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ered back upon the ground that the party paying it labored under a misapprehension of his legal rights and obligations. The maxim ignorantia juris non excusat, applies in such cases, and a party at his peril, must ascertain what his legal rights and liabilities are, and failing so to do, however he may have obtained his erroneous impressions, his payment is treated as voluntary, and he is remediless. Elston v. Chicago, 40 Ill. 514; Brumagim v. Tillinghast, 18 Cal. 265; Evans v. Gale, 17 N. H. 573; Branham v. San Jose, 24 Cal. 585; Dickins v. Jones, 6 Yerg. (Tenn.) 483; Johnson v. McGinness, 1 Oreg. 292; Elliott v. Swartwout, 10 Pet. (U. S.) 137.

The doctrine was well expressed by SUTHERLAND, J., in Clark v. Dutcher, 9 Cow. 674, in which he said "I consider the current or weight of authorities as clearly establishing the position, that when money is paid with a full knowledge of all the facts and circumstances upon which it was demanded, it cannot be recovered back upon the ground that the party supposed he was bound in law to pay it, when in truth he was not. He shall not be permitted to allege his ignorance of law, and it shall be considered a voluntary payment." The doctrine as announced by him has been generally accepted in this country, and has been generally applied in all cases where the question has since arisen. Peterborough v. Lancaster, 14 N. H. 383; Ege v. Koontz, 3 Penn. St. 109; Morris v. Baltimore, 5 Gill (Md.), 244; Hubbard v. Martin, 8 Yerg. (Tenn.) 498; Brown v. Sawyer, 1 Aik. (Vt.) 130; Natcher v. Natcher, 47 Penn. St. 496; Ford v. Brownell, 13 Minn. 184; Filgo v. Penny, 2 Murph. (N. C.) 182; Lee v. Stuart, 2 Leigh (Va.), 76.

But this is subject to the condition that the party receiving the money was guilty of no fraud or improper conduct inducing the payment (Natcher v. Natcher, 47 Penn. St. 496; Ege v. Koontz, 3 id. 109; Silliman v. Wing, 7 Hill, 159; Robinson v. Charleston, 2 Rich. [S. C.] 317); in which case, as will be seen, post, 488, § 14, the rule does not apply. So, too, where a mistake is of a mixed character, that is, partly of fact and partly of law, a recovery may be had. Thus, in Jefts v. York, 10 Cush. 392, money was advanced by the plaintiff to an agent for the use of his principal, for which a note was given by the agent for the principal, under a mutual mistake as to the capacity of the principal, to authorize the giving of the note, and upon which note in fact neither the principal nor agent were legally liable, it was held that the plaintiff was entitled to recover back the money from the agent, upon suit brought before he had paid the money over to his principal, notwithstanding the mistake was principally one of law. And, generally, when the money is wrongfully received by the defend

ant, he is bound to refund it, although its payment was mainly but not entirely induced by a mistaken idea of the legal rights of the parties. Brown v. Sawyer, 1 Aik. (Vt.) 130; Lodge v. Boone, 3 H. & J. (Md.) 218. Where, however, as has previously been stated, the mistake is entirely one as to the law, money paid in pursuance of it cannot be recovered back. Thus, where a person purchases land at a foreclosure sale under a void mortgage, the money paid therefor cannot be recovered back, as the mistake is wholly one of law (Branham v. San Jose, 24 Cal. 585); nor, in the absence of fraud, can money paid for a deed of release be recovered back, although no title or interest passed by the deed. Stewart v. Crosby, 50 Me. 130. Neither can a recovery be had against a municipal corporation for money expended by the plaintiff in doing certain things required to be done by a void ordinance. Mayor of Baltimore v. Lefferman, 4 Gill (Md.), 425. Nor can money paid under a void judgment be recovered back unless the judgment has been set aside (Job v. Collier, 11 Ohio, 422; Homer v. Fish, 1 Pick. 439; Morton v. Chandler, 7 Me. 45); nor for money paid for the costs of a criminal prosecution under a supposition that he must do so as a condition precedent to an appeal (Ford v. Brownell, 13 Minn. 184); and, generally, when the money is paid without fraud or duress on the part of the person receiving it, but purely under a misapprehension by the payor as to his legal rights and liabilities, he cannot recover it back. Bean v. Jones, 8 N. H. 149; Livermore v. Peru, 55 Me. 469; Brown v. Rich, 40 Barb. 28; Chapman v. Spiller, 14 Q. B. 621; Evans v. Gale, 17 N. H. 573; Cahaba v. Burnett, 34 Ala. 400; Bond v Coats, 16 Ind. 202.

