The truth seems to be that in the cases where a settlement coerced by means of threatened prosecution has been held not to amount to duress, no more than a fair settlement was obtained. One who had misappropriated money or property, and who was therefore under a civil as well as criminal liability, made restitution. Under such circumstances even though there was unquestionable duress, the debtor if compelled to pay the exact amount of a liquidated debt, cannot be allowed to recover the payment because in making the payment he has done no more than he was legally bound to do. The situation is legally different where the debtor is compelled to transfer property in satisfaction of his civil liability, or to pay a fixed sum to satisfy a claim of uncertain amount, from what it is where the payment exacted is the exact amount of a liquidated debt, since in the former case the parties are attempting an accord and satisfaction, not exactly fulfilling an existing obligation. But where the settlement is fair, this distinction is easily lost sight of. Moreover, the line of division between threats of prosecution by the creditor and the compelling force of circumstances, the effect of which the debtor knows, though no threats are made, is often hard to draw. Not only may the debtor properly make and the creditor receive satisfaction of the civil liability, but the debtor, if acting under no other compulsion than that exercised by the force of circumstances, may make such satisfaction as he can in the hope that his criminal default will be dealt with leniently.52 It is probably under the influence of such considerations that so many courts53 have refused to avoid settlements made under threat of prosecution.

52 Roloson v. DeHart, 134 Mo. App. 633, 114 S. W. 1122; Roth v. Holmes (Tenn.), 52 S. W. 690. In Felton v. Gregory, 130 Mass. 176, 178, the court said of such a situation: "If this can be held to be duress, then every thief who makes restitution of the stolen property, for the purpose of mitigating his sentence, would be entitled to recover it back on the ground of duress." But see also Goodrum v. Merchants', etc., Bank, 102 Ark. 326, 144 S. W. 198, Ann. Cas. 1914 A. 511. 53 See supra, Sec. 1612.

Whether these decisions are right or wrong, the first step towards a satisfactory understanding of the subject is to recognize that if they are right, it is because it is inequitable to deprive a creditor of the benefit of a fair settlement of a genuine claim even if it was made under coercion.64