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3. Protest.—In such case the payment must be made under pro. test, in order to entitle the party to reclaim it.

v. Reeves, 68 N. Car. 134; s. C., 12 Am. Lefferman, 4 Gill (Md.) 425; s. C., 45 Rep. 627.

Am. Dec. 145; Claflin v. McDonough, An obligor, offering to pay his bond 33 Mo. 412; s. C., 84 Am. Dec. 54; Irvin Confederate money, said to the ob- ing v. St. Louis, 33 Mo. 575; Hayes v. ligee that he dare not refuse to accept Huffstater, 65 Barb. (N. Y.) 531; Confederate notes, and that if he did Quincey v. White, 63 N. Y. 370; Arhe would be imprisoned as disloyal. nold v. Crane, 8 Johns. (N. Y.) 79; This was held not to be enough, stand. Anderson v. Lewis, 31 Tex. 675; Mcing alone, to constitute such duress as Cartney v. Wade, 2 Heisk. (Tenn.) would avoid the payment. Simmons 369; Wilkerson v. Bishop, 7 Coldw. v. Trumbo, 9 W. Va. 358.

(Tenn.) 24; Wood v. Willis, 32 Tex. A when not in custody nor threat. 670; Buford v. Lonergan (Utah 1889), ened with illegal arrest, but being in- 22 Pac. Rep. 164; Maxwell v. Grisdebted to B for the amount of two wold, 10 How. (U. S.) 242; Tutt v. notes forged by A and transferred to Ide, 3 Blatchf. (U. S.) 249; Schlesinger B, agreed that A's wagon, then in B's v. United States, 1 Ct. of C1, 16; Har. possession, should be sold at auction, mony v. Bingham, 12 N. Y. 99; s.c.,62 and that B should in consideration Am. Dec. 142; White v. Heylman, 34 thereof surrender the notes to A. The Pa. St. 142; Beckwith v. Frisbie, 32 wagon was sold, B becoming the pur- Vt. 559; De Bow v. United States, II chaser, and thereupon the notes were Ct. of Cl. 672 ; Devlin v. United States, surrendered to A, who destroyed 12 Ct. of Cl. 266; Corkle v. Maxwell, 3 them. In an action by A against B to Blatchf. (U.S.) 413. recover the value of the wagon, it was 1. Town of Ligonier v. Ackerman, held that he was not entitled to re- 46 Ind. 552; s. c., 15 Am. Rep. 323; cover. Kissock v. House, 23 Hun (N. White v. United States, 11 Ct. of či. Y.) 35.

578. But where the money was paid un- And the protest must state the der threat of defendant to have plain- grounds of illegality. Meek v. Mctiff's son arrested and prosecuted for Člure, 49 Cal. 624. burglary and larceny, and was not But if a public officer who illegally given to compound a felony, it may be demands money of a person and exrecovered back. Schultz v. Culbert- acts the payment thereof by coercion, son, 49 Wis. 122. See also Heckman has notice of the facts which render v. Swartz, 50 Wis. 267.

the demand illegal, a protest is unnecWhere an agreement to make the essary. Meek v. McClure, 49 Cal. payment is made under duress, a sub- 624. sequent payment in accordance with A protest alone, however,, cannot such agreement is not involuntary, change what would otherwise in law where no legal steps are taken to re- be a voluntary payment into an insist the enforcement of the agreement. voluntary one.

