Claflin v. McDonough

CourtUnited States State Supreme Court of Missouri
Writing for the CourtBAY
Citation33 Mo. 412
Decision Date31 March 1863
PartiesWILLIAM CLAFLIN et al., Plaintiffs in Error, v. JAMES MCDONOUGH, Defendant in Error.

33 Mo. 412

WILLIAM CLAFLIN et al., Plaintiffs in Error,
v.
JAMES MCDONOUGH, Defendant in Error.

Supreme Court of Missouri.

March Term, 1863.


Error to St. Louis Court of Common Pleas.

Henry Hitchcock, for plaintiffs in error.

It is not disputed that the law under which the tax claimed of plaintiffs and paid by them, as stated in the petition, was unconstitutional and void, so far as related to a part of the goods, &c., in respect of which such tax was imposed.

This being so, the demand made by defendant was without legal authority or justification, and the money was wrongfully received, and that with notice it would be sued for as illegally exacted.

It is a doctrine of the common law, absolutely universal,

[33 Mo. 413]

(as far as my researches extend,) that if a man by fraud, or wrong, or illegality, obtains, or exacts, or retains money justly belonging to another, with notice that the latter contests the right of the former to receive, or exact, or retain it, an action for money had and received lies to recover it back, and it is no answer for the wrong-doer to say that he has paid it over to his superior, &c., &c. (Cary v. Curtis, 3 How. U. S. 255; Elliott v. Swartwout, 10 Pet. 137; Bond v. Hoyt, 13 Pet. 263, 267; Ripley v. Gelston, 9 Johns. 201; Fry v. Lockwood, 4 Cow. 454.)

C. D. Drake, for defendant in error.

I. While it is admitted that the law under which the tax was paid was unconstitutional, (as has since been declared by the Supreme Court,) it is manifest from the petition that such was the plaintiffs' own view of it when they made the payment. They, therefore, not only know all the facts of the case, but also that, in law, they were not bound to pay the tax, and yet they paid it. There is no allegation of fraud or duress having been practised on them, and, in the absence of both these elements, it is well settled that no action lies to recover back the money. (Sheldon v. School District, 24 Conn. 88; Fellows v. School District, 39 Me. 559; Baltimore v. Lefferman, 4 Gill, 425; Baltimore & S. R. R. Co. v. Faunce, 4 Gill, 68; Tiffany v. Johnson, 27 Miss. 227; Downs v. Donnelly, 5 Ind. 496.)

II. There was no duress practised to coerce the payment. The collector had no legal authority to seize either the persons or goods of the plaintiffs, and they do not aver any attempt to do either. The only averment of any constraint is, that they were threatened with a criminal prosecution if they refused to pay.

1. They do not aver that they were threatened by the defendant.

2. A payment made under a threat of legal proceedings is not made by duress. (Kribbs v. Hall, 1 Esp. 84; Baltimore v. Lefferman, 4 Gill, 425.)

[33 Mo. 414]

3. To constitute a payment by duress it must appear that there was an arrest of the body, or a seizure of property, or the conclusion must be justified that such an arrest or seizure could be avoided only by payment. (Smith v. Redfield, 27 Me. 145; Baltimore v. Lefferman, 4 Gill, 425; Mays v. Cincinnati,...

