right there, 'Mr. Voorhees, if you are not guilty, I don't want a dollar of your money.'

"Q. You believed Mr. Nelson meant that when he told you that there, did you not?

"A. Believed he meant what?

"Q. Just what he said, that he didn't want a dollar of your money unless you were guilty?

"A. Yes, sir; I think so.

"Q. You thought so then and you think so now, don't you?

"A. Yes, sir; I do.

"Q. You thought that Clint Nelson was and is sport enough so that he would not want a dollar back unless you were guilty?

"A. I don't think he would. Mr. Nelson made no threat to me of any kind, character, or nature at any time.

"Q. The strongest or nearest to any threat that he ever made to you was to say to you, if you are not guilty he didn't want a dollar of your money? "A. Yes, sir."

Plaintiff, further testifying as to what defendant Smith had told him, said:

"Then he said that I would have to fix it up with Mr. Nelson, and if I didn't that somebody was going to prosecute me. * * *And he told me that I had better see Mr. Nelson and get the matter fixed up. Why, they said they were going to take me to Council Bluffs, and prosecute me out there. I didn't know

but what they would land me in jail. I could not go there without anybody to go on my bond. I was scared to death. I didn't know but that they would land me in jail.

"Q. You expected that you might be taken out there at any minute?

"A. Yes, sir. * * * I claim that in my own mind I was perfectly innocent of any charge upon which any prosecution could be grounded. And being entirely conscious of my own innocence, I immediately lost my nerve."

It is quite clear from the foregoing that defendant

Nelson himself made no threats of any kind against the plaintiff. On the contrary he repeatedly told plaintiff that if the plaintiff were innocent, that is, if he had not shared in the money out of which defendant Nelson had been swindled, he should not pay a dollar. Assuming (though it is flatly denied by Smith) that Smith made the threats as testified to by plaintiff and that such threats were made by the authority of defendant, of which there is no proof in the record, do they amount in law to duress? We are of opinion that this question must be answered in the negative. In the early case of Hackley v. Headley, 45 Mich. 569 (8 N. W. 511), Mr. Justice CoOLEY, speaking for the court, said:

"Duress exists when one by the unlawful act of another is induced to make a contract or perform some act under circumstances which deprive him of the exercise of free will. It is commonly said to be of either the person or the goods of the party. Duress of the person is either by imprisonment, or by threats, or by an exhibition of force which apparently cannot be resisted."

In the later case of Beath v. Chapoton, 115 Mich. 506 (73 N. W. 806, 69 Am. St. Rep. 589), this court, speaking through Mr. Justice GRANT, said:

"Threats of criminal prosecution, unaccompanied by threats of immediate imprisonment, do not constitute duress"-citing Harmon v. Harmon, 61 Me. 227 (14 Am. Rep. 556); Buchanan v. Sahlein, 9 Mo. App. 552; Bodine v. Morgan, 37 N. J. Eq. 426; Dunham v. Griswold, 100 N. Y. 224 (3 N. E. 76); and Preston v. City of Boston, 12 Pick. (Mass.) 7, 14.

See, also, Clement v. Mercantile Co., 172 Mich. 243 (137 N. W. 657), and Dallavo v. Dallavo, ante, 350 (155 N. W. 538).

Defendant Nelson's eighth request to charge was as follows:

"The Supreme Court of this State in Beath v. Chapoton, 115 Mich. 506, 509 [73 N. W. 806, 69 Am. St. Rep. 589], declares the law to be that 'threats of criminal prosecution unaccompanied by threats of immediate imprisonment, do not constitute duress,' and in accordance with that holding I charge you that there was no duress in this case and that plaintiff cannot recover against any of the defendants."

We are of opinion that this request should have been given. It is worthy of note that plaintiff, upon the payment of the money for which he brought suit, secured from defendant the receipt which is set out in the statement of facts, and that he permitted the matter to stand without disaffirming the contract or making any demand for the return of his money for more than two years. In the meantime the Federal statute of limitations (U. S. Comp. Stat. 1901, § 1044), had run in his favor so that a prosecution against him for complicity in the fraud perpetrated at Council Bluffs was barred. He testified that he held this receipt as a protection against such prosecution.