Detroit v. Martin, 34 Mayor etc. of Savannah v. Feeley, 66 Mich. 170; S. C., 22 Am. Rep. 572. See

also cases cited supra. And see generally on the subject Where the statute requires the proof the recovery back of money al- test to be in writing, an oral stateleged to have been paid by reason of ment to the clerk of a city treasurer duress or of fraud, In re Walter that the payment is made under pro. (Ala. 1890), 7 So. Rep. 400; Durr v. test is not sufficient, though the clerk Howard, 6 Ark. 461; People v. Vis- acting upon instructions to make a cher, 9 Cal. 365; Jefferson Co. v. note of all protests, wrote upon the re, Hawkins, 23 Fla. 223; Ingalls v. ceipt that the tax was paid under proMiller (Ind.), 22 N. E. Rep. 995; Ly- test, and also made a memorandum to man v. Lauderbaugh, 75. Iowa 484; that effect on the treasurer's books. Wabaunsee Co. v. Walker, 8 Kan. Knowles v. Boston, 129 Mass. 551. 431; Wolfe v. Marshall, 52 Mo. 167; But it is no objection that it was First Nat. Bank v. Watkins, 21 Mich. written across the face of the tax-bill, 483; Elston v. Chicago, 40 Ill. 514; s. C., nor that after presentation to the col. 89 Am. Dec. 361; Štorer v. Mitchell, lector it was not left with him but was 45 Ill. 213; Mayor etc. of Baltimore v. taken away by the tax-payer. Bor•

Ga: 31.

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4. Of Taxes.—A voluntary payment of an illegal tax cannot be recovered back; and if there is no mode of collecting the tax except by an ordinary proceeding at law or in equity, a payment will be considered voluntary, though made under protest.1

422.

land v. Boston, 132 Mass. 89; s. C., 42 but under a misapprehension of, or in Am. Rep. 424.

ignorance of, the law, pays the tax un. See generally as to the effect of a der protest and to prevent a threat. protest, McMillan v. Richards, 9 Cal. ened sale by the tax collector, such 365; Kansas Pac. R. Co. v. Wyandotte payment is voluntary and cannot be Co., 16 Kan. 587; Wabaunsee Co. v. recovered back. Bucknell v. Story, 46 Walker, 8 Kan. 431; Forbes v'. Apple. Cal. 589; s c., 13 Am. Rep. 220. ton, 5 Cush. (Mass.) 115; Benson v. Land having been sold to a city for Monroe, 7 Cush. (Mass.) 125; Cook v. unpaid taxes, the owner made a writ. Boston, 9 Allen (Mass.) 393 ; Awalt v. ten proposition to the city government, Eutaw, etc. Assoc., 34 Md. 435; Wil with a view to avoid any unnecessary liams v. Colby, 44 Vt. 40; Detroit v. dispute, to pay the tax if the city would Martin, 34 Mich. 170; Copas v. Anglo- remit the interest and penalty and reAmerican Provision Co., 73 Mich.541; lease all claim to the land, the payment McCabe v. Shaver, 69 Mich 25. to be without any prejudice to any right

1. Wills v. Austin, 53 Cal. 152; Mer of such owner in the premises,or to their rill v. Austin, 53 Cal. 379; Goddard v. assertion in the courts. The proposi. Seymour, 30 Conn. 394 ; Garrigan v. tion was accepted and acted upon, the Knight, 47 Iowa 525; Morris v. May- collector's receipt for the taxes stator etc. of Baltimore, 5 Gill (Md.) 248; ing that “the above amount is paid unMarietta v. Slocomb, 6 Ohio St. 471; der protest.” Held, that the payment Drake v. Shurtliff, 24 Hun (N. Y.) was a voluntary one, and the money

could not be recovered back though An assessment for a municipal im- the land was not subject to taxation, provement, if voluntarily paid, cannot Galveston City Co. v. Galveston, 56 be recovered back, though the payment Tex. 486. was made under protest, and the law Where the money was paid for taxes authorizing the assessment was sub- or as redemption money on lands, the sequently adjudged unconstitutional. entry of which had been suspended by Peebies v. Pittsburg, 101 Pa. St. 304; the Land Department for failure of the S.C., 47 Am. Rep. 714 (cases reviewed); local land officers to account for the Rogers v. Greenbush, 58 Me. 390; s. C., entrance money to the United States, 4 Am. Rep. 292 ; Detroit v. Martin, 34 it cannot be recovered back pending Mich. 170; s. C., 22 Am. Rep. 512, and such suspension. Whether it can be note p. 519; Wabaunsee Co. v. Wal- after the entry is finally canceled, ker, 8 Kan. 431; Bucknell v. Story, 46 quære. Foster v.Pierce Co., 15 Neb. 48. Cal. 589; s. c., 13 Am. Rep. 220; Ligon- A tax paid cannot be recovered back ier v. Ackerman, 46 Ind. 552; s. c., 15 on the ground of the unconstitutional. Am. Rep. 323.

