Carew v. Rutherford. doing the wrong. Any person has a right to express, in a reasonable manner, approbation or disapprobation of an actor at a theater. But if several persons combine together to ruin an actor, and hire persons to attend, and with hissing, groans and yells, compel him to desist, and prevent the manager from employing him, such conduct is actionable. Gregory v. Brunswick, 6 Man. & Gr. 205. There are many cases where money has been wrongfully obtained by fraud, oppression, or taking undue advantage of another, without doing him any other injury. This, being tortious, would sustain an action expressly alleging the tort. But in any action for money had and received has been maintained in many cases where money has been received tortiously, without any color of contract. 1 Chit. Pl. (6th ed.) 352. This class of cases is referred to, because they discuss the question what constitutes an unlawful obtaining of money, such as will subject the party obtaining it to an action for damages. In Shaw v. Woodcock, B. & C. 73, it is said that, if a party making a payment is obliged to pay the money, in order to obtain possession of things to which he is entitled, the payment is not a voluntary, but a compulsory payment, and may be recovered back. In Morgan v. Palmer, 4 D. & R. 283, ABBOTT, C. J., says: That, in order to render a payment voluntary, in the proper sense of the word, the parties concerned must stand upon equal terms; there must be no durers operating upon the one; there must be no oppression or fraud practiced by the other. In Cadaval v. Collins, 4 Ad. & El. 858, money was recovered back which was obtained by abuse of legal process. In Wakefield v. Newbon, 6 Q. B. 276, money extorted from another, by means of the wrongful detention of his goods, was recovered back. The same doctrine is well established in this country. In Sortwell v. Horton, 28 Verm. 373, the principle was stated to be, that money may be recovered back that had been paid in discharge of a claim which was fictitious and false, and known to be so by the party making the claim, and who induced the payment by menaces, duress or taking undue advantage of the other's situation. There are several cases where the action has been maintained to recover back money, which was paid to procure a release of property which the defendant had detained illegally; and, in some of them, the principle is thoroughly discussed. Chase v. Dwinal, 7 Greenl. 134; Harmony v. Bingham, 2 Kern. 99; Maxwell v. Griswold, 10 How. 242; Cobb Carew v. Rutherford. V. Charter, 32 Conn. 358. In James v. Roberts, 18 Ohio, 548, the court enjoined a party from enforcing the collection of a note which he had induced the plaintiff to give by threats of a groundless prosecution. Evans v. Huey, 1 Bay, 13, was an action on a note. The plaintiff went to the defendant's house in the night, with a party of armed men, and insisted on the defendant's settling and giving him the note. There was no threat or duress, but the court held that, as the circumstances were sufficient to awaken his apprehensions, it was not to be regarded as a voluntary payment. In the two cases last cited, the principle was enforced by protecting the injured party against a suit. The cases, in regard to the recovery back of money which has been wrongfully obtained, are very numerous. Many of them are collected in the notes to Marriot v. Hampton, 2 Smith's Lead. Cas. (6th Am. ed.) 453. There is a large class of cases in which it cannot be recovered back, like Marriot v. Hampton, and like Benson v. Monroe, 7 Cush. 125. In the latter case, the defendant had made a claim in good faith, under a statute which he believed to be valid. The plaintiff had preferred to settle and pay it, rather than litigate the matter further. It turned out, by the decision in a subsequent case, that, if he had carried the case to the supreme court of the United States, he would have prevailed, on the ground that the statute was unconstitutional. But neither this, nor any of the other cases, gives any countenance to the idea that money can be obtained by fraud or oppression, and with knowledge that the claim is unfounded, without exposing the party obtaining it to an action. Without undertaking to lay down a precise rule applicable to all cases, we think it clear that the principle which is established by all the authorities cited above, whether they are actions of tort for disturbing a man in the exercise of his rights and privileges, or to recover back money tortiously obtained, extends to a case like the present. We have no doubt that a conspiracy against a mechanic, who is under the necessity of employing workmen in order to carry on his business, to obtain a sum of money from him, which he is under no legal liability to pay, by inducing his workmen to leave him, and by deterring others from entering into his employment, or by threatening to do this, so that he is induced to pay the money demanded, under a reasonable apprehension that he cannot carry on his business without yielding to the illegal demand, is an illegal, if not a criminal, conspiracy; that the acts done under it are illegal; and that Carew v. Rutherford. the money thus obtained may be recovered back, and, if the parties succeed in injuring his business, they are liable to pay all the damage thus done to him. It is a species of annoyance and extorticn which the common law has never tolerated. This principle does not interfere with the freedom of business, but protects it. Every man has a right to determine what branch. of business he will pursue, and to make his own contracts with whom he pleases and on the best terms he can. He may change from