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.4 178. 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. Note: 94 A. S. R. 413. 4. Adams v. Reeves, 68 N. C. 134, 12 Am. Rep. 627. 5. Sweet v. Kimball, 166 Mass. 332, 44 N. E. 243, 55 A. S. R. 406; Claflin v. McDonough, 33 Mo. 412, 84 Am. Dec. 54. Notes: 45 Am. Dec. 159; 94 A. S. R. 418; 22 L.R.A. (N.S.) 874; Ann Cas. 1913C 1053. See also DURESS, vol. 9, p. 719. 6. Note: 94 A. S. R. 418. 7. Sweet v. Kimball, 166 Mass. 332, 44 N. E. 243, 55 A. S. R. 406. 8. Note: 94 A. S. R. 418. of a criminal prosecution, when no warrant has been issued or proceedings begun, and there is no immediate danger. And a threat of arrest for which there is no ground does not constitute duress, as the person threatened could not be put in fear thereby.10 But these rules fail to take into consideration that the question at issue in such cases is whether the mind of the person was overcome by impending criminal proceedings to such an extent as to make his act of payment involuntary. No hard and fast rule therefore should be laid down but each case must be decided on its own peculiar facts. Thus if the threat of criminal prosecution was made against an old man ignorant of the law, for the purpose of compelling the payment of an illegal demand, and he, on account of his age and ignorance of the law, was so put in fear that his will was overcome, and he paid the money, not of his own free will, but because of the fear that he would be unjustly imprisoned, such a payment would be involuntary. And in such a case the defendant cannot well set up any defense of the policy of the law that it was the duty of the injured party to have resorted to the courts in the first place, or withstood the threat of being taken there until proceedings were actually begun, to defend himself from the extortion.11 179. Criminal Proceedings against Spouse or Child.-The rule is firmly established that, in relation to husband and wife or parent and child, each may avoid a contract induced and obtained by threats of imprisonment of the other, and it is of no consequence whether the threat is of a lawful or unlawful imprisonment, and money paid to avoid such an arrest may be recovered.12 But this principle applies only to blood relatives, and not to relatives by marriage.18 The principle which appears to underlie all of this class of cases is that, whenever a party is so situated as to exercise a controlling influence over the will, conduct and interest of another, contracts thus made will be void.14 180. Payments to Prevent Discontinuance or Destruction of Business. Among the instances of the relaxation of the strictness of the original common law rule is the case of payments constrained by business exigencies, that is, payments of illegal charges or exactions under apprehension on the part of the payers of being stopped in their business if the money is not paid.15 It has been stated that seq. 9. Harmon v. Harmon, 61 Me. 227, 12. See DURESS, vol. 9, p. 726 et 14 Am. Rep. 556; Hilborn v. Buckman, 78 Me. 482, 7 Atl. 272, 57 Am. Rep. 816. Note: 94 A. S. R. 418. See also DURESS, vol. 9, p. 718. 10. See DURESS, vol. 9, p. 719. 11. Cribbs v. Sowle, 87 Mich. 340, 49 N. W. 587, 24 A. S. R. 166. Note: 45 Am. Dec. 159. 13. Note: 45 Am. Dec. 162. 14. Adams v. Irving Nat. Bank, 116 N. Y. 606, 23 N. E. 7, 15 A. S. R. 447 and note, 6 L.R.A. 491. 15. Scottish Union, etc., Ins. Co. v. Herriott, 109 Ia. 606, 80 N. W. 665, 77 A. S. R. 548; New Orleans, etc., R. Co. v. Louisiana Constr., etc., Co., the general rule with regard to duress of this character is that where by reason of the peculiar facts a reasonably prudent man finds that in order to preserve his property or protect his business interests it is necessary to make a payment of money which he does not owe and which in equity and good conscience the receiver should not retain, he may recover it.16 The rule has been applied to cases where a person must either pay a tax or other public fee or stop his business. In such case, he having no choice and no