Imágenes de páginas

Main crosses), except an alley of sixteen feet, is admitted to be 66 feet, and that defendants wide, next to defendants' lots. The defend are now in possession of all East Back Street apts, and those under whom they claim, bought lyivg between North Main Street and North lots bordering on and bounded by the portion Back Street, except a small part inside of lot of East Back Street covered by deed of plain- fences Nos. 35 and 36, not in controversy; but tiffs, and in controversy, in 1848, under the defendants claim no advantage by reason of county authorities, and have occupied the lots possession of the street. At the time plaintiffs since the year 1853. When the ancestor of purchased, the town authorities left an alley defendants bought, East Back Street had been of sixteen feet adjoining defendants' lois Nos. Jaid off 66 feet wide. The plaintiffs claim in 15 and 15, and running back from North Main this action all of the original street covering Street to North Back Street. It is also admitthe front of the defendants on East Back Street, ted that lots Nos. 15 and 16, abutting said East except tbe alley in their immediate front, men. Back Street, were purchased by the defendants, tioned in tbe case agreed. The defendant C. and those under whom tbey claim, after the J. Carson is the only beir-at-law of J. M. Car- i lown was laid off into lots and streets, as indison, deceased, and D. P. Carson is the widow cated in the plat, and bave been in possession of of J. M. Carson; and they claim title through the defendants, and those under whom they the deeds which they produced in evidence. claim, ever since the purcbase in 1848, and the A copy of the old town plat or survey was also defendants' deeds cover the said lots. Upon shown in evidence. It is admitted that the town the facts, the court was of opinion that the was located and laid off, as indicated, in lots plaintiffs were not entitled to recover, and gave and streets, in the year 1817, and the locus in judgment, accordingly, that defendants go quo was conveyed in deed, and that many of without day, and recover costs. The plaintiff's the streets remain unused to this day. The except to the judgment, and appeal. land in controversy is that part of East Back Street described in plaintiffs' deed, and em. Mr. E. C. Smith for appellants. braced between North Main Street and North Mr. R. Z. Linney, for appellees: Back Street. The width of East Back Street An abulting lot owner bas a right in the

To entitle a property owner to recover damages Mon. 233; Hills v. Miller, 8 Paige, 254; Green v. for obstruction to a highway, he must show that Oakes, 17 III. 249; Mohawk Bridge Co. v. Utica & S. the damages are peculiar to him. Rude v. St.Louis, R. Co. 6 Paige, 554; Crenshaw v. Slate River Co. 6 12 West. Rep. 288, 93 Mo. 408.

Rand. 245. The ubutting owners have such an easement in a But the injury must be real, and such that the street as to enable them to insist, as against a rail- legal remedy of damages would not be adequate. way company, that it shall be devoted to such use See Soltau v. Defeld, 2 Sim. N. S. 133; Atty-Gen. v. only as is consistent with its purposes as a public Shetfeld Gas Consumers Co. 3 DeG. M. & G. 304; Atstreet. Hussner v. Brooklyn City R. Co. 114 N. Y. ty. Gen. v. Cambridge Gas Consumers Co. L. R. A 433.

Ch. 71, 80; Atty-Gen. v. Gee, L. R. 10 Eq. 131; OrigThe owner of property abutting on an alley ob- inal Hartlepool Collieries Co. v. Gibb, L. R. 5 Ch. structed by the construction of a railroad track Div. 713; Pettibone v. Hamilton, 40 W is. 402; Coast over it is not authorized, on his own motion, to en- Line R. Co. v. Cohen, 50 Ga. 451; Thayer v. New ter thereon for the purpose of changing the track Bedford R. Co. 125 Mass. 253; Osborne v. Brooklyn or repairing the alley, and thus lessen the injury City R. C0.5 Blatchf. 366; Hartshorn v. South Read. and reduce the damages to which he is entitled by ing, 3 Allen, 501; Central Bridge Corp. v. Lowell, reason of such obstruction. Central Branch U. P. Gray, 474; Rowe v. Granite Bridge Corp. 21 Pick. R. CO. V. Andrews (Kan.) 21 Pac. Rep. 276.

314; Bigelow v. Hartford Bridge Co. 14 Conn, 565;

Frink v. Lawrence, 20 Conn. 117; Milhau v. Sharp, Interest in highway cannot be taken without compen- 27 N. Y. 611; Knox v. New York, 55 Barb. 404; sation.

