3 Watts 327 | Pa. | 1834
Lindon v. Hooper, Cowp. 414, which was ruled by a judge not remarkable at any time for adherence to forms of action, and expressly against the bent of his inclination in the particular instance, is similar in all respects to the case at bar, except that the distress there was for damage feasant. But the principle has since been followed out in Webber v. Aldrich, 2 N. H. Rep. 461, and Knibbs v. Hall, 1 Esp. R. 84, where money paid under an impending distress for rent was not suffered to be recovered back. There are doubtless other decisions not very obviously reconcilable to the principle of these, in which assumpsit lias been held to lie for an exorbitant sum paid to redeem goods from pawn; or to procure admission into a copyhold; or to procure the renewal of a license; or to recover back toll unduly exacted by a gate keeper: for in these cases, says Mr Starkie, in the second volume of his Evidence, p. 65, where the authorities are collected, the parties are not on a footing, and the the payment cannot be considered as voluntary. Perhaps the line of distinction may be more accurately drawn between cases where a legal remedy has been used as an instrument of extortion, and those where it has been used bona fide to enforce what was supposed to be a right. A defendant having paid an unfounded demand to be .released from an ordinary arrest, would certainly not be allowed to recover the money back; but his title would be incontestable if it appeared that he had been pounced upon among strangers and the money wrung from his inability to procure bail. So an innkeeper who had extorted an overcharge by detaining the cattle and baggage ■of a traveller, on pretence of enforcing his lien, could not allege that the payment was a voluntary one. These would be clear cases of oppression. But it has been said, and it is the pinch of the argument, that a landlord who distrains where nothing is due, being primarily a trespasser by statute and by common law, is necessarily a wrongdoer in the first instance; and that so much cannot be affirmed of a plaintiff suing for an unfounded demand, who may become a trespasser but for an abuse of the process and by relation. He may however be a wrongdoer and an extortioner without being a trespasser, as in the instances already noticed in the collection of Mr Starkie. That such a plaintiff is a wrongdoer, even at the common law, is shown as well by the amercement to which he was subjected, as by the statutory imposition of costs which has succeeded ■the amercement in practice. The question in these cases, therefore, seems t,o be, not whether the party was originally a trespasser, but whether he was a wilful wrongdoer and sought an undue advantage from the abuse of a remedy given him for a better purpose. Now, though a landlord who distrains for what is not demandableis in strictness a trespasser, he is not necessarily a voluntary one, as he may have transactions with his tenant which leave it doubtful whether the rent be not satisfied in fact, or extinguished in law; and in doubtful circumstances it surely would not be an abuse of the re
. Judgment reversed.