opportunity to contest the legality of the claim, a payment will be held to be involuntary.17 It has been applied also as between a shipper and a common carrier, where the shipper, having no other means of transportation, must pay the illegal charges or discontinue his business. In such a case there is a controlling necessity arising from the circumstances under which the money is demanded and paid.18 Likewise payment of water rates under protest, to avoid the shutting off of the water, which would be a great detriment to the property owner, is under duress, within the rule that payments so made may be recovered.19 The telephone has become an instrument of such necessity in business houses that a denial of its advantages would amount to a destruction of the business, and hence the payment of an illegal demand of a telephone company as a condition of continued service would be involuntary.20 The rule applies to payments made between private persons. If a payment is made to prevent a threatened exercise of power possessed by the person to whom it is made, which, if carried into execution, would ruin the business of the person paying, it is made under duress and may be recovered back. Thus where a lessee is compelled by the exigencies of his business to obtain the proceeds of a fire insurance policy at once, but his lessor refuses to join with him in making proofs of loss until he pays the lessor a sum out of the proceeds which he does not owe, the payment may be recovered. 109 La. 13, 33 So. 51, 94 A. S. R. 395; Groton v. Waldoborough, 11 Me. 306, 26 Am. Dec. 530; American Brewing Co. v. St. Louis, 187 Mo. 367, 86 S. W. 129, 2 Ann. Cas. 821 and note. Notes: 51 Am. Rep. 826; 2 Ann. Cas. 826. See also DURESS, vol. 9, pp. 722723. 16. Note: 2 Ann. Cas. 825. 17. Robertson v. Frank Bros. Co., 132 U. S. 17, 10 S. Ct. 5, 33 U. S. (L. ed.) 236; 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 and note; Scottish Union, etc., Ins. Co. v. Herriott, 109 Ia. 606, 80 N. W. 665, 77 A. S. R. 548; Groton v. Waldoborough, 11 Me. 306, 26 Am. Dec. 530. Notes: 94 A. S. R. 416; 49 L.R.A. (N.S.) 389. 18. Illinois Glass Co. v. Chicago Telephone Co., 234 Ill. 535, 85 N. E. 200, 18 L.R.A. (N.S.) 124. 19. Chicago v. Northwestern Mut. L. Ins. Co., 218 Ill. 40, 75 N. E. 803, 1 L.R.A.(N.S.) 770; Westlake v. St. Louis, 77 Mo. 47, 46 Am. Rep. 4. Note: 94 A. S. R. 422. 20. Illinois Glass Co. v. Chicago Telephone Co., 234 Ill. 535, 85 N. E. 200, 18 L.R.A. (N.S.) 124. 1. Note: 2 Ann. Cas. 825. And likewise money paid by an employer at the demand of a labor union, to prevent its members from refusing to handle his product because he had done certain things which they considered unfair, may be recovered back, since it was obtained by extortion." 181. Securing Immediate Enjoyment of Right.-The general rule that a voluntary payment made in mutual mistake of law cannot be recovered back has been frequently relied on as a defense in actions brought against public officers to recover alleged illegal fees exacted by them. But the courts generally favor the view that if an illegal demand is made by any person holding an official position, with the color of authority to enforce it, and such demand operates as a restraint on the exercise of an undoubted right or privilege, and in its enforcement there is no opportunity of contesting its validity, a payment of the demand in order to remove such restraint is compulsory, and not voluntary. Thus it is well settled that where money is exacted by and paid to a public officer in excess of his legal fees, in order to obtain the performance of an official duty, to which the party is entitled without such payment, an action lies to recover back the money, as having been involuntarily paid. So the exaction by a clerk or other official, against the protest of a party, of illegal fees as a condition for filing a document in his office which the party presenting it is entitled to have filed by him, renders the payment of such fees compulsory. Likewise a shipping commissioner who demands and receives