Sinith v. Lockwood, 13 Barb. 209; New York v. A man's interest in a public highway is a right Baumberger, 7 Robt. 219; Hudson River R. Co. v. which even the Legislature cannot take from him Loeb, 7 Robt. 418; Manhattan Gaslight Co. v. Barwithout compensation. Ross v. Thompson, 78 Ind. | ker, 7 Robt. 523; Peck v. Elder, 3 Sindf. 120; Spar94; Indianapolis v. Croas, 7 Ind. 9; Haynes v. hawk v. Union Pass. R. Co. 54 Pa. 401: Black v. Thomas, 7 Ind. 38; Butterworth v. Bartlett, 50 Ind. Philadelphia & R. R. Co. 58 Pa. 249; Philadelphia v. 637; State v. Berdetta, 73 Ind. 185. Commented on, Collins, 68 Pa. 106; Buck Mountain Coal Co. v. LeStory v. New York Elevated R. Co. 90 N. Y. 155, 156. high Coal & Nav. Co. 50 Pa. 91, 49; Higbee v. Cam

Applied to the owner of a dwelling-house front- den & A. R. Co. 19 N.J. Eq. 276; Allen v. Monmouth ing on a town common or public square. Wheeler Co. 13 N. J. Eq. 68, 74; Zabriskie v: Jersey City & B. v. Bedford, 2 New Eng. Rep. 831, 54 Conn. 244; R. Co. 13 N. J. Eq. 314; Delaware & M. R. Co. v. Brown v. Manning, 6 Ohio, 298; Hills v. Miller, 3 Stump, 8 Gill & J. 479; Hamilton v. Whitridge, 11 Paige, 254.

Md. 128; Savannah, A. & G. R. Co. v. Shiels, 33 Ga. Every serious encroachment on the width of a 601; Columbus V. Jaques, 30 Ga. 506; Green v. street narrows the right to have vehicles stand in Oakes, supra; Bulloch v. Smith, 15 Ga. 399; Ewell front of an owner's premises, which is a special in- v. Greenwood, 26 Towa, 377; Sheboygan v. Sheboy. jury to him. Atty-Gen. v. Morris & E. R. Co. 19 N. gan & F. du L R. Co. 21 Wis. 667. J. Eq. 393.

An adjoining lot owner is a proper party comFor examples of encroachments upon public plainant to a bill in equity to enjoin appropriation parks, squares and the like, see Hills v. Miller, 8% of private property to public use. Such a compra; Watertown v. Cowen, 4 Paige, 510.

plainant, being one of the inhabitants of the town,

and holding property contiguous to the square, is Equity protects abutting owners' rights.

not a mere volunteer assuming to protect the A threatened nuisance tending to deprive the rights of others, but is injured in bis individual owner and others of the full and free use of the rights, and is entitled to the aid of equity to protect street is a recognized ground of equitable interpo his own interests. See Brown v. Manning, 6 Ohio,. sition, where the injury would be permanent. Zear- 298; Hills v. Miller, supra; Watertown v. Cowen, ing v. Raber, 74 II. 413; Rowan v. Portland, 8 B. Paige, 510.

atreet that cannot be taken away except by giv- | private use, at all; and it has no power, under ing compensation.

ihe Organic Law, to provide for taking private Adams v. Chicago, B. & N. R. Co. 1 L. R. property for public purposes without just com: A. 493, 39 Minn, 286.

pensation, to be ascertained in a mode pointed The judgment in ejectment for a street can out by the law. The apnurtenant right of the never be enforced, because the exclusive use by owner of a lot in the street that formed its inyone of a street is a crime.

boundai ies at the time when he, or thuse under New Orleans v. U. 8. 35 U. 8. 10 Pet. 717 (9 whoin be claims, bought it originally, with L. ed. 594); Cincinnati v. White, 31 U. 8. 6 reference to such outlets, is protected »gainst Pet. 431 (8 L. ed. 452).

