curity of the boom is not sought or desired. In the second section of the act it is expressly enjoined upon the corporation so to construct the boom as to admit the passage of rafts and boats.

If the defendant was not entitled to boomage, it is secondly contended that the payment, being voluntary, cannot be reclaimed. * * It has been laid down as a general principle, that an action for money had and received lies for money got through imposition, extortion, oppression, or an undue advantage taken of the party's situation. Moses v. Macferlan, 2 Burr. 1005; Smith v. Bromley, cited in Doug. 696. In Astley v. Reynolds, 2 Strange 916, an action was sustained to recover money, extorted by a pawnbroker, for the redemption of plate; notwithstanding it was objected that the payment was voluntary. In Hall v. Schultz, 4 Johns. 240, Spencer, J., says, this case has been overruled by Lord Kenyon in Knibbs v. Hall. [1 Esp. 84.] There the plaintiff had paid, as he insisted, five guineas more rent than could have been rightfully claimed of him, to avoid a distress which was threatened. Lord Kenyon held this to be a voluntary payment, and not upon compulsion; as the party might have protected himself from a wrongful distress by replevin. His lordship does not advert to the case of Astley v. Reynolds; and subsequently, in Cartwright v. Rowley [2 Esp. 723] before cited, he refers with approbation to an action within his recollection, for money had and received, brought against the steward of a manor, to recover money paid for producing at a trial some deeds and court rolls, for which he had charged extravagantly. It was urged that the payment was voluntary; but it appearing that the party could not do without the deeds, and that the money was paid through the urgency of the case, the action was sustained. Had the distress, threatened in Knibbs v. Hall, been actually made, money paid to relieve the goods, could not have been recovered in assumpsit, upon a principle which will be subsequently noticed.

Hall v. Schultz [4 Johns. 240], cited by counsel for the defendant, was commented upon in Gilpatrick v. Sayward, 5 Greenl. 465. Neither of these actions could be sustained without a violation of the statute of frauds; and upon this ground they were defeated. In Stevenson v. Mortimore, Cowper 805, the plaintiff recovered, in an action for money had and received, an excess of fees by him paid to a custom-house officer, to obtain a document he was under the necessity of procuring. In Ripley v. Gelston, 9 Johns. 201, the plaintiff recovered in assumpsit of the collector of New York, money illegally claimed by him as tonnage and light money; and which the plaintiff paid to obtain a clearance of his vessel. In Clinton v. Strong, 9 Johns. 370, money was reclaimed, which had been wrongfully exacted by the clerk of the district court, for the redelivery of property which had been seized. In the foregoing cases the payments were not deemed voluntary, but extorted and compulsory. It may be insisted that trespass or replevin would have been more appropriate remedies for the plaintiff. Either might doubtless have been maintained; and where they are specific remedies, provided by

law for a peculiar class of injuries, assumpsit cannot be substituted. It was upon this ground that Lindon v. Hooper, Cowper 414, was decided. Cattle damage feasant had been wrongfully distrained, money had been paid for their liberation, and an action for money had and received brought to recover it. The action did not prevail. The court place their opinion expressly on the nature of the remedy by distress, which they say is singular, and depends upon a peculiar system of strict positive law. That the distrainor has a certain course, prescribed to him, which he must take care formally to pursue; and that the law has provided two precise remedies for the owner of the cattle, which may happen to be wrongfully distrained, replevin and, after paying the sum claimed, trespass, in which such payment must be specially averred and set forth as an aggravation of the trespass. Then are to follow pleadings, which put directly in issue the validity of the distress. From a case of this peculiar character, decided upon this special ground, no general principle can be extracted which can govern cases, where the law of distress does not apply.1

Irving v. Wilson, 4 D. & E. 485, is a case strongly resembling the one, now before the court. A revenue officer had seized goods, not liable to seizure, but demanded money for their release, which the owner paid. This was recovered back in an action for money had and received. It was held to be a payment not voluntary, but by coercion, the defendant having the plaintiff in his power, by stopping his goods. It does not appear to have occurred to the counsel or the court that it was a case which was affected by the decision in Lindon v. Hooper.

Trespass would have been an appropriate remedy for the unlawful seizure; but after payment, assumpsit was also appropriate. The money was extorted. The payment was not voluntary in any fair sense of that term; and the defendant had no just title to retain it. If money is voluntarily paid to close a transaction, without duress either of the person or goods, the legal maxim, volenti non fit injuria, may be allowed to operate. It would be a perversion of the maxim to apply it for the benefit of a party, who had added extortion to unjustifiable force and violence.