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20 practice notes
  • Kansas City v. Halvorson, No. 38611.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1943
    ...65 S.W. (2d) 1034; Christal v. Craig, 80 Mo. 370; Baldwin v. Scott County Mill. Co., 343 Mo. 915, 122 S.W. (2d) 890; Claflin v. McDonough, 33 Mo. 412; Silverforb v. Bk., of Nashua, 233 Mo. App. 1239, 128 S.W. (2d) 1070; Kramer v. K.C.P. & L. Co., 311 Mo. 383, 279 S.W. 43; Natl. En. &......
  • Baldwin v. Scott County Milling Co., No. 35278.
    • United States
    • United States State Supreme Court of Missouri
    • December 20, 1938
    ...v. Peoples Bank of Holcomb, 198 Mo. App. 597, 200 S.W. 665; Home Coal Co. v. Macon, 216 Mo. App. 590, 262 S.W. 59; Claflin v. McDonough, 33 Mo. 412; Irving v. St. Louis County, 33 Mo. 575; Ferguson v. Butler County, 297 Mo. 20, 247 S.W. 795; Columbia B. & L. Assn. v. Gill, 285 S.W. 181;......
  • State ex rel. Hughes v. Southwestern Bell Tel. Co., No. 38800.
    • United States
    • United States State Supreme Court of Missouri
    • April 3, 1944
    ...taxes contended to be illegal. Section 8716, R.S. 1939; Sections 11 and 22, Article X, Missouri Constitution; Claflin et al. v. McDonaugh, 33 Mo. 412; Robins v. Latham, 134 Mo. 466, 36 S.W. 33; Walker v. City of St. Louis, 15 Mo. 563; Cincinnati, N.O. & T.P. Ry. Co. v. Commonwealth ex r......
  • Reed v. Peper Tobacco Warehouse Co.
    • United States
    • Court of Appeal of Missouri (US)
    • April 25, 1876
    ...Halsa, 8 Mo. 303; Mullanphy v. O'Reilly, 8 Mo. 675; 1 Pars. on Notes & Bills, 175; Frank v. Hough, 29 Ill. 145; Claflin v. McDonough, 33 Mo. 412; Lima Township v. Jenks, 20 Ind. 301; Miller v. Coates, 4 N. Y. (S. C.) 429; Knapp v. Hyde, 60 Barb. 80; Wolfe v. Marshall, 52 Mo. 167; 1 Stor......
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40 cases
  • Kansas City v. Halvorson, No. 38611.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1943
    ...65 S.W. (2d) 1034; Christal v. Craig, 80 Mo. 370; Baldwin v. Scott County Mill. Co., 343 Mo. 915, 122 S.W. (2d) 890; Claflin v. McDonough, 33 Mo. 412; Silverforb v. Bk., of Nashua, 233 Mo. App. 1239, 128 S.W. (2d) 1070; Kramer v. K.C.P. & L. Co., 311 Mo. 383, 279 S.W. 43; Natl. En. & Stamp.......
  • Baldwin v. Scott County Milling Co., No. 35278.
    • United States
    • United States State Supreme Court of Missouri
    • December 20, 1938
    ...v. Peoples Bank of Holcomb, 198 Mo. App. 597, 200 S.W. 665; Home Coal Co. v. Macon, 216 Mo. App. 590, 262 S.W. 59; Claflin v. McDonough, 33 Mo. 412; Irving v. St. Louis County, 33 Mo. 575; Ferguson v. Butler County, 297 Mo. 20, 247 S.W. 795; Columbia B. & L. Assn. v. Gill, 285 S.W. 181; Wil......
  • Brink v. Kansas City, No. 39794.
    • United States
    • Missouri Supreme Court
    • December 9, 1946
    ...Assistant City Counselor, for appellant. (1) The imposition of the special tax assessments did not constitute duress. Claflin v. McDonough, 33 Mo. 412; Franke v. St. Louis, 249 S.W. 379; State ex rel. American Mfg. Co. v. Reynolds, 270 Mo. 589, 194 S.W. 878; Wolfe v. Marshall, 52 Mo. 167; R......
  • Fitzgerald v. Fitzgerald & Mallory Construction Co., 5309
    • United States
    • Supreme Court of Nebraska
    • June 26, 1894
    ...under claim of right, and as such cannot be recovered back. (Kenneth v. South Carolina R. Co., 15 Rich. [S. C.], 284; Claflin v. McDonough, 33 Mo. 412; Bucknall v. Story, 46 Cal. 599; Brumagim v. Tillinghast, 18 Cal. 265; Beecher v. Buckingham, 18 Conn. 110; Stevens v. Head, 9 Vt. 174; Morr......
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