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Smillie v. Smith.

There is no ground to suspect that the mortgage was the result of oppression or imposition. He confessed the larcenies and himself fixed the amount of them, and, expressing contrition and a desire to make restitution, he executed the mortgage. It was drawn by a lawyer, who took the acknowledgment of Titus's wife, and Titus's acknowledgment was taken by a commissioner who swears that he informed him of its contents, and that he understood the instrument and its object and effect.

There will be a deeree for the complainant.

eral years paid the interest thereon. On foreclosure by the wife, the court was equally divided on the point whether the mortgage was absolutely void, or only voidable and so ratified by the husband's payments as to be enforceable. See Dixon v. Dixon, 7 C. E. Gr. 91; Sickles v. Carson, 11 C. E. Gr. 440.

In Garth v. Earnshaw, 3 You. & Coll. 584, a wife had her husband indicted for an assault, but abandoned the prosecution after trial, in consideration of his settling on her an annuity.-Held, illegal, although entered into with the sanction of the court where the indictment was tried, and not provable as against the husband's creditors.

In Athens v. Ware, 39 Me. 345, a bond given to obtain release from an arrest made by the collector for taxes in arrear, was deemed good. See Taylor v. Board of Health, 31 Pa. St. 73. So, in Bates v. Butler, 46 Me. 387, notes given by convicts for fines and costs, as authorized by statute. So, in Rood v. Winslow, 2 Doug. (Mich.) 68, a mortgage for $1,000 given by a convict, as a condition of his being pardoned.

The duress may be waived by the obligor. Murphy v. Paynter, 1 Dill. 333; Daris v. For, 59 Mo. 125.

Threats of an illegal arrest or imprisonment render void an instrument procured through them. Richards v. Vanderpool, 1 Daly 71; Bush v. Brown, 49 Ind. 573; Foss v. Hildreth, 10 Allen 76; Hoyt v. Dewey, 50 Vt. 465; Reg. v. John, 4 Cent. L. J. 68; Schultz v. Culbertson, 46 Wis. 313; Foshay v. Ferguson, 5 Hill 154; Jackson v. Ashton, 11 Pet. 229.

But not threats to make a legal arrest or begin a criminal prosecution. Moore v. Adams, 8 Ohio 372; Harmon v. Harmon, 61 Me. 227; Knapp v. Hyde, 60 Barb. 80; Dixon v. Dixon, 7 C. E. Gr. 91; Catlin v. Henton, 9 Wis. 476; Claflin v. McDonough, 33 Mo. 412; Snyder v. Braden, 58 Ind. 143; Harris v. Tyson, 24 Pa. St. 347; Landa v. Obert, 45 Tex. 539; Plant v. Gunn, 2 Woods 372. See Waller v. Cralle, 8 B. Mon. 11; Fulton v. Hood, 34 Pa. St. 365.

Equity has jurisdiction to relieve in such cases. Story's Eq. Jur. 2 239; Mc Lv. Marshall, 1 Heisk. 678; Harshaw v. Dobson, 64 N. C. 384; Thurman v. Burt, 53 Ill. 129; James v. Roberts, 18 Ohio 548; Miller v. Miller, 68 Pa. St. 486; Bowen v. Buck, 28 Vt. 308; Loomis v. Cline, 4 Barb. 453: Wilson v. Spencer, 1 Rand. 76; Breathwit v. Rogers, 32 Ark. 758; Henderson v. Palmer, 71 Ill. 579.

How far the maxim in pari delicto etc. applies. Smith v. Rowley, 66 Barb. 502; Moore v. Adams, 8 Ohio 372; Schultz v. Culbertson, 46 Wis.

Smillie v. Smith.

313; Gohegan v. Leach, 24 Iowa 509; Osborn v. Robbins, 36 N. Y. 365 ; Jackson v. Ashton, 11 Pet. 229; Bettinger v. Bridenbecker, 63 Barb. 395; Diron v. Olmstead, 9 Vt. 310; Wight v. Rindskopf, 43 Wis. 344; Worcester v. Eaton, 11 Mass. 368; Tantum v. Miller 3 Stock. 551; Gotwalt v. Neal, 25 Md. 434; Adams v. Barrett, 5 Ga. 404; Puckett v. Roquemore, 55 Ga. 235; Hoyt v. Dewey, 50 Vt. 465; Goodall v. Lowndes, 6 Q. B. 464.

