Fellows v. School District No. 8 in Fayette , 39 Me. 559 ( 1855 )

Rice, J.

— The defendant claims to recover the amount of a tax paid to the collector of the town of Fayette, for the benefit of the defendants, which he alleges was illegally assessed upon him, and which he was compelled to pay by duress, and which was paid under protest.

. By duress, in its more extended sense, is meant that degree of severity, either threatened or impending, or actually inflicted, which is sufficient to overcome the mind and will of a person of ordinary firmness. The common law has divided it into two classes, namely, duress per minas, and duress of imprisonment. Duress per minas is restricted to the fear of loss of life, or of mayhem, or loss of limb; or in other words of remediless harm to the person. 2 Greenl. Ev. § 301.

The plea of duress of imprisonment is supported by any evidence that the party was unlawfully restrained of his liberty until he would execute the instrument. Ibid, § 302. To constitute duress of imprisonment, the imprisonment must be unlawful. 1 Salk. 68.

One peremptorily called upon to pay an illegal tax, by virtue of a warrant issued to a collector of taxes, may give notice that he pays it by duress, and not voluntarily, and it would seem, under such circumstances, may recover it back again. Preston v. Boston, 12 Pick. 7.

But where money is claimed as rightfully due, and is paid voluntarily, and with a full knowledge of all the facts in the case, it cannot be recovered back if the party to whom it has been paid may conscientiously retain it. Brisbane v. Dacres, 5 Taunt. 144; Smith v. Readfield, 27 Maine, 145. Nor can money paid under a mistake of law be reclaimed. Norton v. Marden, 15 Maine, 45.

A tax had been assessed against the plaintiff by the assessors of Fayette, for the benefit of the inhabitants of School District No. 8, in that town. Tax bills in which this tax was included, accompanied by a warrant ior their collection, had been committed to the collector of taxes for Fay-ette. The plaintiff had been called upon by the collector, and payment of the tax against him demanded; he protested against paying; was arrested by the collector and carried to Augusta, when he agreed that he would pay the tax, and was thereupon discharged from his arrest by the collector. About a week after this transaction, without any further interposition, or claim on the part of the collector, so far as' the case finds, the plaintiff paid the tax, and costs of arrest and conveyance to Augusta and back. Was that a voluntary payment, with a knowledge of all the facts, or was it a payment under protest, and by duress ?

At common law, as it was understood before and during the reign of Elizabeth, a voluntary escape of a prisoner, in execution, completely and forever discharged him from the debt, so that neither the plaintiff nor sheriff could retake him for the same demand. Bra. Tit. Escape, Pl. 12 and 45 ; Linacre v. Rhodes' case, Leon. R. 96; Lansing v. Fleet, 2 Johnson’s Cases, 3.

Since that time this law has been modified, or differently understood, and a voluntary escape of a debtor in execution, will not deprive the creditor of the right of procuring the rearrest of the debtor on a new process, or if he voluntarily return, of considering him in custody under the old; but so far as the sheriff is concerned, he cannot rearrest the debtor on the old process. By the first arrest the writ has been obeyed, and has performed its proper function; and after a voluntary discharge, the sheriff cannot ai’rest a second time on the same precept. If he does so, he is liable to an action for false imprisonment. Atkinson v. Jameson, 5 D. & E. 25 ; Sheriff of Essex's case, Hob. 202; Vin. Ab. Escape, p. 17; Thompson v. Lockwood, 15 John. 256; Lansing v. Fleet, 2 Johns. Cases, 3 ; Com. v. Drew, 4 Mass. 391; Brown v. Getchell, 11 Mass. 11.

That the collector, after the arrest, permitted the plaintiff voluntarily to escape, is too plain to require argument. After that escape the power of the collector, under his warrant, to reárrest the plaintiff was extinguished. Nor indeed is there any evidence that he again sought to enforce his warrant by another arrest, or even threatened to do so. If it be said that the tax was paid under the agreement to pay, by means of which the plaintiff procured his discharge from arrest, and that that agreement was extorted by duress, the answer is, if, as the plaintiff contends, the arrest was illegal, then the agreement was without legal consideration, and void. If it be further said that the plaintiff supposed or apprehended that he should be again arrested if he did not pay, and made the payment under the misapprehension of his legal rights, the answer is, that such a misapprehension would be a mistake of law, and not of fact.

Upon the whole, the payment of which the plaintiff now complains, must be deemed to have been made voluntarily, and with a knowledge of all the facts. The action seems to be grounded wholly on supposed technical defects in the proceedings on the part of the town and the school district. The money has been appropriated for a highly meritorious object, and there is no suggestion of oppression, improvidence or waste, on the part of the authorities of the town or district. In such a case we think the money may well bo consistently retained, even though there may have been technical informalities in assessing the tax. In the view however, which we have taken of the case, it does not become necessary to examine the proceedings of the town or district; we therefore express no opinion upon that part of the case which refers to the legality of the tax.

Plaintiff nonsuit.

TeNNEY, J. — having been unable to be present at the hearing, took no part in the decision.