50 Wis. 267 | Wis. | 1880
The complaint charges, in substance, that the defendant made complaint before a justice, charging the plaintiff with fornication, and obtained a criminal warrant for
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
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-
By the Court.— The order sustaining the demurrer is reversed, with costs, and the cause remanded for further proceedings according to law.