
    DE BOW & CO.’S CASE.
    (11 C. Cls. R., 672, 761;
    not reported in U. S. R.)
    E. E. Norton, assignee of De Bow & Co., appellee, v. The United States, appellants. Charles Roman et al., appellees, v. The United States, appellants.
    
      On the defendants’ Appeal.
    
    
      On the same day that the Presidents' proclamation removing restrictions from commercial intercourse hears date, June 24, 1835, the Treasury agent in Pfew Orleans exacts of some of the claimants one-fourth of their cotton and of others one-fourth of Us value in cash. Both parties being ignorant of the existence of the proclamation (not yet published), no objection is made. The cotton is delivered to the claimant freed from the payment of all “fees” and internal-revenue “taxes.” They bring their several actions to recover the proceeds of theeotton withheld or the amount exacted in cash. Thedefendants contend that the payment was voluntary in fact, or made in mutual mistalce of law, ■and that recovering the cotton free of taxes was a sufficient consideration to support the ti'ansaction.
    
    The court below bolds: (1) Tbat tbe Supreme Court must bare decided in La Peyre’s Case (8 C. Cls. R., 165, 17. Wall. R., 191) tbat these payments made in ignorance of tbe President’s proclamation removing restrictions from commercial intercourse were not voluntary; (2) Tbat receiving tbe cotton freed from tbe payment of all fees and internal-revenue taxes did not constitute a sufficient consideration to support tbe transaction if it were involuntary on tbe part of tbe claimants and exacted colore •officii. Judgment for tbe claimants. The defendants appeal.
    Tbe judgments of tbe court below are affirmed. Tbe Supreme Court bolds: (1) Tbat tbe decision in La Peyre’s Case (8 C. Cls. R., 165, 17 Wall. 191) is now accepted as conclusive upon tlie questions involved, though the court was nearly equally divided; (2) That the proclamation of the President took effect as of the beginning' of the day of its date; (3) That in such a case fractions of a day cannot he taken into account; (4) That the court must have decided in La Peyre’s Case, though without mention in the opinion, that these payments were not voluntary, and should ho recovered hack.
    
      The Reporters’ statement of tbe cases:
    A question discussed at considerable length on the trials in the Court of Claims, viz, as to the right of the Government to recover taxes upon the cotton released to the claimants “freed from the payment of all fees and internal-revenue taxes,” was not presented to the Supreme Court, the claimants not having appealed. The finding of facts in both cases are fully set forth in 11 C. Cls. R., 672, 761.
    
      Mr. Assistant Attorney-General Smith (with whom was Mr. Attorney-GeneralMevens), for the United States, appellants:
    It matters not whether the plaintiffs’ payments were voluntary or involuntary; they must have been one or the other; and in neither case can they be recovered in the Court of Claims.
    A voluntary payment cannot be reclaimed in any court. Vol-enti, non fit, See. (IRliott v. Sioartout, 10 Peters, 137; Gunning-ham v. Monroe, 15 Gray, 471, and the many cases there cited by Abbott, counsel for the defendants; Mliston v. Chicago, 40 Ill., 518, 519; Mayor v. Lefferman, 4 Gill, 436; Fellows v. Seh. Mist., 39 Maine, 561; Benson v. Monroe, 7 Cush., 125.)
    If there was any misapprehension which led to these payments, it was a mistake of law,
    We question, for reasons to be presently stated, whether the action of the Treasury agent can be deemed that of the Government ; but if it can, it is admitted that he acted in good faith, attempting to carry out what all parties suppose to be the law. It would seem that the claimants, acting upon their own volition, brought him their cotton and executed bills of sale of it to him; and he at once reconveyed three-quarters of it, without query, process, threats, or discussion about it. If the United States made any demand upon them, it was in the form of a statute.
    “No case.can be found,” says Breese, J., “where money has been voluntarily paid with, a full knowledge of the facts and circumstances under which it was demanded, which holds that it can be recovered back upon the ground that the payment was under a misapprehension of the legal rights and obligations of the party paying. And it is invariably held that a payment is not to be regarded as compulsory unless made to relieve the person or property from an actual and existing duress imposed upon him by the party to whom the money is paid5 and such is the tenor of all the cases cited by the appellants, from Valpey v. Bate (50 Eng. C. L., 602) to Lazell v. Miller (15 Mass., 207). No well-considered case anywhere has proceeded upon different principles.” Elston v. Chicago (40 Ill., 518,519); Newell v. March, (8 Ired., 441), and authorities passim.
    
