118 Pa. 455 | Pa. | 1888
Opinion,
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
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
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.