
    WILLIAMS VS. WILLIAMS.
    Payment to a Sheriff who is about to make a levy on an execution is a compulsory, not a voluntary payment.
    Restitution is properly ordered where money has been unjustly obtained by color of legal process.
    Error to the Common Pleas of Cumberland County. No. 299 Jan. Term, 1885.
    On March 14, 1879, M. Williams obtained a confession of judgment from D. W. Williams for $2,000 with interest. A sci. fa. was issued on the 15th of Jan., 1883. By an assignment dated 10th of Nov., '"83, M. Williams assigned all his interest in the said judgment to J. D. Brandt for legal services rendered. On March 17, 1884, this assignment was filed, and a praecipe for judgment for amount admitted to be due, in the affidavit of defense, namely: $323.75 was directed to the Prothonotary, with the right to proceed to trial for the balance. M. Williams had on 22 Dec., 1888, executed the following release: “I hereby release all personal property and stock owned by D. W. Williams, and transfer his right and title to his wife, Jane A. Williams, and not to be subject to any claims or existing claims of mine hereafter, which I have released to his wife, Jane A. Williams, clear,of all incumberaiiec.” For the appellants-a judgment was entered on March 17th, 1884, and fi. fa. was issued the same day. The Sheriff went to the residence of D. W. Williams to make a levy on March 24,1884. At the request of the defendant, the Sheriff sent for appraisers, but before they came the whole matter was arranged by Jane A. Williams paying $100, and that much of the judgment was assigned to hex’, and the wifit was stayed by direction of Brandt. Afterwards Jane A. Williams pi’esented a petition to Court, setting forth that the Sheriff was about to levy upon her property, and that she, in ignorance of her rights; paid to the Sheriff $100 on account of said execution. The answer of Brandt denied the allegations of the petition, and averred that the $100 paid by her had been transfex’red to her in a portion of the judgment. The Court set aside the fi. fa., and directed restitution of the money to be made in the following opinion:
    Per Curiam.
    A reading of the depositions submitted makes it clear that the rule in this case ought to be made absolute. Mr. ' Brandt, who is the use plaintiff on the record, will not say that he came into possession of the writing evidencing’ the transfer on or before 22 Dec., 1883. He says, he cannot tell whether before or after, although his testimony was given on 8th May, 1884, but a little after four months, thereafter ; nor does Mr. Williams say when he delivered it to him. And now, Dee. 9,1884, rule absolute, and thereupon it is ordered and adjudged that the writ of fi. fa. issued in this case be, and tbe same is hereby set aside, and that tbe Sheriff shall restore and' pay over to Jane A. Williams,the sum of $100 received from her on account of the said writ.
    The plaintiff then took a writ of error, complaining of the action of the Court, in setting aside the fi. fa., and ordering the Sheriff' to restoi’e the ,$100.
    
      
      F. E. Beltzhoover and M. Williams, Esqs., for plaintiff in error,
    argued that Jane A. Williams paid the $lUv voluntarily, and could not recover it back ; Union Ins. Co. vs. The City of Allegheny, 101 Penna. 250; Peebles and wife vs. The City of Pittsburg, 101 Penna. 304; Union National Bank vs. Dersham, 15 W. N. C. 541.
    
      E. B. Watts, Esq., for defendant in error,
    argued that the Court had power to set aside an execution, that has been issued in violation of the agreement of the parties ; Loomis vs. Lane, 29 Penna. 242: Harrison vs. Soles, 6 Penna. 393; McCunn vs Farley, 26 Penna. 173. The title of an assignee of a judgment who omits to have it noted on the record will not prevail against a subsequent release from the plaintiff in the judgment, without notice; Gaullagher vs. Caldwell, 22 Penna. 300; Fisher vs Knox, 13 Penna. 622; Campbell’s Appeal, 29 Penna. 401 Fraley’s Appeal, 76 Pa. 42. As the execution was set aside restitution was properly ordered ; Cassel vs. Duncan, 2 S. & R 58. Restitution is ex gratia, and rests in the exercise of the discretion of the Court; Travellers’ Ins. Co. vs. Heath, 95 Penna. 339. This is a case of money received mala fide, aud may be recovered back; Mather vs. Pearson, 13 S. & R. 258; McDonald vs. Todd, 1 Gr. 17.
   The Supreme Court affirmed the judgment of the Court below on the 18th of May, 1885, in the following opinion :

Per Curiam.

The Court found, and on sufficient evidence, that the Fi. Fa. improperly issued, and therefore set it aside. As the payment thereon was made under a threat of the seizure of personal property by virtue thereof, it cannot be said to have been voluntary. It was made to protect the personal property from sale, when in fact and in law the use party had no right to sell it. The money remained in the hands of the Sheriff, an officer of the Court. Restitution of the money was properly ordered to be made to the person from whom it had -uujustly, and by color of legal process, been obtained.

J udgmeut affirmed.

APPENDIX.

■ Containing the Pennsylvania Cases Originally Reported in the Luzerne Legal Observer, Volume 4, Which are not Elsewhere Reported.  