Osborn v. First National Bank
26 A. 289
Pa.
1893
Check Treatment

Opinion by

Mb.. Justice Green,

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 *137in Barnet v. National Bank, 8 Otto, 555, that in an action on a bill of exchange, the defendant could not set off a claim for twice the amount of illegal interest he had paid the bank; that his remedy for the wrong was a penal suit and he could have redress in no other mode or form of procedure. That set-off is not allowed in such actions is well settled.” And again, “ The plaintiff’s claim is not within the defalcation act which applies where the parties are ‘indebted to each other upon bonds, bills, bargains, promises, accounts or the like. It arises from the defendant’s violation of a statute, remedial and penal, which gives the borrower the right to recover back from the bank twice the amount of illegal interest paid, for the twofold purpose of compensation and example, the recovery being a recompense to the one and a punishment of the other.”

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*138tractu and actions ex delicto was not abolished, and that, although penalties could be recovered by action of debt, it was not the same class or bind of liabilities for which debt was the remedy at common law. Debt for penalties is in its nature ex delicto, whereas all other debt is in its nature ex contractu. It is assuming too much to say that because the action by which a recovery must be had for a penalty is assumpsit, under the act of 1887, therefore debt for a penalty is to be treated as if it were debt for an obligation arising ex contractu. Under the act of 1887 judgment can only be moved for, for want of an affidavit of defence “ in accordance with the present practice in actions of debt and assumpsit.” It certainly never was the law or practice, before the act of 1887, to take judgment for want of affidavit of defence in an action of debt to recover a penalty.

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.