The plaintiff's brief assumes, erroneously, that the complaint includes a cause of action for the recovery of money paid under a mistake. It is a necessary element of such a cause of action that the payment was made under a mistaken belief that the money was due to the payee, when in truth it was neither legally nor morally due; as when an executor pays a legacy in full believing that the estate is solvent, when it is not, or that the legacy is due to the payee under the terms of the will, when it is not. Mansfield v.Lynch, 59 Conn. 320, 22 A. 313; Northrop v. Graves,19 Conn. 548; Mills v. Britton, 64 Conn. 4, 29 A. 231. No transaction of that kind is alleged. On the contrary, the complaint, which was filed nearly two years after the payment of the money, attempts to state a case of duress of goods, alleging that the entire claim of the defendant was disputed at the time when it was paid in full, that only $1,071.89 was actually due, and that the balance of $3,363.15 was not due and was paid to prevent the immediate attachment of the plaintiff's property. The absence of any allegation that the defendant's original demand was dishonest, and the admission that at some time thereafter, not specified in the complaint, the plaintiff ascertained that a part of the demand was due, acquits the defendant of any possible charge of bad faith in instituting the action and in taking out the writ of attachment.
The complaint attempts to suggest that extreme pressure was put upon the plaintiff, by alleging that the payment was made to prevent the shutting down of its "entire plant and factory"; but this averment is not well pleaded, because there is no direct allegation that the officer threatened to do so, and without such threat an entire shutdown of the plaintiff's notoriously *Page 132 extensive plant could not reasonably have been feared.
All that can rightfully be claimed from the complaint, is that the plaintiff paid a disputed claim, now admitted by the demurrer to have been excessive in amount, in order to avoid the inconvenience of an attachment which might have been speedily dissolved on the substitution of a statutory bond. No authority is cited in support of the proposition that a payment so made can be recovered on the ground that it was paid under duress. The passage relied on from 30 Cyc. 1308, refers, as the context and the cases show, to an abuse, or to an inequitable and oppressive use, of legal process; such as a writ of attachment procured by one who knows that he has no cause of action, a demand in excess of that authorized by the process, a threatened levy of execution on the property of a person other than the judgment debtor, a demand on an execution aftersupersedeas, and the like. Many cases on the subject of involuntary payment are collected in an exhaustive note in 45 Amer. Dec. 153, and in summing up the authorities on the precise point at issue it is said: "If, as will hereafter be more particularly shown, the payment is made under the stress of lawful process lawfully used, the party can obtain no relief except by reversal of the proceedings under which the process was issued. Lawful compulsion is no duress." The cases cited bear out the text. See also Hoke v. Atlanta,107 Ga. 416, 33 S.E. 412; Strange v. Franklin,126 Ga. 715, 55 S.E. 943.
The authorities on the recovery of unlawful taxes paid to escape the penalties imposed by statute, rest in part on the severity of the "onerous penalties" imposed for nonpayment. Underwood Typewriter Co. v. Chamberlain,92 Conn. 199, 204, 205, 102 A. 600; Seeley v.Westport, 47 Conn. 294, 299. And if the statute purporting *Page 133 to authorize the tax is invalid, the whole legal process of collection is void ab initio.
But as between private suitors who stand on an equal footing, the due process of the law invoked in good faith and fairly used cannot amount to duress.
There is no error.
In this opinion the other judges concurred.