1840. UNWIN V. LEAPER. charge and satisfaction of all right &c. of the plaintiff of, in, or to the said Chaseway or strip of land, the plaintiff did thereby acknowledge &c., the plaintiff did remise, release, quit-claim, and confirm unto the defendant, his heirs and assigns, all the estate &c. of the plaintiff, of, in, to, out of, or concerning the said Chaseway &c., to the end and intent that the plaintiff, his heirs, executors &c. should not nor could thereafter have claim, challenge, or demand any estate &c. into, out of, or concerning the said Chaseway &c.; except and always reserved unto the plaintiff, his heirs, &c., ingress, egress, and regress way and passage with horses, waggons, &c. to and from the plaintiff's meadow from and to East Street. Covenant by the plaintiff against his own incumbrances, and for further assurance. The defendant did not further proceed upon his notice under the Turnpike Act. As soon as the three months allowed for suing for the penalties had elapsed, the plaintiff commenced the present action to recover the 50%., and another action to bring the validity of the indenture of 9th March into question. In support of the plaintiff's right to recover in this action, Bompas Serjt. referred to Williams v. Hedley (a), where it was held, that money paid by A. to B. in order to compromise a qui tam action for usury brought by B. against A., founded on an usurious transaction between A. and C., may be recovered by A. in an action for money had and received, on the ground that the prohibition and penalties of 18 Eliz. c. 5. attach only on the informer or plaintiff making the composition, not upon the party paying it. Tindal C. J. told the jury, that the short point for their consideration would be, whether the plaintiff had paid the 501. voluntarily, or by coercion under a threat that the penalties which the plaintiff had incurred, would be enforced against him in the (a) 8 East, 878. proposed action; that the defendant was at liberty to abandon his action for the penalties; that though the proposed action for the penalties was in contemplation, the plaintiff had a right to give the 50%. if he pleased towards the costs of the defence of the action of ejectment; but that if the plaintiff did so, not of his own mind, but in consequence of the threat of the penalties being enforced against him, that was what the law would not allow, and in that case the plaintiff would be entitled to bring his action for the money so paid; and he requested the jury to say, whether it was a free, a voluntary payment, or a payment made by coercion; that in the latter case, the plaintiff would be entitled to recover back the 50l. which he had paid. The jury returned a verdict for the plaintiff, damages 50l. (a) The learned judge then said to the defendant's counsel, "If I have laid down the law wrong, you are at liberty to move for leave to enter a nonsuit." Thesiger now moved accordingly. In Williams v. Hedley, which was cited at the trial, an action had been commenced, which circumstance brought the parties within the operation of 18 Eliz. c. 5. Here no action had been commenced; it was only threatened; and although the arrangement may have been illegal at common law, yet it must be remembered that at common law both the parties to an illegal agreement are culpable, and if in pari delicto, it is well known that potior est conditio possidentis. Another objection to the right to recover back the 507. is, that the parties cannot (a) The verdict would be entered, "that as to the sum of 50%., parcel of the debt mentioned in the first count of the declaration, the defendant was indebted to the plaintiff, modo et formâ, and that the plaintiff had sustained damage on occa- 1840. UNWIN บ. LEAPEB. 1840. UNWIN 0. LEAPER. be restored to the position in which they stood at the time the arrangement of the 25th of February was entered into. By the indenture of the 9th of March, the rights of the parties in respect of the Chaseway were altered. The plaintiff relinquished his claims to the property, but he obtained from the defendant a grant of a right of way. Duress of goods is not sufficient to avoid a deed; much less, therefore, could this indenture be set aside on the ground of the threat of an action, which never had been, and which never might be commenced. It is no offence to compromise a penal action which has not been actually brought. [Bosanquet J. The judges have lately determined otherwise. Tindal C. J. A deed so obtained may be set aside in equity, or be avoided at common law by proper averments.] The notice was not given for the purpose of coercion. [Maule J. The question is, whether the payment was made in the action of ejectment only, — which would be a voluntary payment, and