Soule v. Bonney , 37 Me. 128 ( 1854 )

Shepley, C. J.

— The defence to the note sued appears to have been, that it was made under duress of imprisonment.

No complaint or warrant, nor the record of any was produced, and no such proof of loss was made as to permit secondary proof of their contents. It is not perceived, that the Court or jury could be informed that the restraint was unlawful; and the Court appears to have correctly instructed respecting what should constitute duress by imprisonment.

A new defence appears then to have been insisted upon, that the note could not be recovered if given for the suppression of a criminal prosecution. On this point the instructions stated, “if the consideration of the note or any part of it, was the compromising or suppression of the prosecution, the note would be void.”

There could have been no legal proof that “the prosecution” was for any offence known to the law. It might have been for something which the law would not regard as an offence, such as a prosecution in a criminal form for a trespass.

The instructions would authorize the jury to find the note to be void, if made to suppress a prosecution in a criminal form, for something not involving the commission of any criminal offence.

Exceptions sustained, verdict set aside, and new trial granted

Rice, Hathaway and Cutting, J. J., concurred.