protest, and with notice of an intention to reclaim it, in order to enable the party paying to recover it back. No doubt it is always safest to protest against the illegal exaction. The circumstances of different cases are so diverse and the nature of the question is such that no very precise rules can be laid down which will fit every Ordinarily, protest is evidence of compulsion or unwillingness to pay,11 and is a notice to the person to whom the payment is made that the person paying does not acquiesce in the illegal demand, and thereby surrender up any right he may have to recover back the money.12 Protest is usually expected where the payment is made to one who has the right to make terms with the payer; 18 but, where protest would be useless, it is superfluous.14 Examples are to be found in cases where a railroad company fixes its own rates and goods are tendered to an agent who has no authority to make any change in such rates, and where a protest would be entirely useless.15 In some cases, however, protest is essential to show that the person making the payment did not acquiesce in the legality of the demand. Thus in customs cases where a payment is made to release goods held for import duties it is held that protest is necessary in order to show that the legality of the demand was not admitted when the payment was made.16 And in internal revenue tax cases the same rule has been applied for the same reason.17 But the controlling element in such cases is quite generally a statute requiring protest as a condition precedent to recovery.18 11. Vick v. Shinn, 49 Ark. 70, 4 S. W. 60, 4 A. S. R. 26; Brumagim v. Tillinghast, 18 Cal. 265, 79 Am. Dec. 176; Illinois Glass Co. v. Chicago Telephone Co., 234 Ill. 535, 85 N. E. 200, 18 L.R.A.(N.S.) 124. 12. McMillan v. Richards, 9 Cal. 365, 70 Am. Dec. 655; Detroit v. Martin, 34 Mich. 170, 22 Am. Rep. 512. 13. Illinois Glass Co. v. Chicago Telephone Co., 234 Ill. 535, 85 N. E. 200, 18 L.R.A. (N.S.) 124. 14. Illinois Glass Co. v. Chicago Telephone Co., 234 Ill. 535, 85 N. E. 200, 18 L.R.A. (N.S.) 124; Peters v. Marietta, etc., R. Co., 42 Ohio St. 275, 51 Am. Rep. 814. Notes: 45 Am. Dec. 163; 94 A. S. R. 421. 15. Illinois Glass Co. v. Chicago Telephone Co., 234 Ill. 535, 85 N. E. 200, 18 L.R.A. (N.S.) 124; Hilton Lumber Co. v. Atlantic Coast Line R. Co., 141 N. C. 171, 53 S. E. 823, 6 L.R.A. (N.S.) 225; Peters v. Marietta. etc., R. Co., 42 Ohio St. 275, 51 Am. Rep. 814. 16. Elliott v. Swartwout, 10 Pet. 137, 9 U. S. (L. ed.) 373; Bend v. Hoyt, 13 Pet. 263, 10 U. S. (L. ed.) 154; Union Pacific R. Co. v. Dodge County Commissioners, 98 U. S. 541, 25 U. S. (L. ed.) 196 (stating the rule); Chesebrough v. United States, 192 U. S. 253, 24 S. Ct. 262, 48 U. S. (L. ed.) 432. 17. Philadelphia v. Diehl, 5 Wall. 720, 18 U. S. (L. ed.) 614; Brainard v. Hubbard, 12 Wall. 1, 20 U. S. (L. ed.) 272. 18. Nichols v. United States, 7 Wall. 122, 19 U. S. (L. ed.) 125; Chesebrough v. United States, 192 U. S. 253, 24 S. Ct. 262, 48 U. S. (L. ed.) 432; United States v. New York, etc., Mail Steamship Co., 200 U. S. 488, 26 S. Ct. 327, 50 U. S. (L. ed.) 569. Notes: 45 Am. Dec. 163; 49 L.R.A. (N.S.) 389. 173. Effect of Protest.