1. It is unnecessary to consider the question of the construction of. the St. of 1848, c. 313, § 5; for if it conferred an authority absolutely to demand head money of any alien passengers, as the plaintiffs contend that it did, it was unconstitutional, within the decision of the supreme court of the United States in Norris v. Boston, 7 How. 283, which this court is bound to follow; and if, as the defendant contends, it merely gave the plaintiffs the option to pay head money instead of *478giving bond, the superintendent did not comply with it, as the facts show that he peremptorily required payment of the head money now sought to be recovered. In either aspect, therefore, the head money was unlawfully exacted by him of the plaintiffs.
2. The facts in these cases show that the money was paid under duress. The actual and frequent declarations of the superintendent of alien passengers, with the aid of police officers, that passengers should not be landed until the head money was paid, the refusal to enter the vessels at the custom-house until the assent of the superintendent had been obtained, and the other measures which the evidence shows to have been resorted to in order to enforce payment, clearly prove duress de facto ; and the money having been paid under a demand made by a public officer colore officii with the menace of coercion and the present means of enforcing that menace, the payment was not voluntary. The cases are thus distinguished from those of Cunningham & Woodward v. Boston, ante, 468.
3. The fact that the superintendent was a public officer, and receipted for the money as such, did not protect him from an action. The money might therefore have been recovered back from him in his lifetime.
4. The proceedings in the probate court and before the commissioners of insolvency after the estate of the deceased had been represented insolvent do not bar these actions. He received the money in his capaeityxas superintendent of alien passengers, and gave receipts for it as such; and he deposited it in a bank separate and apart from his other moneys, clearly indicating an intention on his part to treat it as money held by him on a specific trust, and not as belonging to himself or to be mingled with his own property. Under such circumstances, the administrator was not bound to bring it into the general assets of the estate, and no creditor ever required that it should be included in the general assets. It would have belonged to the Commonwealth if lawfully collected; and, having been unlawfully collected, it belonged to those from whom it had been exacted by the intestate. The plaintiffs were not bound to *479prove their claims before the commissioners of insolvency, because they brought these actions against the intestate in his lifetime, and have since duly prosecuted them against his administrator. They are therefore entitled to prosecute the actions to final judgment and obtain payment out of the separate fund.
5. These actions may be maintained by the parties from whom the money was unlawfully exacted, and it is immaterial whether they will be accountable in their turn to the passengers from whom they received it.
6. The assignment in insolvency of Train’s estate did not extend to partnership assets, nor to debts due to the firm. Fern v. Cushing, 4 Cush. 358. The two partners may therefore maintain their action, whatever may be the proper distribution of any money that they may recover.
The result is, that the plaintiffs are entitled in each case to recover against the estate of the intestate the amount found due by the auditor.
Judgments for the plaintiffs accordingly.
Memoranda.
On the twenty-first day of August 1860, Chief Justice Sjiaw resigned the office of chief justice of this court, which he had held since the thirty-first day of August 1830.
On the seventh day of September 1860, Mr. Justice Big,blow was appointed chief justice, in place of Chief Justice Shaw, resigned, and took his seat upon the bench as such on the eleventh day of September, at the term of the court then held at Boston in the county of Suffolk.