In this last case there ity of the statute under which it was is a very full citation and review of the levied, where there was no compul. authorities. First Nat. Bank v. Mayor sion except the threat of selling the etc. of Americus, 68 Ga. 119; s. C., 45 land. Detroit v. Martin, 34 Mich. 170; Am. Rep. 476.

S. C., 22 Am. Rep. 512; San Francisco Compare Parcher v. Marathon Co., etc. R. Co. v. Dinwiddie, 8 Sawyer 52 Wis. 388; s. C., 38 Am. Rep, 745; (U. S.) 312. Peyser v Mayor, etc. of N. Y., 70 N. The owner of a city lot tendered to Y. 497; s. c., 26 Am. Rep. 624; Jersey the treasurer of the county the taxes City v. Riker, 38 N. J. L. 225; s. C., 20 due thereon. The lot had also been Am. Rep. 386; Louisville v. Anderson, assessed by the city for a street im. 79 Ky. 334; s. C., 42 Am. Rep. 220. provement, which assessment had been

Unless there is a statute specially certified to the county auditor, and authorizing such recovery. Durham placed upon the duplicate for collection, v. Montgomery Co., 95 Ind. 182. as other taxes, but was void for want of

If property is assessed for street im- authority to make it. The county provements to a stranger, and the true treasurer refused to receive the taxes owner, with knowledge of the facts, legally due, unless the owner would

5. Officer Threatening to Execute Warrant.-But if the officer demanding the tax or assessment have in his possession at the time a warrant which is in the nature of an execution running against the property, and the party can save himself in no other way than by paying the illegal demand, he may then pay it under protest, and recover it back upon showing that the demand was illegal.1

also pay the assessment, and upon his But these cases are

decided more declining to do so, the lot was re- upon the wording of the statute than turned delinquent and was about to be upon the rule as it exists independentsold at tax sale. To prevent such sale, ly of statutory provisions, 9 870 of the the owner paid the assessment under sowa Code providing for the refundprotest, and also the taxes. It was held ing of taxes found to have been errothat such payment was not voluntary, neously or illegally exacted or paid. and could be recovered back. Stephen See Isbell v. Crawford Co., 40 Iowa t'. Daniels, 27 Ohio St. 527.

102 and earlier decisions. Where, by an official survey made by Where water commissioners collected a city engineer, certain property was an excessive rate from a manufacturincluded within the corporate limits, ing corporation, under threats that if and the owner, without protest, paid it were not paid the water would be the municipal tax thereon, he cannot turned off, thus closing the factory recover the amount, though on a re- and throwing a large number of hands survey by a subsequent engineer the out of employment, it was held that property was found to be outside the the payment was not a voluntary one, city limits. Jackson v. Atlanta, 61 Ga. that the excess could be recovered 228.

back. Westlake v. St. Louis, 77 Mo. Compare Indianapolis v. McAvoy, 47 ; s. C. 46 Am. Rep. 4. 86 Ind. 587