    These suits were instituted in the Court of Claims against the Government. If they can there be sustained, it must be because based upon some contract, expressed or implied, between the litigants. (Rev. Stat. § 1059; Oibhons v. United, States, 8 Wall., 269.)
    
      Non constat but that the law was in force at the moment these sums were paid, which the agent received June 13, 1865.
    Referring to the constitutional duty of the President to sign such bills as meet his approval, Story, J., says: “It is the act of approval which makes it a law, and until that act is done it is not a law. The approval cannot look backwards, and by relation make that a law at any antecedent period of the same day which was not so before the approval; for the general rule is lex pros-picit non respieit. The law prescribes a rule for the future, not for the past; or, as it is sometimes expressed, aLex dot forma/m, futuris, non preteritis negotiisP {Ex parte Richardson, 2 Story, 580.)
    This is one of the very many cases in which it becomes the duty of the plaintiff to show and the privilege of the court to' understand at what hour of the day a law becomes operative. (Gardner v. Collector, 6 Wall., 499.)
    Lord Campbell, C. J., said: You must, indeed, regard the fraction in cases where you have to determine the rights of contending parties, each insisting on their portion of the time.” {Regina \. St. Mary, 1 EL & JBL, *827.)
    In Chide v. Smith (8 Dowl. Pr. Cas., 340), .the opinion of Pat-teson, J., is in a dozen lines, to wit: “The good sense of the matter is, that where it is necessary to show which was the first •of two acts, tlie court is at liberty to consider fractions of a day. The rule of law would otherwise be absurd. In tlie present case, the rule must be discharged with costs if no action is brought; but without costs, if the parties think proper to avail themselves of their right of action.”
    A day, in legal consideration, is punctum temporil, and the law knows no fractions of it; and yet, when justice requires, this maxim yields,” &c. (Brainerd v. Bushnell, 11 Conn., 24, lower ’half; Lemon v. Staats, 1 Cowen, 594; Small v. MeChesney, 3 Oowen, 19; Rogers v. Beach, 18 Wend., 533,534; Havens v. Dibble, id., Coo; Glutev. Glute, 3 Denlo, 204; Blydenburg v. Gotheal, 4 N. Y. (Gomst.), 418; Jones v. Porter (6 How. Pr., 286.)
    There is no evidence at what hour these payments were made. It the horal divisions are not noticed, they must be presumed to have happened contemporaneously with the issuing of the proclamation; “and it has never been disputed, nor was it contended upon the argument, but that the Grown in such cases has priority over the subject. This point is too clear to need .any confirmation by authority.” (Rdwards v. Regina, 9 Exch., 632, per Coleridge, J., giving opinion of the court.)
    The plaintiffs, setting up the wrongful reception of money, which they say they are entitled ex ceguo et bono to recover, should show it was wrongfully obtaiired. It is not inequitable to retain it, unless at first wrou gfully extorted. Charging this is accusing-the G-overnment and its officers both with wrong-doing. As Before observed, the presumption is that officials and citizens obey the law and do their duty; and although this presumption cannot supply the place of proof of a substantial fact, it may and does make it incumbent on him who disputes it to furnish the requisite proof of the alleged fact. (2 Whart. on Ev., § 1318, citing nearly forty cases; among them Ross v. Reed, 1 Wheat., 486; Phila., &c., R. R. Go. v. Stimpson, 14 Peters, 458; Minter v. Grommelin, 18 How., 88; United States v. Weed, 5 Wall., 62; Jones v. Bawd, 7 Jones, 152.)
    
      Mr. Bdicard Janin for the appelles.
   The Chief Justice

delivered the opinion of the court:

In our opinion these cases are all governed by the decision in United States v. La Peyre (17 Wall., 191), which, although not •concurred in by all the justices then composing the court, is accepted as conclusive upon the questions involved.

XJnder the ruling in that ease, the proclamation took effect as of the beginning of June 13, 1865, and, therefore, covers all the-transactions of that day to which it is applicable. We do not think this is a case in which fractions of a day should be taken into account.

While the questions of whether payments made under the circumstances of this case were voluntary or not, or whether, if' voluntary, being made under a mutual mistake of law, can be recovered back, were not considered in the opinions filed, it is. clear that the judgment rendered could not have been given-unless they had been decided adversely to the United States..

The judgment in each’ of the cases is affirmed..  