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alternative of bringing such action and incurring the expense and delay thereof is not voluntary.10 While it is generally true that a payment of an illegal demand in a case where the person paying may have the opportunity of defending against such demand is voluntary, still this rule is not to be enforced arbitrarily and without consideration of the facts and peculiar exigencies in a particular case. Thus, although the state, in order to collect a tax, would have to resort to an action, still, if at the same time the citizen is put at a serious disadvantage in the assertion of his legal rights, by defense in the suit, justice may require that he should be at liberty to avoid those disadvantages by paying promptly and bringing suit on his side. He is entitled to assert his supposed right on reasonably equal terms.11 In all the foregoing cases the person on whom the illegal and unjust demand is made is bound to act promptly or suffer grievous wrong. He cannot afford to wait the law's delay; and if he should not comply with a demand accompanied with the power and authority then and there to enforce it, the remedy given would not be adequate to compensate for the injury sustained. 12

176. Payment to Avoid Legal Proceedings.-The rule allowing a person to recover money which he has paid, on the ground that it was paid under compulsion, is intended for the relief only of those who are entrapped by sudden pressure into making such payments, and who have no other means of escaping an existing or imminent infringement of their rights of person or property.13 Therefore where a person has time and opportunity to relieve himself from his predicament without making such a payment, by resort to ordinary legal methods, but nevertheless pays the money, the payment will be deemed voluntary, and he cannot recover it. Thus a payment of an illegal demand made against the person or property of an individual, which can be enforced only by an action at law wherein he can contest its legality, is voluntary.15 This rule applies alike to illegal demands of individuals and municipalities. 16 If a munici

10. Trower v. San Francisco, 152 (N.S.) 293 and note; New Orleans,, Cal. 479, 92 Pac. 1025, 15 L.R.A. etc., R. Co. v. Louisiana Constr., etc., (N.S.) 183. Co., 109 La. 13, 33 So. 51, 94 A. S. R. 395.

11. Atchison, etc., R. Co. v. O'Connor, 223 U. S. 280, 32 S. Ct. 216, 56 U. S. (L. ed.) 436, Ann. Cas. 1913C 1050.

12. Ligonier v. Ackerman, 46 Ind. 552, 15 Am. Rep. 323, overruled on another point by Jennings v. Fisher, 103 Ind. 112, 2 N. S. 285.

13. See supra, par. 169.

14. Brunson v. Crawford County Levee Dist., 107 Ark. 24, 153 S. W. 828, Ann. Cas. 1915A 493, 44 L.R.A.

Notes: 45 Am. Dec. 154, 168; 49 L.R.A. (N.S.) 389; Ann. Cas. 1915A .495.

15. Trower v. San Francisco, 152 Cal. 479, 92 Pac. 1025, 15 L.R.A. (N.S.) 183: Ligonier v. Ackerman, 46 Ind. 552, 15 Am. Rep. 323, overruled on another point by Jennings v. Fisher, 103 Ind. 112, 2 N. E. 285.

Note: 45 Am. Dec. 166.
16. Ligonier v. Ackerman, 46 Ind.

by making the illegal payment. But where dispute arises and the debtor, who pays under protest, has at hand reasonable means of immediate and adequate relief other than by making the payment, his act is not one done under coercion.

175. Legal Remedy Inadequate.-There is a class of cases where, although there is a legal remedy, a person's situation, or the situation of his property, is such that the legal remedy would not be adequate to protect him from irreparable prejudice; where the circumstances. and the necessity to protect himself or his property otherwise than by resort to the legal remedy may operate as a stress or coercion on him to comply with the illegal demand. In such cases his act will be deemed to have been done under duress, and not of his free will and money paid may be recovered. Thus one who negotiates a loan to take up an existing mortgage on which foreclosure proceedings have been begun, and who is required, under protest, to pay an illegal bonus to secure a discharge of the mortgage, acts under duress in so doing, and is entitled to recover the amount paid. Likewise where a person, in order to consummate a loan which he had negotiated to pay pressing debts, pays an invalid mechanic's lien on the property which was to be given as security, he may recover the money paid, especially where he had no other available means of raising the money. Again, where a person pays illegal fees to secure the filing of a document it is none the less compulsory because he could have procured a writ of mandate compelling the officer to file the document without paying the fees demanded. His right to file the document was immediate, and the payment of the fee under the

5. Vick v. Shinn, 49 Ark. 70, 4 S. W. 60, 4 A. S. R. 26; Ligonier v. Ackerman, 46 Ind. 552, 15 Am. Rep. 323, overruled on another point by Jennings v. Fisher, 103 Ind. 112, 2 N. E. 285; Scott v. New Castle, 132 Ky. 616, 116 S. W. 788, 21 L.R.A. (N.S.) 112; Louisville v. Becker, 139 Ky. 17, 129 S. W. 311, 28 L.R.A. (N.S.) 1045; Lester v. Baltimore, 29 Md. 415, 96 Am. Dec. 542; Kenneth v. South Carolina R. Co., 15 Rich. L. (S. C.) 284, 98 Am. Dec. 382; Flack v. National Bank of Commerce, 8 Utah 193, 30 Pac. 746, 17 L.R.A. 583.