the reassertion of the graotor's claim to it just

as fully as is his title to the lot conveyed, even Avery, J., delivered the opinion of the though the State may undertake by low to court:

sanction tbe re-entry on the streets by one claimIt is a well-settled principle that wbere a cor. ing under his title. poration, acting through its properly-cunsti- Neither the mayor of the Town of Taylors iuted authorities, or an individual, sells or ville nor the County Commissioners of Alexanconveys a town or city lot, bounded by streets der County, by viriue of the authority derived or alleys, marked out on a plat, and the grantee from section 1, chap. 86, Priv. Laws 1887, to enters upon it, and expends money in improv. hold lands conveyed to the town, nor under the ing it, he is entitled to a right of way over such more explicit power to sell streets, that in terms street or alley, as appurtevant to the land; and is given by chapter 8, Priv. Laws 1889, are emany subsequent conveyance by his grantor, or powered to make a valid conveyance to any those claiming under him, of the portions of part of a street with reference to which, as a such streets or alleys by which the grantee's lot boundary, the defendants, or those under wbom is bounded, will be held void. Pratt v. Lar, tbey claim, bought lots in the year 1848, and 13 U. 8. 9 Cranch, 456 (3 L. ed. 791): 8 Mey- improved them in 1953. Pratt v. Law, supra; er, Fed. Dec. 1046, "Contracts; Chapin v. Adams v. Chicago, B. & N. R. Co. 39 Mind. 286, Brown, 15 R. I. 579, 4 New Eng. Rep. 918; 1 L. R. A. 493; Brooks v. Riding, 46 lod. 15. Sarpy v, Muniripality No. 2, 9 La. Ann. 597; The said mayor or commissioners cannot df Port Huron v. Chadwick, 52 Mich. 320; Harri- minish the width of such streels from 66 feet, don v. Augusta Factory, 73 Ga. 447.

as laid off wben the lots were originally sold, The grantor tbus dedicates the land covered 10 16, by conveying 50 feet of East Back Street, by a street to the use of the public, and will be extending from North Main to North Back precluded by such appropriation from reassert Street, and leaving an alley of only 16 feet, as Ing any right to the actual possession of the a passway for the defendants, along their front land, or at least so long as it remains in the Their ancestor took with his title all the appurpublic use. Kennedy v. Jones, 11 Ala. 63; tenant advantages of a street 66 feet wide; and Proclor v. Lewiston, 25 III. 153; Adams v. Sara- the tendency of converting it into an alley toga & W. R. Co. 11 Barb. 414; Penny Pot would, or might be, to impair the value of their Landing v. Philadelphia, 16 Pa. 79; Re Pearl property for the benefit of the town and with81. 111 Pa. 565.

out compensation to them. Adams v. Chicago, When, by laying off streets, third parties bave B. & N. R. Co. supra; 2 Dillon, Mun. Corp. been ipduced to buy lots adjacent to them, and S 675, p. 674, note 1. build on the lots, by an individual grantor, the The defendants do not own the fee in the dedication to the public use bas been beld irre- street or their front, but hold only au appurte vocable, although the streets may not have been nant easement therein, and the municipal corformally accepied by the authorities of a town poration tbat sold tbe lots occupied the same to which they lie. Grogan v. Hayward, 4 Fed. relation to them as would an individual grantRep. 101.

or who bad originally sold to them, or to those No one can acquire, as a general rule, by ad- under whom they claim, and be could, veither verse occupation, as against the public, the with por without authority purportiug to be right to a street or square dedicated to the pub- derived from the Legislature, have reasserted

Hoadley v. San Francisco, 50 Cal. 265; bis right to the streets laid out by him before People v. Pope, 53 Cal. 437.

selling. New Orleans v. Onited States, 35 U. S. We may deduce from the rules of law al. 10 Pet. 717 [ L. ed. 594); Grogan v. Hayward, ready stated ibe further principle that the own. supra. ars of a lot baving a property or easement ap- The plaintiffs have shown no such title as purtenant in the adjacent streets, with reference would warrant the court in granting a writ of to the advantages of which they expended their possession. If the fee were vesied in the town, money for the land and the improvements put which is not conceded, there would still be upon it, cannot be deprived of their rights by wanting in the plaintills, its grantees, the right a sale for the benefit of the town that was in to prevent possession and occupancy of a street effect, tbough not nominally, one of the grant- dedicated to the public. Cincinnati v. White, ors through whom they claim title, por las the 31 U.S. 6 Pet. 431 [8 L. ed. 452). Legislature tbe power to deprive them of such It is not necessary to decide whether the may. appurtenant rights by autborizing such grant or of the Town of Taylorsville, by joining ar, whether a person or a corporation, to again the chairman of the board of county commisenter upon and sell such streets to others. The sioners, could, by virtue of a private sale, mako General Assembly cannot, without a violation a valid conveyance of any land belonging to of the Constitution, devest, or provide for de. the town, wbën the Statute (Code, S 3824) gave vesting, by law, the right of a person to his the power to the “mayor and commissioners of property, for the purpose of vesting such right any incorporated town to sell at public outcry in another person or corporation, merely for after thirty days' notice." If the original con

lic use.

