Travellers' Ins. Co. v. Heath

• Decision Date: 18 October 1880
• Parties: The Travellers' Insurance Company <I>versus</I> Heath.
• Court: Pennsylvania Supreme Court

95 Pa. 333

The Travellers' Insurance Company versus Heath.

Supreme Court of Pennsylvania.

October 7, 1880.

October 18, 1880.

October 7th 1880.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 337.

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D. T. Watson and S. M. Raymond, for plaintiff in error.— This action of assumpsit cannot be maintained, because, the only evidence on the question of compulsory payment is the fact that a fi. fa. was issued, and the return of the sheriff. There was no levy upon the goods of Heath, and no aggressive steps to compel him to pay, except the mere fact that the fi. fa. was issued. On the issuing of the fi. fa. he paid the amount of the writ. The burden was on the plaintiff, to show payment by compulsion; failing in this he had no case. His only evidence to prove it was the fi. fa. We submit that the mere issuing of said writ did not sustain the burden: Colwell v. Peden, 3 Watts 327; Webber v. Aldrich, 2 N. H. 461; Knobbs v. Hall, 1 Esp. 84; 3 Bos. & Pul. 520; Atlee v. Backhouse, 3 N. & W. 633; Wilcox v. Howland 23 Pick. 167; Borough of Allentown v. Saeger, 8 Harris 421.

Money collected or paid upon lawful process of execution cannot be recovered back in assumpsit, though not justly or lawfully due by the defendant in the execution to the plaintiff: Federal Ins. Co. v. Robinson, 1 Norris 359; Finnel v. Brew, 2 W. N. C. 622; Walton v. Robb, 1 Ashmead 43; Herring v. Adams, 5 W. & S. 459.

This was ruled in England so early as the case of Marriott v. Hampton, 7 Term Rep. 269, where the judges thought it was so clear that they would not even grant a rule to show cause why a nonsuit entered on this ground should not be set aside. It has there been carried so far that where money was paid after an action brought and before judgment entered, it was ruled, it could not be recovered: Hamlet v. Richardson, 9 Bing. 644; Milnes v. Duncan, 6 B. & C. 679; Fisher v. Sawnder, 1 Camp. 190.

The refusal of the writ of restitution was conclusive on Heath that he could not recover the money by him paid to the company: Breading v. Blocher, 5 Casey 349; Harger v. Commissioners, 2 Jones 251; Thorne and Heath v. Ins. Co., 30 P. F. Smith 28.

The count for money had and received is an equitable action, and under the general issue the defendant may go into all the equities of the case, and if he may in good conscience retain the money there can be no recovery: Barr v. Craig, 2 Dall. 151; Haldane v. Duche, 2 Id. 176.

The money which Heath paid was money belonging to the company which Thorne received by reason of the bond which Heath gave to the company. In equity and good conscience the company had the right to receive and retain it. The money which the company received from Heath was just what was due by reason of the recognisance of Heath as bail in error. The writ of error was not prosecuted with effect.

W. S. Purviance and H. W. Weir, for defendant in error.— Assumpsit is the proper action where money has been received under a judgment which has been reversed or where the court has no jurisdiction: Duncan v. Kirkpatrick, 13 S. & R. 294; Newdigate v. Davy, 1 Raymond 742; Marriott v. Hampton, 2 Esp. N. P. Rep. 546-48 note.

Mr. Justice STERRETT delivered the opinion of the court, October 18th 1880.

After reversal of the judgment obtained by the present plaintiff in error against Robert Thorne and his sureties, it was finally determined, on the second trial, in accordance with the judgment of this court, reported in 30 P. F. Smith 15, that the insurance company had no right to recover the amount of the premiums, &c., for which suit was brought, for the reason that the company, during the time that Thorne, acting as its agent, collected the same, was doing business within this Commonwealth in direct contravention of the law relating to foreign insurance companies. It was held in that case that the legislature had a clear right to prescribe the conditions under which foreign corporations may do business in this state, and the mode of appointing and qualifying their agents, and that actions, based upon transactions prohibited by the statute cannot be maintained in our courts. The general principle, underlying the decision, is that courts will not aid a party in an action grounded on an immoral or illegal act; and it is right that it should be so, because if foreign insurance companies were aided by our courts in gathering the fruits of their illegal acts done in palpable violation of the statute, it would soon become practically a dead letter as to many of them.

For the reasons stated, it was thus definitively settled that the Travellers' Insurance Company had no legal claim upon the bond against either Thorne or his sureties for the premiums collected by him; and it is difficult to understand upon what principle of equity or sound morality the company could claim to collect and retain, as against one of the sureties, money which represented the fruit of illegal transactions.

The first writ of error sued out by Thorne and his sureties was non prossed by this court in 1874, whereupon the record was remitted and an execution was issued, upon which, according to the sheriff's return, the money was collected from John Heath, one of the sureties. An alias writ of error was then purchased, and upon it, in 1875, the judgment was reversed and a venire facias de novo awarded. The new trial resulted in a verdict and final judgment in favor of Thorne and his sureties, as above stated. The present action was then brought by John Heath to recover back the money which he was compelled to pay on the execution, and to which, according to the final judgment of the court, the defendant company had no legal claim....