Grassman v. Bonn.

and annul his claim to the fifteen per cent., and they did so. If his failure to complete the work, or to pay the laborers, or make satisfactory arrangement for the payment of the claims of the materialmen, was in any way attributable to the defendants, it does not appear.

There is no reason why this court should not recognize the obligation of the contracts under consideration. It is quite probable that, unless Niven had agreed to the special terms of forfeiture before referred to, he could not have obtained the opportunity to proceed with the work which was given him by the contract of April 15th, 1875, and there appears to be no reason why his assignee should not be held to the agreement. In Faunce v. Burke such a provision was regarded as a provision for liquidated damages, and not as a penalty or forfeiture. No equitable ground of relief from the provision under consideration is presented. It is enough, however, to say that the fifteen per cent. is not payable, according to the agreement.

But it is urged that the contract was completed by the sureties, and that they are to be regarded as having done the work for Niven. But, in fact, they did it for themselves, to protect themselves from loss by reason of his default. That the defendants saw fit to apply the fifteen per cent. to the payment of wages and claims of materialmen, and to assign any balance of it which might remain after such application, to the sureties, would not in anywise give the complainant a claim to it. If it was forfeited, it was due to nobody; the price payable for the work done was so much less.

The defendants, in April, 1875, lent to Niven, as before stated, $4,000 to enable him to pay the wages of laborers. Of this sum he has repaid them $1,100, and the rest is due. There can be no doubt that they are entitled to repayment from him of that balance and interest, and may lawfully retain it out of any money coming to him in their hands. The complainant resists this claim on the ground that, in making the loan or advance, the defendants exceeded their powers as commissioners. By the instrument given to the commissioners to secure the repayment of the advance,

Smillie v. Smith.

Niven "agreed and consented" that they might retain so much money, from each estimate that might become due upon his contract with them, as to them might seem meet and proper until they should be reimbursed the full principal and interest of the advance.

The letter of the 20th of December, 1875, by which Niven requested the defendants to make payments to laborers, sub-contractors and certain materialmen, was authority to them to apply the moneys in their hands, coming to him, to those purposes, and they were at liberty so to apply it, and, for their protection in the payments, they could lawfully take the assignments which they took from the laborers, and are entitled to the benefit of them accordingly.

There will be no decree for an account, and the bill will be dismissed, with costs.

GEORGE W. SMILLIE and others

v.

JAMES TITUS, JR., and others.

A gold-refiner, on being accused, confessed that he had taken gold entrusted to him by his employers to refine. While under arrest at the police-station, he agreed to make restitution by giving a mortgage on his lands for the amount which he admitted he had taken, and accordingly gave such mortgage, which was drawn by a lawyer and duly acknowledged by him and his wife. He was afterwards indicted for the offence, pleaded guilty and was sentenced. On foreclosure,—Held, that the mortgage was not void on the ground of duress.

Bill to foreclose. On final hearing on pleadings and proofs.

NOTE. The process of a court cannot be used to extort from persons under arrest or threatened therewith, moneys alleged to be due from them or to have been stolen &c. by them. Hackett v. King, 6 Allen 58; Seiber v. Price, 26 Mich. 519; Phelps v. Zuschlag, 34 Tex. 371; Bane v.

Smillie v. Smith.

Mr. C. F. Hill, for complainants.

Mr. H. A. Drake, for Titus and wife.

THE CHANCELLOR.

The defence set up in the answer (which is filed by Titus and his wife) to the complainants' mortgage, is that it was given for no consideration and through duress of threats and actual imprisonment on a false charge of crime. The evidence not only does not establish the defence, but disproves it. The complainants were, when the charge of

Detrick, 52 Ill. 19; Fay v. Oatley, 6 Wis. 42; Bowen v. Buck, 28 Vt. 308 ; Gebhart v. East Saginaw, 40 Mich. 336.

A defendant, by means of threats of personal violence and menaces, compelled one S. to pay him money which he believed to be justly due to him from S. On indictment therefor,-Held, not to constitute robbery. State v. Hollyway, 41 Iowa 200.

The following cases show the circumstances under which the obligations of defendants, given to obtain their discharge from legal arrest, have been sustained:

In Shepard v. Watrous, 3 Caines 166, a defendant, under arrest for slander, made his note to the plaintiff, and agreed to submit the amount to be inserted therein to arbitrators who subsequently reported.

In Crowell v. Gleason, 10 Me. 325, a defendant, while under arrest for an assault on A. and before the magistrate, on C's proposition that he (C.) should pay to the defendant a sum of money and stop the proceedings on condition that defendant convey to him certain lands, exe

cuted a deed therefor.

In Meek v. Atkinson, 1 Bail. 84, a defendant under arrest on civil process for trover of a slave, requested the officer to wait until the arrival of some friends whom he expected to go his bail, to which the officer assented. Before the bail was given, the parties compromised by the surrender of the slave and the discontinuance of the suit.

In Waterman v. Barratt, 4 Harring. 311, a defendant was sued in Delaware for a just debt and afterwards arrested in Ohio on another suit for the same debt, and gave his note to obtain his release from confinement there. Also, Stouffer v. Latshaw, 2 Watts 165; Kelsey v. Hobby, 16 Pet. 269.

In Smith v. Atwood, 14 Ga. 403, both plaintiff and defendant were in custody on suits brought against one another, and released one another.

In Hatter v. Greenlee, 1 Port. 222, a defendant was arrested for stealing a slave of the plaintiff, and, when brought before the justice, surrendered the slave and gave a note on condition of his discharge from arrest and that plaintiff would dismiss the suit.

