Bowman v. Hiller

Morton, J. The question whether the defendant John G. Hiller signed the note in suit under duress does not seem to us to be material in this case. The referee finds that the said Hiller, being the financial secretary of the Marblehead Reform Club, misappropriated the funds of the club to the amount of the note in suit, “under circumstances that would reasonably justify the parties interested in the suspicion that it was taken fraudulently.” The note in suit was -given in discharge of this liability. If the threats of prosecution recited by the referee in his award were sufficient to show duress as to him, which we do not decide, such duress would be no defence to the other defendants. They signed the note upon a sufficient consideration, and without any coercion or restraint operating upon them. The duress of their principal did not affect their free agency, and will not defeat the promise which they voluntarily made. Robinson v. Gould, 11 Cush. 55, and cases cited. The defence that the note was given to compound a felony was waived before the referee. -The defendants now contend that this defence could not be waived by them. It may be that, if a note clearly appeared to have been given in consideration of the compounding of an offence, the court, on grounds of public policy, would not permit a waiver to give validity to the note. But in this case there is no evidence to show that the note was given upon an agreement or understanding that any offence committed by the principal should not be prosecuted. It follows that the plaintiffs are entitled to judgment against all of the defendants, according to the award of the referee. Judgment for the plaintiffs.