that would steal $10,000 while he was engaged to her was not a fit man for her company, but I could not change her purpose. She would always reply, 'I love that man; I am going to fix this matter up for him.""

This testimony would seem to establish, beyond all controversy, that complainant voluntarily and persistently pursued the matter of making the contract and was satisfied only when she had accomplished it. We have searched in vain for evidence tending to discredit any of these witnesses, unless it be the interest of Paige and A. G. Daykin in the result of the suit, and possibly the professional pride of McMillan. It is noticeable that throughout her testimony she does not deny the statements of either of these witnesses, except as to the consideration for the agreement. We also find that in her correspondence with Mr. McMillan, her attorney, while she was with Whitney in Honolulu, as late as October and November, 1895, she speaks of the contract and shows no disposition to repudiate it.

It is claimed that immediately upon Whitney's flight from Cleveland, Daykin Bros. began to search for him. On May 14, 1893, complainant was at Los Angeles, California, and she says she received a telegram, saying:

"If you go to Kansas City get our letters at Hotel Victoria. DAYKIN BROS."

"May 12, 1893.

She says she also saw a telegram to a friend of hers, as follows: "Telegraph us at once where dispatch will reach Olga GreenDAYKIN BROS."

wald.

As before stated, A G. Daykin met her in Chicago, and the testimony of Miss Botfield tends to prove that he sought her for the purpose of getting her to settle Whitney's defalcation. He testified that they sent the telegrams for the purpose of locating Whitney, and that he went to Miss Botfield because he understood she was a go-between to carry correspondence between Whitney and Miss Greenwald, and that he sought information

from her as to the location of Whitney, and not of Miss Greenwald, that he already knew where she was. Whatever may be said as to the truthfulness or plausibility of his explanation of these matters, it cannot be seriously contended that the dispatches, or anything he did or said in Chicago in July, 1893, could have operated upon her mind in October of that year to coerce her into making the contract. It will not do to say she was feeble in health and inexperienced in business. Her letters, conversations and conduct show no want of mental capacity whatever. There is to our comprehension no element of duress in the case. In fact, she does not claim there was. Therefore, on her theory that the agreement was that Whitney should not be prosecuted, she was equally guilty with the defendants and can have no equitable relief.

If the consideration for the contract was the compounding a felony or crime, it would be equally clear that no affirmative relief could be had in favor of the cross-complainants. We have, however, reached the conclusion that the proof also fails to establish that fact. It being shown that the contract was free from fraud, mistake or duress, a prima facie case was made upon the cross-bill by the introduction of that contract. A part of the testimony already set forth bears directly upon this branch of the case.

Counsel for the appellee say in their argument that Whitney's defalcation amounted to no more than $4000, whereas a payment of $6000 was demanded by Daykin Bros. But we think the evidence shows the loss amounted to $10,000. Mr. Al. Daykin, as well as the attorney who acted for the complainant, testified that the result of an examination of the books and accounts in the office of the firm showed that not less than $10,000 had been embezzled by Whitney.

There can be no doubt that Daykin Bros. might lawfully receive the money embezzled from them, from Whitney or anybody else, provided they did not do so with

