voluntary payment

A payment of an illegal demand, with a full knowledge of all the facts which render the demand illegal, without an immediate and urgent necessity therefor, unless it is to release his person or property from detention or to prevent an immediate seizure of his person or property. A payment is not to be regarded as compulsory unless made to emancipate the person or property from an actual and existing duress, imposed by the parties to whom the money is paid, and if a payment is otherwise voluntary, the fact that a person making a payment files a written protest at the time does not change its character. 40 Am J1st Paym § 159. In determining whether a payment of taxes was voluntary or involuntary the real question is whether there was such an immediate and urgent necessity for the payment as to imply that it was made under compulsion. Without such an immediate and urgent necessity, such a payment will be deemed voluntary. United States v New York & C. Mail S. S. Co. 200 US 488, 50 L Ed 569, 26 S Ct 327. A payment of taxes may be voluntary, although made unwillingly. Anno: 64 ALR 11, s. 84 ALR 294. It is well established in the absence of statute that the right of a party who has paid a tax, local assessment, or license fee, to recover the same back, depends upon whether or not the payment was voluntary. If the payment was voluntary it cannot be recovered back; if it may be deemed involuntary a recovery may be had. A payment is voluntary in the sense that no action lies to recover back the amount, not only where it is made willingly and without objection, but in all cases where there is no compulsion or duress, or any necessity of making the payment as a means of saving the property from legal restraint or the grasp of legal process. Anno: 84 ALR 294. Where a taxpayer pays taxes before their payment can be enforced by distraint or the imposition .of other penalties, such premature payment has been held to be a voluntary payment and therefore not recoverable, even though the taxes were invalid. Canard S.S. Co. v Elting (CA2 NY) 97 F2d 373. See volunteer.