Alpena weekly argus. [volume] (Alpena, Mich.) 1871-1893, 1878-03-06

imprisonment in Of case refusal,
and that no part of the one hun
dred dollars thus paid would have
been paid by plaintiff had not the
Marshal and Recorder threatened
him with immediate arrest and i'm
prisoment in tho event OF his re-
fusing to pay.
At the time when both Of said
payments were made, the plaintiff
and defendant both supposed that
the ordinance in question had been
passed by the Council and that the
same had gone into force and effect
and the said amounts so paid were
paid and received without any
question being raised or doubt en-
tertained or expressed concerning
the formal passage of the ordin-
ance.
Some time during the following
year, the fact became known that
the supposed ordinance had not
been legally passed, and soon after
the plaintiff demanded of the de-
PENDANT that the one hundred dol
lars paid by him to the defendant
be returned to him.
The matter of refunding the
plaintiffs tax was referred by the
Common Council to the City At
torney, and no further action in the
premises was taken by the Coun-
Gil pro or con. In the month of
March, 1877, this action was began.
The case presented two ques-
tons.
WAS the payment of the tax
voluntary or compulsory9
WAS the tax paid under a
mutual mistake of fact!
In order to constitute an invol-
untary payment or payment by
compulsion, it must atfirmatively
appear that at the time of making
the payment, the party paying
must have paid under duresse of
person or property or per n'inas.
1t was held many years ago, that
to constitute duresse per naindS
that there must be threat of life
or limb or mayhem, and that man
could not avoid his contract upon
the ground that it was procured
through fear of illegal imprison-
ment, but Lord Coke afterwards
said the fear of impisonmennt is
enough, (Co. Lift. 2,536.) and so
the rule has stood ever since, both
in England and America. If a
deed might be avoided nearly
three centuries ago on the ground
that it was procured by threats and
the fear of illegal imprisonment,
there can be no room for doubt
upon the question at the present
day. AS civilization has advanced,
the law has tended much more
strongly than it formerly did to
overthrow everything which is built
upon violence or fraud. In the
time of Coke, it was said that a
nan could not avoid his act on the
ground that it was procured by
the fear of battery, burning his
house, taking away or destroying
HE goods or the like, for there he
may have satisfaction by the re-
covery of damages. But Mr.. Chit
ty very justly doubts whether such
be the rule at the present day, es-
pecially in regard to so serious an
injury as threat to burn mans
house. In Sumner VS.. Ferryman,
III Mod. 201.) Powell J. said
man cannot avoid his bond by du-
resse to his goods, but only to his
person, (Forshay VS.. Ferguson,
Hill 1907
The Supreme Court of Mass
achusetts has frequently consider
ed the question of involuntary pay
ment of taxes, and the rule in that
State is stated in the case of Join
err VS.. School District, g Cush. 567-
572.) that where payment of tax
is made to a collector who had
warrant for the collection of the
tax which was correct in point Of
form, and by virtue of which the
collector was authorized to seize
the goods or take the body of the
person assessed, and the person as
sessed had no day in court or an
opportunity to arrest the service
of the warrant by calling in ques-
ton the validity of the proceeding,
but was compelled to pay the tax
or to have his property seized or
his BODY arrested on the warrant.