1In Colwell v. Peden, 3 Watts (Pa.) 327 (1834), the landlord issued a warrant of distress in good faith to recover rent alleged to be in arrear, though none was due. The tenant, to relieve his goods from distress, paid the sum claimed and then sued in this action of assumpsit to recover back the money. The court said, in conclusion: "There seems, therefore, to be much force in the remark of Mr. Starkie [on Evidence] that 'the plaintiff cannot substitute this form of action for the more appropriate ones of trespass or replevin, where they are the specific ones provided by the law for the particular grievance.' In either of these the question may be tried as advantageously for the tenant as in an action of assumpsit; nor is there any reason why he should be suffered to turn a cause of action essentially local into a transitory one by changing the form of the remedy and shifting the position of the parties to the issue. This last consideration was decisive of the form of the action in Mather v. Trinity, 3 Serg. & Rawle 509; and would, of itself, be decisive of it here. On principle, as well as authority, then, a tenant cannot maintain assumpsit for money paid to relieve his goods from distress."

The party injured often finds a convenience, in being allowed to select one of several concurrent remedies. In the case under consideration, replevin would have restored the property unlawfully seized. But to procure a writ, and an officer to serve it, would have occasioned delay, which might have subjected the plaintiff to greater loss than the payment of the money demanded. Besides, he must have given a bond to the officer to prosecute his suit; and he might meet with difficulty in obtaining sufficient sureties. Had he brought trespass, several months might have elapsed, before he could have obtained a final decision; and this delay might have been attended with serious inconvenience. By the course pursued, these difficulties were avoided. Nor is the defendant placed by it in any worse situation. He has been permitted to urge in his defense any claim of right under the corporation, and he is liable to pay only the money actually received by him; the plaintiff waiving, by the form of the action, damages for the illegal seizure. We perceive no objection in principle to the form of the action; nor do we find it unsupported by precedent and authority. Exceptions overruled.1

SCHOLEY, Ex'R, v. MUMFORD ET AL.

60 N. Y. 498.-1875.

ACTION to recover back moneys paid under the circumstances stated in the opinion. Plaintiff and G. H. Mumford were executors of the will of Elizabeth Scholey; defendants were Mr. Mumford's executors.

RAPALLO, J.

*

*

The defendants had in their possession

1 In Cobb v. Charter, 32 Conn. 358, 366 (1865), the court says: "The plaintiff was a mechanic. His chest of tools, which are held by statute sacred even from the touch of a creditor, were seized by the defendant. He refused to deliver them to the owner on demand except upon his paying, without the slightest obligation, the debt of another person. The plaintiff was thus deprived of the means of his support. Thereupon he left the money with Stratton to be paid to the defendant when the chest should be sent. Stratton so informed the defendant, who at once sent the chest and then received the money. In view of such extortion, oppression, and taking an undue advantage of the plaintiff's situation, it seems somewhat bold in the defendant to come into a court of justice and assert that the payment was voluntary."

In Harmony v. Bingham, 12 N. Y. 99, 112 (1854), the court says: "The property consisted of merchandise of great value, which had been transported to a remote part of the country, in reference to a commercial adventure in Mexico. Every precaution had been taken by the plaintiff to procure its 'transportation in the shortest practicable period, and it was essential to his interest that he should obtain possession of it immediately on its arrival. The defendants refused to deliver the property without the payment of a greater sum for freight than they could legally claim. The plaintiff protested against the payment of what he considered an illegal and extortionate charge, and finally, from the necessity of the case, and for the purpose of obtaining possession of his property, he paid the illegal demand. I think that a payment, under such circumstances, should not be considered as voluntary."

