Sec 151

It is against the policy of the law that criminal prosecutions should be used to collect private debts; and in the Roman law this abuse was stigmatized as coucussion, and was held to vitiate all contracts Threat of criminal prosecution avoids which it compelled.1 Such is the rule in our own law.2 On the other hand, the mere fact that a contract was made, by a defendant under criminal prosecution with the prosecutor, does not avoid the contract.3-E., employed as a gold refiner, on being accused of embezzling gold given to him by his employers to refine, agreed, when under arrest, to pay back the amount taken, by means of a mortgage. There was no bargain not to prosecute him, nor any agreement shown to the effect that his punishment would be less heavy should he refund. It was held that the mortgage was valid.4-The difference between civil and criminal process in this respect is this: that the former can be used expressly to collect a debt, while the latter cannot. The reason for the distinction is this: Civil suits are designed for the purpose of collecting debts, and it is not only lawful but proper to use such suits as engines of compromise. But to compound a criminal prosecution is in itself an indictable offence, and a contract to commit a criminal offence is voidable as against the policy of the law.5 Hence it is duress to threaten a prosecution for burglary, and thereby obtain money,6 or to use any other criminal process to extort money.7

1 Pollock, 3d ed. 566, citing Silli-man v. U. S., 101 U. S. 468.

2 Parsons, C. J., Watkins v. Baird, ut supra. And see Soule v. Bonney, 37 Me. 128 ; Smith v. Atwood, 14 Ga. 402.

3 Baker v. Morton, 12 Wall. 150; Richardson v. Duncan, 3 N. H. 508; Cumming v. Ince, 11 Q. B. 112 ; Kava-nagh v. Sanders, 8 Greenl. 426 ; Os-born v. Robbins, 36 N. Y. 365 ; Stouffer v. Latshaw, 2 Watts, 165 ; Phelps v. Zuschlag, 34 Tex. 371.

4 Fisher v. Shattuck, 17 Pick 252; see Bane v. Detrick, 52 111. 19 ; Seiber v. Price, 26 Mich. 518.

5 1 Chitty on Cont. p. 207 ; Story on Cont. sec 510-512, citing Severance v. Kimball, 8 N. H. 386 ; Whitefield v. Longfellow, 13 Me. 146; Fisher v. Shattuck, 17 Pick. 252. In Norton v. Dan vers, 7 T. R. 376, Lord Kenyon held that, if a person was held to bail on an insufficient affidavit, the bail bond could be invalidated on ground of duress.

6 Taylor v. Jaques, 106 Mass. 291. 7 Coady v. Curry, 8 Daly, 58.

Sec 151a

Promises extorted under the threat of the criminal prosecution of near relatives are to be subjected to the same tests. Thus it is held a defence to a suit on a mortgage or other obligation that it was executed by a wife to save her husband from prosecution for false pretences ;8 or for embezzlement;9 or for any other indictable offence.10 A court of equity, also, while it will not set aside a deed by a married woman on the ground that she executed it to relieve her husband from arrest, will not compel the performance of a contract so induced.1 It has been held in England that, where a father whose name had been forged by his son was induced by threats of the son's prosecution to promise to pay the debt, the promise was void as made under illegal compulsion.2 And in Massachusetts, in 1881, a mortgage executed by a father to save his son from a threatened prosecution for forgery was held void.3-In Conthe fact that a criminal prosecution may be sustained for the act for which the suit is brought.1

So of criminal prosecutions of near relatives.

1 L. 2, D. de concussione (xlvii. 13) ; L. 8, L. 1, sec 3, D. de calumniator (iii. 6) ; L. 2, pr., L. 4, sec 2, D. de cond. ob turp. causam (xii. 5).

2 Richardson v. Duncan, 3 N. H. 508; Tilley v. Damon, 11 Cush. 247; Osborn v. Robbins, 36 N. Y. 365 ; Snyder v. Braden, 58 Ind. 143; Schulz v. Culbertson, 49 Wis. 122; and cases cited, infra, sec 483 et seq.

3 See infra, sec 483 et seq.

4 Smillie v. Titus, 32 N. J. Eq. 51.

5 Infra, sec 483 et seq.

6 Schulz v. Culbertson, 46 Wis. 313 ; S. C. 49 Wis. 122.

7 Infra, sec 483 ; Heckman v. Swartz, 50 Wis. 267. See, as to pleading, Holbrook v. Cooper, 44 Mich. 373.

8 McMahon v. Smith, 47 Conn. 221.

9 Riddle v. Hall, Sup. Ct. Penn. 1881; Singer Co. v. Rawson, 50 Iowa, 634.

10 Mete, on Cont. 280; Robinson v Gould, 11 Cush. 55.

[sec 151a.

