Severance v. Kimball

8 N.H. 386

• Court: Superior Court of New Hampshire
• Decided: December 15, 1836
• Status: Published

Opinion

RichaRdson, C. J.,

delivered the opinion of the court.

It is clearly illegal to compound a felony or a misdemeanor. 1 B. & A. 282, The King vs. Crisp; 11 Mass. R. 368; 11 East 46, Beely vs. Wingfield; 1 Starkie’s N.P.C. 467, Harding vs. Cooper; 2 Wilson 347, Collins vs. Blantern; 5 East 294, Edgcombe vs. Rodd; 5 N. H. R. 553, Plumer vs. Smith; 3 do. 508, Richardson vs. Duncan.

But where it simply appears that money has been paid to compromise a public prosecution, both parties may be considered in pari delicto, and it cannot be recovered back. 11 Mass. R. 376, 377.

In this case the parties did not stand on equal ground. The plaintiff was a prisoner, and without counsel when he entered into the reference. The defendant had an adviser to assist him. The hearing was had immediately, so that there was no time to consult counsel or to prepare for the trial. And what renders this somewhat suspicious, is that the plaintiff was detained in custody under the warrant, not only during the hearing, but until he paid the amount awarded and all the costs. And the jury have found that the reference and settlement were brought about by means of the warrant.

It was laid down by this court, in Richardson vs. Duncan, 3 N. H. R. 511, that where there is an arrest for a just cause and under lawful authority, for unlawful purposes, it may be construed a duress.

Here the jury must have been of opinion that the arrest was made for the unlawful purpose of compelling the plaintiff to settle the matter.

The money paid by the plaintiff must, then, be considered as extorted by an illegal use of the warrant, by oppression and duress; and we are of opinion that there ought to be

Judgment on the verdict.