Stroh v. Kimmel

Per Curiam. These specifications of error resolve themselves into a single point—the plaintiff’s right to demand the .damages recovered of him, before they were paid. An action for money paid to the defendant’s use, is grounded on an implied promise which is raised out of the consideration of actual payment; ■ánd a mere liability to pay will consequently not raise it. So would it be in this action, were the promise that the defendant would reimburse the plaintiff what he should actually disburse on the defendant’s account; but it was a promise of general indemnity which ■was broken by the recovery of the judgment; and what is the compensation? Certainly no less than will make the party whole; and he is not whole while he is instantly and incessantly exposed [159] to the peril of arrest and imprisonment. Is not such a predicament proper for compensation? There is no reason why payment should precede recourse to the party ultimately liable, when it is not necessary for his security; for the original owner- of the property could not recur to him on the judgment or on the right of property divested by it. The money, when recovered of him, may not be applied to the preceding judgment; but still the person and property of the judgment debtor would be liable for it. Were he committed on execution, it would not be pretended that he could not recover to the extent of the judgment; yet the money, when put into his hands, might be misapplied. But what is that to the ultimate debtor? Actual application of it is not necessary to his safety; and it is consequently a matter betwixt the intermediate debtor and his creditor. The latter may be unable to advance the money; and his poverty might present an insuperable bar to redress, could he not take it, in the first instance, from the pocket whence it is ultimately to come. The very point seems to have been decided in Miller v. Howry, 3 Penn. Rep. 374, and Bank v. Douglass, 4 Watts 95; but on principle the case is a clear one. Judgment affirmed.