Heckman v. Swartz , 50 Wis. 267 ( 1880 )

ORTON, J.

The complaint charges, in substance, that the defendant made complaint before a justice, charging the plaintiff with fornication, and obtained a criminal warrant for his arrest, and he was arrested and imprisoned in the county jail by the direction and procurement of the defendant, and while- he was so in custody and under duress of imprisonment, and threatened by the defendant with further imprisonment and prosecution for said offense, the defendant proposed to the plaintiff that if he, the plaintiff, would pay him, the defendant, the sum of $1,650, he should be discharged from said imprisonment and arrest, and that the prosecution should be dismissed, and threatened the plaintiff that, if he did not so pay, his imprisonment and prosecution should continue. By reason of such duress of imprisonment, threats, and putting in feai1, and induced solely thereby, the plaintiff procured certain two of his friends, by the name of Musser, to give to the defendant their negotiable promissory notes for said sum, payable in ninety days, at ten per cent, interest, which the defendant then and there received in full satisfaction of said agreement, and for the plaintiff’s release from such imprisonment and his discharge from such prosecution, and then and there did so release and dischai’ge the plaintiff. The plaintiff thereupon gave to the said Mussers his notes, secured by mortgage, for the amount so paid to the defendant by them for the plaintiff, and said Mussers paid the defendant said amount when due. The plaintiff was not guilty of said offense, and the complaint failed to charge the plaintiff with any offense, and the criminal warrant issued thereon was void on its face, and both the complaint and the warrant were colorable only.

A demurrer to the complaint was sustained, and on this appeal the learned counsel of the respondent rests the demurrer on these three grounds only: first, that the transaction was entered into and the money paid to compound a felony; second, that the Mussers were particeps criminis, and cannot, therefore, enforce the collection of the plaintiff’s notes; and third, that the Mussers paid their notes to the respondent after the duress had ceased. It is sufficient to say, as to the first ground, that no felony was charged or committed; and as to the second, that the Mussers were in no sense partioeps crim-inis in their relations to the transaction, and could not have defended against their notes to the respondent. Kiewert v. Rindskopf, 46 Wis., 481. The case, in principle, is the same as if the plaintiff had borrowed of the Mussers the money and paid it to the defendant. But if the original transaction was illegal as to all of the parties, it having been fully executed and carried out, the defendant, having received the avails ox it, cannot now refuse to account upon the ground of its illegal character. Armstrong v. Toler, 11 Wheat., 258; McBlair v. Gibbes, 17 How., U. S., 236; Brooks v. Martin, 2 Wall., 70; Planters’ Bank v. Union Bank, 16 Wall., 483-500; Baehr v. Wolf, 59 Ill., 470; Douville v. Merrick, 25 Wis., 688.

As to the third ground, it is immaterial that the Mussers paid the money they had assumed to pay, after the duress had ceased. The transaction was finished and complete, so far as the plaintiff was concerned, when the defendant took the Mus-ser notes in full payment of the sum so demanded, while the plaintiff was under duress, and in consideration of his discharge-from such arrest and imprisonment. The plaintiff did no act, and by the arrangement was required to do none, afterwards, in respect to such payment, by which he can properly be said to have paid or caused the payment of the money at any other time. The plaintiff may have been negligent to his own cost and expense in not enjoining the payment of the money by the Mussers to the defendant, and in not seeking to rescind the whole contract; but the defendant cannot take advantage of such laches. If the plaintiff had taken that course, and had been successful, it would have been no protection to the defendant; for he would have then lost the money that he is now called upon in this suit to restore, so that he has no real interest in the question. We think the complaint makes a clear and very strong case of extortion from an in-noeent person, under duress of imprisonment, and by threats of a criminal prosecution, and, if sustained upon the trial, entitles the plaintiff to recover.

By the Court.— The order sustaining the demurrer is reversed, with costs, and the cause remanded for further proceedings according to law.