154 Pa. 134 | Pa. | 1893
Opinion by
This action is brought to recover penalties for taking usurious interest under the act of Congress of June 3, 1864, sections 5197 and 5198. That the sums sought to be recovered are penalties, pure and simple, cannot be doubted, and has already been decided by. this court. In a similar action, Lebanon National Bank v. Karmany, 98 Pa. 65, Mr. Justice Trunkey in delivering the opinion of the court said, “ It was decided
In the case of Boyle v. Smithman, 146 Pa. 255, we held that in an action to recover penalties under a statute, the defendant can neither be compelled to testify against himself, nor to produce his books to be used as evidence against him. Our brother Williams said in the opinion, “ The act of 1878 is highly penal. This action is in form a penal action. Its object is to punish the defendant for disobeying the direction of the statute, by imposing penalties amounting to about eighty thousand dollars. The defendant could not be compelled to testify against himself as a witness, and for the same reason he cannot be compelled to aid in his own conviction by the production of his books and papers. He had an unquestionable right to insist upon his privilege, and the court was bound to protect him in the enjoyment of it.”
As a matter of course it must be conceded that, independently of the act of 1887, P. L. 271, no affidavit of defence could be required in any action to recover penalties. It is claimed however that the act abolished the distinction between the different forms of action, ex contractu, and directed that the action of assumpsit be brought in all cases of demands recoverable theretofore in debt, assumpsit or covenant. And because the fourth section contains a provision that in the action of assumpsit judgment may be taken for want of an affidavit of defence, it is argued that this includes actions for penalties because they were recoverable by action of debt. But this contention entirely overlooks the fact that the distinction between actions ex con
We hold that where the action is debt to recover a penalty, no affidavit of defence can bo required in order to prevent judgment, for the double reason that the proceeding is substantially an action ex delicto, and that being an action to recover penalties the defendant cannot be required to. furnish evidence against himself.
Judgment affirmed.