ment to waive his statutory right-"might be inferrred, but an actual settlement, based upon such an understanding."

The decree brought up by the present appeal proceeds upon the basis that the facts as found by the court of claims establish such an agreement and such a settlement. The course of dealing found to exist and to justify this conclusion may be briefly but sufficiently stated to have been as follows: The appellant gave the bonds from time to time necessary under the statute to entitle it to 60 days' credit on its purchases of stamps. The condition of this bond was that the claimant should, on or before the tenth day of each month, make a statement of its account upon a form prescribed by the internal revenue bureau, showing the balance due at the commencement of the month, the amount of stamps received, the amount of money remitted by it during the month, and the balance due from it at the close of the month next preceding; and also that the company should pay all sums of money it might owe the United States for stamps delivered or forwarded to it, according to its request or order, within the time prescribed for payment for the same according to law; that is, for each purchase within 60 days from the delivery of the stamps. Each purchase was upon a separate written order, specifying the amount desired; for example, $3,000 worth of match stamps. The commissioner thereupon forwarded stamps of the face value of $3,300, with a letter stating that they were in satisfaction of the order referred to, and inclosing a receipt on a blank form, but filled up, except date and signature, which was an acknowledgement of the receipt of the specified amount of stamps in satisfaction of the order. The receipt was signed by the claimant and returned. The claimant from time to time made remittances of money in authorized certificates of deposit, in sums to suit its convenience, for credit generally, and received in reply an acknowledgment stating that credit had accordingly been given on the books of the internal revenue office on account of adhesive stamps; for instance, by certificate of deposit, $2,500; commission at 10 per cent., $250; total, $2,750; and authorizing the claimant to take credit therefor on the prescribed form for the monthly account-current. These accounts were made out by the claimant monthly on blank forms prescribed and furnished by the commissioner, in which the United States were debited with all items of money remitted, and with commissions calculated on each remittance at 10 per cent., and credited with balance from previous month and stamps received on order in the interval, and with the balance due the United States. This account was by a memorandum at the foot stated to be correct, complete, and true, and signed by the claimant. These returns, with corresponding statements by the commissioner, were settled and adjusted by the accounting offi cers of the treasury department every quarter, and notice of the settlement given to the claimant. The remittances were so made that, while not corresponding to any particular order for stamps, they nevertheless covered all stamps the orders for which had been given 60 days or more previously, so that the claimant was always indebted to the United States for all stamps received within the past 60 days, but not for any received more than 60 days previously.

It must be admitted that this course of dealing and periodical settlement between the parties, whether the accounts be regarded as running merely or stated, shows clearly enough that the business was conducted upon the basis that the claimant was to receive his commissions in stamps at their par value, and not in money, and that this was asserted by the internal revenue bureau, and accepted by the appellant. But in estimating the legal effect of this conduct on the rights of the parties, there are other circumstances to be considered. It appears that prior to June 30, 1866, the leading manufacturers of matches, among whom was William H. Swift, who, upon the organization of the claimant corporation in 1870, became one of its large stockholders and treasurer, made repeated protests to the officers of the internal revenue

bureau against its method of computing commissions for proprietary stamps sold to those who furnish their own dies and designs; although it did not appear that any one in behalf of the claimant corporation ever, after its organization, made any such protest or objection, or any claim on account thereof, until January 8, 1879. On that date the appellant caused a letter to be written to the commissioner, asserting its claim for the amount, afterwards sued for, as due on account of commissions on stamps purchased. To this, on January 16, 1879, the commissioner replied, saying that the appellant had received all commissions upon stamps to which it was entitled, "provided the method of computing commissions, which was inaugurated with the first issue of private-die proprietary stamps and has been continued by each of my predecessors, is correct. I have heretofore decided to adhere to the long-established practice of the office in this regard until there shall be some legislation or a judicial decision to change it." And the claim was therefore rejected.