Co., 109 La. 13, 33 So. 51, 94 A. S.
R. 395; Kenneth v. South Carolina R.
Co., 15 Rich. L. (S. C.) 284, 98 Am.
Dec. 382.

7. Chase v. Dwinal, 7 Greenl. (Me.) 134, 20 Am. Dec. 352; Sweet v. Kimball, 166 Mass. 332, 44 N. E. 243, 55 A. S. R. 406; Joannin v. Ogilvie, 49 Minn. 564, 52 N. W. 217, 32 A. S. R. 581, 16 L.R.A. 376; David City First Nat. Bank v. Sargeant, 65 Neb. 594, 91 N. W. 595, 59 L.R.A. 296; Guetzkow Bros. Co. v. Breese, 96 Wis. 591, 72 N. W. 45, 65 A. S. R. 83.

Notes: 94 A. S. R. 415, 417; 2 Ann. Cas. 825.

8. Kilpatrick v. Germania L. Ins. Co., 183 N. Y. 163, 75 N. E. 1124, 111 A. S. R. 722, 2 L.R.A. (N.S.) 574 and

Note: 45 Am. Dec. 156. 6. Brunson v. Crawford County Levee Dist., 107 Ark. 24, 153 S. W. 828, Ann. Cas. 1915A 493, 44 L.R.A. (N.S.) 293 and note; Spalding v. note. Lebanon, 156 Ky. 37, 160 S. W. 751, 9. Joannin v. Ogilvie, 49 Minn. 564, 49 L.R.A. (N.S.) 387; New Orleans, 52 N. W. 217, 32 A. S. R. 581, 16 etc., R. Co. v. Louisiana Constr., etc., L.R.A. 376.

alternative of bringing such action and incurring the expense and delay thereof is not voluntary.10 While it is generally true that a payment of an illegal demand in a case where the person paying may have the opportunity of defending against such demand is voluntary, still this rule is not to be enforced arbitrarily and without consideration of the facts and peculiar exigencies in a particular case. Thus, although the state, in order to collect a tax, would have to resort to an action, still, if at the same time the citizen is put at a serious disadvantage in the assertion of his legal rights, by defense in the suit, justice may require that he should be at liberty to avoid those disadvantages by paying promptly and bringing suit on his side. He is entitled to assert his supposed right on reasonably equal terms.11 In all the foregoing cases the person on whom the illegal and unjust demand is made is bound to act promptly or suffer grievous wrong. He cannot afford to wait the law's delay; and if he should not comply with a demand accompanied with the power and authority then and there to enforce it, the remedy given would not be adequate to compensate for the injury sustained.12

176. Payment to Avoid Legal Proceedings.-The rule allowing a person to recover money which he has paid, on the ground that it was paid under compulsion, is intended for the relief only of those who are entrapped by sudden pressure into making such payments, and who have no other means of escaping an existing or imminent infringement of their rights of person or property.13 Therefore where a person has time and opportunity to relieve himself from his predicament without making such a payment, by resort to ordinary legal methods, but nevertheless pays the money, the payment will be deemed voluntary, and he cannot recover it. Thus a payment of an illegal demand made against the person or property of an individual, which can be enforced only by an action at law wherein he can contest its legality, is voluntary.15 This rule applies alike to illegal demands of individuals and municipalities.16 If a munici

10. Trower v. San Francisco, 152 Cal. 479, 92 Pac. 1025, 15 L.R.A. (N.S.) 183.

11. Atchison, etc., R. Co. v. O'Connor, 223 U. S. 280, 32 S. Ct. 216, 56 U. S. (L. ed.) 436, Ann. Cas. 1913C 1050.

12. Ligonier v. Ackerman, 46 Ind. 552, 15 Am. Rep. 323, overruled on another point by Jennings v. Fisher, 103 Ind. 112, 2 N. S. 285.

13. See supra, par. 169.

14. Brunson V. Crawford County Levee Dist., 107 Ark. 24, 153 S. W. 828, Ann. Cas. 1915A 493, 44 L.R.A.

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pality must resort to regular judicial proceedings to enforce an illegal tax or assessment or other illegal demand, wherein the parties would stand on an equal footing and the validity of the demand would be tested, a payment of such demand rather than resist its legal enforcement is voluntary.17 Likewise it has been held that a payment made under a threatened sale of the payer's property is voluntary if he can contest the validity of the proceedings whenever an attempt is made to disturb its possession, and he pays the claim or demand rather than to be subjected to such action or to have his property sold.18

177. Threats or Commencement of Civil Suit.-The mere commencement of legal proceedings to recover a demand does not, in the absence of any actual seizure of the person or goods of the alleged debtor, or of any menace of such seizure, constitute such compulsion as to enable the defendant to recover a payment made under the influence thereof, for he has an ample remedy by way of defense to the suit, and if he pays the demand instead of defending the suit, he cannot recover the amount so paid.19 A fortiori a mere threat of legal proceedings does not constitute such compulsion as to enable a person paying money under the influence of such menace to recover it.20 Thus it has been held that where the defendant in a suit, with full knowledge of the facts, voluntarily pays part of the demand, and judgment is rendered against him for the balance, which is conclusively reversed on appeal, he cannot recover the part so paid. Likewise the mere. apprehension or probability of a civil proceeding to enforce a claim does not render a payment thereof involuntary in the sense that it

552, 15 Am. Rep. 323, overruled on another point by Jennings v. Fisher, 103 Ind. 112, 2 N. E. 285.

