with owing a very large sum to a party who knew that he had no claim for it. He relieved himself from the hardship and inconvenience of a fraudulent arrest, by paying money and then he brought an action to recover back that money. In this action the jury being satisfied that the defendant knew that the debt did not exist and that he used the process colourably and made a fraudulent arrest, there was a recovery back of the money obtained by such extortion. The action lies to recover back money paid under the sentence of a court which had no jurisdiction. Newdigate v. Davy, 1 Ld. Raym. 742. And though the merits of a question determined by a tribunal which had jurisdiction will not be retried in this action, (4 T. R. 432, note,) yet when money has been paid under the judgment and the iniquity of keeping it is manifest upon grounds which could not have been used by way of defence against that judgment, an action would perhaps lie to recover back the money. Moses v. Macfarlane, 2 Burr. 1009. A doctrine rather stronger was laid down more positively in Moses v. Macfarlane; but this case has been often questioned. 3 Bos. & Pul. 169; Heath, J., 5 Taunt. 144. It has been deemed objectionable to allow an action, requiring the same question to be tried twice. Brown v. McKinnally, 1 Esp. 279. The attempt made in Moses v. Macfarlane to distinguish between the judgment and the ground of that action, Eyre, C. J., thought was not with much success: the proposition that the ground upon which that action proceeded was no defence against the sentence, he said could hardly be maintained. say that the merits of a case determined by the commissioners, where they had jurisdiction, never could be brought in question over again in any shape whatever, and to say that the defendant ought not in justice to keep the money was not intelligible to him. His conclusion was that upon a judgment recovered and executed, which for the sake of the argument, he supposed ought not to have been recovered, an action for money had and received would not lie for any body, not even for the person against whom the judgment had been so unjustly recovered. Philips v. Hunter, 2 H. Bl. 414-418. Notwithstanding the case of Moses v. Macfarlane, the court of king's bench held that money paid under legal process could not be recovered back. A party sued for the price of goods being unable to find his receipt, and having no other proof of payment, could not successfully defend the action and paid the money again. Afterwards finding the receipt he endeavoured to recover back this money but was non to which he was not legally entitled, Clinton v. Strong, 9 Johns. 376; Riley v. Willis, 5 Whart. 149; Alston v. Durant, 2 Strobhart 257; Dew v. Parsons, 2 Barn. & Ald. 562, 1 Chitty 295, 18 Eng. Com. Law Rep. 87; and in other cases where the payments cannot be considered as voluntary payments, the parties not being on an equal footing; Graham v. Tate, 1 M. & S. 609; Dana v. Kemble &c. 17 Pick. 549; Atlee v. Backhouse, 3 M. & W. 650; for example, where the defendants refused, until such payments were made, to perform that service for the plaintiff which he was entitled by law to receive from them without making such payments; and the plaintiff consequently acted under coercion. Bates v. N. Y. Ins. Co. 3 Johns. Cas. 240; Morgan v. Palmer, 2 Barn. & Cress. 729, 9 Eng. Com. Law Rep. 232; Waterhouse &c. v. Keen, 4 Barn. & Cress. 200, 10 Eng. Com. Law Rep. 310; Barrett v. Stockton & Darlington R. Co. 2 Man. & Grang. 134; 3 Id. 956, 40 Eng. Com. Law Rep. 298; 42 Id. 496; Ashmole v. Wainwright &c. 2 Adol. & El. N. S. 837, 42 Eng. Com. Law Rep. 837; Parker v. Railway Co. 6 W. H. & G. 702; Steele v. Williams, 8 Id. 625, 20 Eng. Law & Eq. 319. Lord Kenyon mentions a case of v. Pigott, where this action was brought to recover back money paid to the steward of a manor, for producing at a trial some deeds and court rolls, and for which he had charged extravagantly; the objection was taken that the money had been voluntarily paid and so could not be recovered back again; but it appearing that the party could not do without the deeds, so that the money was paid through necessity and the urgency of the case, it was held to be recoverable. Cartwright v. Rowley, 2 Esp. 723. The principle upon which that decision proceeded has subsequently been declared to be a sound one; it was considered strictly applicable in Parker v. Great Western R. Co. 7 Man. & Grang. 293, 4, 49 Eng. Com. Law Rep. 293, 4. There the railway company had made unreasonable charges; they were paid under protest and then recovered back. Quite as strong a case as that was where the mortgagor was willing to pay to the attorney of the mortgagee the principal and interest and the attorney's costs; but the attorney claimed a further sum and refused to stop the sale or deliver up the deeds unless it was paid to him. That sum was accordingly paid under protest; and then it was recovered back from the attorney; the court considering that the plaintiff was obliged either to pay it, or to suffer her estate to be sold, and incur the expense and risk of a bill in equity. Close v. Phipps, 7 Man. & Grang. 586, 49 Eng. Com. Law Rep. 586. The principle applies in other cases where the money is obtained by what, though it may not be, strictly speaking, duress, (for that term is more properly applied to a man's person than his goods, 3 M. & W. 650,) yet has latterly been sometimes called a species of duress. Gibbon v. Gibbon, 13 Com. Bench (3 J. Scott) 205, 76 Eng. Coni. Law Rep. 205; Oates v. Hudson, 6 W. H. & G. 346, 5 Eng. Law & Eq. 469; Alston v. Durant, 2 Strobhart 264. 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; the latter in order to obtain possession of his property pays that sum; the money so paid is a payment made by compulsion and may be recovered back. Shaw &c. v. Woodcock, 7 Barn. & Cress. 73, 14 Eng. Com. Law Rep. 14. 