the payment involuntary, and there can be no question but that, when a tax is assessed and the law makes provision for an enforced collection of it, its payment to the officer designated to receive it, comes under the head of an involuntary payment, whether a warrant has in fact been issued for its collection or not. Hendy v. Soule, Deady (C. C.),

400.

In such cases the party should protest against the payment, and his payment should be made under protest, but if the officer has a legal process for their collection, and is clothed with apparent authority to collect them, a recovery may be had of the amount actually paid without interest, although no protest was made. McKee v. Campbell, 27 Mich. 497; Atwell v. Zeluff, 26 id. 118. Thus, where a tax collector

sold certain stock belonging to the plaintiff under a tax warrant to satisfy an illegal tax, and the plaintiff, knowing the facts, procured a person to bid it off for him, and then brought an action to recover back the amount paid, it was held that the payment was not voluntary, and that the sum paid might be recovered back. Bailey v. Goshen, 32 Conn. 546.

It is of no importance that the person paying the money knows that the claim is illegal, unjust, or extortionate, if his goods are detained and the party refuses to deliver them up until the claim is paid, its payment is not voluntary. Thus, in Cobb v. Charter, 32 Conn. 358, the defendant had possession of a chest of tools belonging to the plaintiff, which he refused to deliver until a bill that he had against the plaintiff's son for board was paid. The plaintiff finally paid the bill, and, in an action to recover back the amount, the court held that the payment was involuntary, and that he was entitled to recover the amount paid by him, with interest. So, where money, illegally exacted, was paid to release a vessel that had been seized, it was held an involuntary payment. Clinton v. Strong, 9 Johns. 370.

The question as to whether a duress of goods existed or not depends upon the fact whether the party had a right to demand them as his property, and had done all that he was legally bound to do to entitle him to their delivery. If he has, in fact, no right to the custody of the goods until he has performed certain conditions precedent, it is not duress for the person holding them to refuse to deliver them until such conditions are complied with, but, if he requires more to be done than the party is legally bound to do, the excess comes under the head of duress, Block v. United States, 8 Ct. of Cl. 461.

§ 15. Payment of illegal fees. Fees illegally exacted as a condition of releasing a person's person or property from arrest or seizure (Clinton v. Strong, 9 Johns. 370); or for the exercise of any privilege

to which the party paying it is entitled without the payment of such fee, or for the payment of a less sum, are treated as involuntary payments (Robinson v. Ezzell, 72 N. C. 231; Ogden v. Maxwell, 3 Blatchf. C. C. 319); as where fees are illegally exacted for the release of a vessel wrongfully seized (Clinton v. Strong, 9 Johns. 370); or for permits to land passengers from a vessel under a law having no validity (Ogden v. Maxwell, 3 Blatchf. C. C. 319); and, generally, when a sheriff or other officer who is authorized to exact certain fees from an individual for particular services, or on any account, exacts or takes from him more than he is authorized by law to take, and the party pays them to him, not knowing that they are excessive, or to secure a right, he can recover back the excess (Moulton v. Bennett, 18 Wend. 586; Britton v. Frink, 3 How. [N. Y.] 102); or where fees are exacted as a condition for the exercise of a right to which the party is entitled, without fee (Townshend v. Dyckman, 2 E. D. S. 224; Frye v. Lockwood, 4 Cow. [N. Y.] 454; Ripley v. Gelston, 9 Johns. [N. Y.] 201); but, if the fees are paid with a knowledge of the fact that they are excessive, or not legally chargeable, they cannot be recovered back. Thus, where a suit, in which property was attached, was settled before entry, and a percentage was charged as a part of the costs, against which the plaintiff protested, but finally paid it, it was held that the payment was voluntary, and that the amount paid in excess of what was legally due could not be recovered back. Rawson v. Porter, 9 Me. 119.

