Turner v. Barber

[500] ■The opinion of the court was delivered by Garrison, J. This is an action brought in the Salem Pleas upon an appeal to recover money paid by Turner to Barber’s proctor in admiralty. The ground of the plaintiff’s action was that the money so paid had been obtained from him by duress of his goods. The duress referred to was the seizure and detention of a scow belonging to “Turner by the deputy Enited States marshal, under a monition of libel issued in a 'suit in admiralty brought by Barber against the scow for wharfage. To effect the release of the scow Turner, without contesting the claim, paid it under protest to the proctor of the libelant and then sued Barber on it in the Court for the Trial of Small Causes and recovered a judgment against him. Epon an' appeal by Barber to the Common Pleas a similar judgment was recovered by Turner. Thereupon Barber removed the judgment of the Pleas to this court by a writ of certiorari. The facts found by the Court of Common Pleas appear in the return made by the judge of that court in response to a rule. The judgment of the Common Pleas must be reversed. The plaintiff did not make out a case of extortion. The payment by the plaintiff of the claim for wharfage with full knowledge of the facts was a voluntary one even if he did not owe it. The proposition maintained by the case annotated upon this subject in Smith’s Leading Cases is that money paid under regular legal process in a judicial proceeding, without contest, and with a full knowledge of the facts is, in the absence of fraud, not recoverable. 2 Sm. Lead. Gas. (8th Am. ed.) 436. There is nothing in the facts of the present ease to take it out of this rule or to invoke the rule with respect to the duress of goods'. 'The court decided that the plaintiff did not owe the wharfage, but did find fraud in the libelant or that he knew or ought to have known that the scow was not liable for the wharfage,.or even that he knew of the pending sale of the scow and timed his process as a means of extortion. The essential factors of a duress of. goods by the use of process were lacking. The libelant had not received pay for the scow’s use of the wharf and had a legal right to test its lia [501] bility in a competent tribunal of his own selection. Moreover, a complete answer to the claim of duress is contained in the finding of the trial court that the “plaintiff was of ample pecuniary ability to give sufficient bond to enable him to procure the release of the said boar from the custody of the said United States marshal.” This fact destroys the force of the plaintiff’s contention that the immediate delivery by him of his boat to complete a contract of sale compelled him to pay the claim against it. Under the circumstances, his payment of the claim was a matter of convenience merely. The course pursued by the plaintiff enabled him to-release his boat without litigating the validity of the claim against it in the tribunal where the libelant had acquired a right to have the matter decided. To permit the matter to be afterward litigated in a forum of the plaintiff’s choosing is contrary to sound policy. His payment of the admiralty claim must be deemed to have been made voluntarily and without fraud or force. The judgment of the Pleas must be reversed and set aside and a judgment of nonsuit entered.