This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The weight of authority is that payments made to prevent a threatened wrongful seizure of personalty are made under duress and may be recovered.1 Thus, if a justice renders a void judgment, the case not being within his jurisdiction, and subsequently execution issues and the judgment debtor, being sick and in mental distress on account of the recent death of members of her family, paid such execution to avoid a threatened levy, it was held that she might recover from the judgment creditor who received the money.2 So money paid to avoid a threatened wrongful distraint of personalty may be recovred.3 So where a sheriff holding an execution threatened to levy unless an excessive amount were paid by the debtor, and the debtor paid the amount demanded, he may recover such excess from the sheriff.4 Duress by threatened seizure of goods has been limited very sharply by some authorities to cases where the danger of seizure was imminent. In case of payments to an officer the test of the right to recover them if not justly due has been held to be whether or not the officer has apparent power to seize or levy on the property which he is threatening to take.5 To constitute duress of goods, something more than a possible deprivation of property in the future is necessary, where this limitation on the doctrine of duress of goods prevails. Thus where a chattel mortgage with power of sale had been given to secure payment of the price of corn sold by the mortgagee to the mortgagor, a payment of the full amount of the purchase price, though some of the corn is never delivered, cannot be recovered, though made because of a threat of the mortgagee to sell the mortgaged property under the power of sale.6
16 Fargusson v. Winslow, 34 Minn. 3S4; 25 N. W. 942.
17 Cobb v. Charter. 32 Conn. 358; 87 Am. Dec. 178.
1 Hills v. Street. 5 Bing. 37; Cox v. Welcher, 68 Mich. 263; 13 Am. St. Rep. 339; 36 N. W. GO; Taylor V. Hall, 71 Tex. 213; 9 S. W. 141.
2Hollingsworth v. Stone, 90 Ind. 244.
3 Hills v. Street, 5 Bing. 37. Contra, Colwell v. Peden, 3 Watts (Pa.) 327, where a bona fide distress was held not to be duress.
4 Snell v. State, 43 Ind. 359.