Benson v. Monroe , 61 Mass. 125 ( 1851 )

Metcalf, J.

The court deem this a plain case. It is an established rule of law, that if a party, with a full knowledge of the facts, voluntarily pays a demand unjustly made on him, and attempted to be enforced by legal proceedings, he cannot recover back the money, as paid by compulsion, unless there be fraud in the party enforcing the claim, and a knowledge that the claim is unjust. And the case is not altered by the fact, that the party, so paying, protests that he is not answerable, and gives notice that he shall bring an action to recover the money back. He has an opportunity, in the first instance, to contest the claim at law. He has, or may have, a day in court; he may plead and make proof that the claim on him is such as he is not bound to pay. This circumstance distinguishes such a case from most of those which were cited for the plaintiffs. As was said by Gibbs, J., in Brisbane v. Dacres, 5 Taunt. 152, the party has an option, whether to litigate the question, or submit to the demand and pay the money. See also Preston v. City of Boston, 12 Pick. 13, 14; Rawson v. Porter, 9 Greenl. 119.

In Brown v. McKinally, 1 Esp. R. 279, a party, who was sued for old iron sold and delivered, paid the sum demanded, objecting, at the time, that the iron was not such as he contracted for, but was of an inferior quality and less value, and giving notice to the vendor that payment was made without prejudice, and that a suit would be brought to recover back the overplus thus paid. On his bringing such suit, Lord Kenyon decided that it could not be maintained, and said, that to allow it would be to try every question twice; that the same legal ground, which would entitle the plaintiff to recover in that suit, would have been a good defence to the suit brought against him by the defendant; and that the plaintiff should have made his defence to that suit. This decision has been repeatedly recognized and confirmed by the courts in England. Two or three cases only need be cited In Samlet v. Richardson, 9 Bing. 644, the plaintiff had paid a certain sum of money to the plaintiff, after action brought, with knowledge of the facts on which the demand was founded; and it was held that he could not recover it back. Tindal, C. J., referred to Brown v. McKinally, and also to Milnes v. Duncan, 6 Barn. & Cres. 679, where Holroyd, J., said, that money, paid after legal proceedings were instituted, could not be recovered back, if there was no fraud in the party receiving the money. The same doctrine was fully recognized by the court of King’s Bench, in Duke de Cadaval v. Collins, 4 Adolph. & Ellis, 858, and 6 Nev. & Man. 324. In that case, it was decided that if a party, knowing that he has no cause of action, fraudulently arrests another, who pays money to get rid of the pressure of the arrest, the money so paid may be recovered back; on the ground that legal process was colorably and fraudulently used to enforce a fictitious demand. This principle seems to have been applied in the case of Richardson v. Duncan, 3 N. Hamp. 508, cited by the plaintiffs’ counsel. But the case at bar does not fall within this principle. Here was no fraud; no attempt to plunder the plaintiffs by color of legal process. They should have contested the demand made on them, in the suit that was instituted against them; and having voluntarily adjusted that demand, and relieved their vessel from seizure, with a full knowledge, or means of knowledge, of all the facts of their case, they cannot now be permitted to disturb that adjustment.

Judgment on the verdict for the defendant.