Sec 736

"When goods have been unlawfully obtained by B. and sold, A. may elect to waive the tort and to sue B. for the price as for money had and received.8 And a party bona fide purchasing lost or stolen goods is liable in trover to the original owner, or he may be liable for the price received by him for them, if Election to waive tort, when made, is final.

Value of goods unlawfully obtained may be recovered.

1 Supra, sec 183 et seq., 292; Hard-man V. Booth, 1 Hurl. & C. 803; Lindsay V. Cundy, L. R. 2 Q. B. D. 96; Moody V. Blake, 117 Mass. 23; Wheelwright V. Depeyster, 1 Johns. 471. As to goods transferred on bill of lading see infra, sec 793.

2 Ibid. Infra, sec 736; supra, sec 723.

3 Supra, sec 290.

4 Leake, 2d ed. 94; Bigelow on Fraud, 403; Abbotts V. Barry, 2 Brod. & B. 869; Hitchcock V. Covill, 20 Wend. 167; 23 Wend. 611.

5 See Panama Tel. Co. V. India Rub.

Co., L. R. 10 Ch. 515, cited supra, sec 583; Christmas V. Spink, 15 Ohio, 600.

6 Bovill, C. J., Smith V. Baker, L. R. 8 C. P. 350.

7 Lythgoe V. Vernon, 5 H. & N. 180.

8 Bigelow on Fraud, 461; Leake, 2d ed. 91; Benj. on Sales, 3d Am. ed. sec 6, 13; Marsh V. Keating, 1 Bing. N. C. 215; Rodgers V. Maw, 15 M. & W. 448; Thurston V. Blanchard, 22 Pick. 18; Stanley V. Gaylord, 1 Cush. 536; Moody V. Blake, 117 Mass. 23; Barrett V. Warren, 3 Hill, 348; Heastings V. McGee, 66 Penn. St. 354.

Sec 737

When money is obtained by coercion or extortion, the acquiescence thus secured is a nullity,7 and the money may be recovered back in an action for money had and received to the plaintiffs use.8 Duress of goods, inducing the owner to pay money to release such goods, will be a basis for such a suit. "If 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; and 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."9 Hence when a mortgagor, with absolute power of sale, threatens to use such power unless he be overpaid, the overpayment may be recovered back in an action for money had and received.1 And money paid under duress of person, as by a false arrest, can be recovered back.2 Duress of goods, however, though it may be the basis of a suit to recover back money paid to be relieved of it, will not be sufficient to avoid a contract induced by it; nor does mere fear of legal procedure have that effect.3 - Excess of interest received on a usurious loan can, by this form of action, be recovered back when the plaintiff's necessity was operated on by the defendant so as to enforce the usurious terms;4 though it is held in Massachusetts, under the revised statutes, that excess of interest cannot be in this way recovered back.5

Money obtained by extortion can be recovered back.

1 Clarke V. Dixon, E. B. & E. 148; Lee V. Bayes, 18 C. B. 599; Thnrstou V. Blanchard, 22 Pick. 18: Heckle V. Lurvey, 101 Mass. 344; Hoffman V. Carow, 20 Wend. 21; Roland V. Gundy, 5 Ohio, 202; Beazley V. Mitchell, 9 Ala. 780; Weed V. Page, 7 Wis. 503.

2 Stone V. Marsh, 6 B. & C. 551.

3 Hoffman V. Carew, 20 Wend. 21; S. C, 22 Wend. 285. Mr. Parsons (Cont. i. 520) says of this ruling that it "is certainly very severe." See Courtis V. Cane, 32 Vt. 232; Hills V. Snell, 104 Mass. 177; Pease V. Smith, 61 N. Y. 477.

4 Croughton V. Forrest, 17 Mo. 131.

5 Supra, sec 734; Bethlehem V. Fire Co., 81 Penn. St. 445; see Pearsoll V. Chapin, 44 Penn. St. 9.

6 Lewis V. Robinson, 10 Watts, 338.

7 Supra, sec 144 et seq., 149, 353.

8 Oates V. Hudson, 6 Exch. 346; Chase V. Dwinal, 7 Greenl. 134; Worcester V. Eaton, 11 Mass. 376; Carey V. Prentice, 1 Root, 91; Ripley V. Gels-ton, 9 Johns. 201; Foshay V. Ferguson, 5 Hill, 158; supra, sec 353.

9 Bayley, J., Shaw V. Woodcock, 7 B. & C. 84, adopted Leake, 2d ed. 96; as illustrations see Pratt V. Vizard, 5 B. & Ad. 808; Wakefield V. Newton, 6 Q. B. 276; Maxwell V. Griswold, 10.