Brief for the Appellant.

Messrs. MILLER, LEMAN & CHASE, and Mr. F. W. JAROS, for the appellant:

On the question of duress under imprisonment or process, see Chitty on Contracts, (11th Am. ed.) 271; Hackett v. King, 6 Allen, 58; Bane v. Detrick, 52 Ill. 19; Duke de Cadaval v. Collens, 4 A. & E. 858; Severance v. Kimball, 8 N. H. 508; Richardson v. Duncan, 3 id. 508; Heckman v. Schwartz, 20 Wis. 267; Fay v. Oatley, 6 id. 421; Shaw v. Spooner, 9 N. H. 197; Clark v. Pomeroy, 4 Allen, 534; Williams v. Bailey, L. R. 1 H. L. 200.

The principle that where the parties to an illegal transaction are in pari delicto, the court will not aid either party, does not apply to a case like this, where the parties are not in pari delicto, or where there was such imposition, oppression or duress as in this case. Keith v. Buck, 16 Bradw. 121; Baehr v. Wolf, 59 Ill. 470; Bothwell v. Brown, 51 id. 234; Schommer v. Farwell, 56 id. 542; Williams v. Bailey, L. R. 1 H. L. 200; Whitmore v. Farley, 43 L. T. (N. S.) 192; Osbaldiston v. Simpson, 13 Sim. 513; Smith v. Cuff, 6 M. & S. 160; Smith v. Bromley, 2 Dougl. 696; Osborne v. Williams, 18 Vt. 379; Porter v. Jones, 6 Coldw. 313; 1 Story's Eq. secs. 300, 695.

The defense of bona fide purchaser can not avail any of the defendants in this case, for the reason the deed from Eberstein to Martin Willets was obtained by perversion of criminal process and to compound a criminal offense, and was contrary to the Criminal Code. Rev. Stat. chap. 38, pars. 69, 183.

Paragraph 69 of the Criminal Code provides as follows: "Whoever takes money, goods, chattels, lands, or other reward or promise thereof, to compound any criminal offense, shall be fined in double the sum or value of the thing agreed for or taken; but no person shall be debarred from taking his goods or property from the thief or felon, or receiving compensation for the private injury occasioned by the commission of any such criminal offense." Very plainly, this transaction, and

Briefs for the Appellees.

the obtaining of this deed from Eberstein, were contrary to the provisions of this act. Shenk v. Phelps, 6 Bradw. 612; Fay v. Oatley, 6 Wis. 42; Bowen v. Buck, 28 Vt. 309; Bane v. Detrick, 51 Ill. 19.

Paragraph 183 of the Criminal Code provides as follows: "All judgments, mortgages, assurances, bonds, notes, bills, specialties, promises, covenants, agreements, and other acts, deeds, securities or conveyances given, granted, drawn or executed contrary to the provisions of this act, may be set aside and vacated by any court of equity, upon bill filed for that purpose by the person so granting, giving, entering into or executing the same, or by his executors or administrators, or by any creditor, heir, devisee, purchaser, or other person interested therein, or, if a judgment, the same may be set aside on motion of any person aforesaid, on due notice thereof given."

Messrs. WILSON & MOORE, for the appellees Louisa Simons and Winkelman:

A contract made under duress is not void, but voidable, because it may be ratified. 1 Parsons on Contracts, 446; Wharton on Contracts, sec. 149; Deputy v. Stapleford, 19 Cal. 303; Somes v. Brewer, 2 Pick. 203.

Where the only coercion is the fear of the consequences of one's own criminal act, there is no duress. Felton v. Gregory, 134 Mass. 177; Smillie v. Smith, 34 N. J. Eq. 51.

Complainant has lost his right to relief, if he ever had any, by laches. Cox v. Montgomery, 36 Ill. 396; Bush v. Sherman, 80 id. 160; Howe v. South Park Comrs. 119 id. 117; Hoyt v. Pawtucket Inst. for Savings, 110 id. 390.

Mr. JESSE HOLDOM, for the appellee Newbury:

Where the party threatens nothing which he has not a legal right to perform, there is no duress. Fellows v. School District, 39 Me. 559; Preston v. Boston, 12 Pick. 14; Atley v. Bockhour, 3 M. & W. 633; Stillman v. United States, 101 U. S. 465.

Brief for the Appellees.

A court of equity will apply the rule of laches according to its own idea of right and justice. Brown v. County of Buena Vista, 5 Otto, 559.

Imperfect rights must be asserted with vigilance. Brobst v. Brock, 10 Wall. 519.

