All the learning In relation to common recoveries is nearly obsolete, as they are out of use. Rey, a French writer. in his work Des Institutions Judi ciaires de PAngleterre, torn. li. p. 221, points out what appears to him the absurdity of a common recovery. See Lyle v. Richards, 9 S. & R. (Pa.) 330; Sharp v. Thompson, 1 Whart. (Pa.) 151; Stump v. Findlay, 2 Rawie (Pa.) 168„ 19 Am. Rep. 632; Dudley v. Sumner, 5 Mass. 438 ; Carroll's Lessee v. Maydweil, 3' Harr. & J, (Md.) 292.
Recovery Back—of money paid by mistake. The right to recover excessive payments made to public service corporations depends upon whether or not the payments are made under such circumstances as to be involuntary, and when payment is made under protest, this is sometimes termed "duress of goods" and may be recovered; Mt. Pleasant Mfg. Co. v. R. Co., 106 N. C. 207, 10 S. L, 1046; Southwest ern Alabama Ry. Co. v. Maddox & Son, 146 Ala. 539, 41 South. 9 ; Harmony v. Bingham, 12 N. Y. 99, 62 Am. Dec. 142; but, it seems, a shipper may, if he chooses, refuse to pay the over-charge and recover damages for the delay ; Loomis v. Ry. Co., 17 Mo. App. 340.
An illegal license fee cannot be recovered back if voluntarily paid ; Garrison v. Tilling hast, 18 Cal. 408, but it may be, if involun tarily paid; Magnolia v. Sharman, 46 Ars. 358 ; Neumann v. La Crosse, 94 Wis. 103, 68 N. W. 654; Harvey v. Olney, 42 Ill. 336 ;
whereas, payment in excess of amount consti tutionally chargeable, for a license fee impos ed under an unconstitutional ordinance, may be recovered back ; C. & J. Michel Brewing Co. v. State, 19 S. D. 302, 103 N. W. 40, 70 L. R. A. 911.
An agent paying his principal's money, by mistake, to a third person, may maintain an action in his own name to recover it back; Parks v. Fogleman, 97 Minn. 157, 105 N. W. 560, 4 L. R. A. (N. S.) 363, 114 Am. St. Rep. 703. Where overpayment is made in ignor ance or forgetfulness of previous payments, the money so paid may be recovered; Hum mel v. Flores (Tex.) 39 S. W. 309; Gooding v. Morgan, 37 Me. 419 ; Pool v. Allen, 29 N. C. 120; Ashley v. Jennings, 48 Mo. App. 142; Jackson v. McKnight, 17 Hun (N. Y.) 2.
Where one employed a printer to print a libellous pamphlet and paid him £50 and the printer set up the type and then refused to publish it because libellous, it was held that there could be no recovery back ; 23 T. L. R. 575.
Money paid out by an officer under a mis construction of law may be recovered back ; U. S. v. Saunders, 79 Fed. 407, 24 C. C. A. 649.
Parties receiving moneys illegally paid by a public officer are liable, ex cequo et bono, to refund them ; Wisconsin Cent. R. Co. v. U. S., 164 U. S. 190, 17 Sup. Ct. 45, 41 L. Ed. 399.
See PROTEST; REPETITION; QUAS1-CON TRACTUS.