Gould v. McFall ( 1888 )

Opinion,

Mk. Justice Paxson :

This was a rule to show cause why a writ of restitution should not issue.

Restitution is not of mere right. It is ex gratia, resting in the exercise of a sound discretion, and the court will not order it where the justice of the case does not call for it, nor where the process is set aside for a mere slip : Harger v. Washington County, 12 Pa. 251. It is settled law that one who voluntarily pays money with full knowledge or means of knowledge of all the facts, without any fraud having been practiced upon him, cannot recover it back by reason of the payment having been made in ignorance of the law: Real Estate Savings Institution v. Linder, 74 Pa. 371; Irvine v. Hanlin, 10 S. & R. 219; Espy v. Allison, 9 W. 462; Boas v. Updegrove, 5 Pa. 516; During’s App., 13 Pa. 224; Natcher v. Natcher, 47 Pa. 496; Deysher v. Triebel, 64 Pa. 383. Money paid on the compromise of a litigated claim is paid on a good consideration, and if voluntarily paid cannot be recovered back: Natcher v. Natcher, supra; Colwell v. Peden, 3 W. 327; Lackey v. Mercer County, 9 Pa. 318. It was said by Chief Justice Gibson, in the case last, cited: “ A single fact in the cause turns the scale against the plaintiff; the payment was voluntary.”

So we say in the case in hand, the payment was voluntary. The money was paid by Mrs. Gould’s attorney to the attorney of the plaintiff in the writ. It is true there was an execution out and a levy upon her real estate. A sale upon this execution, however, would not have passed the title. It had issued upon a judgment which this court, per Gordon, J., has declared void. In Colwell v. Peden, supra, where the subject was carefully considered on principle and authority, it was ruled that an action cannot be maintained to recover back money paid under an impending distress not attended with oppression or an abuse of the remedy, but made in good faith for rent erroneously supposed to be in arrear. And the general principle appears to be that money voluntarily paid upon a claim of right cannot be recovered back, however unfounded such claim may afterwards turn out to be. We are not now considering the line of cases where the process of the law has been abused for the purpose of extortion, but where it was used bona fide to enforce what was supposed to be a right. The suit in this case was to recover for certain groceries sold by McFall, the plaintiff, to Mrs. Gould, a married woman, for the support of herself and family. They were necessaries, and, if actually sold as alleged, the plaintiff would have had a right to recover, had he made the necessary proof. He took a judgment by default, and this court decided that such proof had not been made and reversed the judgment. We see, however, no equity which should move us to award restitution.

We see no hardship in the case, and if there were, we prefer to hold to well established principles. This was a voluntary payment and restitution must be refused.

Rule discharged.