From this statement it clearly appears that the internal revenue bureau had, at the beginning, deliberately adopted the construction of the law, upon which it acted through its successive commissioners, requiring all persons purchasing such proprietary stamps to receive their statutory commissions in stamps at their face value, instead of in money; that it regulated all its forms, modes of business, receipts, accounts, and returns upon that interpretation of the law; that it refused, on application, prior to 1866, and subsequently, to modify its decision; that all who dealt with it in purchasing these stamps were informed of its adherence to this ruling; and finally, that conformity to it on their part was made a condition, without which they would not be permitted to purchase stamps at all. This was, in effect, to say to the appellant that unless it complied with the exaction it should not continue its business; for it could not continue business without stamps, and it could not purchase stamps, except upon the terms prescribed by the commissioner of internal revenue. The question is whether the receipts, agreements, accounts, and settlements made in pursuance of that demand and necessity were voluntary in such sense as to preclude the appellant from subsequently insisting on its statutory right. We cannot hesitate to answer that question in the negative. The parties were not on equal terms. The appellant had no choice. The only alternative was to submit to an illegal exaction or discontinue its business. It was in the power of the officers of the law, and could only do as they required. Money paid, or other value parted with, under such pressure, has never been regarded as a voluntary act within the meaning of the maxim, volenti non fit injuria.

In Close v. Phipps, 7 Man. & G. 586, which was a case of money paid in excess of what was due in order to prevent a threatened sale of mortgaged property, TINDAL, C. J., said: "The interest of the plaintiff to prevent the sale, by submitting to the demand, was so great that it may well be said the payment was made under what the law calls a species of duress." And in Parker v. Great Western Ry. Co. 7 Man. & G. 252, the wholesome principle was recognized that payments made to a common carrier, to induce it to do, what by law, without them, it was bound to do, was not voluntary, and might be recovered back. Illegal interest, paid as a condition to redeem a pawn, was held in Astley v. Reynolds, 2 Strange, 915, to be a payment by compulsion. This case was followed, after a satisfactory review of the authorities in Tutt v. Ide, 3 Blatchf. 249; and in Ogden v. Maxwell, Id. 319, it was held that illegal fees exacted by a collector, though sanctioned by a longcontinued usage and practice in the office, under a mistaken construction of the statute, even when paid without protest, might be recovered back, on the ground that the payment was compulsory and not voluntary. And in Maxwell v. Griswold, 10 How. 242-256, it was said by this court: "Now, it can hardly be meant, in this class of cases, that to make a payment involuntary,

it should be by actual violence or any physical duress. It suffices, if the payment is caused on the one part by an illegal demand, and made on the other part reluctantly, and in consequence of that illegality, and without being able to regain possession of his property, except by submitting to the payment." To the same effect are the Amer. Steam-ship Co. v. Young, 89 Pa. St. 186; Cunningham v. Munroe, 15 Gray, 471; Carew v. Rutherford, 106 Mass. 1; Preston v. Boston, 12 Pick. 7. In Beckwith v. Frisbie, 32 Vt. 559–566, it was said: "To make the payment a voluntary one the parties should stand upon an equal footing." If a person illegally claims a fee colore officii, the payment is not voluntary, so as to preclude the party from recovering it back. Morgan v. Palmer, 2 Barn. & C. 729. In Steele v. Williams, 8 Welsb. Hurl. & Gord. 625, MARTIN, B. said: "If a statute prescribes certain fees for certain services, and a party assuming to act under it insists upon having more, the payment cannot be said to be voluntary." "The common principle," says Mr. Pollock, Principles of Contract, 523, "is that if a man chooses to give away his money, or to take his chances, whether he is giving it away or not, he cannot afterwards change his mind; but it is open to him to show that he supposed the facts to be otherwise, or that he really had no choice." Add. Cont. *1043; Alston v. Durant, 2 Strobh. 257.