veyance did not operate to pass the title to the Assembly is restricted by the fundamental prinstreet when executed, the Legislature could ciple that private properly cannot be taken for not, pending tbis suit, impart to it such vitali. public use without just compevsation, nor can ty as to relate back to the commencement of a town be invested with authority to violate its the action, and establisb plaintiff's right to re- implied contract (either directly or through its

The municipality derives its powers' grantee, who is in privity with it), to provide a from the express grant of the Legislature, and street 66 feet wide for the advantage of a lot exercises and enjoys them subject to the legis. conveyed by one who beld in trust for the benlative right of revocation; but, in controlling efit of the town. There is no error. the property of the corporation, the General Judgment must be afirmed.




Albert R. SHATTUCK et al., Appts., securities in consideration of a promise to re

frain from the prosecution for felony of a per John W. WATSON and Wife.

son guilty thereof, cannot, after his illegal pur

pose has failed from causes other than a breach (......Ark.......)

of the contract, and a prosecution has been com

menced by third parties, rescind the contract and 1. Borrowing from a forger money wbich recover back the securities.

he bad obtained upon the security of a forged mortgage upon property of the borrower will

(April 12, 1890.) not estop the latter from setting up the forgery to defeat the collection of the mortgage unless he participated in or was privy to the illegal acts.

PPEAL by defendants from a decree in 2. Papers executed to shield the mak.

chancery of the Circuit Court for Jobpson er's son from a threatened prosecution for a

County in favor of plaintiffs in a suit to obtain felonv of which he is guilty are not executed un- the cancellation of certain mortgages and to en

der duress so as to require their cancellation, join the sale of lards thereunder. Reversed. 3. Equity will not relieve from securi.

The facts are sufliciently stated in the opinties executed to shield a person from


prosecu. tion for a felony of wbich he is guilty upon the

Messrs. McKennon & Reding for appelground that execution for such purpose rendered lants. them void.

Messrs. A. S. McKennon and J. N. Sar. 4. One who has executed and delivered ber for appellees.


NOTE.-Duress, what constituter.

made under duress, and is void. Dimmitt v. Rob

bins, suprat.

Duress is that degree of constraint or danger, To constitute duress by threats of illegal arresto either actually inflicted or threatened and impend the act which the party seeks to avoid must have Ing, sufficient to overcome tbe mind and will of a been done by him through fear of such threatened person of ordinary firmness. Anderson, Law Dict.; arrest. Flanigan v. Minneapolis, 30 Minn. 406. Brown v. Pierce, 74 U. 8. 7 Wall. 214 (19 L. ed. 136); There can be ao binding contract where the Baker v. Morton, 79 U. S. 12 Wall. 157 (20 L. ed. 264); physical act of concurrence thereiu bas been Freneb v. Shoemaker, 81 U. S. 14 Wall. 332 (20 L. ed. coerced through duress of imprisonment. Turley 856); United States v. Huckabee, 83 U.S. 18 Wall. v. Edwards, 1 West. Rep. 450, 18 Mo. App. 689, dis431 (21 L. ed. 464'; 1 Chitty, Cont. 11th Am. ed. 269; 2 tinguishing Kitchen v. Greenabaum, 61 Mo. 110. Green). Ev. 88 301, 302; 1 Whartou, Cont. Pref. IV.; Where there is no arrest made nor force used, 2 Wharton, Ev. 931, 1099; 1 Story, Eq.$ 239; 2 Pom. but simply tbreats uttered, the question of duress Eg. Jur. $ 950.

is ordinarily one of fact, and it must be shown tbat Duress is an actual or threatened violence or the will of the promisor was constrained thereby. llegal restraint of a man's person, to compel him Dunbam v. Griswold, 100 N. Y. 226, 1 Cent. Rep. 305; to enter into a contract or to do some act which, in Fisher v. Bishop, 36 Hun, 114. the absence of such violence or restraint, might be Regard should be had to the age, sex and condivalid or legally effective. Dimmitt v. Robbins, 74 tion of the parties, and a fear which would not be Tex. 441.

deemed sufficient to influence a mun in the primo To constitute duress by threats, it is sufficient of lite, might be sufficient in respect to a womaa, or that they do in fact compel the person threatened a mun in the decline of life. Eudie v. Slimmon, 28 to do an act wbich otherwise be would not have N. Y. 12. done. Parmentier v. Pater, 13 Or. 121.