unauthorized fees for reshipping members of the crew of a vessel for the next voyage may be compelled to repay the sums exacted, in an action brought therefor. But the payment of an illegal license fee is not to be considered compulsory where the license is not demandable as a right. The reason underlying the rule is that the officer and the public who have business to transact with him do not stand on an equal footing. It is his special business to be conversant with the law under which he acts, and to know precisely how much he is authorized to demand for his services: but with them it is different. They have neither the time nor the 3. March v. Bricklayers', etc., Union No. 1, 79 Conn. 7, 63 Atl. 291, 118 A. S. R. 127, 6 Ann. Cas. 848 and note, 4 L.R.A. (N.S.) 1198 and note; Carew v. Rutherford, 106 Mass. 1, 8 Am. Rep. 287. 4. Robertson v. Bradbury, 132 U. S. 491, 10 S. Ct. 158, 33 U. S. (L. ed.) 405; Trower v. San Francisco, 152 Cal. 479, 92 Pac. 1025, 15 L.R.A. (N.S.) 183 and note; Detroit v. Martin, 34 Mich. 170, 22 Am. Rep. 512; Ripley v. Gelston, 9 Johns. (N. Y.) 201, 6 Am. Dec. 271. Note: 15 L.R.A. (N.S.) 183. 5. American Steamship Co. V. Young, 89 Pa. St. 186, 33 Am. Rep. 748. Notes: 45 Am. Dec. 167; 15 L.R.A. (N.S.) 183; 2 Ann. Cas. 826. 6. Trower v. San Francisco, 152 Cal. 479, 92 Pac. 1025, 15 L.R.A. (N.S.) 183. 7. American Steamship Co. V. Young, 89 Pa. St. 186, 33 Am. Rep. 748. 8. Camden v. Green, 54 N. J. L. 591, 25 Atl. 357, 33 A. S. R. 686. opportunity of acquiring the information necessary to enable them to know whether he is claiming too much or not, and as a general rule, relying on his honesty and integrity, they acquiesce in his demands. Hence it is that for the official wrong of taking illegal fees a statutory penalty is provided in favor of the party aggrieved." Indeed this class of payments stands on a different footing from that of any other class of involuntary payments, and a recovery will be more readily allowed, not only because of the inequality of position of the parties, but also on grounds of public policy to prevent extortion by officials.10 The distinction to be observed is between a payment made for the purpose of protecting or securing the present enjoyment of a right to which the person is immediately entitled and a payment made to prevent a threatened disturbance of such right where there is no authority to interfere with its enjoyment until the right of the threatening party shall be established in a judicial proceeding in which the rights of the respective parties may be presented and determined. In the latter case a payment to avoid such threatened contest is regarded as voluntary, while in the former case it is compulsory.11 182. Excessive Charges by Common Carrier.-The right to recover excessive payments made to public service corporations depends on whether or not the payments are made under such circumstances as to be involuntary. Generally, where a common carrier charges for carriage rates in excess of those allowed by law, and a person is compelled to pay those rates to have his goods carried, the payment will be regarded as compulsory, and may be recovered.12 Payments of excessive charges to a common carrier having goods in its possession, in order to secure possession of the goods, are generally recognized as being made under duress, and may be recovered.18 This rule will not apply if the service has been completed by delivery before payment, so that the element of coercion does not exist.14 Still it has been held that if one to procure the transportation of goods by railroad pays illegal rates under protest, he may recover them, even 9. American Steamship Co. v. Young, 89 Pa. St. 186, 33 Am. Rep. 748. 10. Robertson v. Frank Bros. Co., 132 U. S. 17, 10 S. Ct. 5, 33 U. S. (L. ed.) 236. Note: 45 Am. Dec. 168. 11. Trower v. San Francisco, 152 Cal. 479, 92 Pac. 1025, 15 L.R.A. (N.S.) 183. 12. Note: 45 Am. Dec. 169. See CARRIERS, vol. 4, p. 862. 13. Harmony v. Bingham, 12 N. Y. 99, 62 Am. Dec. 142; Baldwin v. Liverpool, etc., Steamship Co., 74 N. |