Tbis wаs a summary proceeding instituted in tbe foregoing action, and based upon a motion to quash an execution wbicb, it is alleged, was issued or based upon a judgment wbicb, for tbe reasons hereinafter stated, was and is unenforceable against tbe respondent.
The undisputed facts, briefly stated, are: That on the 5th day of February, 1907, respondent, under bis name of Frank Arima, filed bis pеtition in the United States District Court in wbicb, after setting forth the necessary facts, be prayed' to be adjudged a bankrupt and discharged as such. In connection with said petition, be duly filed the schedules, oaths, and summary required by the bankruptcy act. In such schedules be set forth the fact that, among others, be was indebted to appellants upon an open account, wbicb bе scheduled in the following words: “One due O. Y. Finnell and L. J. Hutchings, doing business as Finnell & Hutchings, a partnership, of Bingham, Utah, contracted during years 1904 and 1905, being an open account for meat and merchandise sold and delivered to bankrupt, of the full value of $128.30, action having been commenced on tbis account in the justice’s court of Murray City, Utah;” that on the 9th day of February, 1907, the United States District Cоurt duly entered an order adjudging respondent a bankrupt; that the action referred to in the statement just quoted from was pending in said justice’s court when respondent was adjudged a bankrupt; that thereafter, on the 3d day of June, 1907, and after all of the provisions of the bankruptcy act bad been fully complied with, said United States District Court duly entered an order discharging respondеnt from all debts provable under the bankruptcy act, and excepted from said discharge only such as are excepted in said act; that the respondent was not indebted to appellants otherwise than on said open account and in the amount aforesaid; that, notwithstanding said bankruptcy proceedings, and after respondent bad been adjudicаted a- bankrupt as aforesaid, appellants nevertheless proceeded with the action pending in the justice’s court aforesaid, and on the 19th day of March, 1907, a
Appellants offered no evidence, and nothing is made to appear from which it can be inferred that respondent’s name was not Arima, or that he was ever known by any other name, or that appellants knew and dealt with him as Armoura, the name by which he was sued. It also appears that the check was cashed, and that the proceeds thereof were deрosited, instead of the check, with the clerk of the district court! Upon substantially the foregoing facts, the court made conclusions of law and directed judgment that the execution be quashed, and
But two questions are presented for review: (1) Did the order entered by the United States Distriсt Court, discharging respondent' as a bankrupt debtor, include the claim in question; and (2) if it did so, was the payment made by respondent voluntary, so that he may not recover it back ?
With regard to the first proposition, section-1Y of the bankruptcy act of July 1, 1898, c. 541, 30 Stat. 550 (U. S. Comp. St. 1901, p. 3428), so far as material here, provides:
“A discharge in bankruptcy shall release a bankrupt from all provable debts except such as . . . (3) have not been duly scheduled in time for proof and allowance, with the name of the1 creditor if known to the bankrupt unless such creditor had notice or actual knowledge of the proceedings in bankruptcy.”
If, therefore, the claim in question was duly scheduled as provided by that portion of section seventeen just quoted, or if nоt so scheduled the creditor nevertheless had notice or actual knowledge of the pendency of the bankruptcy proceedings, so that he might have proved his claim, then the discharge is complete. This precise question was before the Supreme Court of Kansas* in the case of Zimmerman v. Ketchum,
Appellants do not dispute tbe fact tbat tbe claim was properly scheduled, but they base their objection entirely upon tbe ground tbat respondent was known by two names, namely, Arima and Armoura. As we have already shown, respondent was sued by tbe name of Frank Armoura, and tbe judgment was entеred against him by tbat name. Tbe bankruptcy proceedings were, however, commenced and conducted in tbe name of Frank Arima, wbicb was respondent’s correct name. It is contended, therefore, that appellants were not required to pay any attention to bankruptcy proceedings wherein Arima was adjudged a bankrupt, because their claim wаs not against Arima, but against Armoura, and that Armoura and Arima are not idem sonans. Tbe difficulty with this contention is tbat there is not a word of testimony tbat Arima ever was known by tbe name of Armoura, or tbat if be was tbat appellants ever dealt with him under tbe latter name. For aught tbat appears, appellants dealt with respondent under bis name and tbe misnomer occurred, as tbe respondent says it did, in tbe justice’s court of Murray. Tbe question of idem, sonans is therefore not involved, nor is tbe question of whether tbe claim was properly scheduled involved. In scheduling tbe claim, respondent did all tbat tbe -bankruptcy act required him to do, and having done so be is entitled to be released
In proceeding to a consideration of the second proposition, we remark that we are hardly prepared to admit that, in view of the undisputed facts, the question of voluntary payment is involved. It seems to us that the check was given and received upon the exprеss condition that, if respondent should establish the fact that the claim in question had been dis
But, assuming, as counsel for appellants has assumed, that under the facts it may be contended that the doctrine of voluntary payment is presented, yet the question remains whether the payment in question constituted a voluntary payment or not. It seеms to us that all the facts and inferences point to a contrary conclusion. Respondent's objection was more than a mere temporary protest, which was ignored or disregarded by him in giving the check. As we have seen, the check was in fact given conditionally, and the deputy sheriff himself understood and complied with the condition. The check was not apрlied in payment of appellants’ claim, but was deposited with the clerk of the district court and respondent immediately proceeded to establish his contention that he had been discharged as a bankrupt, just as was agreed to be done. Moreover, respondent was compelled to give the check, or permit the deputy sheriff to take possession of his property or business. If this was not surrendering property under compulsion, then we cannot see how any payment could be ex-
In 2 Page on Contracts, section 802, the author, in discussing this subject, says:
“The weight of authority is that payments made to prevent a threatened wrongful seizure of personality are made under duress and may be recovered.”
In Cox v. Welcher,
“The attempt to compel payment, where there is no legal burden, is regarded as a legal injury; and payment made to avoid the seizure and sale of property to pay a wrongful claim can be recovered bach as an extorted sum for which there was no consideration.”
In Taylor v. Hall,
"The payment is' generally held involuntary and recoverable by the payor, when made to an officer who has power immediately to enforce the collection.”
In Lamborn v. County Com’rs,
*325 “It is settled by many authorities that money paid by a person to prevent an illegal seizure of his person or property by an officer claiming authority to seize the same, or to liberatе his person or property from illegal detention by such officer, may be recovered back, in an action for money had and received, on the ground that the payment was compulsory, or by duress or extortion.”
In 22 Am. & Eng. Ency L. (2d Ed.), p. 611, tbe law upon this subject is stated thus:
“Payments to prevent a threatened unlawful seizure of personal property are considered cоmpulsory, within the meaning of the rule permitting the recovery back of comphlsory payments, to the same extent as payments to secure the possession of property unlawfully withheld.”
Tbe attempted seizure in tbe case at bar was for a claim wbicb bad been duly scheduled by tbe respondent and from wbicb be bad been discharged. If, under such circumstances, a business man may continuously be harassed, then, as pointed out in tbe case of Claster v. Soble, supra, a discharge in bankruptcy falls far short of affording tbe protection that is intended by tbe bankruptcy act.
We are clearly of tbe opinion that tbe judgment quashing the execution and ordering tbe return of tbe proceeds of tbe check to respondent under tbe facts and circumstances is right, and it is therefore affirmed, with costs to respondent.