has put a new period of limitation to an action to reclaim the usury, by providing that “ in all cases where any borrower or debtor shall heretofore or hereafter have voluntarily paid the whole debt or sum loaned, together with the interest exceeding the lawful rate, no action to recover back any such excess shall be sustained in any court of this Commonwealth, unless the same shall have been commenced within six months from and after the time of such payment.” It is evident that the act, by the use of the word “voluntarily,” did not intend to limit the action to cases of voluntary payment; though it may perhaps be argued that the limitation is only applicable to such cases, and not to a payment by duress or unlawful coercion of any kind.

There is another principle, however, which we think is applicable to this case and ought to rule it. Money collected or paid upon lawful process of execution cannot be recovered back, though not justly or lawfully due by the defendant in the execution to the plaintiff. The authorities for this position are many and clear: 1 Selwyn’s N. P. 82; 1 Archbold’s N. P. 267; Rapelje v. Emory, 2 Dall. 51, 231; Herring v. Adams, 5 W. & S. 459; Mann’s Appeal, 1 Barr 29; Boas v. Updegrove, 5 Id. 516. In the case of Rapelje v. Emory, supra, the money was recovered and collected of a garnishee in foreign attachment, in the island of St. Eustathius. It was held that the defendant in the attachment could not recover it of the plaintiff, though he had no notice of the proceeding. The reason is a very obvious one. An execution is the end of the law. To permit money so collected or paid to be reclaimed in a new suit, would lead to indefinite and endless litigation. If such suit could be maintained, then another might be brought to recover the money paid on the judgment and execution in it, and so on ad infinitum. Without saying that a defendant would be precluded from recovery of usury voluntarily paid on a judgment entered on bond and warrant of attorney, given for the original loan, we think the rule must be different where the payment is made upon process of execution, and where there is no allegation of actual collusion to evade the statute. The remedy of the defendant is an application to the court to open the judgment. The duty of the garnishee was to notify him of the attachment, and if he failed in this duty, the defendant must look to him for redress of the injury he has suffered by his neglect.

Judgment reversed.