SECT.  I.]  ELLIOTT  V.   SWAKTWOUT.  413

'  and  that  being  established,  the  plaintiff  is  entitled  to  recover  it  back,  with-
out showing  any  notice  not  to  pay  it  over.  The  cases  which  exempt  an
agent  do  not  apply.  The  money  was  paid  by  compulsion.  It  was  extorted
as  a  condition  of  giving  a  clearance,  and  not  with  intent  or  purpose  to  be
paid  over.  In  the  case  of  Clinton  v.  Strong,*  the  action  was  to  recover
back  certain  costs  which  the  marshal  had  demanded  on  delivering  up  a
vessel  which  had  been  seized,  which  costs  the  court  considered  illegal ;  and
one  of  the  questions  was  whether  the  payment  was  voluntary.  The  court
said  the  payment  could  not  be  voluntary.  The  costs  were  exacted  by  the
officer,  colore  officii,  as  a  condition  of  the  redelivery  of  the  property ;  and
that  it  would  lead  to  the  greatest  abuse  to  hold  that  a  payment  under  such
circumstances  was  a  voluntary  payment  precluding  the  party  from  contest-
ing it  afterwards.  The  case  of  Hearsey  v,  Pryn  *  was  an  action  to  recover
back  toll  which  had  been  illegally  demanded  ;  and  Spenceb,  J.,  in  delivering
the  opinion  of  the  court,  says  the  law  is  well  settled,  that  an  action  may  be
sustained  against  an  agent  who  has  received  money  to  which  the  principal
had  no  right,  if  the  agent  has  had  notice  not  to  pay  it  over.  And  in  the
case  of  Fry  v.  Lockwood,'  the  court  adopts  the  principle,  that  when  money
is  paid  to  an  agent  for  the  purpose  of  being  paid  over  to  his  principal,  and
is  actually  paid  over,  no  suit  will  lie  against  the  agent  to  recover  it  back.