§ 13. Ignorance of foreign law. Money paid under a mistake as to the laws of a foreign country may be recovered back, as the courts treat such mistakes as mistakes of fact (Haven v. Foster, 9 Pick. 112; Norton v. Marden, 15 Me. 45); and the same rule prevails in reference to the statutes of another State (Bank of Chillicothe v. Dodge, 8 Barb. 233); or in reference to any private statute of which the courts will not take judicial notice without proof, as of the charter of a private corporation (Drake v. Flewellen, 33 Ala. 106); or private statutes of any kind of the provisions of which the public is not pre. sumed to know. Bowie v. Kansas City, 51 Mo. 454; Covington Drawbridge Co. v. Shepherd, 20 How. (U. S.) 227.

§ 14. Payment under duress or compulsion, extortion, etc. Involuntary payments, made under compulsions of legal process, or duress of goods or of the person, which the person receiving has no right to retain, may be recovered back. Beckwith v. Frisbie, 32 Vt. 559; Harmony v. Binham, 12 N. Y. (2 Kern.) 99; Adams v.

Reeves, 68 N. C. 134; 12 Am. Rep. 627; Nickodemus v. East Saginaw, 25 Mich. 456; Schommer v. Farwell, 56 Ill. 542; McKee v. Campbell, 27 Mich. 497; Hendy v. Soule, Deady (C. C.), 400; Chandler v. Sanger, 114 Mass. 364; 19 Am. Rep. 367. But, however payment of a legal claim may be attained, or one to which the payee is justly entitled, whether by compulsion of legal process, threats or menaces of imprisonment, or of personal violence, or by duress of goods, it cannot be recovered back. Kohler v. Wells, 26 Cal. 606; Dickerman v. Lord, 21 Iowa, 338; Bragdon v. Somerby, 55 Me. 92. In order to entitle the party paying it to regain the amount by suit, there must have been not only an enforced payment by duress of goods or of the person, or some other undue advantage taken of the payor, but also the party to whom the money was paid must have had no legal or just claim against the payor therefor. The rule is that where money is obtained from one by duress, extortion or oppression, or by taking an undue advantage of his situation, for the payment of which the payee has no legal or just claim against him, it may be recovered back. Goddard v. Bulow, 1 N. & McC. (S. C.) 45; Mathers v. Pearson, 13 S. & R. (Penn.) 258; Bliss v. Thompson, 4 Mass. 488; Chase v Dwinal, 7 Me. 134; Clinton v. Strong, 9 Johns. 370; Quinnett v. Washington, 10 Mo. 53. The plaintiff must show not only the duress, but also that the demand was illegal (Mariposa Co. v. Bowman, Deady (C. C.), 228; Lafayette, etc., R. R. Co. v. Pattison, 41 Ind. 312; State v. Sluder, 70 N. C. 56; Chandler v. Sanger, 114 Mass. 364; 19 Am. Rep. 367); and if the claim was legal or just it cannot be recovered back (Dickerman v. Lord, 21 Iowa, 338; Miles v. McLellan, 2 N. & McC. [S. C.] 133; First Nat. Bank v. Watkins, 21 Mich. 483; Adams v. Reeves, 68 N. C. 134; 12 Am. Rep. 627; Nickodemus v. East Saginaw, 25 Mich. 456); and the same rule has been applied when money is obtained from a person who is intoxicated. Hayes v. Huffstater, 65 Barb. 530. As to the precise character of the threats that must be used in order to constitute duress of the person, or of goods, so as to make the payment involuntary, no fixed rule can be given, but each case must measurably stand by itself, upon its own peculiar facts and circumstances. But it would seem, that in order to constitute duress of the person from threats and menaces, they must be of such serious bodily harm as would overcome the will of a person of ordinary firmness (Harmon v. Harmon, 61 Me. 227; 14 Am. Rep. 556; Bosley v. Shanner, 26 Ark. 280; State v. Sluder, 70 N. C. 55), and it must also appear that the payor was in fact influenced thereby, and as to whether he was or not, must be inferred from the VOL. IV.-62

character of the threats and the circumstances attending them. Feller v. Green, 26 Mich. 70. In order to constitute a duress of the person by threats of imprisonment, or by actual imprisonment or restraint, it must appear that a process to that end had actually been issued, or that there was no reasonable doubt that it would be (Harmon v. Harmon, 61 Me. 227; 14 Am. Rep. 556; State v. Slader, 70 N. C. 55), and that the money extorted under such threats or arrest was not legally or justly due from the payor. Diller v. Johnson, 37 Tex. 47; Steinbacker v. Wilson, Leg. Gaz. Rep. (Penn.) 76; Knapp v. Hyde, 60 Barb. 80.