In Cort v. Phillips, 2 N. Y. Leg. Obs. 302, A. was arrested for embez zling money from his employer, and taken before a magistrate.

Smillie v. Smith.

crime was made, and had been for a long time previously thereto, goldsmiths in Newark, and Titus was and had been for about five years in their employ in their factory as a stock melter and refiner. In July, 1869, he was accused by one of complainants (Smillie) of stealing their gold, which had been entrusted to him in the course of his employment. He confessed his crime, and stated that he had taken the gold, supplying its place with copper. While under arrest at the police-station, he agreed to make restitution by giving a mortgage on some real estate owned by him in Princeton, and he then gave the mortgage in suit. He stated that

Afterwards he and B. gave a bond to A.'s employer, who intimated that the prosecution would be abandoned; nevertheless, his attorney told defendants that they were not to consider that there was any agree. ment to that effect.-Held, a question for the jury, whether the plaintiffs meant to forego the prosecution and that defendants signed the bond under that expectation. Also, Alexander v. Pierce, 10 N. H. 494 ; Bibb v. Hitchcock, 49 Ala. 468.

In Walbridge v. Arnold, 21 Conn. 424, a defendant, who was blind, was under arrest for an assault committed by him and several others on plaintiff, and, while under arrest, gave his note in compromise of the offence.

In Fisher v. Apollinaris Co., L. R. (10 Ch.) 297, the prosecutors in a trade-mark case offered no evidence against the offender, and he was acquitted and gave a letter of apology to the prosecutors to use as they saw fit. They published the letter as an advertisement.-Held, that the arrangement as to the apology was not void for duress, and that the prosecutors could not be enjoined from publishing the letter. See Boston Co. v. Florence Co., 114 Mass. 69.

In Crowne v. Baylis, 31 Beav. 351, a clerk had robbed the bank in which he was employed, of a large amount. On his detection and accusation, he confessed and offered to transfer to the bank two policies of insurance on his own life, and did so, to make amends as far as possible.-Held, that such transfer was valid. See Cox v. Paxton, 17 Ves. 329.

In Hays v. Lusk, 2 Rawle 24, a defendant in charge of a constable, gave his sealed bill to settle a claim against him for killing plaintiff's cattle, for which he was then in custody.

In Work's Appeal, 59 Pa. St. 444, a mother and son were arrested on complaint of the father that they had fraudulently destroyed an assignment to him of a share of an estate, and, also, stolen his goods. While at the alderman's office, the father agreed to withdraw the prosecution if the son would assign the fund to him and defendants pay the costs. Their counsel told them they would have to accept the proposition or go to prison. The assignment was thereupon made.-Held, not binding on the son.

In Nelson v. Suddarth, 1 Hen. & Munf. 350, a defendant was decreed to convey certain lands to a complainant, and was attached for con

Smillie v. Smith.

the gold which he had taken was of the value of about $1,200, and he voluntarily made an affidavit in which he stated that, while in the employ of the complainants, he had, during the eighteen months then last past, stolen gold, the property of the complainants, to the amount of $1,000 at least, and that he had taken it from the fine gold given to him to be melted, supplying its place with copper. He was tried for the offence, pleaded guilty and was sentenced to imprisonment in the state penitentiary for a term of two years. He served the greater part of his term and was then. pardoned.

tempt for not complying. While in the custody of the sheriff, and on his advice, he gave a bond for the intervening profits of the land, and paid the amount. Afterwards, on review, the decree was reversed, and the amount of the bond decreed to be repaid.

In Taylor v. Cottrell, 16 Ill. 93, the defendant sold a boat to two dif ferent persons, and was arrested on a charge of swindling preferred by the first purchaser. While in the custody of the constable he gave a note with a surety for the value of the boat, and was thereupon discharged.

In Stebbins v. Niles, 25 Miss. 267, N. had been for several years the agent of an association in New York to sell lands in Mississippi, of which S. was the president. A dispute arose between them in regard to the sales, but N.'s accounts had never been questioned. After several invitations, N. went to New York, and, on his arrival, was arrested for a deficiency in his accounts, and held in $50,000 bail, which he was unable to obtain. Soon after his arrest he went with the officer to a house where he met S. and the solicitor of the company, and N. signed an agreement relinquishing his claims on the company, and was thereupon released.-Held, that the agreement was void.

In Smith v. Rowley, 66 Barb. 502, the plaintiff's husband was charged by the defendant with embezzling money from him, and she, at her husband's request, and on the implied agreement of the defendant not to prosecute him, executed a deed of lands to the defendant. Also, Green v. Seranage, 19 Iowa 461; Gohegan v. Leach, 24 Iowa 509; Eadie v. Slimmon, 26 N. Y. 9; Jackson v. Ashton, 11 Pet. 229; Ingersoll v. Roe, 65 Barb. 346. Query-How far a married woman's acknowledgment of such an instrument, would cure any duress. Worcester v. Eaton, 13 Mass. 377: Bissett v. Bissett, 1 Har. & McH. 211; Central Bank v. Copeland, 18 Md. 319.

In Legg v. Leyman, 8 Blackf. 148, a debtor absconded and was pursued into another state by a creditor to whom he had given a forged note. He, being accused, admitted the forgery, and his creditor offered to return the note if he would deliver to him certain property, which was accordingly done. But see Dixon v. Olmstead, 9 Vt. 310.

In Lyon v. Waldo, 36 Mich. 345, a wife began a prosecution against her husband for adultery and had him arrested. During his arrest he gave her a mortgage to abandon the prosecution, and thereafter for sev