1 Smith v; Rowley, 66 Barb. 502 ; Compton v. Bank, 96 111. 301.

In Whitmore v. Farley, 45 L. T. (N. S.) 99 (Ct. of App. May, 1881), C. was arrested at the instance of P. on the charge of having committed the offence of larceny by a bailee. C. was brought up before a magistrate and remanded. C.'s wife then induced P. to withdraw from the prosecution on C.'s wife agreeing to charge her separate real estate with the amount taken. The magistrate, at a subsequent hearing, being informed of the terms, allowed the prosecution to be withdrawn. C.'s wife afterwards refused to perform her agreement. P. brought an action to enforce the charge, and C.'s wife counter-claimed for a declaration that she was entitled to have the deeds delivered up to her. It was held (affirming the decision of Fry, J., 43 L. T. (N. S.) 192) that the agreement to charge the separate property was illegal and could not be enforced, and that the defendant was entitled to the declaration for delivery of the deeds. Citing Williams v. Bayley, 1 H. L. 200 ; Keir v. Leeman, 6 Q. B. 308 ; 9 Q. B. 371 ; Davis v. Holding, 1 M. & W. 159. For other cases, see infra, sec 483.

2 Williams v. Bayley, L. R. 1 H. L. 200. See, to the same effect, Shenk v. Phelps, 6 111. Ap. 612; Schultz v. Cul-bertson, 46 Wis. 313; Coffman v. Bk., 5 Lea, 232; but see Seymour v. Pres-cott, 69 Me. 376, cited supra, sec 148.

3 Harris v. Carmody, 131 Mass. 51.

"The question," said Morton, J., "whether this exception extends to the relation of parent and child, does not appear to have been expressly adjudicated. But we find many dicta of judges and statements of authors entitled to great respect, which show that from the earliest times it has been considered as the settled law that the relation of parent and child was within the exception. See the remarks of Lord Coke in Baylie v. Clare, 2 Brownl. 275, 276 ; s. c. 1 Rolle Abr. 687, pt. 4-6 ; and of Lord Bacon in Bac. Max. reg. 18. The same rule is explicitly laid down without question by the author of Bacon's Abridgment, and by Mr. Dane, and by Mr. Justice McLean. Bacon Abr. Duress, B. ; Dane Abr. 166, 375; McClintick v. Cummins, 3 McLean, 158, 159. See, also, the remarks of Wylde, J., and of Twisden, J., in Wayne v. Sands, 1 Freem. 351. This case is too imperfectly reported to be of great weight, and the remarks attributed to Twisden, J., would exclude the case of husband and wife in opposition to all the authorities. See the same case under the name Warn v. Sandown, 3 Keb. 238. We are not referred to any modern authorities, opposed to the views of the learned judges and authors whom we have cited. The exception in favor of husband and wife is not based solely upon the legal fic nectieut, in 1879, we have a ruling still further extending the protection. D., a town treasurer in that state, having become a defaulter, a selectman of the town visited D.'s aged maiden aunt and informed her that.D. had subjected himself to conviction of a state's prison offence. He then left her, and a short time afterwards returned with a lawyer with a draft of a mortgage to the town of certain real estate she owned, which mortgage she signed in great distress of mind, without taking any advice from her friends, in the belief that this was the only means of averting the prosecution. It was held that the mortgage was under the circumstances invalid.1 Under the same head fall agreements to compound felonies wherever the agreement is extracted from one party by a threat of the other to prosecute for a crime.2 At the same time the settlement of a private civil suit is not precluded by tion that they are in law one person, but rather upon the nearness and tenderness of the relation. The substantial reasons of the exception apply as strongly to the case of a parent and child as to that of a husband and wife. No more powerful and constraining force can be brought to bear upon a man, to overcome his will, and extort from him an obligation, than threats of great injury to his child. Both upon reason and the weight of the authorities, we are of opinion that a parent may avoid his obligation by duress to his child, and, therefore, that the ruling of the court below on this point was correct."

See, to the same general effect, National Bank v. Kirk, 90 Penn. St. 49, and Kiewert v. Rindskopf, 46 Wis. 481. It is remarkable that Williams v. Bayley, L. R. 1 H. L. 200, alwve cited, escaped the notice of counsel and court in Harris v. Carmody.

In Secar v. Cohen (Q. B. D. 1881), 45 L. T. N. S. 589, the plaintiff, by his agents, made representations to the defendants that criminal charges, under the Debtor Act, 1869, could and were about to be brought against the bankrupt, C, who was the son of one defendant and nephew of the other. The defendants, induced by this threat, gave certain notes to the plaintiff. The defendants swore on the trial that they had believed these representations to be true, and would not have given the promissory notes had they not so believed. In an action by the trustee against the defendants as makers of the promissory notes, it was held, after a verdict for the plaintiff, that judgment should be entered for the defendants on the ground that they had been induced to enter into the contract by duress, and threats of criminal proceedings ; and that it was not necessary that any particular charge under the Debtor Act should have been specified, or that any ground for such charge should have existed in fact. The court relied on Williams v. Bay-ley, L. R. 1 H. L. 200; Hamilton v. Johnson, L. R. 5 Q. B. D. 263.

1 Sharon v. Grager, 46 Conn. 189.

2 See infra, sec 483.