-If compulsion exists, and the payment is made and known to be made under the influence of it, the absence of formal protest cannot defeat a recovery.19 If there are no such circumstances surrounding the payment as constitute sufficient compulsion in the eyes of the law in accordance with the principles laid down herein, the fact that the payment is made under the most solemn protest does not render it any the less voluntary; 20 it does not impair, in any respect, the operative effect of the payment as a discharge of the demand on which it is made, so far as such demand is legal.1 In such case the payment nullifies the protest as effectually as it obviates the previous denial and contestation of the claim. There are, no doubt, cases to be found in which the language of the court, if separated from the facts of the particular case under consideration, would seem to imply that a protest alone was sufficient to show that the payment was not voluntary; but on examination it will be found that the protest was used to give effect to the other attending circumstances, and other considerations seem to have formed the groundwork of the decisions.+ 174. Other Means of Relief Not Available.-There must be a pressing, controlling and immediate necessity on the person making the payment to render it compulsory or involuntary. The illegal demand must be accompanied by the apparent power, at least, to carry the threat of enforcement into immediate execution, and there must be no avenue of immediate escape from the threatened injury other than 19. Note: 45 Am. Dec. 163. 20. Vick v. Shinn, 49 Ark. 70, 4 S. W. 60, 4 A. S. R. 26; Brunson v. Crawford County Levee Dist., 107 Ark. 24, 153 S. W. 828, Ann. Cas. 1915A 493, 44 L.R.A. (N.S.) 293; McMillan v. Richards, 9 Cal. 365, 70 Am. Dec. 655; Brumagim v. Tillinghast, 18 Cal. 265, 79 Am. Dec. 176; 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; Lester v. Baltimore, 29 Md. 415, 96 Am. Dec. 542; Benson v. Monroe, 7 Cush. (Mass.) 125, 54 Am. Dec. 716; Detroit v. Martin, 34 Mich. 170, 22 Am. Rep. 512; Cox v. Welcher, 68 Mich. 263, 36 N. W. 69, 13 A. S. R. 339; Claflin v. MeDonough, 33 Mo. 412, 84 Am. Dec. 54; Wessel v. Johnston Land, etc., Co., 3 N. D. 160, 154 N. W. 922, 44 A. S. R. 529; Beard v. Beard, 25 W. Va. 486, 52 Am. Rep. 219. Notes: 45 Am. Dec. 163; 94 A. S. R. 417; 49 L.R.A. (N.S.) 389; 8 U. S. (L. ed.) 301. 1. McMillan v. Richards, 9 Cal. 365, 70 Am. Dec. 655. 2. McMillan v. Richards, 9 Cal. 365, 70 Am. Dec. 655. Note: 45 Am. Dec. 163. 3. Chesebrough v. United States, 192 U. S. 253, 24 S. Ct. 262, 48 U. S. (L. ed.) 432. 4. Union Pac. R. Co. v. Dodge County Commissioners, 98 U. S. 541, 25 U. S. (L. ed.) 196; Arkansas Bldg., etc., Ass'n v. Madden, 175 U. S. 269, 20 S. Ct. 119, 44 U. S. (L. ed.) 159; 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; New Orleans, etc., R. Co. v. Louisiana Constr., etc., Co., 109 La. 13, 33 So. 51, 94 A. S. R. 395 and note; Jackson v. Newman, 59 Miss. 385, 42 Am. Rep. 367. Note: 22 L.R.A. (N.S.) 876. by making the illegal payment.5 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. 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. Lebanon, 156 Ky. 37, 160 S. W. 751, 49 L.R.A. (N.S.) 387; New Orleans, etc., R. Co. v. Louisiana Constr., etc.. Co., 109 La. 13, 33 So. 51, 94 A. S. 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. 9. Joannin v. Ogilvie, 49 Minn. 564, 52 N. W. 217, 32 A. S. R. 581, 16 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 at 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.1 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. pality must resort to regular judicial proceedings to enforce an illegal fax 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. 20. Southern R. Co. v. Florence, 141 Ala, 493, 37 So. 844, 3 Ann. Cas. 106; 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, 52 Am. Rep. 219. |