The instructions first given to the jury were very full and well adapted to the defence to this note, as illegal under the provisions of Rev. Sts. c. 128, § 21. They fully reach the defect that existed in the instructions given upon a former trial in this case, reported in 4 Allen, 534. They opened the broadest inquiry upon the question whether this note was given under any agreement or understanding by the two parties that if it should be given the criminal prosecution which had been commenced against Kibbe should be discontinued, and no further proceedings had thereon; and held that if such fact was established the verdict should be for the defendant.
But the defendant asked for an additional instruction, which, although not given in the form asked, yet as given authorized *560the jury to return a verdict for the defendant “if Clark used the warrant for the purpose of procuring the defendant to give this note, and by such use obtained the note.” This instruction wholly omitted the element of proof of any agreement or understanding, express or implied, not to prosecute the party for the offence charged in the complaint upon which the warrant had issued. It would have authorized a verdict for the defendant, if Clark merely had stated to the defendant its existence, and by such statement the maker of the note was induced to give the same, with no assurance from Clark that the prosecution would in such case be abandoned, but merely in the hope that such assumption of seventy-five per cent, of the debt due from Kibbe would propitiate the plaintiffs anil might tend to mitigate the punishment for the offence alleged. This ruling does not instruct the jury as to a case of duress, nor does the defendant’s counsel justify it on that ground. It is to be sustained, if at all, upon the ground of public policy forbidding any person who had instituted a criminal process against his debtor from taking any possible benefit therefrom as an instrumentality inducing the party to give security for his debt, or any part thereof, and denying the aid of the court to enforce any note or contract made under such circumstances.
Much reliance was placed by the counsel of the defendant upon the case of Shaw v. Spooner, 9 N. H. 197. That case, it is to be remarked, differs in one respect from the present.. In that case the party giving the note was the same party against whom the criminal process had issued. It fails to satisfy us that the unqualified instruction that is the ground of exception in the present case should have been given. The illegal act here complained of was the using of this warrant by Clark to obtain this note by an agreement or understanding that- if the defendant would sign it, the criminal proceedings should be discontinued; but otherwise the prosecution should go on. If the jury had found such facts to exist, they must have found a verdict for the defendant under the first instruction given.
The second instruction was erroneous, and for this cause a new trial must be had. * Exceptions sustained.
Chapman, J., did not sit ir this case.