9. Whether action will lie against a city or town to recover back money paid for taxes illegally assessed. In Massachusetts the warrant to a collector of city taxes is in the nature of an execution against the person and property of the party, upon which he has no day in court, no opportunity to plead and offer proof and have a judicial decision of the question of his liability. When, therefore, a party not liable to taxation is called on peremptorily to pay upon such a warrant and he can save himself and his property in no other way than by paying the illegal demand, he may give notice that he so pays it by duress and not voluntarily, and by shewing that he is not liable, recover it back from the city, into whose treasury it has gone. Sumner v. First Parish, 4 Pick. 361; Preston v. Boston, 12 Id. 14; Boston & Sandwich Co. v. Boston, 4 Metcalf 189; Joyner v. Third Sch. Dist. 3 Cush. 572. These cases go on the assumption that the tax was wholly unauthorized, and the assessment therefore not irregular only but void. 8 Cush. 61. Notwithstanding the case of Toney v. Milbury, 21 Pick. 64, it is thought that no decided case has given any sanction to the principle that assumpsit will lie against a town or city to recover back money on the ground of irregularity, error or mistake in the mode of making the assessment. On the contrary, it is now definitively settled that in such case the party's only remedy is by application for abatement to the assessors or county commissioners. Rev. Stat. c. 7, § 37, 39. Osborn v. Danvers, 6 Pick. 98; Boston Water Power Co. v. Boston, 9 Metcalf 199; Howe v. Boston, 7 Cush. 273; Lincoln v. City of Worcester, 8 Id. 61. In other states the action to recover back money paid as taxes has failed where the payment was regarded not as compulsory but voluntary. Mayor &c. v. Judah, 5 Leigh 305; Mayor &c. v. Lefferman, 4 Gill 436. 10. Party paying money after process issued to recover it has generally no right to recover it back. What exceptions exist to this rule. Very different from other compulsion is the compulsion by legal process. It will be difficult for money to be recovered back by a party who paid it after his attention was called to the subject in dispute-and after process was issued against him to recover the very money. Resistance to a demand, dereliction of that resistance and subsequent acquiescence, operate more strongly than a payment made in ignorance and silence would have done. Spragg v. Hammond, 2 Brod. & Bingh. 59, 6 Eng. Com. Law Rep. 19; 10 Adol. & El. 82. Holroyd, J. was of opinion, that if the money was paid after proceedings had actually commenced, and there was no fraud in the defendant, the money could not be recovered back. Milnes v. Duncan, 6 Barn. & Cress. 679, 13 Eng. Com. Law Rep. 295. Of the case of Cobden v. Kendrick, 4 T. R. 432, so far as it is different on this point, the court of common pleas has said, if it can be supported, it can only be so on the ground of the defendant's fraud. That court has declared that the rule is accurately laid down by Mr. Justice Holroyd, and that when the money is paid after the suing out process to recover it, the defendants in the former action knowing the cause of action for which the writ was sued out before they paid the money, and there being no fraud on the part of the plaintiff in that action, no action is maintainable to recover it back. Hamlet &c. v. Richardson, 9 Bingh. 644, 23 Eng. Com. Law Rep. 407. With this accords the decision in Mowatt &c. v. Wright, 1 Wend. 355. The case of Cadaval v. Collins, 4 Adol. & El. 858, was not intended to be, nor is it, inconsistent with this doctrine. 10 Id. 82. It shews that although in general money paid under compulsion of law cannot be recovered back, yet there may be special circumstances which will authorize the recovery. Watkins v. Otis, 2 Pick. 97. The party suing to recover back money shews a material circumstance when he proves that the party who sued him did not act bona fide but was guilty of fraud. Such was the case of the Duke de Cadaval, 4 Adol. & El. 858, 31 Eng. Com. Law Rep. 206. At a great distance from his friends, this foreigner was charged with owing a very large sum to a party who knew that he had no claim for it. He relieved himself from the hardship and inconvenience of a fraudulent arrest, by paying money and then he brought an action to recover back that money. In this action the jury being satisfied that the defendant knew that the debt did not exist and that he used the process colourably and made a fraudulent arrest, there was a recovery back of the money obtained by such extortion. The action lies to recover back money paid under the sentence of a court which had no jurisdiction. Newdigate v. Davy, 1 Ld. Raym. 742. And though the merits of a question determined by a tribunal which had jurisdiction will not be retried in this action, (4 T. R. 432, note,) yet when money has been paid under the judgment and the iniquity of keeping it is manifest upon grounds which could not have been used by way of defence against that judgment, an action would perhaps lie to recover back the money. Moses v. Macfarlane, 2 Burr. 1009. It A doctrine rather stronger was laid down more positively in Moses v. Macfarlane; but this case has been often questioned. 3 Bos. & Pul. 169; Heath, J., 5 Taunt. 144. has been deemed objectionable to allow an action, requiring the same question to be tried twice. Brown v. McKinnally, 1 Esp. 279. The attempt made in Moses v. Macfarlane to distinguish between the judgment and the ground of that action, Eyre, C. J., thought was not with much success: the proposition that the ground upon which that action proceeded was no defence against the sentence, he said could hardly be maintained. To say that the merits of a case determined by the commissioners, where they had jurisdiction, never could be brought in question over again in any shape whatever, and to say that the defendant ought not in justice to keep the money was not intelligible to him. His conclusion was that upon a judgment recovered and executed, which for the sake of the argument, he supposed ought not to have been recovered, an action for money had and received would not lie for any body, not even for the person against whom the judgment had been so unjustly recovered. Philips v. Hunter, 2 H. Bl. 414-418. Notwithstanding the case of Moses v. Macfarlane, the court of king's bench held that money paid under legal process could not be recovered back. A party sued for the price of goods being unable to find his receipt, and having no other proof of payment, could not successfully defend the action and paid the money again. Afterwards finding the receipt he endeavoured to recover back this money but was non |