If the compounding of a felony or offence forms part of the consideration of an instrument given in personal satisfaction, it renders it void: As cheating at cards (Osbaldiston v. Simpson, 13 Sim. 513, 7 Jur. 734); or disturbing a religious meeting (Edgcombe v. Rodd, 5 East 294); or forgery (State Bank v. Moore, 2 South. 470; Brittin v. Chegary, Spen. 625; Thompson v. Whitman, 4 Jones 47; Garner v. Qualls, Id. 223; Williams v. Bayley, L. R. (1 H. of L.) 200; Legg v. Leyman, 8 Blackf. 148); or obtaining goods or money under false pretences (Shaw v. Reed, 30 Me. 105; Baker v. Farris, 61 Mo. 389; Kimbrough v. Lane, 11 Bush 556; Conderman v. Hicks, 3 Lans. 108; Bowen v. Buck, 28 Vt. 308; Clubb v. Hutson, 18 C. B. (N. S.) 414; Porter v. Haven, 37 Barb. 343; Conderman v. Trenchard, 58 Barb. 165); or embezzlement (Southern Co. v. Duffey, 48 Ga. 358; Barclay v. Breckinridge, 4 Metc. (Ky.) 374; Cheltenham Co. v. Cook, 44 Mo. 29; Critchley's Case, 3 Dowl. & L. 527; Drage v. Ibberson, 2 Esp. 648; Wickham v. Gatrill, 2 Sm. & Giff. 353; Partridge v. Hood, 120 Mass. 403; Bibb v. Hitchcock, 49 Ala. 468; Peed v. McKee, 42 Iowa 689; Phelps v. Zuschlag, 34 Tex. 371; see Ward v. Lloyd, 6 M. & G. 785); or larceny (Com. v. Pease, 16 Mass. 91; Work's Appeal, 59 Pa .St. 444); or perjury (Collins v. Blantern, 2 Wils. 341, 1 Smith's Lead. Cas. *489; Pool v. Bonsfield, 1 Camp. 55; Harvey v. Morgan, 2 Stark. 17; Grover v. Bruere, 4 Hal. 819; Breathwit v. Rogers, 32 Ark. 758; Fellows v. Hyring, 23 How. Pr. 230); or rape (Forshner v. Whitcomb, 44 N. H. 14; Loomis v. Cline, 4 Barb. 453); or mayhem (Adams v. Barrett, 5 Ga. 404; but see Blake's Case, 6 Rep. 436); or abortion (Bettinger v. Bridenbecker, 63 Barb. 395; see Bush v. Brown, 49 Ind. 573); or for not opposing a divorce (Kilborn V. Field, 78 Pa. St. 194; Sampson v. Cresson, 6 Phila. 229; Stoutenburg v. Lybrand, 13 Ohio St. 228); or adultery (see Lyon v. Waldo, 36 Mich. 345, supra); or criminal conversation (Elworth v. Bird, 2 Bing, 258); or passing counterfeit money (Daimouth v. Bennett, 15 Barb. 541); or nuisances (Fallowes v. Taylor, 7 T. R. 475; Lindsay v. Smith, 78 N. C. 328); or extortion (Prough v. Entrikin, 11 Pa. St. 81); or malicious mischief (Cameron v. McFarland, 2 Car. Law Repos. 414); or not repairing a highway (Reg. v. Blakemore, 14 Q. B. 544).

The exceptions to the rule are obligations given for an assault or battery (Price v. Summers, 2 South. 578; Whitenack v. Ten Eyck, 2 Gr. Ch. 249; State v. Hunter, 14 La. Ann. 71; Mathison v. Hanks, 2 Hill (S. C.) 625; Holcomb v. Stimpson, & Vt. 144; Baker v. Townsend, 7 Taunt. 422; Elworthy v. Bird, 2 Sim. & Stu. 372; Rushworth v. Dwyer, 1 Phila. 26; see, however, Garth v. Earnshaw, 3 You. & Coll. 584; Gardner v. Maxey, 9 B. Mon. 90; Vincent v. Groom, 1 Yerg. 430; Corley v. Williams, 1 Bail. 588); but not if the assault amounts to a riot (Keir v. Leeman, 6 Q. R. 308, 9 Q. B. 371); or, to compromise a prosecution for bastardy (Haven v. Hobbs, 1 Vt. 238; Holcomb v. Stimpson, 8 Vt. 141; Bish. on Cont. 476; Jackson v. Finney, 33 Ga. 512; Self v. Clark, 2 Jones Eq. 309; Hoit v. Cooper, 41 N. H. 111; but see Smith v. Pinney, 32 Tt. 282); but not after an indictment therefor and the close of the state's evidence

(Shiver v. State, 23 Ga. 230); although it would be good after indictment but before trial (Goodall v. Lowndes, 6 Q. B. 464). See, further, 7 Wait's Actions 79.-REP.