No formal protest, made at the time, is by statute a condition to the present right of action, as in cases of action against the collector to recover back taxes illegally exacted; and the protests spoken of in the findings of the court of claims as having been made prior to 1866 by manufacturers of matches and others requiring such stamps are of no significance, except as a circumstance to show that the course of dealing prescribed by the commissioner had been deliberately adopted, had been made known to those interested, and would not be changed on further application, and that consequently the busi ness was transacted upon that footing, because it is well known and perfectly understood that it could not be transacted upon any other. A rule of that character, deliberately adopted and made known, and continuously acted upon, dispenses with the necessity of proving in each instance of conformity that the compliance was coerced. This principle was recognized and acted upon in U. S. v. Lee, 106 U. S. 196–200, S. Č. 1 SUP. CT. REP. 240, where it was held that the officers of the law, having established and acted upon a rule that payment would be received only in a particular mode, contrary to law, dispensed with the necessity of an offer to pay in any other mode, and the party thus precluded from exercising his legal right was held to be in as good condition as if he had taken the steps necessary by law to secure his right. For these reasons we are of opinion that the court of claims erred in rendering its judgment dismissing the appellant's petition, and thus disallowing his entire claim. But we are also of opinion that he is not entitled to recover for so much of it as accrued more than six years before the bringing of his suit. There was nothing in the nature of the business, nor in the mode in which it was conducted, nor in the accounts it required, that prevented a suit from being brought, for the amount of commissions withheld, in each instance as it occurred and was ascertained. The recovery must therefore be limited to the amount accruing during the six years next preceding November 21, 1878, which, according to the findings of the court of claims, is $28,616, and for that amount judgment should have been rendered by the court in favor of the appellant.

The judgment of the court of claims is therefore reversed, and the cause remanded, with directions to render judgment in favor of the appellant in accordance with this opinion; and it is so ordered.

(110 U. S. 558)

WASHER and others v. BULLITT CO.

(March 3, 1884.)

1. CONTRACT-CONSTRUCTION OF SECTION 1, ART. 16, CH. 28, AND SECTIONS 36, 37, and 38, ART. 1, CH. 94, GEN. ST. KY.

A bridge having been constructed over a stream dividing two counties in Kentucky-one only having made the contract with the builders-the law of Kentucky will not relieve that county of any portion of its obligation on the ground that the other county had not formally authorized the work or consented to share the cost of it. 2. PLEADING

EFFECT OF AMENDMENT TO BRING CASE WITHIN THE JURISDICTION OF A

UNITED STATES COURT.

An action being brought to trial upon an amended petition good in all respects, the plaintiff cannot be prejudiced by the fact that the claim in the original petition was for a sum less that such as would bring the case within the jurisdiction of the court.

In Error to the Circuit Court of the United States for the District of Kentucky.

This was an action at law, brought by the plaintiffs in error against the county of Bullitt, in the state of Kentucky, on a contract dated July 8, 1878, made between the plaintiff Washer and the defendant county, for the construction of a bridge by Washer over Pond creek, the boundary between Bullitt and Jefferson counties. The contract, which is attached as an exhibit to the petition, was executed by Washer and J. W. Ridgway, commissioner of Bullitt county. It provided that Washer should erect an arched stone bridge with earthen embankments across Pond creek, at the Branner foundation site, according to certain specifications, for specified prices per cubic yard of masonry and embankment. Bullitt county guarantied payment for the whole work. The petition alleged that on August 29, 1878, Washer transferred by his indorsement in writing the contract made by him with the county of Bullitt, and all moneys due to him thereon, to his co-plaintiffs, Danenhauer and Baecker. It averred that on December 10, 1878, there was due to the plaintiffs from Bullitt county on the contract the sum of $5,325.14, which it refused to pay, or any part thereof, "except the sum of one thousand eight hundred dollars, leaving a balance due thereon of $3,525.14," from which latter amount was to be deducted the sum of $340.75, which the plaintiffs had agreed might be paid by the defendant directly to the Smith Bridge Company for materials furnished by it for the bridge, leaving a balance due the plaintiffs of $3,184.39.

