In spite of the arguments advanced in the preceding section, it seems better to hold that where anything other than a satisfaction of the precise civil obligation under which a criminal rested is obtained by coercion through threats of prosecution by the creditor the transaction should be avoided without reference to its reasonableness, and excellent authority supports this view.55 There can be no question that there is duress
54 This has been recognized in some recent cases. In Kronmeyer v. Buck, 258 111. 586, 101 N. £. 935, 939, 45 L. R. A. (N. S.) 1182, the court said: "Duress is not available'as a defence against a note or other instrument executed by one who is, in fact, guilty of misappropriating the money of another, although the execution of the instrument is obtained by threatened prosecution, if the instrument is executed in. payment of a debt honestly due. In such case the law regards the existence of a debt, and not the threatened prosecution, as the consideration. The authorities support the proposition that, where a deed of mortgage is executed to secure an amount of money actually due as the result of transactions having a criminal aspect, equity will not set aside such conveyances even though their execution was procured by threats of criminal prosecution."
In Wilbur v. Blanchard, 22 Idaho, 517, 126 Pac. 1069, 1073, it was said: "Now it would seem entirely just- and, if just, it ought to be the law- that, if Wilbur had stolen property from Blanchard and afterward paid Blanchard the reasonable value of the goods taken, he ought not to be able to recover that sum back, even though the payment were made under threats of arrest or duress as denned by the foregoing authorities. On the other hand, although Wilbur had converted and appropriated Blanchard's property and was guilty of a crime and legally liable to pay for the property taken, Blanchard had no right to use that as a means of extorting from Wilbur a sum in excess of the value of the goods taken."
In Beath v. Chapoton, 115 Mich. 506, 73 N. W. 806, 69 Am. St. Rep. 589, ... a party had been charged with embezzlement and had given his notes for $2,700 in settlement thereof. He subsequently defended against the collection of the notes, on the ground that they were given under duress. The court held that" he was liable upon them to the extent of moneys appropriated by him, if any were so appropriated; and it was the province of the jury to determine the amount. If he had appropriated none of the plaintiff's money, of course the note was with out consideration, and void."
55 Morrill v. Nightingale, 93 Gal. 452, 28 Pac. 1068, 27 Am. St. Rep. 207; within the modern meaning of the word, and the opportunities for abuse are too considerable if the creditor is allowed to use such means to enforce a settlement, to make it wise to graft an exception on the general rule that transactions made under duress are voidable.