Mere threats of personal violence, or of prosecution, are not enough, there must be a reasonable ground for creating an apprehension that the threats will be carried into execution, in the mind of a man of ordinary firmness and courage, and must operate upon him directly, so as to overcome his will. Thus, in Harmon v. Harmon, 61 Me. 229; 14 Am. Rep. 566, a man who was not known to be addicted to the use of profane language, with oaths, demanded a portion of the money received by the plaintiff, under an insurance policy upon a mill that had recently been burned, of which the parties were co-tenants, and threatened in the presence of the plaintiff's wife that, unless the same was paid to him, he would prosecute him for setting the mill on fire, and that he would have him in jail before night, and the plaintiff, not in consequence of any fear of injury to himself, but fearing ill consequences to his wife's health, paid the money, it was held not to be a payment under duress, within the rule. In a North Carolina case (State v. Sluder, 70 N. C. 55), a person who was acting as the guardian of some wards, and who, as such guardian, had a claim against a person, refused to take Confederate money from him in payment of such claim, when the person tendering it approached him and raising his hand, said "I intend to have my note; Confederate money is legal tender," and the guardian having heard that a judge had recently decided that it was an indict able offense to refuse to take Confederate money, received the money and was credited with it by the probate judge, the court held that he was, notwithstanding these facts, liable for the amount of the note, upon his bond, as there was no such duress as made the act involuntary. Where, however, actual violence is used, or threats of violence of such a character as has previously been spoken of, or where a person is actually restrained of his liberty even under a void process, a payment made, which otherwise would not have been made, is a payment under duress. Durr v. Howard, 6 Ark. 461; Maxwell v. Griswold, 10 How. (U. S.) 242; Beckwith v. Frisbie, 32 Vt. 559; White v. Heylman, 34 Penn. St. 142. Where a county treasurer represented

to the plaintiff's clerk, after he had commenced proceedings to enjoin the collection of a tax, that the supreme court had decided that the tax was legal (which was untrue), and that, unless the plaintiff paid it, his property would be sold therefor, and the clerk, the plaintiff being absent, paid it, it was held to be a payment under duress, and recoverable back without demand, from the treasurer. Greenabaum v. King, 4 Kans. 332. As to involuntary payments, see Quinnett v. Washington, 10 Mo. 53; Satterdale v. Kaiser, 15 La. Ann. 596; Hubbard v. Brainard, 35 Conn. 563; First National Bank v. Watkins, 21 Mich. 483; Lauman v. Des Moines County, 29 Iowa, 310.

A payment of a tax to a collector or other officer having authority to collect the same is compulsory (County Commissioners v. Parker, 7 Minn. 267; Hubbard v. Brainard, 35 Conn. 563); and, generally, it may be said that, when money not legally due is exacted from one by another, either under threats of violence or of personal restraint, or by taking an undue advantage of him by the detention of his goods, or by the compulsion of legal process, or by one who by law is clothed with power to collect it if it were in fact legally due, the payment is involuntary. Clinton v. Strong, 9 Johns. 370; Hubbard v. Brainard, 35 Conn. 563; Severance v. Kimball, 8 N. H. 386.

Duress of goods consists in the wrongful withholding of personal property from the custody or possession of the payor, unless a certain sum, not legally or justly due, is paid for their release; and in such cases, money paid for their release is treated as having been extorted from the payor, and he is entitled to recover the amount paid in excess of any claim that he was legally bound to pay thereon; as where a greater sum than he has contracted to carry goods for is charged by a carrier, before he will deliver them up (Tutt v. Ide, 3 Blatchf. [C. C.] 249; Lafayette, etc., R. R. Co. v. Pattison, 41 Ind. 312); or where goods are taken by a public officer in virtue of his office, and withheld for duties, taxes or other purpose, until a certain amount is paid thereon, the owner may pay the amount claimed, in order to release the goods, and as to the sum in excess of what he was legally liable to pay, he may bring an action and recover for money had and received. Schlesinger v. United States, 1 Ct. of Cl. 116. So, where perishable goods, or goods requiring special care and attention, are taken upon a writ of attachment, and the creditor in the writ refuses to deliver them up unless a larger sum than is actually due him is paid, the owner of the goods may recover the excess over what was actually due. Spaids v. Barrett, 57 Ill. 289; 11 Am. Rep. 10.

When taxes are paid on the demand of an officer having authority to collect them by distraint or otherwise, there is sufficient duress to make

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