The nature of duress as affecting the validity of contracts entered into by reason thereof has already been discussed.1 The nature of duress as determining the right of a party making payments to recover them is largely governed by the same rules as those by which the right to avoid contracts is determined. If payments are made under what the law regards as duress, they are not within the doctrine of voluntary payments, and may be recovered in the absence of special circumstances.2 In some respects, however, as we shall see later, the right to recover payments was broader at Common Law than the right to avoid contracts and by some authorities the right to recover payments made under compulsion of law has been treated as a ground of recovery distinct from any form of duress. They will be discussed together here as applications of the same general doctrines. No single definition of duress which entitles a party making payments by reason thereof to recover, can be given in such form as to include all cases in which the doctrine is applied, and to exclude those in which the doctrine is not applied. But to constitute duress there must in general be at least apparent liability of person or property to seizure,3 and in the absence thereof mere protest against paying cannot make it payment under duress.4 A payment made under undue influence may be recovered,5 even though the circumstances fall short of technical duress or compulsion. Thus payment made under threat of a civil action may be recovered where the person making the payment is aged, illiterate and weak-minded, and his mind is in fact overpowered by such threats.6 The special classes of cases involving the question of what is and what is not such duress as to permit of recovery of payments will be discussed in the following sections.

3 Southern Express Co. v. Bank, 108 Ala. 517; 54 Am. St. Rep. 191; 18 So. 664. In order to recover, it is not necessary that the bank surrender a draft which purports to be signed by such fictitious and nonexistent firm with a bill of lading attached thereto.

1 See Ch. XIII.

2 Swift Co. v. United States, 111 U.S. 22; Adams v. Schiffer, 11 Colo. 15; 7 Am. St. Rep. 202; 17 Pac. 21; Stanley v. Dunn, 143 Ind. 495; 42 N. E. 908; Anderson v. Cameron, - Ia. -; 97 N. W. 1085; Carter v. Riggs, 112 la. 245; 83 N. W. 905; 78

Silsbee v. Webber, 171 Mass. 378; 50 N. E. 555; Sweet v. Kimball. 166 Mass. 332; 55 Am. St. Rep. 406; 44 N. E. 243; Cribbs v. Sowle, 87 Mich. 340; 24 Am. St. Rep. 166; 49 N. W. 587; Joannin v. Ogilvie, 49 Minn. 564; 32 Am. St. Rep. 581; 16 L. R. A. 376; 52 N. W. 217; Briggs v. Boyd, 56 N. Y. 289; Adams v. Reeves, 68 N. C. 134; 12 Am. Rep. 627; Reinhard v. Columbus, 49 O. S. 257; 31 N. E. 35; Fillman v. Ryon, 168 Pa. St. 484; 32 Atl. 89; Guetzkow Bros. v. Breese, 96 Wis. 591; 65 Am. St. Rep. 83; 72 N. W. 45.