notes to the amount of $4,900, and that he had come there to secure the debt Mr. Kusworm was liable for, or take him back to Ohio; that she said that, in order to prevent her husband from being taken back to Ohio and prosecuted, she was willing to turn over her equity in the mortgage mentioned to secure the plaintiff. Stone stepped out and got the mortgage, and returned with it in a few minutes, and thereupon Gebhart and his attorney took the matter under advisement, with an agreement that she and Stone, respectively, would meet them at the same office the next morning at 11 o'clock; that she was compelled to wait in the rain for a long time for the cable-cars; that she got home about 8 o'clock in the evening; that she found her children waiting, and her husband scarcely able to open his eyes; that she retired without eating any thing, and spent a sleepless night; that, upon returning to the 196 attorney's office the next morning, she found Gebhart and Stone there; that Gebhart refused to accept the security she had offered, for the reason that Stone's part of the mortgage was prior to hers; that Gebhart finally offered to accept the security if Stone would agree in writing to prorate with the plaintiff in the mortgage; that Stone at first refused; that Gebhart then repeated his threats, and the defendant cried and begged of Stone to consent and thus save her husband, and that he would loss nothing by it; and thereupon Stone consented and signed the agreement, and the defendant signed the note in suit; that Gebhart then handed an envelope to Stone, supposed to contain the note of $800 and the note of $4,100, each signed "M. Kusworm," and also the notes to the aggregate amount of seven or eight thousand dollars held by the plaintiff as collateral thereto, and that Stone thereupon, and in the presence of Gebhart, handed the envelope with the notes therein to the defendant with direction to give them to her husband; that the defendant took the envelope with the notes therein from Stone, and delivered them to her husband as so directed; that she did not examine the notes in the office, and never saw them thereafter, and had no knowledge as to where they were; that she had no conversation with Stone, and did not see him on either of the days mentioned except in the presence of Gebhart and his attorney; that Stone did not see Mr. Kusworm on either of those days, and had not seen him for several weeks before, and did not see him for several weeks afterward; that the only connection Stone had with the matter

was by reason of his owning a part of the mortgage as mentioned; that the defendant did not know what her husband had done with the notes; that he died December 5, 1892, and she was the executrix of his will; that she had looked over her husband's papers, but had never found the notes.

197 The defendant positively swears that she never signed the $800 note nor the $4,100 note, and that she never author ized her husband to sign either of those notes or any notes; but, on her cross-examination, a power of attorney was presented, bearing date September 18, 1891, and which she admits to have been signed by her, authorizing her husband to sign and indorse notes; and it is contended on the part of the plaintiff that Mr. Kusworm signed the $800 dollar note and the $4,100 note, respectively, "M. Kusworm," meaning thereby the defendant, Mollie Kusworm, instead of Moses Kusworm. Whatever may be the fact in that regard, yet the evidence in the record is very strongly against any such contentions. There is no evidence that either of those notes was signed by an agent instead of the principal. There is no evidence that Gebhart at any time during any of the sev eral interviews mentioned claimed or pretended that the defendant was the maker of either of those notes, nor that the defendant was, at any time before the making of the note in suit, in any way indebted to the plaintiff, nor that he was there seeking security for any indebtedness of the defendant. Since the verdict was directed for the plaintiff we must, for the purposes of this appeal, assume that the $800 note and the $4,100 note were each signed "M. Kusworm" by Moses Kusworm, as and for his own signature, and not as and for the signature of his wife.

There is no evidence that Mr. Kusworm actually forged any note, but simply that Gebhart charged him with having forged the notes, as mentioned. It is true that the defendant testified to the effect that Gebhart claimed that he had forged notes in the amount of $4,900; but, from the whole evidence, it is very apparent that the real charge made by Gebhart was to the effect that Mr. Kusworm had forged sundry names to the four, five, or six notes, aggregating $7,000 or $8,000, which the plaintiff held as collateral security for his indebt edness to the plaintiff 198 bank, as mentioned. Upon such evidence the trial court directed a verdict in favor of the plaintiff and against the defendant. The correctness of such ruling is the only question here for review.

Manifestly the defendant cannot avoid paying the note upon the mere ground that it was given to compound a felony: Catlin v. Henton, 9 Wis. 476; Schultz v. Catlin, 78 Wis. 611. The only defense available, if any, would seem to be that the defendant was prevailed upon to give the note in suit by duress. As a general rule the defense of duress is not available in an action upon a note given to prevent the criminal prosecution of another person. To this rule there are certain well-established exceptions. Among other excep tions, a wife may avoid her contract, otherwise valid, by reason of a threatened criminal prosecution of her husband, and conversely; and so a father may avoid his contract by reason of a threatened criminal prosecution of his son, and conversely. Thus, in Bayley v. Williams, 4 Giff. 688, affirmed, Williams v. Bayley, L. R. 1 H. L. 200, a son forged his father's name, as indorser, upon certain promissory notes, and obtained money thereon from his bankers. The fact of the forgeries having been discovered, which the son did not deny, the bankers, without any direct threat of any prosecution, insisted upon a settlement, to which the father was to be a party. The father consented, and agreed in writing to make an equitable mortgage of his property to secure his son's indebtedness; and it was held that the father was not a free and voluntary agent in the making of such agreement, and hence that the same was invalid. The threatening language to the father in that case was: "If the bills are yours we are all right; if they are not we have only one course to pursue; we cannot be parties to compounding a felony. It is a serious matter. It is a case of transportation for life." This is exceedingly mild when compared with the language addressed 199 to Mrs. Kusworm, and yet, in the opinion of Lord Westbury in that case, it is said: "I regard this as a transaction which must necessarily, for purposes of public utility, be stamped with invalidity, because it is one which undoubtedly, in the first place, is a departure from what ought to be the principles of fair dealing between man and man; and it is also one which, if such transactions existed to any considerable extent, would be found productive of great injury and mischief to the community." The same principle has frequently been applied in avoiding contracts made to prevent the criminal prosecution of a parent or child, a husband or a wife, not only in England, but in this country: Whitmore v. Farley, 43 L. T., N. S., 192, affirmed 45 L. T., N. S., 99; Seear