Although plaintiff is barred from recovery in this case because the payment of the money was not secured by the exercise of legal duress, we think a broader ground exists for reaching the same conclusion. The payment of the money was corollary to, if not a distinct part of, the illegal and fraudulent transaction in which plaintiff frankly admits he participated as a principal. Whether his original purpose was to help swindle his friend, defendant Nelson, or simply to help Nelson and Guernsey to swindle the "millionaires," or whether he actually participated in a division of defendant Nelson's money, appears to be of no consequence. Public policy demands that the courts be closed to men such as the plaintiff when they come demanding relief from consequences which result from their own admittedly illegal and fraudulent acts.

The judgment is reversed, and there will be no new trial.

MOORE and STEERE, JJ., concurred with BROOKE, J. KUHN, J. I concur in the result reached by Justice BROOKE, as to the question of duress.

OSTRANDER, J. (dissenting). The trial court advised the jury:

"You will readily see it all gets down to the question of whether Voorhees at the time he paid this money over was acting as a free moral agent. Did he have his will power and exercise it there? It is not sufficient for him to show to you that the threats were made; that alone is not enough. It is not enough for him to show that the threats were made and that he had some fear of arrest or some fears that the government would take some proceedings against him or investigate further. That is not sufficient. But in order to recover here, he must show to you that these threats that were made in behalf of Nelson, if they were made in behalf of him as the plaintiff claims, had such an influence upon him and over him and upon his mind as to so put him in fear of the results of what might happen if he didn't pay, as to take away his will power and impelled him to pay any way, against his wishes.

"In considering whether he was so under duress and so in fear and compelled to pay, considering whether he did act as a free moral agent or not, you should consider all that had come to the knowledge of Voorhees. You will remember that there was some testimony of Sharrar having been told by Smith, if I remember correctly, something about this transaction, and that Sharrar testifies that he communicated that to Voorhees. You have a right to consider that, if you find it to be true, even though that didn't come directly from Nelson, as determining the condition of Mr. Voorhees' mind. How much was he worked up about the matter? And I think it is practically conceded by everybody that he was somewhat excited. The question is what was his condition of mind. How much was he put in fear, to what extent, at the time the

transaction was finally closed up? If it was to the extent that he could not resist, his will power was overcome by reason of the fear, then the money was involuntarily paid and he may recover it back. Otherwise he cannot do so."

This, I think, is a fair statement of the applicable law. Lewis v. Doyle, 182 Mich. 141 (148 N. W. 407); Nelson v. Leszczynski-Clark Co., 177 Mich. 517 (143 N. W. 606); Clement v. Mercantile Co., 172 Mich. 243 (137 N. W. 657); Cribbs v. Sowle, 87 Mich. 340 (49 N. W. 587, 24 Am. St. Rep. 166); Koons v. Vauconsant, 129 Mich. 260 (88 N. W. 630, 95 Am. St. Rep. 438). There was, in my opinion, abundant testimony to sustain a verdict for plaintiff under the charge of the court.

It is clear, and the jury was advised, that defendant Nelson had no claim against plaintiff which he could have enforced. Plaintiff denies that he ever had any of the money which Nelson lost at Council Bluffs. But Nelson demanded and received from plaintiff $2,278.50, and he signed the receipt and promise set out in the opinion of Mr. Justice BROOKE. As computed by Nelson, this is the sum of all the money he lost at Council Bluffs, interest upon it, and his expenses. How did Nelson contrive to secure this money? The testimony for plaintiff, if believed, proves beyond question that it was secured by means calculated most certainly to work upon the mind of plaintiff, to induce fear, to cause him at any sacrifice to save himself from represented, threatened, danger, not necessarily of conviction for a crime committed, but of arrest, examination, and perhaps trial for an alleged offense. It is true that Nelson made no threats and said to plaintiff that if he had none of his, Nelson's, money he did not want a dollar. But of what avail was this when by his actions and those of his agents he was also saying,