| NY | Dec 21, 1880
The judgment in this case should be reversed. The trial court instructed the jury that if they found that the note was given on the illegal consideration of the compounding an alleged crime, it was void; that it had no legal force or effect, and the plaintiff was entitled to recover the amount of the note with interest. The trial court refused to instruct the jury that if there was no fraud, duress or undue influence on the part of the defendant, and that the note was given simply to compound a felony, then the plaintiff was not entitled to recover. We think this was error. If there was simply a compounding of felony, both plaintiff and defendant, on an equality, agreeing that the plaintiff should give his written promise to the defendant, and that, therefor, the defendant should give his oral promise to conceal the felony, and abstain from prosecuting it, and withhold the evidence of it, then they were in pari delicto, and the law will leave them where it finds them. (Fivaz v. Nicholls, 2 C.B. 501.) To give the plaintiff any claim to recover, he must show that he was in such plight from the force or threats of the defendant as that he was in duress, and gave the note without being willing to, to escape from the predicament in which that force or those threats put him. We will not now say, that one who aids in doing an act that is by the law made a criminal offense, may, in any circumstances, have an action to recover any thing paid by him in furtherance thereof; but we do say, that if he does it voluntarily by which we mean without force or threats compelling his will, he may not maintain an action. The instruction and refusal of the trial court amounted to just the reverse of this and was erroneous.
The learned General Term seems to have overlooked the request to charge and refusal.
The judgment should be reversed and a new trial had, with costs to abide event.
All concur.
Judgment reversed. *254