$85,000 of bonds belonging to the estate of which the plaintiff was surviving executor. These bonds had come to the possession of the defendants through George H. Mumford, deceased, who was, in his life, the co-executor, with the plaintiff, of the will of Mrs. Scholey. The complaint alleges that the defendants refused to deliver these bonds to the plaintiff until the sum in controversy, which was alleged by the defendants to be due to the estate of George H. Mumford, deceased, for commissions, was paid to them, and that this claim was disputed by the plaintiff. The parties appeared before the surrogate, who, in the first instance, decided that the defendants were entitled to the commissions. The plaintiff then paid them, and afterward applied to the surrogate for a rehearing upon the question, and upon such rehearing the surrogate reversed his former decision. The complaint alleges that the plaintiff, although advised that the first decision of the surrogate was erroneous, nevertheless paid the sum claimed, in order to obtain the delivery of the bonds to him. The defendants, in their answer, do not deny the allegation of the complaint that they refused to deliver up the bonds except upon payment of the commissions, but, on the contrary, expressly admit "that they would not have delivered up the bonds except upon the terms aforesaid," i. e., the payment of the commissions. The plaintiff testified that he was anxious to get the bonds; that the defendants had, after the death of George H. Mumford, declined to give up the bonds, on the ground that commissions were due. The evidence is very meager; but I think it sufficiently appeared, from the acts of the parties and the admission in the answer, that this claim for commissions was disputed, and was yielded to simply as a means of obtaining possession of the bonds to which the plaintiff was entitled, and which the defendants withheld from him for the purpose of coercing payment of the commissions.

To constitute a voluntary payment the party paying must have had the freedom of exercising his will. When he acts under any species of compulsion the payment is not voluntary. If a party has in his possession goods, or other property, belonging to another, and refuses to deliver such property to that other unless the latter pays him a sum of money which he has no right to receive, and, in order to obtain possession of his property, he pays that sum, the money so paid is a payment made by compulsion, and may be recovered back. (Per BAYLEY, J., Shaw v. Woodcock, 7 B. & C. 73.) This has been frequently decided. Where a pawnbroker refused to deliver plate pawned, except upon payment of excessive interest, and the owner paid it to obtain his property, he was allowed to recover back the excess. Astley v. Reynolds, 2 Stra. 915. An action will lie to recover back money paid to release goods wrongfully detained on a claim of lien: Ashmole v. Wainwright, 2 A. & E. N. s. 737; Harmony v. Bingham, 12 N. Y. 109, 116; or money wrongfully exacted by a corporation as a condition permitting a transfer of stock. Bates v. N. Y. Ins. Co., 3 Johns. Cas. 238. The cases to this effect are numerous. In all these cases the payment is regarded as compulsory,

and not voluntary. I think the case at bar falls within the principle of these decisions. The amount of property was very large compared with the sum exacted; and, from the conduct of the plaintiff, it may well be inferred that he preferred to pay it and take the chances of recovering it back, rather than to incur the hazard of having so large an amount of property in the hands of the defendants.

The claim of the defendants, that after the surrogate had decided that the defendants were entitled to the commissions, the plaintiff gave up the controversy, and consented to abide by the decision, is not sustained by the facts. The uncontroverted allegations of the complaint, that the defendants refused to deliver the bonds unless the commissions were paid; and that, after the first decision of the surrogate, the plaintiff, although advised that the decision was erroneous, did, nevertheless, pay them, in order to have the bonds delivered up to him, coupled with the steps which were very soon afterward taken by the plaintiff to obtain a reversal of the decision of the surrogate; and the allegations in the answer, that, after the first decision, the defendants notified the plaintiff that they would deliver up the bonds on payment of the amount claimed by them, and that they would not have delivered up the bonds except upon the terms aforesaid, sufficiently define the positions of the parties, and show that the payment was not the free and voluntary act of the plaintiff ; but that he had no choice, and was compelled to submit to the demand in order to obtain immediate possession of the bonds.

The judgment should be reversed, and a new trial ordered, with costs to abide the event.

1

All concur; except MILLER, J., dissenting.

Judgment reversed.1

This case came again to the court of appeals in 72 N. Y. 578 (1878), and was again decided for the plaintiff, but upon the ground stated as follows by the court: "We think the case is with the plaintiff on the ground now to be stated. The original decision of the surrogate was doubtless erroneous, and having been subsequently reversed and set aside, the plaintiff was then entitled to recover the money paid under the erroneous order. In Clark v. Pinney (6 Cow. 299), the court says: That this action (indebitatus assumpsit) lies in all cases where the defendant has in his hands money which, ex aequo et bono, belongs to the plaintiff. When money is collected upon an erroneous judgment, which, subsequent to the payment of the money is reversed, the legal conclusion is irresistible that the money belongs to the person from whom it was collected; of course, he is entitled to have it returned to him.' The same principle is recognized in subsequent cases. Maghee v. Kellogg, 24 Wend. 32; Garr v. Martin, 20 N. Y. 306."