The defendant filed a general demurrer to the petition, which the court sustained, with leave to the plaintiffs to amend. They afterwards filed an amended petition, in which it was averred that before the contract mentioned in the petition was made the owners and occupants in possession of the lands approaching the bridge on both sides of Pond creek appeared in open county court, and relinquished of record the right of way to and across the bridge; and thereafter, and before the contract was made, the county court of Bullitt county, being composed of the presiding judge and a majority of the justices thereof, appointed commissioners and notified the Jefferson county court thereof, and requested it to appoint like commissioners to contract for the bridge, which the Jefferson county court did, and the commisioners so appointed met at the place proposed for erecting the bridge, and at the place mentioned in the contract, but could not and did not agree upon a plan for erecting the bridge, nor contract for the erection thereof; that thereupon the county court of Bullitt county, composed of the county judge and a majority of the justices of the county, decided that it was necessary to erect the bridge, and, having exhausted all means provided by statute for

securing the aid of Jefferson county in building the same, decided to erect the bridge; and that, on July 16, 1877, said county court, composed as aforesaid, authorized J. W. Ridgway to report plans and specifications for the erection of the bridge, and W. Carpenter, the county judge, to receive and accept bids for the same; and that, in pursuance of this authority, the county judge accepted the bid of Washer; and that Ridgway, being thereunto authorized by an order of the county court, entered into the contract with Washer appended to the petition, and that the making of the contract was subsequently ratified by orders made and entered of record by the county court of Bullitt county, composed of the county judge and a majority of the justices of the county, directing the levy of taxes to pay for the work done under the contract, and the application of the money so raised to that purpose. The amended petition also averred that "the bridge was necessary for the public use of the people and travel of Bullitt county, and that said proceedings and orders, and the contract so entered into by defendant, were valid and binding upon it." By the amended petition, the allegations of the original petition in respect to the payment of $1,800 for the work done under the contract, and in respect to the sum of $340.75 due the Smith Bridge Company for materials for the bridge, and the averment that there was a balance due upon work performed by the plaintiff Washer of $3,184.39, were withdrawn; and the amended petition averred that the defendant had failed to perform its contract, or to pay plaintiffs for work done thereunder, to their damage in the sum of $5,325.14, for which amount they demanded judgment.

To this amended petition the defendant demurred, on the ground that it did not state facts sufficient to constitute a cause of action. The circuit court sustained the demurrer, and, the plaintiffs electing to stand by their amended petition, the court rendered judgment "that the plaintiffs take nothing by their petition, and that the defendant go hence without day and recover of the plaintiffs its costs," etc. This writ of error brings the judgment so rendered under review.

Augustus E. Willson, for plaintiff in error.

James Speed, for defendant in error.

WOODS, J. The defendant in error contends that the appeal should be dismissed because the amount in controversy is less than $5,000, and therefore not sufficient to give this court jurisdiction. This contention is based on the averments of the original petition, which showed that the suit was brought to recover only $3,184.39, the balance due for work done under the contract sued on, and for $500 damages. In the amended petition all the averments of the original petition by which the amount in controversy was reduced below $5,000 were withdrawn, and it was averred that the sum of $5,325.14 was due to the plaintiffs for work done under the contract. It was as competent for the plaintiffs, when leave had been given them to amend their petition, to amend it in respect to the sum for which judgment was demanded as in any other matter. The admission in the original petition of the payment of $1,800 was specifically withdrawn in the amended petition, and after the withdrawal of that admission it nowhere appeared in the record that said sum was ever paid. The admission might have been made by the inadvertence or mistake of the plaintiffs or their counsel; but, however made, it was within their power to withdraw it without assigning reasons for the withdrawal. They were not inexorably bound by the averments of the original petition. When a petition is amended by leave of the court, the cause proceeds on the amended petition. It was upon the amended petition that the judgment of the court below was given, and the question brought here by this writ of error is the sufficiency of the amended petition. If its averments show that this court has jurisdiction, the jurisdiction will be maintained without regard to the original petition. It has been held by this court that after a case had been dismissed by it for want of jurisdiction, the pleadings being technically defective, the circuit court