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Sartwell v. Horton.

of $ 465.84, for which a recovery was had on the count for money had and received.

We are satisfied that, in the prosecution of this suit, the plaintiff is not concluded by the matter relied upon as an award of arbitrators. The opinion expressed by them, was given upon the express condition that neither party should be bound by it. It was intended to be, and was, in fact, merely advisory; and as such, it has no binding force. In the case of Ennos v. Pratt, 26 Vt. 636, an ordinary submission and award was made, and the arbitrators intended to make a final determination of the matter in controversy. Their opinion in that case that, as their award was not in writing, it was not obligatory, had no effect upon its conclusiveness. It is a different case from this, as in that case they discharged the duties of arbitrators, but in this they refused to act as such.

On the merits of this case, we think that the plaintiff is entitled to recover the money for which this judgment was rendered, as having been paid under circumstances which do not entitle the defendant to retain it. We make no question as to the soundness of the general rule, “ that money paid under legal compulsion, or where there is bona fides, and money is paid with full knowledge of the facts, though there be no debt, still it cannot be recovered back;" Marriott v. Hampton, 7 Term. 269; 2 Smith's Lead. Cas. 335. But if there is a want of good faith in making the claim, and the party is exacting what was not supposed to be a right, and there be duress, or any undue advantage taken of the parties' situation, or if, under the terror of inceptive legal proceedings, fraudulently instituted, money has been paid, the party paying it may recover it back in this form of action ; 2 Smith's Lead. Cas. 337; Pitt v. Coomes, 2 Ad. & El. 459, 1 Selw. N. P. 89. The referees in this case have found the fact and have stated in their report that the defendant's claim in relation to grain which the plaintiff was charged with having taken, and also the claim in relation to injuries to the grist mill, had no foundation, in fact, and would not have been set up, if the plaintiff had not determined to leave the defendant's employment. This must be regarded as a distinct finding, that the claim was false, and known to be such by the parties when it was made, and when this amount was deducted from the plaintiff's notes. That fact alone brings this case within the prin

Sartwell v. Horton.

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that money

ciple decided in the case of The Duke of Cadaval v. Collins, 4 Ad. & Ell. 858. That was an action to recover money paid to the defendant after the plaintiff' had been served with process. The fact was found by the jury, that the defendant knew that he had no claim upon the plaintiff when he sued out his writ. COLERIDGE, J., observed that "no case has decided that when a fraudulent use " has been made of legal process, both parties knowing throughout “that the money claimed was not due, the party paying under such “ process is not to have the assistance of the law.” PATTERSON, J., observed that “the jury concluded that the defendant knew that “ the debt did not.exist, and that he used the process colorably. say

obtained by such extortion cannot be recor“ered back would be monstrous." From the mere fact that the party knew that he had no just claim, the court declared the suit to have been fraudulently commenced, and the money obtained by extortion. In Colwell v. Pedan, 3 Watts 327 it was held that a distinction existed between those cases where a legal remedy has been used as an instrument of extortion, and those in which it has been used bona fide, to enforce what was supposed to be a right. In all the cases where a recovery was allowed, good faith existed in making the claim; the party supposed he had a right. But in this case, that fact is expressly negatived by the finding of the referees. Payments made under such circumstances, are not those voluntary payments which preclude the party from legal redress. The application of that principle is made to cases where the party is acting in good faith, and the money is taken on a supposed right.

There are other circumstances in the case which give additional weight to the plaintiff's right to recover this money. The transaction at the defendant's house, when the claim was first made, and the plaintiff was forbidden to leave the room, falls but little short of actual violence. The plaintiff, the referees state, is a simple-minded man, and on that occasion became excited and alarmed; so much so, as to induce him to offer the defendant his notes, with liberty to take such sum from them as he saw fit. It will hardly be contended that if money had then been paid, or this amount had then been deducted from the notes, but that the plaintiff' would be entitled to legal redress; and it would seem that the plaintiff, by

Sartwell v. Horton,

case, the

refusing then to take it, and requiring that others should state the sum which should be paid to him, was conscious of that result.

