growing out of the fact that his principal was suffering illegal imprisonment as a defense to an action brought upon the obligation of the surety given to secure his principal's release. But the rule in Cro. Jac. has been modified so as to allow a father to plead the duress of a child, or a husband the duress of his wife, or a child the duress of the parent. Wayne v. Sands, 1 Freeman 351; Bayley v. Clare, 2 Browne 276; 1 Roll. Abr. 687; Jacob's Law Dic., "Duress."

We see no ground upon which it can be held that the plaintiff in this case was not in par delictum in the transaction with the defendants. So far as the complaint shows he was a volunteer in entering into the fraudulent agreement. It is not even alleged that he acted at the request of the debtor. And in respect to the claim of duress, upon which Smith v. Bromley was decided, we are of opinion that the doctrine of that and the subsequent cases referred to can only be asserted in behalf of the debtor himself, or of a wife or husband, or near relative of the blood of the debtor, who intervenes in his behalf, and that a person in the situation of the plaintiff, remotely related by marriage, with the debtor, who pays money to a creditor to induce him to sign a composition, cannot be deemed to have paid under duress by reason simply of that relationship, or of the interest which he might naturally take in his relative's affairs.

The plaintiff cannot complain because the defendants negotiated the note, so as to shut out the defense which he would have had to it in the hands of the defendants. The negotiation of the note was contemplated when it was given, as the words of negotiability show. It is possible that the plaintiff, while the note was held by the defendants, might have maintained an action to restrain the transfer, and to compel its cancellation. Jackson v. Mitchell, 13 Ves. 581. But it is unnecessary to determine that question in this case. The plaintiff having paid the note, although under the coercion resulting from the transfer, the law leaves him where the transaction has left him.

THIS was an action of debt under the statute 32 Geo. II, ch. 28, brought by the plaintiff to recover from the defendant, who was a sheriff's officer, the amount of several penalties given by that statute, for taking more money on an arrest than is allowed by that act.

The plaintiff gave in evidence, that having been arrested by the defendant, on a writ marked for bail for 500l, he gave bail to the sheriff; that the defendant charged five guineas for the bail bond and civility money; and that two guineas and a half were actually paid. By the stat. 32 Geo. II. ch. 28, the officer is allowed to take the sum of half a guinea for the bail bond, and no more. The declaration contained the common money counts in debt, for money had and received, and money paid, as well as the counts for the penalties. The plaintiff having omitted to subpoena the witness to the bail bond, and the extortion being laid to have been committed in taking the money for the bail bond, in all the counts for the penalties, the plaintiff was under the necessity of abandoning those counts. His counsel then proposed to go on the count for money had and received.

Mingay, for the defendant, contended that the plaintiff should be non-suited, and not be permitted to go into evidence on the money counts. That the action having been brought for the penalties for the breach of a statute, and the plaintiff having failed in establishing the offense, should not be allowed to go for the money taken by the officer, in the form of money had and received; inasmuch as the money, if improperly or illegally taken, subjected him to the penalties which the plaintiff had failed in establishing.

Lord KENYON ruled, that the plaintiff might recover on the money counts; that it was money extorted from the plaintiff by the defendant taking an advantage of his situation, and under a claim of right, which the plaintiff was unable to resist. That the claim arose under a settled rule of law, which entitled a party to recover back money extorted from him, which was the case here; and the circumstance of the defendant's thereby incurring a penalty could not vary it.

Verdict for the plaintiff for the money paid, deducting the sum allowed by law to the defendant.1

1 Accord, Swift Co. v. United States, III U. S. 22 (1884), in which the court says (p. 30): "If a person illegally claims a fee colore officii, the payment is not voluntary so as to preclude the party from recovering it back. Morgan v. Palmer, 2 B. & C. 729. In Steele v. Williams, 8 Exch. 625, Martin, B., said: 'If a statute prescribes certain fees for certain services, and a party assuming to act under it insists upon having more, the payment_cannot be said to be voluntary.' 'The common principle,' says Mr. Pollock, Principles of Contract 523. is, that if a man chooses to give away his money, or take his chances whether he is giving it away or not, he cannot afterward change his mind; but it is open to him to show that he supposed the facts to be otherwise, or that he really had no choice.' Addison on Contracts 1043; Alton v. Durant, 2 Strobh. 257."

