70 Vt. 67 | Vt. | 1897
The action is general assumpsit. At the conclusion of the evidence, the defendant moved the court to order a verdict for the defendant. The court overruled this motion, ordered a verdict for the plaintiff, rendered judgment thereon, and the defendant excepted.
The plaintiff’s counsel claims that the evidence tended to show that Howard Lindsay was the defendant’s collector of taxes; that he had a tax-warrant for the collection of taxes assessed by the-defendant against the plaintiff; that Lindsay arrested and committed to jail the plaintiff on such warrant; and that the plaintiff paid such taxes to procure his release from jail, and the same were paid, as such, to the defendant.
A majority of the court were of the opinion that the evidence did not tend to show that the plaintiff was arrested and imprisoned upon á tax-warrant and that it did not present any question respecting taxes. Briefly stated, the case is, that the plaintiff was arrested and committed to the county jail by Lindsay, and there remained two or three days, when he paid the jailer, under protest, the amount claimed by Lindsay to be due upon a warrant, and was released from custody; and that a part of the money thus paid was paid by Lindsay to the town treasurer of Newport.
Upon this showing, the plaintiff was not entitled to recover; and a verdict should have been ordered for the defendant. The burden was on the plaintiff to show that the money in question belonged to him, and that he was entitled to recover it of the defendant. He, having paid it in satisfaction of a sum demanded and claimed to be due oh a warrant, not shown to be a tax-warrant, was not
A payment under protest, upon a threat of suit, the party knowing all the circumstances, is not a payment under such compulsion of process as protects it from the infirmity of a voluntary payment. Burnham v. Strafford, 53 Vt. 610. When a party is induced to pay money which he is under no
When a party seeks to avoid a contract because' of duress by imprisonment, it is not enough to simply show that he was imprisoned. He must go further and show that the imprisonment was unlawful; or, if lawful, that while imprisoned, he was. subjected to undue force or unnecessary privation, and that to obtain his liberty, or to avoid such illegal hardship or privation, he was induced to make the contract. Chitty on Contracts, 217; American and English Encyclopaedia of Law, Vol. 6, 96; Heaps v. Dunham, 95 Ill. 583; Hatter v. Greenlee, 1 Porter 222, 26 Am. Dec. 370; Eddy v. Herrin, 17 Me. 338, 35 Am. Dec. 261; Clark v. Turnbull, 47 N. J. Law 265; Mascolo v. Montesanto, 61 Conn. 50; Stouffer v. Latshaw, 2 Watts 167, 27 Am. Dec. 297.
The plea of duress of imprisonment is supported by any evidence that the party was unlawfully restrained of his liberty until he would execute the instrument. If the imprisonment was lawful, that is, if it was by legal process, the plea is not supported, unless it appear that the arrest was upon process sued out maliciously and without probable cause; or that, while the party was under lawful arrest, unlawful force, constraint, or severity was inflicted upon him, by reason of which the instrument was executed. Greenleaf on Evidence, Vol. 2, Sec. 302. To constitute duress by imprisonment, either the imprisonment, or the duress after, must be tortious and unlawful. Watkins v. Baird, 6 Mass. 510. There must be actual and unlawful imprisonment to constitute duress, and the deed given as a consideration for the discharge. Moore v. Adams, 8 Ohio 372, 32 Am. Dec. 724. Imprisonment is not deemed sufficient duress to avoid a contract obtained through the
Judgment reversed and cause remanded.