Holmwood and Chapman, JJ.
1. The only point raised, in this second appeal, in that the agreement really having been in invito, a refund suit can be maintained in Court. We have only to point out that neither the pleadings .nor any issue, nor any finding of the lower Courts, nor apparently any evidence appears in support of the question of fact that there was any pressure upon the plaintiff to pay this money in consideration for not being prosecuted. The so-called admission of the defendants, in their written Statement, goes directly to the contrary.
2. It is urged that in every case the fear of punishment is an undue influence and that if the defendant accepts money to screen the plaintiff from punishment he thereby exerts this undue influence. Of the exceptions given by Pollock, the one on which alone reliance is placed is 'unless the agreement was made under such circumstances as between the parties that if otherwise lawful it would be voidable at the option of the party seeking relief'. It is obviously not voidable under Section 19 inasmuch as there was no coercion whatever, and we are unwilling to read into Section 16 a fictitious use of the dominant position of the defendant. The law says that not only the defendant must have a dominant position but he must use it, and this has been carefully guarded in ail the eases in England to a number of which we have been rather unnecessarily referred. The rule derivable from these eases can be thus stated : If money or security be given under an agreement not to prosecute Tinder such circumstances that there has been pressure or undue influence, the transaction will be set aside and the money or security ordered to be returned. There is one rather doubtful passage in the judgment of Lord Justice Bowen in the case of Junes v. Merionethshire Building Society  1 Ch. 173, 186., which might be taken to extend the principle further; but the learned Judge expressed himself with extreme hesitation and abstained from expressing any opinion on it. Were we to extend the principle in the way we are asked to do by the learned vakil for the appellant, it is perfectly clear that in every case of illegal composition of a non-compoundable criminal, offence a refund can be demanded at law. We have no desire and no intention to extent the law to any such result. It has been held that Section 65 does not apply to a case of this kind.
3. The appeal is, therefore, dismissed with costs.