could not be recovered back, or was a payment in the penal action. The jury were asked whether the plaintiff paid this money by coercion, in consequence of the threat of a penal action, and they found that it was so paid.] It is submitted that the jury should have been asked whether the notice of action was given bonâ fide, or for the purpose of coercion. Supposing the action to have been commenced bonâ fide, the 50%. may have been paid merely in the hope that the action would not be persevered in. [Coltman J. If an action was commenced by the defendant against the plaintiff for the purpose of coercion, the payment would be void, though there should have been no agreement for withdrawing the proceedings.] BOSANQUET J. Supposing the notice to have been served without an intention to coerce, the question would still remain, whether the notice was made use of as a means to compel the settlement, whether the 50%. was paid with reference to the action brought to recover the possession of the Chaseway only, or whether it had reference also to the threatened penal proceedings. COLTMAN J. No jury could shut their eyes to the real nature of such a transaction. MAULE J. It appears to me that the question, whether the payment had reference to the penal action or not, was a proper question for the jury; and I also think that the jury came to a right conclusion. (a) And see Collins v. Blantern, 2 Wils. 341.; Edgecombe v. Rodd, 5 East, 294., 1 J. Rule refused. (a) Prince Smith, 515.; 1 J. W. 1840. UNWIN บ. LEAPER. REYNOLDS v. DOYLE. Nov. 5. gages to take up the bill at ASSUMPSIT. The declaration stated, that in con- A party who sideration that the plaintiff would accept a bill of requests another to "lend exchange bearing date 27th September 1832, drawn his acceptupon him by the defendant, for 607., payable forty days ance," imafter date to the order of the defendant, as for value pliedly enreceived, the defendant promised the plaintiff to indemnify the plaintiff and save him harmless from any maturity, and loss or damage for or by reason of his acceptance of the said bill. Averment: that the plaintiff, confiding &c., accepted the said bill, and delivered it so accepted to the defendant for the purpose aforesaid; and although the said bill was afterwards, to wit &c., negotiated by the defendant for his own use and benefit, and has long since become due and payable; yet the defendant did to indemnify the acceptor against the consequences ment. Upon a contract to of non-pay indemnify an accommodation acceptor, the statute of limitations begins to run from the time at which the plaintiff is damnified by actual payment. 1840. REYNOLDS v. DOYLE. not nor would indemnify the plaintiff, or save him harmless from any loss or damage for or by reason of his acceptance of the said bill, but wholly neglected and refused so to do, by means whereof the plaintiff afterwards, to wit on the day and year aforesaid, was called upon and forced and obliged to pay, and did then pay, to one Isaac Smith, the holder thereof, the said sum in the said bill specified, together with certain interest thereon, in the whole amounting to a large sum, to wit 717. 10s. 6d.; and by means of the several premises the plaintiff hath been and is damnified to the amount thereof. The declaration contained counts for money paid, for interest, and upon an account stated. Pleas: 1st. Non assumpsit. 2dly. That the causes of action did not, nor did any of them, accrue to the plaintiff at any time within six years next before the commencement of this suit; wherefore the defendant prays judgment if the plaintiff ought to have or maintain his aforesaid action (a) thereof against him &c. At the trial, before Tindal C. J. at the Middlesex sittings after last Trinity term, a witness was called for the plaintiff, who proved that the defendant had requested the plaintiff to lend him his acceptance for 60%, and that the bill which had become due more than six years, had been paid by the plaintiff within six years before action brought. It was objected by Bompas Serjt., for the defendant, that the cause of action was complete upon the defendant's making default when the bill became due. Talfourd Serjt., for the plaintiff, cited Collinge v. Heywood (b), where it was held that if B. (a) As to the propriety of concluding pleas which introduce no new affirmative matter, without a verification, vide antè, 288. n., Bodenham v. Hill, 7 M. & W. 274. (b) 1 P. & D. 502. ; 9 A. & E. 633. In that case the court expressly overruled Bullock v. Lloyd, 2 C. & P. 119., where it is reported to have been held by Abbott C. J. at Nisi Prius, that the indorser of a dishonoured bill, who had promised to pay the indorsee's law expenses, if he would sue the ac |