NATHAN RICHARDSON vs. ISAAC DUNCAN

Assumpsit for $62 50, money had and received by the defendant for the use of the plaintiff.

The cause came on for trial here, upon the general issue at May term 1826, when the plaintiff’s counsel stated his case to be as follows: On the 8th of April, 1825, the defendant made a complaint to a justice of the peace against the plaintiff, and his son, Joseph Richardson, charging them with tearing down and burning a house and barn; and on the same day a warrant was issued, by the justice, against the said JSathan and Joseph, and was delivered to a deputy sher-riff by the defendant, who employed two persons to attend the deputy, and aid hiip in securing the prisoners. That the said Joseph, and Nathan were arrested immediately, and carried before the said justice for examination. They requested time to send for counsel; but the defendant refused to have the examination delayed for that purpose. The examination proceeded, and the evidence was, that the plaintiff and his son, quietly and peaceably, openly and publickly, took down an old house and barn, which stood on the plaintiff’s land; and that all the timber and boards of any value were carefully piled up; and that some refuse boards and shingles were burned The justice ordered the plaintiff and his son to recognize for their appearance at the next superior court, in the sum of $500, each, with sureties. During the examination, and afterwards, the defendant, and others, represented, that the said Nathan and Joseph would have to go to the state’s prison; and this impression was created to such a degree, that they found it impossible to procure sureties for their appearance at the superior court. While the justice was making out a mittimus, the defend nt told t ie plaintiff §nu his son, that they had better settle the matter, and offered to drop the prosecution for §125; and to this they, unable to procure sureties, assented Whereujjon the plaintiff turned out goods of the value of $62 50, which the defendant received in payment of that sum; and the prosecution was dropped, and no further proceedings had. After this, the defendant declared, that he did not know, that the prosecution could have been maintained; but he meant to get as much out of them, as the house was worth, and that was all he cared for. The defendant sold the goods he received before the commencement of this action.

The court, under an impression, that this action could not be maintained upon these facts, directed » nonsuit, subject to the opinion of the court, upon the case above stated.

The defendant has received the property of the plaintiff, and converted that property into money. ft was obtained without any consideration, by-fraud, extortion, and duress. An action for money had and received will lie to recover money obtained from any one by extortion, imposition, or oppression. 1 Johnson’s cases 240, Bates vs. JV. Y, Insurance Company. — 2 Strange 915, Jlsiky'vs. Reynolds. — 8 East 378, Williams vs. Iledley. — 4 D. & E. 435, Irving rs. Wilson. — 9 Johns. 370, Clinton vs. Strong.— Ibid. 201, Ripley vs GeMon. — 1 Taunt. 359, Snowdon vs. Davis. — 2 Burrow 1005, Moses vs. Macfarlan. — Doug. 696, note, Smith vs. Broomlay. — 20 Job,ns. 2.93, Wheaton vs. Hibbard,— 3 Esp. JV. P. C. 153, Lovell vs. Simpson. — 4 Coteen 454, Frye vs. Lockwood. — 6 Mass. Rep. 506, Watkins vs. Baird. — 2 Bay's Rep. 211, Collins vs. Westbury_Bac.,/]?>. “ Duress./' vi. — 2 Starkie’s Evidence 505.

It is not necessary, in order to maintain this action, to shew, that the defendant has received money. It is sufficient to shew, that he has,received an equivalent for money, or money’s worth — it is sufficient, that he has received something, which has represented money, and done the office of money. 2 JV. H. Rep. 335, Willie vs. Green. — 3 JV. II. Rep. 79, Dan forth vs. Dewey, — 14 Mass. Rep. 121, Hemmenuay vs, Bradford, — 11 Mass, Rep. 494, Randall vs. Rich.

But, in this case, the goods having been converted into money, by the defendant, the proceeds would be money in his hands, so as to sustain this action, if there was any doubt on the other point. 1 „Y. H. Rep. 154, Chauncey vs, Yeaton. —1 Chitt.Pl 90. — 2 JV*. H. Rep. 462, Webber vs Jtldrich— 3 M & S. 198, Foster vs. Stewart — 2 L. Raymond 1216, Lamine vs. JJorrell. — 2 Comyn on Con. 18. — 2 D. & E. 141, King vs. Leith. — Peake’s cases Ill, Harrison vs. Walker. — 2 Brod. & Bing. 369, Jlbbots vs. Barry.

The parties, in this case, are not in pari delicto, so that the money is to be left in the hands of the defendant, on that ground, he having, by means of a groundless prosecution, taken undue advantage of the ignorance and fears of the plaintiff There can be no compounding of a felony, when none has been committed. Cowp. 197, Clark vs. Shee. — Doug. 697, Smith vs. Bromley. — 20 Johns, 293, Wheaton vs. Hib-batd.

All the authorities agree, that, when a party is overreached, defrauded, or oppressed, or where an undue advantage is taken of his situation, he is not to be considered in pari delic-to; and the rule of potior est conditio possidentis is not to be applied. He is in sucha case to be viewed rather as the victim of the other party, than as a particeps criminis.

The evidence offered in this case, exhibits a gross perversion of the criminal process of the state, which, we think, calls loudly for remedy. And this action is, in our belief, well adapted to give proper relief If the defendant has money, which ex cequo et bono the plaintiff is entitled to recover, we trust, that the court will not turn us round, to another action, after we have expended double the amount of the sum claimed, unless it be absolutely necessary.

delivered the opinion of the court. We had an impression, when this case was opened, upon the trial before the jury, that, the plaintiff being in custody by virtue of a warrant in due form of law, the contract, he made with the defendant, could not be considered as made by duress, so as to render it void; and on this ground a nonsuit was directed. But, upon an attentive examination of the authorities cited by the plaintiff’s counsel,we are now con- vuiced, that our impressions were erroneous, and that Ae ea^e of Ae plaintiff ought to have been submitted ío ¡he jury

The only case, which we have found to jusijfr > ¡under the circumstances of this cause, is Ae one in 1 Leo 88, which was an audita quirélü, on a release given after judgment; and the question was. whethei the release was ¡o ⅛ by duress ? The evidence, was, that the defendant, not having good cause of action, caused the plaintiff <o be arrested, and detained in prison, till he made the release, with menances,That he should lie in prison and rot, if he would not seal a release; and Bridgman, C. J. held, that he being in custody of the law, by the King’s writ, it was not any duress, to be pleaded in avoidance of the deed. But he offered to have it found specially; if the plaintiff’s counsel requested •it; but he did not request it.

But it is now well settled, that when there is an arrest for improper purposes, without a just cause; or where there is an arrest for a just cause; but without lawful authority; or where there re an arrest for a just cause, and under lawful authority, for unlawful purposes, it may be construed a duress. Buller's N. P. 172.—6 Mass. Rep 506, Watkins vs. Baird.—Com. Dig. “ Pleader,” 2 W 19.—1 Rolle's Ab 687.

We are therefore of opinion, that the nonsuit in this case must beset aside, and the cause stand for trial.