Sec 149

Mere detention of goods, it has been frequently held, does not, in cases where this injury can be compensated for by a cross suit, constitute such duress as will invalidate a promise made in order to release the goods.1 But whatever may be held to be the efficacy of a promise made under duress of goods, a party may recover back money paid under such duress.2 Hence, excessive charges made by a railroad or express company, and paid in order to obtain goods or avoid expulsion from carriage, may be recovered back ;3 and so generally may money unlawfully detained.4-The refusal, therefore, of the charterer of a vessel to clear her after she is loaded and in the stream, unless certain concessions are made him, is duress, and the charterer cannot avail himself of such concessions.5 As a general rule, also, a party may recover back goods or money illegally extorted by a bailee refusing to return such goods or money without Duress of goods does not invalidate promise.

1 Infra, sec 737-8; 1 Ch. on Cont. 11th Am. ed. 206 ; Atlee v. Backhouse, 3 M. & W. 642 ; Skeete v. Beale, 11 A. & E. 983 ; Neilson v. McDonald, 6 John. Ch. 201; James v. Roberts, 18 Ohio, 548; Elston v. Chicago, 40 111. 514; Spaids v. Barrett, 57 111. 289; Mac-loon v. Smith, 49 Wis. 200: Hunt v. Bass, 2 Dev. Eq. 292; Collins v. West-bury, 2 Bay, 211; Lehman v. Shackelford, 50 Ala. 437 ; Bingham v. Sessions, 6 Sm. & M. 13; see contra, Sasportas v. Jennings, 1 Bay, 470; Collins v. West-bury, 2 Bay, 211.

2 Oates v. Hudson, 6 Exch. 348; French v. Shoemaker, 14 Wall. 314; U. S. v. Huckabee, 16 Wall. 414; Chase v. Dwinel, 7 Greenl. 134; and cases cited infra, sec 737-8. As to extortion by strikes see infra, sec 439.

3 Infra, sec 738; Garton v. R. R., 28 L. J. Exch. 169 ; Riddington v. R. R., 27 L. J. C. P. 295 ; Evershed v. R. R., L. R. 2 Q. B. D. 254 ; Ashmole v. Wain-wright, 2 Q. B. 837 ; Harmony v. Bingham, 12 N. Y. 99.

4 Infra, sec 742 et seq. ; Astley v. Reynolds, 2 Str. 915 ; Wakefield v. Newton, 6 Q. B. 676 ; Chandler v. Sanger, 114 Mass. 364; Foshay v. Ferguson, 5.

Hill, 154; Briggs v. Boyd, 56 N. Y. 289 ; Baldwin v. St. Co., 74 N. Y. 125 ; Stover v. Mitchell, 45 111. 213 ; Waller v. Parker, 5 Cold. 496. "In Miller v. Miller, 18 P. F. Smith (68 Penn. St. sec 486), it is said that in civil cases the rule as to duress per minos has a broader application at the present day than formerly. Where a party has the property of another in his power, so as to enable him to exert his control over it to the prejudice of the owner, a threat to use this control may be in the nature of the common-law duress per minas, and enable the party threatened with this pernicious control to avoid a bond or note obtained without consideration, by means of such threats. The constraint that takes away free agency and destroys the power of withholding assent to a contract must be one that is imminent, and without immediate means of protection, and such as would operate on the mind of a person of reasonable firmness." Sterrett, J. Motz v. Mitchell, 91 Penn. St. 117. See on this topic notes in 21 Am. Law Reg. 115.

5 McPherson v. Cox, 86 N. Y. 472 ; citing Harmony v. Bingham, 12 N. Y.

99 ; Scholey v. Mumford, 60 N. Y. 98 ; 64 N. Y. 121. "The master of the vessel," said Dan forth, J., "testified, and I do not find his evidence contradicted, that after the vessel was laden in the stream, ready for sea, the plaintiff applied to him to sign the draft and the agreement, that the captain resisted upon the ground that the tare, etc., should be first allowed, as required at the port of delivery, hut the plaintiff, as the captain testifies, said he ' would not clear the ship from the customs, settle my business, or allow me to proceed without the signature of these papers,' and then the captain says he was ' compelled to sign them.' The plaintiff was the agent of the owners of the vessel, the shipper and consignor of the goods. He, and no other person, could get clearance for the vessel at the custom-house (U. S. Rev. Stat. sec 4200), and that exclusive power and the refusal to exercise it was constraint. To make the contract unlawful, it was not necessary that the person of the master should have been arrested, or his goods or vessel seized or libelled. It is enough that the contracts which he then entered into were made to procure the liberation of the vessel, and their execution might well be imputed to illegal restraint. The learned court should, therefore, have charged as requested by the defendant's counsel, that if ' the jury believed the testimony given by the captain, as to the circumstances under which the bill was executed, and that there was no way for him to leave the port with the vessel or cargo without the consent of the plaintiff, the refusal of the plaintiff to allow the vessel to leave the port until the bill was signed, did constitute duress.' The confinement by reason of the plaintiff's refusal to do the thing which should clear or let go the vessel was as coercive and difficult to resist as an actual seizure or imprisonment would have been, and under the construction given by us to the charter-party the refusal was unlawful, for it was an omission of duty.".

In Pemberton v. Williams, 87 111. 16, A., the assignee of a purchaser of land, having contracted to sell the land to E., who demanded to see A.'s deed therefor, was compelled to pay the original vendor more than was due him, in order to get a deed to satisfy E., and the payment was made under protest. It was held to be a question of fact for the jury, whether the payment was made under a moral duress ; and if so, the excess above the real sum due might be recovered back in assumpsit under the common counts. See generally to same effect Miller v. Miller, 68 Penn. St. 493; Spaids v. Barrett, 57 111. 289; Bennett v. Ford, 47 Ind. 264; Crawford v. Cato, 22 Ga. 594 ; Bingham v. Sessions, 6 Sm. & M. 13.

In Atlee v. Backhouse, 3 M. & W. 650, Parke, B., said: "There is no doubt of the proposition laid down by Mr. Erle, that if goods are wrongfully taken, and a sum of money is paid, simply for the purpose of obtaining possession of these goods again, without any agreement at all, especially if it be paid under protest, that money can be recovered back; not on the ground of duress, because I think that the law is clear, although there is one case in Viner's Abridgment to the contrary (9 Vin. Abr. 317, Duress, B. 3; 1 Roll. Abr. 587, 20 Ass. 14), that, in order to avoid a contract by reason such contribution.1 Money illegally obtained by a public officer may in this Way be recovered back, when paid under compulsion or under protest ;2 and so of money extorted illegally as toll ;3 and so where illegal commissions are extorted by a refusal otherwise to surrender securities.4 On the same principle goods illegally exacted by a collector of the revenue, on summary process, can be recovered back.5 "Nor is the principle confined to payments made to recover goods; it applies equally well when money is extorted as a condition to the exercise by the party of any other legal right; for example, when a corporation refuses to suffer a lawful transfer of stock of duress, it must be duress of a man's person, not of his goods ; and it is so laid down in Shepherd's Touchstone (p. 61) ; but the ground is that it is not a voluntary payment. If my goods have been wrongfully detained, and I pay money simply to obtain them again, that, being paid under a species of duress or constraint, may be recovered back ; but if, while my goods are in possession of another person, I make a binding agreement to pay a certain sum of money, and to receive them back, that cannot be avoided on the ground of duress."