61 Mass. 125 | Mass. | 1851
The court deem this a plain case. It is an established rule of law, that if a party, with a 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 be fraud in the party enforcing the claim, and a knowledge that the claim is unjust. And the case is not altered by the fact, that the party, so paying, protests that he is not answerable, and gives notice that he shall bring an action to recover the money back. He has an opportunity, in the first instance, to contest the claim at law. He has, or may have, a day in court; he may plead and make proof that the claim on him is such as he is not bound to pay. This circumstance distinguishes such a case from most of those which were cited for the plaintiffs. As was said by Gibbs, J., in Brisbane v. Dacres, 5 Taunt. 152, the party has an option, whether to litigate the question, or submit to the demand and pay the money. See also Preston v. City of Boston, 12 Pick. 13, 14; Rawson v. Porter, 9 Greenl. 119.
In Brown v. McKinally, 1 Esp. R. 279, a party, who was sued for old iron sold and delivered, paid the sum demanded, objecting, at the time, that the iron was not such as he con
Judgment on the verdict for the defendant.