Titsworth v. Holly.

ISAAC D. TITSWORTH

V.

JOHN I. HOLLY and others.

A mortgage was given by Holly and Platt to Brewster, in satisfaction of a decree for deficiency in favor of one Trippe against Holly and Platt on the foreclosure of a first mortgage on lands then owned by Holly and Platt, and bought at the foreclosure sale by Brewster and one Murphy. Trippe's decree had then been assigned to Brewster and Murphy, who also held a second mortgage on the premises which had been given to Platt and assigned by him to them. On foreclosure of Brewster's mortgage,-Held, that an agreement made two days after Brewster's mortgage, by Brewster and Murphy, to assign to Holly and Platt the second mortgage (which, after the foreclosure and sale under the first, possessed no value), on their satisfying the decree for deficiency, the evidence being unsatisfactory that any demand for such assignment had ever been made, was satisfied by Brewster and Murphy's tender of such assignment when their bill was filed.

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

Mr. W. J. Magie, for complainant.

Mr. J. D. Bartine, for defendants, Holly and Platt.

THE CHANCELLOR.

The mortgage in suit was given to John L. Brewster by Holly and Platt, in satisfaction of a decree of this court in a foreclosure suit against them in favor of William R. Trippe for deficiency. Brewster and Herbert Murphy were, when the mortgage was given, owners of the decree by assignment. The mortgaged premises in that suit had been sold, and Brewster and Murphy, who held a mortgage given by James R. Gilmore to Platt, and assigned to them by the latter on the property, subsequent to Trippe's mortgages, purchased them at the sheriff's sale, and purchased the decree from Trippe.

Titsworth v. Holly.

Holly and Platt insist that part of the consideration of the mortgage now in suit has failed by the default of Murphy and Brewster; that they, Holly and Platt, gave the mortgage in suit not only in consideration of the cancellation of the decree for deficiency, but in consideration also of an agreement to assign to them the Gilmore bond and mortgage.

The Gilmore mortgage was of no value (the property had been sold under foreclosure of prior mortgages) and it does not appear that the bond had any value. But, however that may have been, no demand was ever made upon Murphy or Brewster for them or for the assignment. Platt indeed swears that after he obtained the satisfaction piece for the decree (which he obtained by delivering the mortgage in suit with the bond to Murphy and Brewster's lawyer), he showed it to Murphy, and told him he wanted him to draw the assignment of the Gilmore mortgage, assigning it to Holly, but it does not appear that either he or Holly ever demanded the bond and mortgage or the assignment, or spoke to either Murphy or Brewster about them afterwards. Murphy and Brewster tender the bond and mortgage and assignment. It appears very probable that the agreement to assign the bond and mortgage was no part of the consideration of the mortgage now in suit, but was a subsequent, voluntary concession on the part of Murphy. The agreement for the assignment is contained in a note from him to Platt (dated two days after the date of the mortgage in suit), agreeing to assign the Gilmore bond and mortgage as soon as the decree for deficiency was satisfied.

No defence is established. There will be a decree accordingly.

Wilson v. Fritts.

CATHARINE WILSON and husband

V.

PETER FRITTS and wife and others.

A testator, at the time of making his will, and, also, at the time of his death, had eight sons living. By his will he gave his real estate to his widow for life, with remainder in fee to his eight sons. After his death another son was born, who was not provided for by settlement nor disinherited by the will.-Held (the widow being dead), that, under the statute (Rev. p. 1246 % 19), the eight sons must severally contribute such portions of their real and personal estate derived under the will as will make the share of such pretermitted posthumous child equal to what it would have been had his father died intestate, and that otherwise the provisions of the will were not disturbed.

Bill for partition and cross-bill. On state of the case.

Mr. Isaac Van Wagoner, for complainants.

Mr. Peter Ryle, for Peter Fritts.

THE CHANCELLOR.

Daniel A. Brower died in 1847, leaving a will. When he made his will, and at the time of his death, he had eight sons. Another was born after his death. By his will he gave his real estate to his wife during her widowhood (she is now dead), with remainder in fee to the eight sons who were born before his death. His posthumous son was not provided for by settlement or will, nor was he disinherited.

The questions submitted by the state of the case are, Whether the posthumous son is entitled to receive the same portion of his father's estate that he would have been entitled to had his father died intestate; and whether the birth of the posthumous child worked a complete revocation of the will, annulling it in all its parts. The language of the statute furnishes a full and complete answer to both of these questions. The act (Rev. p. 1246 § 19) provides that

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