Wheatley v. Waldo

Barrett, J. In order to entitle this court to revise the 'action of the county court upon the motion to set aside the verdict, it should, at least, clearly appear that the judgment is affected with error, on account of a mistake of the jury, of which it was the legal duty of the county court to take notice, and for which it was the legal duty of that court to set the verdict aside. The rule of damages was the proper subject of charge to the jury, and perhaps may be regarded as involved in some or all of the first three requests for a charge. What'was in fact the charge of the court on that subject does not appear from the case as it is before us, and for aught that-appears it may have been that the plaintiff was entitled to recover the $60. with interest. If so, then the -jury did not mistake the charge. If they did not mistake it, then of course, as no exception was taken to the charge, in this respect, there was no ground for disturbing the verdict either for mistake of the jury, or for error in the charge. The motion, as depending on the alleged mistake of the jury, must stand before the county court upon the evidence addressed to that court, tending to show such mistake, — and whether such a mistake had been made, was a question of fact, depending upon what the charge was, — which was known to the court, and how it was understood by the jury, as shown by the proof. Of the evidence on this matter of fact the county court were the sole judges, and their result in respect thereunto cannot be revised here, The exception in this respect must stand on the 4th and 5th causes assigned in the motion. As the case fails wholly to show that those causes were sustained as matter of fact, and found by the county court, it is clear that we have no sufficient ground for saying that that court committed any revisable error in denying the motion. [242] But it is proper further to say that we should hesitate long before we should establish the precedent, or give countenance to the idea, by a decision of the supreme court, that upon the fact alleged, and even proved, that the jury mistook the charge, and by reason thereof, .rendered a different verdict from what they would have rendered if they had not mistaken it, the verdict, as matter of law, is to be set aside on motion made to the court that tried the case. It is quite obvious to all who are conversant with courts, either as judges or lawyers, that a new and prolific means for assaulting verdicts would be opened; and many a lawful verdict would thus be imperilled on account either of the stupidity or duplicity of men, who often are less fit for jurymen than for other less responsible positions. It is clear that this subject should be left to the discretion of the county court, where the case is tried and all its circumstances and incidents are known and can be appreciated. Exception was taken to the refusal of the court to hold that the rule of evidence in penal actions was the proper rule in this case. This action is not to recover a penalty or forfeiture, hut only money that the one Who receives and holds has no lawful right to receive and hold; the receiving of which is regarded as Wrongful, as being against the prohibition of the statute and therefore tortuous. This, action, under our present statute, is given to the party who pays the usury, — but it has ever been regarded in this State as remedial and not penal — as was said by Judge Prentiss, in Hubbell v. Gale, 3 Vt. 266. Whatever has since been said or held by the court in subsequent cases, as to the character of the 'act of taking usury, and the z’emedy given for its recovery, or of the right of the person alone who pays it to recover or re-claim it, has in no sense been intended to characterize the action .for its recovery under the statute as penal, but simply to develope the reason why the remedy was confined to the party paying, and to the form of action given by the statute. . [243] There was no error then in this respect. The remaining questions arise upon the 4th and 5th requests of the defendant’s counsel for a charge, and. the charge as given in respect thereto. It is well settled as a principle of the common law, that payments voluntarily made by a party knowing all the facts, cannot be recovered back — however unjust the claim on which it was paid. It is equally well settled that a party to a suit, in which- he either has actually litigated, or properly might have litigated, by way of defence, the matter of claim on which said suit was predicated, is concluded by the judgment from thereafter opening said matter by a fresh suit in his own favor. Again, it is well settled that a party who makes payment upon compulsory process under protest, may recover back such payment by suit, in case it was unlawful to compel such payment. But it is well understood and fully shown by the cases, that compulsory process in this respect is such as warrants the party holding it, by virtue of its precept, to compel the payment, by levy or distress, in case the other party neglects or refuses to satisfy it without such levy or distress — such as execution upon a judgment in the hands of an officer, or tax bill and warrant in the hands of a collector. Any thing short of this is not regarded as payment compelled by process, unless when mesne process against the body might be used as an instrument of actual duress to extort satisfaction of an unlawful claim. The payment of a claim, on account of being sued on it, at any stage before final judgment and execution, is regarded voluntary, and, if made with full knowledge of the facts, cannot be recovered back any more than if it had been made on demand, without suit. These propositions are. fully sustained by the numerous authorities that have been cited in the argument by the defendant’s counsel. The payment made by the plaintiff in this case must then be regarded as voluntary, as well as that which he made after he was sued on the $37. note as what he had paid before ; and so if the plaintiff’s right of recovery in this case stands on the doctrine and principles of the common law, he would not be entitled to [244] maintain his suit for the usury paid to the defendant. But it is insisted that he should have permitted the suit to have gone on, that was brought against him, and have availed himself of his rights in respect to the usury paid by him in defence to that suit. No caso has been cited, and we think none exists, to support this view. The cases which are relied on in this respect, go only on the ground that payments made upon claims put in suit before proceeding to judgment, are voluntary payments, and so, on common principles, could not be the subject of a recovery back in a suit by the person making them, — or on the ground that the pending suit proceeded to judgment, and the judgment was conclusive upon the matter, for the reason that it was the right and the duty of the party to have brought it forward in defence. The suit in question having been settled before judgment, and before it was entered in court, of course, concluded nothing as by a judgment; so that the jndgment made must be regarded as standing, for its legal effect, upon the rights of the parties, simply on the ground of its being a voluntary payment. It only remains to enquire then, whether a voluntary payment of usury, precludes the party making it from recovering it back in a suit brought by himself for that purpose. To answer this it is only necessary to refer to the Statute, which specifically provides that it may be recovered back by this form of action; and thus takes actions for this purpose out of the operation of the common law rule as to the effect of voluntary payments upon the party’s right to recover them back. It falls within the 'same rule and reason as the numerous cases in the books for the recovery of usury paid — in all which the payments have been voluntary — and for which the Statute, in terms, provides. The judgment is affirmed.