§ 16. Payments under protest. A person who, without the compulsion of legal process, or duress of goods or of the person, yields to the assertion of an invalid or unjust claim by paying it, cannot by a mere protest, whether in writing or by parol, change its character from a voluntary into an involuntary payment. The payment overcomes and nullifies the protest. As where a person, knowing that an ordinance of a city requiring the payment of a certain sum for a license, takes out a license and pays for it under protest (Cook v. Boston, 9 Allen, 393; Allentown v. Saegar, 20 Penn. St. 421; Mays v. Cincinnati, 1 Ohio St. 274; contra, see Leonard v. Canton, 35 Miss. 189); or where a person, with a knowledge of the facts, pays more costs in an action than are legally chargeable (Rawson v. Porter, 9 Me. 119); or more than is due, or a claim to which there is no validity. Benson v. Monroe, 7 Cush. 125. Thus, where a person knowing that certain lands were not subject to taxation, paid the taxes assessed thereon under protest, to prevent the issue of tax deeds, it was held that the payment was voluntary. Phillips v. Jefferson County, 5 Kans. 412. So, where the register of lands refused to record the plaintiff's deed until he had secured a certificate from the auditor that the taxes thereon had been

paid, and he paid the taxes, at the same time protesting that he paid them to procure the registration of his deed, it was held a voluntary payment. Smith v. Schroeder, 15 Minn. 35. So, a tax was assessed on land under a statute afterward decided to be unconstitutional, but prior to such decision the owner paid the tax, under protest, to prevent a threatened sale; and it was held that the payment was voluntary, though made under protest, and that the money could not be recovered back. Detroit v. Martin, 34 Mich. 170; S. C., 22 Am. Rep. 512. But where an illegal tax is paid, under protest, to one having authority to enforce its collection, it is an involuntary payment and may be recovered back. Lauman v. Des Moines Co., 29 Iowa, 310; First Nat. Bank v. Watkins, 21 Mich. 483. And see Jersey City v. Riker, 9 Vroom (N. J.), 225; S. C., 20 Am. Rep. 386; Rogers v. Greenbush, 58 Me. 390; S. C., 4 Am. Rep. 292; Grim v. School District, 57 Penn. St. 434.

The rule is that, when a person pays an illegal or unjust demand, without an immediate and urgent necessity therefor, with a full knowl edge of all the facts, or, unless to release his person or property from detention, or to prevent an immediate seizure of his person or property, the payment is voluntary, notwithstanding it is made under protest. Kansas, etc., R. R. Co. v. Wyandotte Co., 16 Kans. 587. Thus, in the last-named case, all the steps for determining the amount of a tax upon personal property had been taken, the tax roll was complete, the taxes were due, and the roll was in the treasurer's hands, and it was the treasurer's duty at a specified date (which had not arrived at the time when the plaintiff paid the tax) to issue a warrant to the sheriff within sixty days thereafter to levy upon and sell sufficient per. sonal property to pay such taxes. It was held that a payment of such tax to the treasurer under a protest that it was paid solely to prevent the issue of process to sell the plaintiff's property, did not change the character of the payment from a voluntary to an involuntary one. It will be seen that a distinction was drawn in this case between a payment made to one having no immediate authority, to enforce payment, and a payment made to one who has such authority, and this is the distinction running through all the cases. A mere apprehension of legal proceedings is not sufficient to make a payment compulsory. There must exist an immediate power or authority to institute them. Ligonier v. Ackerman, 46 Md. 552.

The object of a protest is to take from the payment its voluntary character, and thus preserve to the party a right of action to recover it back. It is only available in cases of coercion or duress, or where undue advantage is taken of the party's situation, and only serves as

evidence that the payment was not voluntary, and in order to be efficacious there must be actual coercion, duress or fraud, presently existing, or the payment will be voluntary in spite of the protest. Flower v. Lance, 59 N. Y. (14 Sick.) 603; Marietta v. Slocomb, 6 Ohio St. 471; McMillan v. Richards, 9 Cal. 365; Forrest v. New York, 13 Abb. Pr. (N. Y.) 350; Fleetwood v. City of New York, 2 Sandf. (N. Y.) 475; Briggs v. Boyd, 56 N. Y. (11 Sick.) 289; Emmons v. Scudder, 115 Mass. 367.

As to whether a person paying money illegally demanded by a public officer, under coercion, must, in order to preserve his right to recover it back, pay the same under protest, is not clearly settled. In California the rule is that, where the person demanding the money has notice of the illegality of the demand, a protest is not necessary, but that where he has no such notice or knowledge, a protest is a condition precedent to a right of recovering it back. Meek v. McClure, 49 Cal. 624.

But in Michigan it is held that a protest under such circumstances is not necessary to a recovery of the sum paid, but that in the absence of a protest, no interest is recoverable. Atwell v. Zeluff, 26 Mich. 118; McKee v. Campbell, 27 id. 497.