Parties under no disability, who for many years sleep upon their rights, can not enforce them through a court of equity. A court of equity, acting on sound discretion, will refuse to aid a party who does not act in good faith and with reasonable diligence. Brown v. Wathen, 1 How. 189.

Long acquiescence and laches by parties out of possession can not be excused but by showing some actual hindrance or impediment of those in possession which will appeal to the conscience of the court, and especially where there is knowledge of the claim of those in possession. Wagg v. Beird, 7 How. 234.

So in the case at bar, Eberstein was fully cognizant of the rights of the parties in possession of this property, and as his personal friends were still tenants in possession, he could at all times have ascertained the status of the claim of title. Where a party seeks to enforce a claim in equity who has for a long time acquiesced in the assertion of adverse rights, he should set up specifically the impediment to an earlier prosecution of his suit. Laches and delay must be duly accounted for before equity will interpose. Gould v. Gould, 3 Story, 516.

Unreasonable delay on the part of the plaintiff must be accounted for by good and sufficient reasons, and not statements of imaginary difficulty or unreal obstacles. Fisher v. Burdict, 1 Curtis, 220.

Where one who has sufficient knowledge of the facts to put him on inquiry, permits another to hold property and create liens thereon, or superior equities in favor of innocent third parties, he must suffer the loss occasioned by his laches. See Babcock v. Pettibone, 12 Blatchf. 354; Murphy v. Painter, 11 Ill. 333.

Opinion of the Court.

Mr. P. L. SHERMAN, and Mr. WILLIAM B. BRADFORD, for the appellees the Willets.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

The substance of the allegations of the bill is, that the appellant was arrested by a private detective, on a warrant issued by a justice of the peace, at the instance of Henry Willets and Martin Willets, charging him with the larceny of certain carriage trimmings belonging to them, of the value of sixteen dollars, and that instead of being taken before the justice of the peace issuing the warrant, he was taken to a private room of the detective, and there detained, without bail, for two days and nights; that while thus detained in the room of the detective, his mind being so troubled by recent domestic afflictions, and he being so weak, mentally and physically, that his fears were easily operated upon, he was terrorized by being made to believe that certain innocent acts of his were incapable of explanation by him except upon the theory of his guilt, and that such acts would be given in evidence against him, and that this, with other evidence which it was represented would be produced, would be sufficient to convict him of the larceny wherewith he was charged,-that he should not be released from custody and restored to his liberty unless he would execute a deed to Martin Willets for sub-lots 4 and 5 of lot 1, in block 46, in the city of Chicago, and that he should be released from custody upon executing such deed; that he was not guilty of the crime of larceny wherewith he was charged, but being thus weak in mind, and terrorized, he had no freedom of will, and he executed the deed required in order that he might be released from arrest and restored to his liberty.

It is elementary, and we need not pause to cite authorities to sustain it, that the relief granted must be in conformity with the allegations of the bill, and that it will never be granted in opposition to those allegations. It is therefore unnecessary

Opinion of the Court.

to inquire, here, whether the evidence shows that the deed sought to be set aside was executed to compound a felony. In such case it must be alleged that a felony was committed, and that the instrument sought to be set aside was executed in consideration of an agreement not to prosecute it. (Wharton on Contracts, sec. 483; Swope v. Jefferson Fire Ins. Co. 93 Pa. St. 253.) In that case the question may arise whether the parties are in pari delicto. (Haynes v. Rudd, 102 N. Y. 392.) But no such question can be relevant here. Here it is only material to inquire, was the act in question the free and voluntary act of the party seeking to set it aside, or was it one prompted by fear, to which his judgment never assented. Whitefield v. Longfellow, 12 Me. 126; Smilie v. Smilie, 32 N. J. Eq. 51; Felton v. Gregory, 130 Mass. 177.

The evidence is sufficient to authorize the chancellor to believe, as he evidently did believe, that appellant was guilty of larceny as charged, and that the deed was freely and voluntarily executed, in the expectation that it would have the effect to cause an abandonment of the criminal prosecution. Henry and Martin Willets were, and had been for many years, engaged in the business of manufacturing carriages, in Chicago. Appellant was a carriage trimmer, and worked for them, as such, from 1858 until his arrest, in October, 1884. He was in the habit of doing work out of the usual hours of labor, both for the Willets and for other parties. For this purpose he had a shop fitted up in the basement of his residence, and to it he was accustomed to take, with the consent of the Willets, material upon which to work. Under guise of taking such material, he was, from time to time, in the habit of taking from their shop other material not needed for their work, which he worked up and sold to other parties. The Willets caused appellant to be arrested by a private detective, on a warrant issued by a justice of the peace, charging him with larceny. Mooney, the private detective, testified that he did not take appellant before the justice of the peace issuing the