And see also American Steamship Co. v. Young, 89 Pa. 186 (1879), in which the court says (p. 191): "We think that sound public policy requires us to hold that a public officer who, virtute officii, demands and takes as fees for his services what is not authorized or more than is allowed by law, should be comDelled to make restitution. He and the public who have business to transact with him do not stand upon 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 opportunity of acquiring the information neces

BRUMAGIM ET AL. V. TILLINGHAST.

18 CAL. 265.-1861.

DEFENDANT filed a general demurrer, which the court below sustained, and gave final judgment in his favor. Plaintiffs appeal.

FIELD, C. J. delivered the opinion of the court; BALDWIN, J., and COPE, J., concurring.-The Act of Legislature of April, 1858, amendatory of the Act of April, 1857, "to provide revenue for the support of the government of this State, from a tax to be levied and collected from foreign and inland bills, and other matters," imposes upon bills of lading for the transportation of gold or silver coin, gold dust, or gold or silver in bars, or other form, from any point or place in this State to any point or place without the State, a stamp tax of thirty cents on the first one hundred dollars of the value of the property transported, and of one-fifth of one per cent. upon the amount of its valuation exceeding that sum, and requires that there shall be attached to each bill of lading, or stamped thereon, a stamp or stamps expressing in value the amount of such tax. original Act of 1857 constitutes the governor, treasurer, and secretary of state, commissioners of stamp duties, and, in substance, provides that they shall cause stamped paper or stamps corresponding with the several rates of duties prescribed by the act, to be prepared and delivered to the controller, to be by him distributed to the several county treasurers for sale. The original act also declares all contracts or instruments of writing executed after the first of July, 1857, charged with the payment of a stamp tax, absolutely void unless stamped or marked as prescribed therein, and makes the issuance of any such instruments without the stamp a misdemeanor punishable by fine. The plaintiffs are bankers, engaged in the regular course of their business in shipping gold and silver coin, gold and silver in bars, and gold dust from the port of San Francisco, in this State, to the port of New York, in the State of New York, and to foreign ports; and the present action is brought to recover $2,031, alleged to have been paid by them to the defendant, who was treasurer of the city and county of San Francisco, in the purchase of stamps to be affixed to bills of lading taken upon shipments made by them from the port of San Francisco to the port of New York.

Two questions are presented for determination by the demurrer : Ist, Whether the Act of 1858, referred to, so far as it imposes a stamp tax upon the bills of lading mentioned, is in conflict with the Constitution of the United States; and 2d, If the act is held to be in

sary 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." And see also, in accord, Ripley v. Gelston, 9 Johns. (N. Y.) 201 (1812); Clinton v. Strong, 9 Johns. (N. Y.) 370 (1812).

conflict with the Constitution of the United States, whether upon the facts stated in the complaint, the plaintiffs are entitled to recover from the defendant the amounts paid by them.

1. Upon the first question presented we have the decision of the Supreme Court of the United States, rendered since the appeal in the present case has been pending. In Almy v. The People of the State of California, decided at the December term, the constitutionality of the act of this State was considered-indeed, constituted the sole question before that Court.

* * *

This decision of the Supreme Court is conclusive upon us, and we therefore hold in accordance with it, that the Act of April, 1858, so far as it imposes a tax upon bills of lading for the transportation of gold and silver from any point in this State to any point without the State, is unconstitutional and void. And, as a matter of course, the provisions of the original Act of 1857 for the enforcement of the stamp tax, must be restricted in their application to other instruments than such bills of lading.