one occupation to another, and pursue as many different occupations as he pleases, and competition in business is lawful. He may refuse to deal with any man or class of men. And it is no crime for any number of persons, without an unlawful object in view, to associate themselves together and agree that they will not work for or deal with certain men or classes of men, or work under a certain price, or without certain conditions. Commonwealth v. Hunt, 4 Metc. 111, cited above; Boston Glass Manufactory v. Binney, 4 Pick. 425; Bowen v. Matheson, 14 Allen, 499. This freedom of labor and business has not always existed. When our ancestors came here, many branches of labor and business were hampered by legal restrictions created by English statutes; and it was a long time before the community fully understood the importance of freedom in this respect. Some of our early legislation is of this character. One of the colonial acts, entitled "An act against oppression," punished by fine and imprisonment such indisposed persons as may take the liberty to oppress and wrong their neighbors by taking excessive wages for their work, or unreasonable prices for merchandises or other necessary commodities as may pass from man Anc. Chart. 172. Another required artificers, or handicraftmen meet to labor, to work by the day for their neighbors, in mowing, reaping of corn and the inning thereof. Id. 210. Another act regulated the price of bread. Id. 752. Some of our town records show that, under the power to make by-laws, the towns fixed the prices of labor, provisions and several articles of merchandise, as late as the time of the revolutionary war. But experience and increasing intelligence led to the abolition of all such restrictions, and to the establishment of freedom for all branches of labor and business, and all persons who have been born and educated here, and are obliged to begin life without property, know that freedom to choose their own occupation and to make their own contracts, Cochran v. Guild. not only elevates their condition, but secures to skill and industry and economy their appropriate advantages. Freedom is the policy of this country. But freedom does not imply a right in one person, either alone or in combination with others, to disturb or annoy another, either directly or indirectly, in his lawful business or occupation, or to threaten him with annoyance or injury, for the sake of compelling him to buy his peace; or, in the language of the statute cited above, "with intention to extort money or any pecuniary advantage whatever, or to compel him to do any act against his will." The acts alleged and proved in this case are peculiarly offensive to the free principles which prevail in this country; and, if such practices could enjoy impunity, they would tend to establish a tyranny of irresponsible persons over labor and mechanical business which would be extremely injurious to both. Taxes were assessed on land May 1; the tax bill was issued to the collector October 1. Held, that the taxes were an incumbrance on the land from May 1. (See note, p. 297.) ACTION on a covenant against incumbrances in a deed of land from defendant to plaintiff. The deed was executed and delivered June 20, 1868. The taxes on the land were assessed May 1, 1868. The tax bill was issued to the collector October 1, 1868. Payment was demanded of defendant, who refused to pay, and plaintiff was obliged to pay the taxes to prevent the land from being sold. The case was submitted on the above facts. The plaintiff was to recover of the defendant the amount so paid, if the tax was at the date of the deed an incumbrance upon the estate within the meaning of the covenant. 8. L. Thorndike, for plaintiff, was stopped by the court. Cochran v. Guild. A Russ, for defendant. The tax was not an incumbrance till committed to the collector. Gen. Sts., ch. 12, § 22; Estabrook v. Sinith, 6 Gray, 572, 576; Fuller v. Wright, 18 Pick. Ch. 403; Prescott v. Williams, 5 Metc. 429; Wilson v. Cochran, 46 Penn. St. 229, 232. CHAPMAN, C. J. On May 1, 1868, when the taxes were assessed, the land became liable for their payment. It is true that payment was not to be made till the tax bills should be made out and put into the hands of the collector, and all the necessary preliminary steps should be taken on his part. It is also true that they might be collected otherwise than by a sale of the land, and thus its liability might terminate, or it might cease by lapse of time. But they have not been paid otherwise, and the purchaser has been compelled to pay them. He was obliged to pay them in order to relieve the land from a liability to which it was subject when he took his conveyance with the covenant against incumbrances. These taxes had all the characteristics of an incumbrance. What constituted the incumbrance was the present paramount right of the city to hold the land, subject to the payment of the taxes already assessed, if they should not be paid otherwise. It is none the less an incumbrance because the taxes might be collected otherwise. It might as well be contended that a mortgage to secure a note given by a third party was not an incumbrance, because the note might be collected of the maker. It is contended that this is no more an incumbrance than the liability of the land for the taxes that may be assessed in future years. But the obvious difference is, that there can be no liability for an assessment which does not exist, and the covenant relates merely to existing incumbrances. Judgment for the plaintiff. NOTE-To the same effect is Rundell v. Lakey, 40 N. Y. 518; Sed contra, see Kern ▼ Towsley, 45 Barb. 150.- RMP. VOL. VIII. — 38 |