the promise or agreement that they would not prosecute the thief. It is true that the complainant was under no legal obligation to pay that money, but she certainly had the right to do so if she voluntarily so desired. We do not doubt, from all the evidence, that in her persistent efforts to raise the money and satisfy this claim she was prompted by the motive that if she succeeded there would be no prosecution of the criminal charge against Charles Whitney; but unless that hope or expectation was based upon some promise or stipulation upon the part of the Paiges or Daykin Bros. the court is powerless to afford her relief. Nor can the court arbitrarily accept her statement as to the agreement, without reference to the contradictory evidence of other witnesses. The burthen of proof is upon her to prove what she has alleged as to the illegal contract. In her own testimony she says: “I executed all the papers there in that office at the same time. The consideration moving to me was, that if I signed those notes and deeded my property over to the Daykins that they would not prosecute Charlie Whitney. That was the only consideration I received. The matter of Charlie Whitney not being prosecuted was talked over between Paige and Daykin and Mr. McMillan several times,-about making settlements,-and they said if a settlement was made that Daykin Bros. would not prosecute Charlie Whitney. Most of the conversation was held with Al. Daykin, but I talked it over with Mr. Paige also." She was asked, "How many times did you talk it over with Mr. Paige?" And answered: "Several timeseight or ten. I talked with Mr. Al. Daykin, Mr. Paige and Mr. McMillan about it. I asked for a statement in writing to the effect that Whitney would not be prosecuted, but Mr. Daykin and Mr. McMillan said they could not give it to me,-all they could give me was a verbal agreement, but if they did not prosecute the State was not apt to do so." On her cross-examination, in answer to the question, "Were you not repeatedly told that they

would not and could not settle the criminal part of this affair?" she says: "I wasn't repeatedly told that.. Mr. Daykin said if he did not push the matter the State was not apt to do so." And again she was asked, "Didn't Mark Daykin tell you that he could not and would not settle the criminal part of it?" and answered: “I don't remember. I do remember Mr. Al. Daykin saying that they could not settle the criminal part of it, but unless they pushed the case the State was not apt to do so."

Turning now to the testimony of Al. Daykin, Paige and McMillan, who she states told her that if she made the contract Whitney should not be prosecuted, we find in the deposition of Al. Daykin the following:

Q. "She says that you said in McMillan's office that you could not settle the criminal part of this embezzlement, but unless the fire insurance company pushed it the State would not do so unless you pushed it.

A. "I never made those statements. The only statement I ever made about the criminal part of this affair was in substance what I told her and her attorney,—that we would not and could not settle the criminal part. Nor did I indirectly lead her to think I didn't mean what I was saying. I was very particular about that, -even to writing it to her, and there was never anything stated to her or sent her from me, by anybody, from which she could reasonably get the idea that we were in fact settling the criminal part while saying just the contrary."

In the letter of August 24, 1893, addressed to McMillan, her attorney, Mr. A. G. Daykin writes: "We cannot settle the criminal part of the account."

Thomas Paige in his testimony says in answer to the questions:

Q. "Miss Greenwald says that she talked over the matter with you several times about Daykins' not prosecuting Whitney if this money was paid.

A. "There was never any mention made of prosecution. It was purely a question to raise money to make

good the moneys he had spent. I never talked to her or to McMillan on that subject. *

Q. "She further charges that at the same time you agreed, in confederation with Daykin Bros., not to prosecute Charles Whitney or that he would not be prosecuted. A. "The question of prosecution was never mentioned. Q. "Did you ever have any such agreement with her? A. "None whatever. There was nothing said between her and me that could be construed by her to mean that, during my whole connection with this matter."

The testimony of Mr. McMillan has already been noticed. In short, unless these three parties, Daykin, Paige and McMillan, have each and all committed willful and corrupt perjury, not only was there no agreement to compromise the criminal offense, but there was the most positive and unequivocal refusal so to do. We are not unmindful of the fact that parties in matters of this kind may, and very often do, refuse to agree to an unlawful thing and at the same time by indirection lead the opposite party to believe the contrary; but we know of no rule of evidence which will permit a court to place a directly opposite construction upon the language used by witnesses when they say that there was no such agreement but a positive refusal to enter into any such an arrangement.

Unless it must be said that a party who has lost money by theft or embezzlement cannot contract with a third party to receive it back, however much he may protest against compounding or compromising the crime, we can see no escape for the complainant in the original bill, and no one, we apprehend, will contend for such a rule of law. Counsel for appellee endeavor in their argument to have her treated as an expectant heir, and to bring her case within the rules of law applicable to what are termed "catching bargains." She is not an expectant heir, and the doctrine can have no application whatever to her case.