¶1It is contended on the part of the defendant in this case, that an action of assumpsit cannot be maintained upon the facts stated, and as this objection will dispose of the action, it becomes unnecessary to examine any other objection.
¶2When the body has been arrested, or property seized illegally, trespass lies, and is the usual remedy pursued. 3 Cranch 331, Wise vs. Withers.—13 Mass. R. 283.—15 do- 144.
¶3Replevin has also been sustained where property was taken, because the taking being altogether unjustified must be deemed tortious.(l) Assumpsit for money had and received might likewise lie, where the property taken has been sold to third persons for money; because as a general principle the tort in taking personal property can be waived and the proceeds of the property, if sold, recovered from the wrong doer. 1 N.H.Rep. 154, Chauncey vs. Yeaton, and Auths. cited.— Willes 407.—1 Taunt. 112.— 3 Maule & Selw. 191, 571.
¶4The objection to such an action in the present case is, that the property taken by the defendant was not sold, and money received therefor; but it was merely relinquished to the owner on receiving the fine and cost; and the money thus paid by the plaintiff was paid voluntarily, with a full knowledge of all the facts, and without extortion, duress or fraud. It has been adjudged, that assumpsit will not lie to recover back money thus paid, Cowp. 414, Lindon vs. Hoop*463er—1 John. Rep. 515, Potter vs. Bemis.—1 Mass. Rep. 66, Gates et al. vs. Winslow.— 5 Taunt. 143, Brisbane vs. Dacres.
¶5Some of the reasons assigned for these decisions, viz. that so general a form of action does not give sufficient notice to the defendant; allows an unreasonable latitude as to the points in issue at the trial; makes the merits of the cause res inter alias actm; and leaves great uncertainty on the face of the whole record — seem to be objections to this form of action in any case rather than the present case.
¶6But other reasons, such as the payment of the money being voluntary, by the plaintiff himself, and with a full knowledge of every fact, and the receipt of it being by the defendant under a claim of right without extortion, duress or fraud, seem to reach the merits of the action, and to distinguish the present case from many others, which are cited as analagous. 1 Barn. & Ald. 128, Derby vs. Moore.—5 Taunt. 144, Brisbane vs. Dacres.
¶7Thus in those cases, where the right to an office has been settled by an action of assumpsit between the claimants, the money sued for was received of third persons. Th. Jones 126.—2 Mod. 260, Arris vs. Stukely.—2 Lev. 245.—2 Ld. Ray. 1217. And such was probably the case of Newdigate vs. Davy, 1 Ld. Ray. 74.
¶8So, where assumpsit has been sustained, when property was seized and sold under proceedings afterwards quashed, the money was received of third persons. Loft Rep. 207,-1 D. & E. 387.—2 Ld. Ray, 1216, Lamine vs. Darrell.—Bull. N. P. 131.
¶9Where assumpsit has been sustained to recover back money paid by usury, fraud, extortion, &c. though the money was received from the plaintiff himself; yet the decisions are expressly grounded on the hypothesis, that the parties are not in pari delicto, the receiver having taken advantage of the pecuniary distress or ignorance of him who pays. 2 Str. 915.—Wiley vs. Green, Straf. Feb. 1821.
¶10In the case of Irving vs. Wilson et al.(1)the officer received the money without any color of right, it being his duty merely to libel the property if the seizure was correct: *464¿nc[ the recovery back was justified on the ground of extoition.
¶11Yhe plaintiff, however, is not without remedy. As his property was taken away without legal authority, the usual mode of redress by an action of trespass is still open to him ; because he did not assent to that taking and has suffered in consequence of it. But to the taking of the money by the defendant, he did assent. He himself paid it and voluntarily and without ignorance of the facts, without fraud and without extortion.
¶12Let the plaintiff be nonsuit.