A town having passed an ordinance And it is held by the court of ap- requiring a license for selling liquors, peals of Kentucky that though the il- the legality of which was questioned, legal taxes were voluntarily paid, yet an agreement was entered into beif it were paid under a mistake of both tween the town trustees and the liq. law and fact, it may be recovered back. uor dealers, that if the latter would (Citing cases from Kentucky, Connec- pay the license fee, such fee should ticut and Alabama). Louisville v. An- be refunded in case the town should derson, 79 Ky. 334; s. C., 42 Am. Rep. fail to recover judgment in certain

cases then pending in the courts In Indiana there is a statutory pro- to test the legality of the ordinance. vision for the refunding of taxes, Plaintiff paid the license fee, and the wrongfully assessed. (1 Rev. Stat. 1876 ordinance was subsequently adjudged 310, 311, 55 84, 85; 1881, $ 5813). To invalid. Held, that this was not a vol. bring a case within the statute, how. untary payment, but one made under ever, it is not enough to show that the contract, and plaintiff was entitled to taxes were irregularly assessed; it 'recover. Columbia City v. Anthes, must be made to appear that they were 84 Ind. 31; s. C., 43 Am. Rep. 80. not legally or equitably owing. Carroll See also Edinburg v. Hackney, 54 Co. v. Graham, 98 Ind. 279.

See also Indianapolis v. McAvoy, 86 A payment to the treasurer of San Ind. 587; Durham v. Montgomery Co. Francisco to purchase a license as a 95 Ind. 182.

passenger broker cannot be recovered In Iowa it is held that where a tax back. Garrison v. Tillinghast, 18 Cal. is not merely informal and irregular, 408. but is illegal and void as being levied And see, on the general subject, on property not liable to taxation, and Carr v. Stewart, 58 Ind. 581; Mearkle the owner of the property makes pay- v. Hennepin Co. (Minn. 1890), 47 N. ment under protest, the better rule is W. Rep. 165; Smyth v. Mayor etc. of that he may recover it back. Winzer N. Y., 11 N. Y. Supp. 583; VanderV. Burlington, 68 Iowa 279 (where beck v. Rochester (N. Y. 1890), 25 N. cases are to some extent compared); E. Rep. 408. Thomas v. Burlington, 69 Iowa 140. 1. Union Pac. R. Co. v. Dodge Co., 98

220.

Ind. 83.

6. A mere threat to sell realty for an illegal and void tax will not render the payment voluntary, since such a sale will not cast a cloud on the title. 1

7. Payment to Common Carrier.-A payment made to a common carrier of a sum of money illegally charged for freight, upon a refusal by the carrier to transport the goods unless the illegal freight is paid, is not voluntary but compulsory.2

U.S. 541; Kansas Pac, R. Co. v. Wyan- 1. 2 Dill. Mun. Corp. (3d ed.) 942; dotte Co., 16 Kan. 587; Preston v. Bos. Bucknall v. Story, 46 Cal. 589; s. C., 13 ton, 12 Pick. (Mass.) 14; Wright v. Bos- Am. Rep. 220; Rogers v. Greenbush, ton, 9 Cush. (Mass.) 241; Boston etc. 58 Me. 390; s. C., 4 Am. Rep. 292; Glass Co. v. Boston, 4 Met. (Mass.) 189; Murphey v. Mayor etc. of Wilmington Borough of Allentown v. Saeger, 20 (Md., 1880), 10 Atl. Rep. 765; Detroit v. Pa. St. 421; Bruecher v. Village of Martin, 34 Mich. 170; s. C., 22" Am. Port Chester, 101 N. Y. 240; Tuttle v. Rep. 512. Everett, 51 Mass. 27; s. c., 24 Am. Rep. A tax deed which is void on its face 622; Maguire v. State Sav. Assoc., 62 is not a cloud upon title, and a mere Mo. 344; Kimball v. Corn Exchange threat by a tax-collector to sell prope Nat. Bank, 1 Ill. Abb, 209; Chicago v. erty and make such a deed will not Fidelity Sav. Bank, u Ill. App. 165; render the payment of a tax voluntary. Western Union Tel. Co. v. Mayer, Wills z'. Austin, 53 Cal. 152; Sears v. 28 Ohio St. 521; O'Brien v. Colusa Marshall Co., 59 Iowa 603 ; Shane v. Co., 67 Cal. 503; Grimley v. Santa St. Paul, 26 Minn. 543. Clara Co., 68 Cal. 575; Bates v. York Plaintiff refused payment of a per Co. 15 Neb. 284; Foster v. Pierce Co., sonal tax on the ground of non-resi15 Neb. 48; Welton v. Merrick Co., 16 dence, whereupon proceedings were Neb. 83.