A case of duress is sufficiently stated by alleging A deed, obligation or contract procured by means the circumstances, a threat of prosecution and the of threats to take the life of the person executing fear of its execution, from which the jury may deit is inoperative and void. Baker v. Morton, 79 U. termine its effect. Turley v. Edwards, supra. 8. 12 Wall, 150 (20 L. ed. 262); Brown v. Pierce, 74 U. It is not necessary to specially allege that, by rea8.7 Wall. 20.5 (19 L. ed. 134).

son of the threat, free will aud agency were overMoral compulsion, produced by threats to take come. Ibiu. Ufe or to inflict great bodily barm, is sufficient to Where evidence is not preserved by bill of excepconstitute duress. Frencb v. Shoemaker, 81 U.S. 14 tions, and the averments contain strong elements of Wall. 314 (20 L. ed. 852).

a coercion, a verdict based upou a tinding of duread Although where a person who is attacked by rob will not be disturbed. Ibich bers borrows money of another to comply with their demands he is liable for the debt, yet where

What not duress sufficient to invalidate contract. the lender is shown tw be a confederate and con- It is not duress for one who believes himself spirator with the pretended robbers, the loan is I wronged to threaten the wrong-doer with a civil

See also 17 L. R. A. 583; 25 L. R. A. 37; 47 L. R. A. 417.

Hemingway, J., delivered the opinion of all of which Mangum brought ready for signathe court:

ture, were executed and the deed acknowledged The appellant bad advertised for sale, and before a justice of the peace, who bad accomwas about to sell, lands of the appellee, under panied Mangum for that purpose. the power contained in two mortgages, pur The appellee testified that ihe only consider porting to have been executed by him and his ation for the deed and notes was Mangum's wife to secure the payment of certain potes promise not to prosecute his son. therein described.

The court found tbat the material averments One mortgage bears date March 15, 1886, and of the complaint were true, aud that the deeds recites that it was given to secure ope note given and potes executed by appellee on the 8th of for borrowed money and six notes for the in- December were void because they were made terest thereon. The otber is dated December upon an illegal and invalid consideration; and 8, 1886, and was given to secure the same notes, it decreed that ibe appellant should surrender except one interest po'e wbich bad been pre- for cancellation said deed and notes and be for. viously satisfied. The appellee's son paid it. ever enjoined from selling ibe land or collect

The appellee brought this suit to cancel both ing the potes. mortgages and to restrain a sale under them. From tbis judgment the appellant bas ap

The complaint alleges that the prior deed and pealed; he insists that the first mortgage and the notes therein described are forgeries, and notes were executed by the appellce and are that the plaintiff was entirely ignorant of their valid, and that the second mortgage and notes existence until the day tbat be executed the were given as a furiber securiiy for ibe first, latter deed. That appellant's agent visited bis to remove all doubts as to their validity. He residence on the 8th day of December, 1886, asked no affirmative relief in bis answer and for the purpose of obtaining the deed and notes we have not considered what his rights would of that dute. That Mangum showed him the be if he had done so. forged instruments and told bim they had been The evidence shows that the appellee did not forged by bis son J. E. Watsou and That he had execute the mortgage of March 15, and fails to thereby obtained the amount of money therein satisfy us that he was a party to a conspiracy indicated. That be, Mangum, only wanted to obtain money by means of it. As the deed the money secured, and if that was done the was forged, the appellee is not estopped to set liberty and good pame of the son would be it up, although the son obtained money upon sa ved; but that if it was not done he would be the faith of it and loaned a portion of it to bim, vigorously prosecuted and sent to the peniten- unless he participated in ibe illegal acts. A tiary and lose his standing at the bar and in so sale under the power in that deed would cast a ciety. That in order to prevent the prosecution cloud on the appellee's title and was properly and ruin of the son, the deed of trust and potes, restrained,

suit or a criminal prosecution. Hilborn v. Buck-, and neither can recover the consideration. Haynes nam, 3 New Eng. Rep. 286, 78 Me. 482; Harmon v. v. Rudd, supra. Harmon, 61 Me. 2:27.