v. Cohen, 45 L. T., N. S., 589; McClatchie v. Haslam, 63 L. T., N. S., 376; Harris v. Carmody, 131 Mass. 51; 41 Am. Rep. 188; Foley v. Greene, 14 R. I. 618; 51 Am. Rep. 419; Coffman v. Lookout Bank, 5 Lea, 232; 40 Am. Rep. 31; First Nat. Bank v. Bryan, 62 Iowa, 42; Southern Exp. Co. v. Duffey, 48 Ga. 358; National Bank v. Kirk, 90 Pa. St. 49; Jordan v. Elliott, 12 Week. Not. Cas. 56; Sharon v. Gager, 46 Conn. 189; McMahon v. Smith, 47 Conn. 221; 36 Am. Rep. 67; Central Bank v. Copeland, 18 Md. 305; 81 Am. Dec. 597; Tapley v. Tapley, 10 Minn. 448; 88 Am. Dec. 76; Meech v. Lee, 82 Mich. 274; Eadie v. Slimmon, 26 N. Y. 9; 82 Am. Dec. 395; Osborn v. Robbins, 36 N. Y. 365; Adams v. Irving Nat. Bank, 116 N. Y. 606; 15 Am. St. Rep. 447; Schultz v. Culbertson, 46 Wis. 313; 49 Wis. 122; Schultz v. Catlin, 78 Wis. 611. Upon these adjudications and the evidence before us it is very clear that the note upon which this action is brought was obtained from defend. ant by duress, and is for that reason void.

It is contended, however, that duress is a species of fraud, and that the defendant cannot rescind the contract for duress without first restoring to the plaintiff the benefits secured by making the contract. It is undoubtedly true that, if a party invokes the aid of equity to set aside a contract by virtue of which he has received a benefit, he will 200 be required to restore such benefit as a condition of obtaining such relief. This is upon the familiar principle of estoppel in pais. Thus, where a party affirms a contract in part, he is thereby estopped from disaffirming it as to the residue. "It is a doctrine," said Nelson, J., "when properly understood and applied, that concludes the truth in order to prevent fraud and falsehood, and imposes silence on a party only when in conscience and honesty he should not be allowed to speak": Van Rensselaer v. Kearney, 11 How. 326. " In short, and in popular language," said Wilde, B., "a man is not permitted to charge the consequences of his own fault on others, and complain of that which he has himself brought about": Swan v. North British Australasian Co., 7 Hurl. &. N. 633. "The doctrine of estoppel in pais always presupposes error on one side and fault or fraud upon the other, and some defect of which it would be inequitable for the party against whom the doctrine is asserted to take advantage": Morgan v. Railroad Co., 96 U. S. 716.

The question recurs whether, upon the principles stated, the defendant has done any thing to estop her from defend

ing against the note in suit. She is not here invoking the aid of a court of equity. She is simply resisting the enforcement of an executory contract on the ground that her signature to the same was procured by duress. As indicated, her defense, as appears from the record, is complete, unless her conduct has been such as to render it inequitable for her to make it. It certainly cannot be said as a matter of law, upon the record before us, that the defendant received any pecuniary benefit or consideration for signing the note in suit, or that she was in any way liable upon or on account of any of the notes surrendered by the plaintiff at the time she signed that note. If the evidence before us is true, then she signed that note for the sole purpose of saving her sick husband from arrest, prosecution, 201 and imprisonment. The envelope containing the notes of $800, and $4,100, each signed "M. Kusworm," and the collaterals thereto, was not delivered by Gebhart to the defendant, but to Stone. Stone thereupon, in the presence of Gebhart, handed the same to the defendant, with the direction that she deliver the same to her husband. In pursuance of such direction she did deliver the same to her husband. If the evidence in the record is true, then that is all she ever saw of, or had to do with, that envelope or any of the notes thus contained therein. There is no evidence in the record that the defendant exacted, as a condition of her siguing the note in suit, that Gebhart should surrender to her any of the notes so contained in that envelope, or that there was any agreement or understanding to that effect. Stone was a cousin of Mr. Kusworm, and apparently his friend; but there is no evidence that he was his agent, or had any authority to act for him, much less that he acted as the agent of the defendant. What he did in the matter was purely voluntary on his part, and as the result of his owning a mortgage with the defendant, as mentioned. Upon the evidence before us the legal effect of the transaction seems to be no different than it would have been had Mr. Kusworm been present, and Gebhart had delivered the envelope with the notes therein directly to him. Suppose such had been the facts, and Mr. Kusworm had immediately, in the presence of Gebhart, thrown the notes contained in the envelope into the fire and burned them up, would the defendant thereby have been estopped from making the defense of duress? In some of the cases cited the wife signed the con