instituted, which resulted in an order So if the officer hold legal process on him by the county judge to pay the purporting to authorize the arrest or tax, and enjoining him from disposing seizure of property to enforce a collec. of his property. Plaintiff accordingly tion of any kind. Atwell v. Zeluff, 26 paid the tax, and sued the assessors to Mich. 118; McKee v. Campbell, 27 recover the amount. Held, that the Mich. 497; Post v. Clark, 35 Conn, payment was voluntary. Drake v. 339.

Shurtliff, 24 Hun (N. Y.) 422. It is not necessary to show that the 2. 2 Greenl. Evid. 121; Mobile etc. distress was actually made. It is suffi- R. Co. v. Steiner, 61 Ala. 560; Chicacient that the circumstances lead to the go etc. R. Co. v. Chicago etc. Coal Co., conclusion that such distress is im• 79 Ill. 121; Lafayette etc. R. Co. v. pending and will certainly be made if Pattison, 41 Ind. 312; McGregor v. the tax is not paid. Howard v. Augus- Erie R. Co., 35 N. J. L. 89; West Vir. ta, 74 Me. 79.

ginia Transp. Co. v. Sweetzer, 25 W. Payment made under protest of an illegal tax, on demand by the sheriff, Compare Potomac Coal Co. v. Cum. to prevent levy and sale, is not a vol- berland etc. R. Co., 38 Md. 226. untary payment, though there is no A carrier exacted from a shipper il. present threat of levy. Parcher 7'. legal and unauthorized rates, and the Marathon Co., 52 Wis. 388; s. c. 38 shipper was required to pay the same Am. Rep. 745.

in order to procure the transportation In order to recover from the collect of his property, the failure to transport or in such cases, suit must be brought which would, by reason of the characpromptly before he is obliged to pay ter of his business, have occasioned the over the money. Hardesty v. Flem- shipper great loss. The shipper paid ing, 57 Tex. 395.

the illegal charges, complaining and Where the tax is paid under a threat objecting thereto. Held, that such of the city collector to shut up the payment was not voluntary, and may payor's shop, it is not voluntary, and be recovered back. Peters v. Railroad may be recovered back from the col- Co., 42 Ohio St. 275; s. C, 51 Am. Rep. lector, but not from the city. Vicks. 814. burgh v. Butler, 56 Miss. 72.

In the case of Parker v. Great West.

Va. 434.

1

8. Made in Ignorance of Law.—Money voluntarily paid to another under a mistake of law but with a knowledge of all the facts, cannot be recovered back. But it seems to be settled that when money is paid on a judgment which is afterwards reversed, the

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ern R. Co. (7 Man.' & Gr. 253), which that the payments were made periodic. was a case involving this question, de- ally. Peters v. Railroad Co., 42 Ohio cided in 1844, TINDAL, C. J., says: St. 275; 6. C., 51 Am. Rep. 814; Swift “We are of opinion that the pay. etc. Co. v. United States, 11 U. S. 22. ments were not voluntary. They were A navigation company which was made in order to induce the company bound to keep in repair certain dams to do that which they were bound to failed to do so, and when an owner of do without them, and for the refusal to logs refused to pay tolls threatened do which an action on the case might that unless he paid them a certain dam have been maintained.

