Wheaton v. Ansley , 71 Ga. 35 ( 1883 )

Jackson, Chief Justice.

1. The law of this case is ruled in the case of Goodwin et al. vs. E. W. Crowell, agent.^* That was a suit on a promissory note, and the defence was that it was given to settle a criminal prosecution, where Godwin as agent had collected the amount for which the note was given for a fire insurance company in premiums, demand was made for the money and he failed to pay it, and the books of the company were taken out of his hands. A few days before the note was given, the agent of the plaintiff told Godwin that he would give him a short time to pay or give his note for what he owed, and if he failed he, the agent, would prosecute him on the criminal side of the court. The note was given, and he was not prosecuted. On this defence, this court held that “ the question for the jury to decide was whether the note was given for what Godwin owed the company, or whether it was given to settle the criminal prosecution with which he was threatened under the penal laws of this state. If the note was given for what Godwin owed the company, then the plaintiff was entitled to recover. If the note was given to suppress a criminal prosecution amounting to a felony under the penal laws of the state, then the plaintiff was not entitled to recover.”

In the case at bar the defendant was agent for a guano company, had collected money for them, another agent of the company demanded it, and threatened to prosecute him unless he secured it, and this he did by giving the mortgage sued on, under the fear of this threatened prosecution, to the attorney of the company. This is substantially the defendant’s version of the transaction, with the additional somewhat confused statement that be did not owe the money, but it was due him as commissions. The agent whom he charged with the threats was not sworn, so that the defendant was not contradicted.' The attorney who took the mortgage swore that he did not threaten him, but that did not show that the agent had not done so.

The law, as ruled in 56 Ga., 566, was given in charge in substance, almost in the language of this court, in that case, and cannot be error, if that be law. It is supported as law by 48 Ga., 361; 39 Ib., 85; 50 Ib., 155 and 62 Ib., 154; and by the Code, sections 3054 and 3055.

The jury had a right to believe the version of defendant. Indeed, that of the attorney does not directly gainsay it. In so far as defendant claimed that his commissions were due, this case is stronger than that in the 56th.

2. There was no error, as a principle of law, in tne statement to the jury that the amended pina- was properly in and that its being filed at the term of the trial, when it might have been one term before, should not ordinarily prejudice the defendant’s case, especially as no motion was made to continue on account of surprise at the amended plea. When a plea is amended, in substance and a party is surprised, he may continue and charge the continuance to the other party who made the amendment. But we cannot go to the extent of the judge, that the date oí the filing had nothing to do with the case. The time when the agent made the threat to prosecute does not appear. It may have been so long before the date when he gave the mortgage to counsel voluntarily, as to show that he was not acting under those fears; and if a long time before, the jury might well consider the delay in filing this defence as evidence that the whole plea and defence was an afterthought.

The court should have allowed the jury to consider the delay to file the plea as a circumstance to be weighed by them, and should not have said that it had nothing to do with the case.

Judgment reversed.

* 56 6a. 566.