Hinsdill v. White , 34 Vt. 558 ( 1861 )

Poland, Ch. J.

The bill of exceptions in this case states that the defendant excepted to a decision of the court, excluding evidence offered by the defendant to prove that the plaintiff’s son was in fact guilty of stealing the defendant’s money.

But it does not appear from the exceptions, that the defendant offered any such evidence, or that any such decision was made. It does'appear, that the plaintiff offered to prove that he was not guilty, and that the court excluded it, from which, as well as from the manner the case was presented to the jury, it appears the court below did not treat that fact as material in the decision of the case. The question is perhaps as faix-ly presented upon the charge as upon this exception. The case was put 'to the jury upon this ground, that even if plaintiff’s son was guilty of stealing defendant’s money, and both plaintiff and defendant believed him to be so, still, if the plaintiff was induced to pay the money to the defendant, and prevent the prosecution of her son , by the false and fraudulent statements of the defendant, in reference to the proof he could make against the .son, and in reference to his having already procured papers for his arx-est and prosecution, then the pax-ties were not to be regarded as standing in pari delicto, and that the plaintiff would be entitled to recover back the money.

"Was this instruction a correct view of the law ?

The general principles of law relative to contracts of this character, are not in doubt. A contract for the suppression of a prosecution for crime, is illegal and void ; the law will not enforce it, and if it has been fulfilled and payment'made, the law will not furnish any remedy to recover back the money. In short, when parties contract upon such an illegal consideration, the law will leave them where it finds them, and furnish no aid to either. Both parties are regarded as equal sharers in the immorality and illegality of the transaction, and neither is entitled to any appeal to the law for relief.

But this case introduces a new element, The consideration and object of the contract and payment of the money, were in contravention of law, and to this extent the parties were in equal fault ; but the plaintiff was induced to enter into it, and to pay the money, by the false and fraudulent representations of the defendant. In such case ax-e the parties to be regarded as in pari delicto, so that the law will regard them as equally reprehensible, and refuse to interfere ?

No case has been cited, nor have I been able to find any, where this precise question has been presented. The cases most analogoqs to this, are those where a party has been allowed to avoid his contract, and recover back money paid, because induced by duress. In that class of cases, it does not appear to have ever been regarded as any sufficient answer to an action to recover back money paid by a party under duress, that it was paid to stifle a prosecution, and that therefore the law would give no aid. In Richardson v. Duncan, 3 N. H. 508, Richardson, Ch. J., says, “ But it is now well settled, that where there is an arrest for improper purposes, without a just cause ; or where there is an arrest for a just cause, without lawful authority ; or where there is an arrest for a just cause, and under lawful authority, for unlawful purposes ; it may be construed a duress.” This terse statement of the law has been quoted in many subsequent cases, and by elementary writers, as a sound synopsis of the law on that subject.

Mr. Greenleaf in the 2d vol. of his treatise on Evidence, Sec. Ill, in discussing the general subject of recovering back money paid, says : “ But though the principal contract were illegal, yet if money has been advanced under it by one of the parties, and the contract still remains wholly executory and not carried into effect he may recover the money back upon the common money counts ; for the policy of the law in both cases is to prevent the execution of illegal contracts ; in the one case by refusing to enforce them, and in the other, by encouraging the. parties to repent and recede from the iniquitous enterprise. And the same rule is applied to cases where, though the contract is executed, the parties are not in pari delicto ; the money having been obtained from the plaintiff by some undue advantage taken of him, or other wrong practised by the defendant.”

See also the case of Worcester v. Eaton, 11 Mass. 376. If then a party may recover back money paid to settle a prosecution for crime, if under duress at the time, why should not the same principle authorize the recovery back of money paid for the same purpose, when the payment was induced by the fraud of the party receiving' it ?

The payment of money by one under duress is not regarded as a voluntary payment, but as paid by coercion, but where one is induced to pay money by fraud, the law does not regard it as a voluntary payment, and upon that very ground allows it to be recovered back. We are therefore of the opinion that the same rule should apply to a case of fraud, as to a case of duress, and to hold, that when one has by fraudulent means induced another to pay him money, he cannot shield himself from paying it back, by saying that both parties had an illegal end in view in the transaction.

The false statements made by the defendant to the plaintiff, as to his ability to make proof of the offence against her son, and of his having already taken measures for his arrest, were eminently calculated, as they appear to have been designed, to force her into a compliance with his demand, and, under the circumstances detailed in the exceptions, would be likely to overcome any mother, anxious for the credit and safety of her son.

It is claimed also by the defendant, that if the plaintiff can maintain this action at all, there must first be a demand upon the defendant for the repayment of the money. Where one has money belonging to another rightfully and lawfully in his possession, or where one has received the money of another by mistake, without fault on his own part, the law requires that it should first be demanded of him, before an action can be maintained against him therefor ; but where one has in any way wrongfully obtained the money of another, by duress, or fraud, no demand is necessary. When it is paid over by consent, but such consent is obtained by frand, it is the same as if no consent had been given.

The judgment is affirmed.