Benson v. Monroe

If a party, with full knowledge of the facts, voluntarily pays a demand unjustly-made on him, and attempted to be enforced by legal proceedings, he cannot recover back the money, as paid by compulsion, unless there is fraud in the party enforcing the claim, and a knowledge on his part that the claim is unjust; although the party paying protests at the time that he is not answerable, and gives notice that he shall bring an action to recover the money back. A vessel arrived at Boston in 1847, with alien passengers on board; after the pas sengers were landed, the master refused to pay the head money, of two dollars for each of one hundred and forty passengers, demanded by the supérintendent of alien passengers, under the statute of 1837, c. 238, § 3, which had been decided by this court to be constitutional and valid; whereupon the overseers of the poor commenced a suit, (under Rev. Stat. c. 46, § 28, and St. 1837, c. 238, § 6,) against the owners of the vessel to recover the penalty of two hundred dollars for each passenger, and attached the vessel in the sum of thirty thousand dollars The owners thereupon paid the 'head money demanded, and costs, under protest, and with notice that they intended to sue to recover it back:The statute of 1837, c. 238, § 3, was afterwards decided by the supreme court of the United States to be unconstitutional and void. It was held, that the owners could not maintain an action to recover back the head money and costs so paid.

This was an action of assumpsit, by the plaintiffs, as the owners of the ship Washington, to recover back the sum of $398.25, paid under protest by Benson, one of the plaintiffs, and master of said ship, on the 10th of January, 1848, to the defendant, as the superintendent of alien passengers for the city of Boston, appointed by the mayor and aldermen thereof, under the statute of 1837, c. 238. The action was tried before Bigelow, J., in the court of common pleas, when the following, among other facts, appeared. On the 9th of December, 1847, the ship Washington, of Richmond, in Virginia, where the plaintiffs resided, prosecuting a voyage from Liverpool to Staten Island, (to land passengers,) and from thence to James River, came in collision with the ship Mary Frances, between George’s and Nantucket Shoals, and put into Boston, in consequence of the injuries she received. She had on board one hundred and ninety alien passengers. When the Washington arrived at quarantine, off Deer Island, the defendant went on board, and explained to the master the city ordinance prohibiting vessels with disease on board from going to the city; and some conversation also took place, relative to sending the passengers to New York in a vessel, which the master thought would be too expensive. The plan of landing the passengers on the island, and letting the ship be cleansed and proceed to the city, was talked of. The defendant informed the master that the expense of so landing the passengers, and taking care of them, would be about $100, which the master agreed to pay. The passengers were accordingly landed, (a portion of them being taken at once to the hospital,) and remained on the island several days, and the ship was cleansed and went up to the city. When the ship was repaired, she proceeded to sea, without taking any of the passengers previously landed. The defendant, under the statute before mentioned, demanded head money for one hundred and forty of the passengers; but whether the demand was made before or after the passengers were landed, did not appear. The master and consignees having refused to pay the head money demanded by the defendant, on the ground that they were exempted therefrom by the provisions of St. 1837, c. 238, § 5, as having made the port of Boston in distress, a suit was commenced against the owners on the 8th of January, 1848, by the overseers of the poor of Boston, to recover penalties to the amount of thirty thousand dollars, for landing passengers in contravention of the Rev. Sts. c. 46, § 28, and St. 1837, c. 238, § 6; and on this suit the ship was attached. On the 11th of January, the plaintiffs, by their attorney, paid the defendant, in settlement of this suit, the sum of $'398.25 which included $280 head money, $100 for landing passengers, and the costs of the suit, for which the defendant gave the plaintiffs’ attorney a receipt. And on the next day, the defendant, acting as the agent of the overseers, caused the attachment of the ship to be dissolved. When the money was paid, the plaintiffs’ attorney declared that it was paid under protest; that the plaintiffs would sue to recover it back; and the defendant, as the agent of the overseers, agreed, as a condition to the payment, to have the attachment dissolved, and also that a suit was to be brought for the recovery of the money, to test the validity of the claim. The defendant was desired, at the same time, by the plaintiffs’ attorney, to sign a paper acknowledging the payment of the money by the plaintiff Benson, under protest, and with a reservation of his legal rights, and promising to repay the same to Benson, in whole or in part, on a suit to be brought within thirty days, if it should appear that he was not legally bound to pay the same to the defendant; but the defendant refused to sign the pape The presiding judge instructed the jury, that the third section of St. 1837, c. 238,' authorizing the collection of head money, was unconstitutional and void, and that the demand thereof by the defendant, was illegal; and upon the question, whether the money paid could be recovered back in this action, he instructed them that if the defendant demanded of Benson $280 head money, for alien passengers on board the Washington, and Benson refused to pay the same, but landed the passengers, and the overseers of the poor commenced an action against the owners of the ship, to recover thirty thousand dollars, for a violation of law in landing these passengers, and Benson then agreed to pay the head money, on condition that the defendant, acting as the duly authorized agent of the overseers of the poor, would procure a discharge of the suit, and for that purpose only, and the defendant did procure such discharge, then the plaintiffs could not recover back the sum paid, even though they protested against paying it, and declared their intention to sue for it, unless the jury were satisfied that the defendant, at the time of paying the money, agreed with the plaintiffs to hold the money, in which case the plaintiffs could recover the money of him, in case the payment should be held to have been unlawfully exacted. The jury returned a verdict for the defendant, and the plaintiffs alleged exceptions.