Whether both parties stood in pari delicto deWhere an officer threatens to take the execution rends upon the fact whether the note was given debtor to jail, unless be secures the debt by a chat- for compounding the felony. Ibid. tel mortgage, when the officer has process requir- So wbere a note and mortgage were made by & ing him to do so, it is not duress. Bunker v. Siew- mother to protect her son from prosecution for emard (Me.) 2 New Eng. Rep. 494.

bezzlement it will be canceled as without considerA mere threat to sue and to arrest deiendant in a ation and obtained by undue influence. Foley v. Buit, or by virtue of an execution which could be Greene, 1 New Eng. Rep. 17, 14 R. I. 618. issued upon a judgment, would not be such duress In such a case the maxim, in pari delicto potior est as would avoid a promise induced by the threat. conditio defendentis, does not apply. Dunham v. Griswold, 1 Cent, Rep. 307, 100 N. Y. 224; A deed for real estate, given in part consideraHizgins v. Brown, 2 New Eng. Rep. 450, 78 Me. 473; tion of the withdrawal of a criminal complaint for Shephard v. Watrous, 3 Caines, 166 b; Knapp v. embezzlement, is not void, in the absence of proof Hyde, 60 Barb. 80; Farmer v. Walter, 2 Edw. Ch. of any unconscionable advantage taken. Wilcox 601,

v. Daniels, 2 New Eng. Rep. 499, 15 R. I. 261. Mere threats of criminal prosecution, when no A note for an amount actually due, executed to warrant bas been issued or proceedings commenced, prevent the maker from being put out of possesdo not constitute duress. Bunker v. Steward, sion of land under valid legal process, is not exe supra.

cuted under duress. Davis v. Rice (Ala.) 6 So. Rep. Where a son, convicted and awaiting sentence 751. with his father for conspiracy to defraud the latter's Threats and intimidation by the judgment cred. creditors, gives them a bond to secure their claims; litor, which secured the execution of a bond, if true, and the court afterwards sentences deseodants to render the bond void. Mills v. Rodewald, 17 Hun, pay a merely nominal fine and costs,-he cannot 304; Whelan v. Whelan, 3 Cow. 537: Sears v. Shafer, avail himself of the circumstances under which the 1 Barb. 408, 6 N. Y. 272; Ellis v. Messervie, 11 Paige, bond was given as a defense to a suit on it. Avery 467; Evans v. Ellis, 5 Denio, 640. 1. Layton, 12 Cent. Rep. 159, 119 Pa. 604.

Threats to one party by a stranger to the conMoney paid upon a promissory note given by the tract (e. g., the husband of that party), without the plaintif to prevent the prosecution of bis son for knowledge of the party, will not avoid the conlarceny cannot be recovered, if both parties in- tract. Fairbanks V. Suow, 5 New Eng. Rep. 160. tended the compounding of the felony; and it is inn- 145 Mass. 153; Gardner v. Case, 10 West. Rep. 800, 11 material that the plaintiff was intluenced by the Ind. 494. duress of the defendant, since both were in pari Duress cannot be set up by a stranger. Oak v. delicto. Haynes v. Rudd, 3 Cent. Rep. 449, 102 N. Y. Dustin, 3 New Eng. Rep. 614, 79 Me. 23. 872; Williams v. Bayley, 35 L. J. N.S. Ch. 717.

The surety on a bail bond cannot offer as a defense Where both parties to a settlement compounding the fact that the principal was compelled by duress a felony stand on an equality,they are in pari delicto, I to give the bond. lbid.