The should be cut, the effect of which case very much resembles that of would have been the practical ruin of v. Piggott, mentioned by LORD Ken- his business. A payment made by him yon, in Cartwright v. Rowley, 2 Esp. under these circumstances was not volN. P. C. 723. That was an action untary, and he could recover back the brought to recover back money paid to tolls thus extorted. Lehigh Coal etc. the steward of a manor for producing Co. v. Brown, 100 Pa. St. 338. at a trial some deeds and court rolls, for 1. Bilbie v. Lumley, 2 East 469; which he had charged extravagantly. Stevens v. Lynch, 12 East 38; Lowrie The objection was taken that the money v. Bourdieu, Doug. 467; Livermore v. had been voluntarily paid, and so could Peru, 55 Me. 469; Clarke v. Dutcher, 9 not be recovered back again; but, it ap- Cow. (N. Y.) 674; Norton v. Marden, pearing that the party could not do 15 Me. 45; s. c., 32 Am. Dec. 132; Mil. without the deeds so that the money was waukee etc. R. Co. v. Soutter, 13 Wall. paid through necessity and the urgency (Ų. S.) 517; Bank of U. S. v. Daniel, of the case, it was held to be recoverable. 12 Pet. (U. S.) 32; Champlin v. LayWe think the principle upon which tin, 18 Wend. (N. Y.) 407; s. C., 31 that decision proceeded is a sound one, Am. Dec. 382; Elliot v. Swartwout, 10 and strictly applicable in the present Pet. (U. S.) 137; Brisbane v. Dacres, 5 case, and that the defendants cannot, by Taunt. 144; Wilson v. Bryan, 6 Yerg: the assistance of that rule of law on (Tenn.)_485; Hubbard v. Martin, 8 which they relied, retain the money Yerg. (Tenn.) 498; Jones v. Watkins, i that they have improperly receive Stew. (Ala.) 81; Milnes v. Duncan, 6 ed."

B. & C. 671; Mowatt v. Wright, i This decision is referred to with ap- Wend. (N. Y:) 355, S.C., 19 Am. Dec. proval by Mr. Justice Matthews, in 508; Lammot v. Bowly, 6 Har. & J. Swift etc. Co. v. United States (111 U. (Md.)

500; Erkens v. Nicolin, 39 Minn. S. 29). See also Feamley v. Morley, 5 461; Real Estate Sav. Institution v. B. & C. 25; Parker v. R. Co., 6 Exch. Linder, 74 Pa. St. 371; Irvine v. Han702.

lin, 10 S. & R. (Pa.) 219; Deysher v. In the Illinois case cited above, the Triebel, 64 Pa. St. 383; Natcher v court says: “It can hardly be said the Natcher, 47 Pa. St. 496; Snelson v. • enhanced charges were voluntarily paid State, 16 Ind. 29; Rector v. Collins, 46 by the appellees. It was a case of life Ark. 167; s. c., 55 Am. Rep. 571; and death with them, as they had no Downs v. Donnely, 5 Ind. 496; Superother means of conveying their coals to visors of Onondaga v. Briggs, 2 Den. the markets offered by the Illinois Cen- (N. Y.) 26; New York etc. R. Co. v. tral, and were bound to accede to any Marsh, 12 N. Y. 308; Hunt v. Rousterms the appellants might impose. manier, 2 Mason (U. S.) 342; s. C., 3 They were under a sort of moral du. Mason (U. S.) 294; s. c., on appeal, 8 ress, by submitting to which appellants Wheat. (U. S.) 174. See also Hunt v. have recovered money from them Rhodes, 1 Pet. (U. S.) 1; Northrop v. which in equity and good conscience Graves, 19 Conn. 548; s. c., 50 Am. they ought not to retain." Chicago Dec. 264; Haigh v. United States etc. R. Co. v. Chicago etc. Coal Co., 79 Building etc. Assoc., 19 W. Va. 792; III. 128.

West Virginia Transp. Co. v. SweetNor does it affect the right to recover zer, 25 W. Va. 434.

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