But it is insisted that as that transaction took place on Saturday, and the money was not paid until the next Monday, that the case is relieved from those considerations. But we think that conclusion does not follow. A similar delay existed in the case from 4 Adol. & Ell. 858, but it had no effect against the fact that the money was exacted and paid on a claim which the party knew had no existence in fact. It is also to be observed that in that case, the money was not paid until the next day after the party paying it had been discharged from arrest; so that in that case as well as in this, the money was paid, not under an actual arrest, but under the apprehension and fear of one. If, in that

money

could be recovered back, when, in his negotiations, the party paying the money was assisted by friends and professional advice, it surely should be recovered in this, where the case is destitute of

any

such considerations.

It is impossible to see upon what just ground the opinion of the persons named as arbitrators was given. Their own testimony in this case shows that they could not have been influenced by any proper considerations involved in the case. In any event, that proceeding will not make a claim where none existed before, or render it proper for the defendant to retain the money when it could not be retained independent of that transaction. If the fact that the defendant supposed that he had a just claim had not been expressly negatived, there would have been much more difficulty in permitting the plaintiff to recover. But that fact is negatived in the case. There is no propriety, therefore, in saying that a claim was created under that fraudulent use of legal process, the personal duress of the plaintiff, or by the very exceptionable proceeding before the persons named as arbitrators. That matter, so far from alleviating the facts in the case, only aggravates the circumstances under which that amount was taken from the plaintiff. It can be regarded in no other light than as an attempt to give to a transaction fraudulently conceived, and fraudulently prosecuted, the form of a legal proceeding

The judgment of the county court is affirmed.

CASES

ARGUED AND DETERMINED

IN THE

SUPREME COURT

OF THE

STATE OF VERMONT,

FOR THE

COUNTY OF BENNINGTON,

AT THE

FEBRUARY TERM;

AND AT THE

CIRCUIT Session, IN JUNE, 1856.

PRESENT,
Hon. ISAAC F. REDFIELD, CHIEF JUDGE.
Hon. PIERPOINT ISHAM,

Assistant JUDGES.

. Hon. MILO L. BENNETT,

}

LAUREL B. ARMSTRONG, admr. upon the estate of Julius K.

SHELDON v. DANIEL B. GRISWOLD.

Deposition. Testimony of party.

A deposition taken without notice before the passage of the act entitled "an act in

relation to depositions," approved November 14, 1854, (Laws of 1854, p. 5,) held admissible after the law took effect, without having been filed thirty days previous to the session of the court at which it was offered.

Admr, of Sheldon v. Griswold.

The witness law of 1852 (Laws of 1852, p. 11,) contempleted the examination of a

party as a witness only in open court, and did not authorize the using of his depo. sition. (But see Laws of 1855, p. 12.)

ACTION ON THE CASE, tried at the June Term, 1855,-PIERPOINT, J., presiding.

During the trial, the plaintiff offered in evidence a deposition of William E. Sheldon, which was taken without notice to the defends ant, in February, 1853, but was not opened or filed in the clerk’s office until the day of trial; also a deposition of Julius K. Sheldon, the original plaintiff in this action, which was taken in March, and filed in the clerk's office on the 11th of April, 1854, since which time he had deceased. To the admission of each of these deposia tions, the defendant objected, but the same were admitted by the court, and read, to which the defendant excepted.

Roberts & Chittenden for the defendant.

A. L. Miner and E. Edgerton for the plaintiffi

The opinion of the court was delivered, at the circuit session in June, by

REDFIELD, CH. J. The objection to the admission of the deposition of William E. Sheldon is, that it was not filed in court thirty days before it was offered in evidence, being taken ex parte: The statute, at the time it was taken, required this. But that section was repealed before the trial. Upon general principles, the deposition being taken properly, and nothing being requisite to make it evidence, but filing in court, thirty days before the time of its being offered in evidence, and there being ample time in which to do that, and that requirement being then unconditionally repealed, we should naturally conclude the deposition was admissible, without being filed in court, as the former statute required. A statute repealed could scarcely be regarded as of any continuing force. This would be the only view which would occur to any one, perhaps, on the subject, had the repealing statute contained no further provisions, in regard to the taking of depositions in future. And the only thing which raises the implication here, that the legislature did not intend to increase the facilities for admitting ex

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