The question whether the appellee, on the public policy is considered as advanced by alcase made by him, is entitled to any relief as lowing the parties or the less culpable one to against the latter mortgage and poles, is not sue for relief; but it is not material to consider free from difficulty. His case in effect is, that the exceptions now, for cases like this have his son had forged a mortgage, on the faith of been considered to fall witbin the general rule. wbich he had obtained money from the appel- In the case of Atwood v. Fisk, 101 Mass. 363, lapt. That appellant desired to obtain se. Atwood sued to compel the surrender and cancurity for that money and appellee desired to cellation of the notes, and a mortgage given to suppress the criminal prosecution of the son. secure them, on the ground that they were That appellant proposed to appellee, that if he given upon the consideration that the defendwould execute the mortgage and notes tendered, ant would not prosecute him for a felony. The appellant would not prosecute bis son. That bill was dismissed because the plaintiff was not the proposition was accepted and the papers in a position to claim the equitable relief prayed executed and received accordingly. That the for. son was prosecuted through other agencies and Compton v. Bunker Hill Bank, 96 III. 301, is the appellee at no time sought to withdraw from a case in which a wife sought to cancel a conthe compact or to recover the securities given veyance executed by her to the defendant in in pursuance of it, until tbe sale was advertised, consideration of its promise not to prosecute -an interval of over two years,—and never re- ber husband for embezzlement; the court released the appellant from his promise except as viewed the authorities and concluded that the it may be implied by brioging this suit. • bill should be dismissed, saying: “But though

Upon this state of case, can the appellant in the deed may be void for such reason, equity voke equitable relief?

does not relieve the party who executed it upon The allegation of duress is not sustained. It or for such illegal and immoral consideration seems to be conceded that the son was guilly and purpose.” of a felony and the appellant threatened only We might add many citations to the same to prosecute bim for bis crime unless the effect: Allison v. Hess, 28 Iowa, 389; Worcesamount obtained was secured. It was not a ter v. Eaton, 11 Mass. 377; Smith v. Rowley. 66 threat to prosecute on a simulated charge in Barb.503; Swartzerv.Gillett, 1 Chand.(Wis.) 207. order to extort money. Marvin v. Marvin Nor can be derive benefit from the rule, that (Ark.) 12 S. W. Rep. 875.

a party to an executory, illegal contract may It is a practical principle that guides equity rescind it while it is executory and unpercourts in their administration of justice that be formed, and recover back money paid under it. wbo invokes their aid must come with clean The contract was to give notes and mortgage hands—that be who bath committed iniquity in consideration of a promise not to prosecute shall not have equity. It is the policy of the for a felony. When the papers were delivered Jaw tbat crime shall be prosecuted, and it pro- and the promise given, ibere was notbing more hibits, under severe penalties, the suppression to be done by either party, and tbe coutract of prosecution. An injured party, who agrees was fully executed. wilh the felon who robs him that he will not It was beld in Atrood v. Fisk, supra, that prosecute bim on condition that be return the the delivery of securities was the same in effect stolen goods, or wbo takes a reward on such as the payment of money. But conceding that condition, violates the spirit as well as the let there was a time when the appellee mig lit bave ter of tbe law. The party who gives a reward withdrawn from bis illegal compact, removed and the party who receives it, on such condi- the obstacle he had placed in the way of justice tion, stand in pari delicto.

and recovered the securities, he never sought Mr. Story, treating the subject as to the to do it, until the illegal purpose failed from rights of parties to such an agreement, states other causes, and bis agreement no longer the law as it is generally approved: “The gen- thwarted justice. Both parties, following imeral rule is that, where an illegal contract has pulses of their own, willfully contructed to been made, neither courts of law dor of equity violate the law. The law will lend no aid to will inte fere to grant any relief to the parties. either of them but leave them where they bave but will leave them where they find them, if placed themselves. they have been equally cognizant of the ille- The judgment will be reversed, and a judgment gality.” 2 Story, Cont. § 486; 2 Parsons, Cont. rendered here canceling the mortgage of March 746; 2 Addison, Cont. pp. 715, 724; 1 Pom. Eq. 15, 1886, and enjoining any sale under it; but Jur. $ 402.

no relief will be given as against the second There are some exceptions to the rule where mortgage. the contract is malum prohibitum, as also where


NEW YORK COURT OF APPEALS. 8. Skiddy COCHRAN et al., Respts., and record a certificate of the payment of all the

capital stock as required by the Act of 1875, is not Franz 0. MATTHIESSEN et al., Exrs., etc.,

penal and survives his death. of William A. Wiechers, Deceased, Impleaded with the American Opera Co., Lim

(February 25, 1890.) ited, et al., Appts. (.... N. Y.....)

Wiechers, deceased, from an order of the A stockholder's liability to creditors of General Term of the Supreme Court, First

the corporation because of the failure to make Department, reversing an order of the New 7 L. R. A.

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