2. The solution of the second question presented depends upon the character of the payments-whether they were voluntary, or made under compulsion or coercion. Notwithstanding some doubts suggested in the early cases on the subject, the rule is at this day well settled that moneys voluntarily paid upon a claim of right, with full knowledge of all the facts, cannot be recovered back merely because the party at the time of payment was ignorant of or mistook the law as to his liability. The illegality of the demand paid constitutes of itself no ground for relief. There must be in addition, some compulsion or coercion attending its assertion, which controls. the conduct of the party making the payment. *

*

What shall constitute the compulsion or coercion which the law will recognize as sufficient to render payments involuntary may often be a question of difficulty. It may be said in general that there must be some actual or threatened exercise of power possessed, or supposed to be possessed, by the party exacting or receiving the payment over the person or property of the party making the payment, from which the latter has no other means of immediate relief than by advancing the money. In Forbes v. Appleton, 5 Cush. 117, a payment of money was made in order to prevent the obligee in a bottomry bond from attempting to enforce the same by taking possession of the vessel, and the court held that it was not a compulsory but a voluntary payment, and if the money was not due, the debtor had no right of action to recover it back, although he declared at the time of payment that he made it under coercion, and intended to reclaim the same by action. "The principle of law," said the court, "is a very familiar and salutary one, that, where a person with full knowledge of all the circumstances, paid money voluntarily under a claim of right, he shall not afterwards recover back the money so paid. To avoid the application of the rule in the

1 24 How. (U. S.) 169.

present case, it must appear that the plaintiff was compelled, by duress of his person or goods, to pay the same. In general, the cases that have been treated as exceptions are cases where the possession of the property upon which the lien was claimed was already in the party demanding the money, or cases in which the party had no other means to save himself from imprisonment, or his property from sale, on execution or warrant of distress, but by paying the money demanded." In the case of Mayor and City Council of Baltimore v. Lefferman, 4 Gill 425, the Court of Appeals of Maryland concludes an examination of numerous authorities on the subject of compulsory payments, by stating that it considers "the doctrine as established, that a payment is not to be regarded as compulsory unless made to emancipate the person or property from an actual and existing duress, imposed upon it by the party to whom the money is paid." And in Mays v. Cincinnati, 1 Ohio Rep. 268, the Supreme Court of Ohio concludes a like examination by observing, that "this unbroken chain of authority seems to warrant the conclusion that a payment of money upon an illegal or unjust demand, when the party is advised of all the facts, can only be considered involuntary when it is made to procure the release of the person or property of the party from detention, or when the other party is armed with apparent authority to seize upon either, and the payment is made to prevent it."

Tested by these authorities, the question presented is one of easy solution. The complaint does not show that the payments to the defendant for the stamps were the result of any coercion on his part. It only alleges that in the ordinary course of trade, shipments of gold and silver to New York were made by lines of ocean steamers plying between San Francisco and Panama, and connecting with lines of steamers plying between Aspinwall and New York; that they afforded the only safe and speedy means by which such shipments could be made; that the owners, agents, and masters of these lines refused to issue bills of lading, unless the same were first stamped, in pursuance of the act of 1858; that in order to procure bills of lading for shipments made by them, the plaintiffs were forced to apply to the defendant, as county treasurer, for the purchase of the requisite stamps to be affixed to the bills, and did purchase the same from him at the prices designated in the Act, which he demanded; that they protested at the time against the right of the defendant to exact payment for the stamps, and against the acts of the Legislature as unconstitutional and void, and gave notice that they would hold him responsible for the moneys paid. No facts are here. stated showing any compulsion or coercion by the defendant. The only compulsion or coercion, in fact, alleged, comes from another source-from the masters, agents, and owners of the steamers, from their refusal to issue bills of lading unless previously stamped. But this conduct of third parties cannot be resorted to for the purpose of fastening liability upon the defendant. Unless he has personally done some act which the law condemns, he cannot be charged, no WOODRUFF'S CASES-32