As to personal or private claims, it is held that, if a person knowing that he has no legal claim against another, sues out a legal process against him and seizes his property thereon, and the defendant acting under the representations of the plaintiff, and being unable at the time to prove the falsity of the claim, pays the amount without protest, he may recover it back. Nickodemus v. East Saginaw, 25 Mich. 456; Adams v. Reeves, 68 N. C. 134; 12 Am. Rep. 627; Schommer v. Farwell, 56 Ill. 542; Bennett v. Healey, 6 Minn. 240; Curtis v. Fiedler, 2 Black (U. S.), 461.

17. Payments obtained by fraud, deceit, etc. Money that has been paid to another by reason of his fraudulent representations or conduct, or of others by his procurement, may always be recovered back upon the principie that fraud vitiates all contracts. Hinsdill v. White, 34 Vt. 558; Catts v. Phalen, 2 How. (U. S.) 376; Magoffin v. Muldrow, 12 Mo. 512; Gibson v. Stevens, 3 McLean (C. C.), 551; Reynolds v. Rochester, 4 Ind. 43. Thus, it has been held that money paid to one as a prize drawn in a lottery, by fraudulent means, may be recovered back (Catts v. Phalen, 2 How. [U. S.] 376); so, where a person procures money to be paid to him by false representations that it belongs to another (McDonald v. Todd, 1 Grant's Cas. [Penn.] 17); or where a person borrows money for a third person representing the security to be good when he knows that it is not (Frevall v. Fitch, 5

Whart. [Penn.] 325); so, where one misrepresents the quality of the security given for a loan ( Vantine v. Wood, 13 Penn. St. 270; Bank of Montgomery v. Parrish, 20 Ala. 433); so when a person has procured money to be paid to him for a loss under an insurance policy, and it subsequently transpires that the loss was fraudulent (McConnel v. Del. Mut. Ins. Co., 18 Ill. 228; Dodge Co. Mut. Ins. Co. v. Sawyer, 37 Wis. 503); and, generally, in all cases where one has iuduced another to part with his money by fraudulent means of any kind, he is liable to refund the same to a person paying it to him, in an action for money had and received (Hinsdill v. White, 34 Vt. 558; Gorman v. Carroll, 7 Allen, 199; Pheteplace v. Eastman, 26 Iowa, 446; Lebanon v. Heath, 47 N. H. 353); provided the plaintiff first offers to put the defendant in statu quo. Gilbert v. Ross, 1 Strobh. (S. C.) 287; Hogan v. Weyer, 5 Hill, 389. brought by the person defrauded (Magwire v. Hall, 27 Mo. 146); or, in these States where by statute the assignee of a chose in action may sue for the same, by his assignee.

But the action must be

§ 18. Payments upon forged instruments. A person who, bona fide, and in ignorance of the fact, pays money upon a forged instrument of any kind, may recover it back of the person to whom it was paid (Wilson v. Alexander, 4 Ill. 392; Terry v. Bissell, 26 Conn. 23; Little v. Derby, 7 Mich. 325; Rick v. Kelly, 30 Penn. St. 527; Canal Bank v. Bank of Albany, 1 Hill, 287; Goddard v. Merchants' Bank, 4 N. Y. [4 Comst.] 147); except in cases where the person paying the money is chargeable with such negligence as estops a recovery, as when the drawee of a bill of exchange, draft or check, pays it to a bona fide holder for value (Bank of St. Albans v. Farmers', etc., Bank, 10 Vt. 141; Goddard v. Merchants' Bank, 4 N. Y. [4 Comst.] 147; Van Duzer v. Howe, 21 N. Y. [7 Smith] 531; Bank of U. S. v. Bank of Georgia, 10 Wheat. [U. S.] 333; Stout v. Benoist, 39 Mo. 277; Dodge v. Natl. Exchange Bank, 20 Ohio St. 234; 5 Am. Rep. 648; Cooper v. Le Blanc, 2 Strange, 1051); upon the ground that a drawee of a bill, draft or check, is presumed to be familiar with the signature of the drawer. Consequently, the rule does not apply when an instrument has been altered; as the signature being genuine, he is justified in presuming that the sum for which it is drawn is correct. Goddard v. Merchants' Bank, 4 N. Y. (4 Comst.) 147; Worrall v. Gheen, 39 Penn. St. 388; Bruce v. Bruce, 5 Taunt. 495; Young v. Grote, 4 Bing. 253; Hall v. Fuller, 5 B. & C. 750.

In all other instances a person paying out money upon a forged, counterfeited or altered instrument may recover it back unless he has been guilty of such laches as estop him. Thus, where a person paid