17. Ligonier v. Ackerman, 46 Ind. 552, 15 Am. Rep. 323, overruled on another point by Jennings v. Fisher, 103 Ind. 112, 2 N. E. 285; Louisville v. Becker, 139 Ky. 17, 129 S. W. 311, 28 L.R.A.(N.S.) 1045; Spalding v. Lebanon, 156 Ky. 37, 160 S. W. 751, 49 L.R.A.(N.S.) 387.

18. Trower v. San Francisco, 152 Cal. 479, 92 Pac. 1025, 15 L.R.A. (N.S.) 183.

19. Dickerman v. Lord, 21 Ia. 338, 89 Am. Dec. 579; Lester v. Baltimore, 29 Md. 415, 96 Am. Dec. 542; Benson v. Monroe, 7 Cush. (Mass.) 125, 54 Am. Dec. 716.

Notes: 45 Am. Dec. 158; 54 Am. Dec. 718.

Vick v. Shinn, 49 Ark. 70, 4 S. W. 60, 4 A. S. R. 26; Ligonier v. Ackerman, 46 Ind. 552, 15 Am. Rep. 323, overruled on another point by Jennings v. Fisher, 103 Ind. 112, 2 N. E. 285; Dickerman v. Lord, 21 Ia. 338, 89 Am. Dec. 579; New Orleans, etc., R. Co. v. Louisiana Constr., etc., Co., 109 La. 13, 33 So. 51, 94 A. S. R. 395; Hilborn v. Bucknam, 78 Me. 482, 7 Atl. 272, 57 Am. Rep. 816; Lester v. Baltimore, 29 Md. 415, 96 Am. Dec. 542; Claflin v. McDonough, 33 Mo. 412, 84 Am. Dec. 54 and note; Adams v. Reeves, 68 N. C. 134, 12 Am. Rep. 627; Flack v. National Bank of Commerce, 8 Utah 193, 30 Pac. 746, 17 L.R.A. 583.

Notes: 45 Am. Dec. 158; 94 A. S. R. 413; 22 L.R.A. (N.S.) 875. See DURESS, vol. 9, p. 722. 1. Beard v. Beard, 25 W. Va. 486,

20. Southern R. Co. v. Florence, 141 Ala. 493, 37 So. 844, 3 Ann. Cas. 106: 52 Am. Rep. 219.

can be recovered. The reason for the rule is almost self-evident. If there is in fact a cause of action when the threat is made, the plaintiff, by bringing suit, would only enforce a legal right; if there was no cause of action, or a demand for more than is due, the party threatened should exercise the ordinary degree of firmness which the law presumes every man to possess, and meet the issue of the unjust suit. One cannot be heard to say that he had the law with him, but feared to meet his adversary in court. It is only when he has no chance to be heard that he can pay and afterwards recover. But to these rules must be added the qualification that if one, knowing that he has no claim on another, sues out legal process against him and seizes his person or property, and the defendant, acting on the false representation of the plaintiff, and not being able at the time. by reasonable diligence to know or to prove that such representations are false, pays the demand, he may recover it back in a subsequent action.1

178. Institution or Threat of Criminal Proceedings Generally.If money, not justly or lawfully due, is paid to avoid an unlawful arrest or to be free from an unlawful imprisonment, it may be recovered. To constitute duress by imprisonment, the imprisonment must be unlawful, or there must be an abuse of or an oppression under lawful process or legal detention. Applying this rule it has been held that if a debtor is caused to come within the state by the fraudulent representations of his creditor and for the purpose of having him there arrested, and he is so arrested after coming within such state, and pays an amount of money to obtain his release, he may recover such money as paid under duress, if when he paid it he was a stranger, away from his friends, probably unable to give security, and without counsel, though he might have obtained relief by properly bringing the facts of his case to the attention of the court." But fear of imprisonment, when there has been no threat thereof, does not render a payment recoverable. Neither do mere threats

2. Ligonier v. Ackerman, 46 Ind. 552, 15 Am. Rep. 323, overruled on another point by Jennings v. Fisher, 103 Ind. 112, 2 N. E. 285.

Notes: 45 Am. Dec. 158; 54 Am. Dec. 716; 94 A. S. R. 413; 22 L.R.A. (N.S.) 876.

3. Vick v. Shinn, 49 Ark. 70, 4 S. W. 60, 4 A. S. R. 26; Ligonier v. Ackerman, 46 Ind. 552, 15 Am. Rep. 323, overruled on another point by Jennings v. Fisher, 103 Ind. 112, 2 N. E. 285; Benson v. Monroe, 7 Cush. (Mass.) 125, 54 Am. Dec. 716; Claflin . McDonough, 33 Mo. 412, 84 Am. Dec. 54.

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