Osborn v. . Robbins , 4 Abb. Pr. 15 ( 1867 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The plaintiff's right of recovery depends on the validity of the note in the hands of Rice and wife, the payees. He cannot claim the protection which the law extends to the bona fide holder of negotiable paper. He did not part with value on the faith of its validity; he had notice of the facts tending to impeach it, and he instigated the process of coercion through which it was obtained.

The note was executed when the principal defendant was a prisoner; and it could not be enforced by the payees, if they obtained it through an abuse of legal process, for purposes of oppression and exaction. When a party is arrested without just cause, and from motives which the law does not sanction, any contract into which he may enter with the authors of the wrong, to procure his liberation from restraint, is imputed to illegal duress. It is corrupt in its origin, and the wrong-doer can take no benefit from its execution. (Strong v. Grannis, 26 Barb., 123; Edie v. Slimmon, 26 N.Y., 9; Richardson v. Duncan, 3 New Hamp., 508; Severance v. Kimball, 8 id., 386; Watkins v. Baird, 6 Mass., 510; Cumming v. Ince, 11 Adolph. Ell. N.S., 112, 119; Richards v. Van Derpoel, 1 Daly, 71, 75-6;Foshay v. Ferguson, 5 Hill, 154.)

In such a case, the element of voluntary assent is wanting. The parties do not meet on equal terms. The authority of the courts is perverted to unworthy uses. The instrumentalities employed to produce a consenting will, are force and fraud, agencies which the law abhors. The prisoner is at the mercy of the accuser, and he submits to extortion, as the means of deliverance from oppression under the forms of law.

The party who exacts a security from one whom he wrongfully restrains of his liberty, can derive no aid from the fact, that the claim which he enforced by illegal means was just. He cannot be permitted to allege the outstanding obligation of another, as a justification of his own fradulent acts in deliberate violation of law. In all such cases, it is the simple duty of the courts to condemn the contract; and the parties are thus remitted to their antecedent rights. (Richardson v. VanDerpoel, 1 Daly, 71; Strong v. Grannis, 26 Barb., 122;Foshay v. Ferguson, 5 Hill, 154; Cumming v. Ince, 63 Eng. Com. Law, 119; Edie v. Slimmon, 26 N.Y., 9.)

The defense that the note in question was executed under duress was available to the father as well as the son. (1 Rolle's Abr., 687; McClintick v. Cummins, 3 McLean, 158; 2 Bacon's Abr., 773, Duress B.; 3 Chitty's Com. Law, 56; Strong v. Grannis, 26 Barb., 122.)

The rulings on the trial seem to have been made on the same mistaken theory, upon which the complainants and their counsel acted in the proceedings before the magistrate. The parties concerned in the prosecution appear to have assumed, that any security they might exact from the prisoner could be enforced, if they could steer clear of the statute prohibiting the compounding of felonies. The transfer of the hearing from a public to a private office, the unusual proceeding of reading that statute to the accused on an examination for a different offense, and the repeated declarations of the complainant, the counsel and the justice, that the offense could not be settled but the damages could, indicate very clearly their view of the danger to be avoided. They seem to have been unmindful of the fact, that the occasion was inappropriate for the settlement of private differences between the defendant and the witnesses for the prosecution, and to have overlooked the circumstance, that in negotiating a contract with the prisoner, they were dealing with one in vinculis. They misapprehended the law, even upon their own theory. If there had been proof at the circuit, that the defendant had in fact committed the felony with which he was charged, the public reading of the statute and the formal notice that it was illegal to compound a crime, would have been ineffectual to conceal the actual purpose of the arrangement. In the case of Cost v. Phillips, cited by Judge BRADY in Richardson v. Van Derpoel, it appeared that the defendant had been arrested and taken before a magistrate on a charge of embezzlement, and that he there united with Sparks, his father-in-law, in executing a bond to the complainants for the amount of the moneys embezzled. The attorney for the prosecutors, in that instance as in this, told the defendants that they were not to consider that there was any agreement that the plaintiffs should forego the prosecution. Lord ABINGER, however, instructed the jury "that the plaintiff's attorney saying when the bond was executed, that it was not to be considered as an agreement not to press the prosecution, did not alter the nature of the transaction. The question was, what the parties intended. If the jury believed that the plaintiff meant, upon getting the bond, to forego the prosecution against Phillips, and that Sparks signed under that belief and expectation, the consideration of the bond was illegal, and the jury ought to find a verdict for the defendants." (1 Daly, 75; 1 Bosworth, 210.)

Such would have been the rule applicable to the case if the defendant had really been guilty of the felony. But the rule of the common law for the protection of the innocent against duress and extortion, is as rigid as the statutory provision for the protection of the conceded felon. There was no proof at the circuit to justify the imputation of felony. The plaintiff did not call Mrs. Rice; and her affidavit, introduced for a collateral purpose, was not competent evidence of the facts it purported to allege. There was, however, proof tending to show, either that the defendant had availed himself of the opportunity furnished by Rice for illicit intercourse with his wife, or that he was willing to pay $50 to avoid the scandal and peril of a false accusation.

The allegation of Mrs. Rice that he carnally knew her, may possibly be true, though her subsequent conduct and that of her husband leave the question by no means free from doubt; but the pretense that he "violently and feloniously ravished" her, is inconsistent with all the circumstances disclosed on the trial. The alleged date of the occurrence was the 1st of January. Her husband returned on the 3d. On the following day the subject-matter of her complaint, whatever it was, was settled for $5 and the promise to pay $45 more. It was not of so serious a character as to prevent her from living alone with the defendant in the mean time, during the absence of her husband, or to prevent them both from living with him, for more than a week afterward, and down to the time when the plaintiff and others instigated the project of compelling him to pay $500 more, by arresting him on a warrant for felony. The apologetic tone of Rice and his wife, in their interviews with the son and the father on the night of the examination, are equally inconsistent with the theory of guilt; and their merriment over the successful result of the charge of felony, to which the plaintiff advised them, is quite significant as to the good faith of the accusation.

But it was the right of defendants to prove, as matter of fact, that the charge was false. They did not defend on the ground that the note was made to compound a felony. They alleged in their answer, and claimed the right to prove on the trial, that it was extorted from them to liberate the defendant, Sterling Robbins, from imprisonment, under an unfounded charge, preferred against him by the parties who extorted it. If this was true, it was a case of illegal duress, and the note was void. The evidence that the charge was unfounded was excluded by the judge. It was relevant to a vital issue, and its rejection was clearly erroneous. The ground on which the General Term sustained this ruling, as appears by the prevailing opinion annexed to the case, was "that the answer did not allege that the charge wasunfounded, and it was not therefore within any issue made by the pleadings." This was a misapprehension. We have referred to the answer, and find that the fact is there specifically alleged. A different reading of the opinion appears in the published report of the case. The ground there stated is "that the answer did not allege that the charge was compounded." (37 Barb., 484.) If that be the correct version, it is plain that the entire scope of the answer was misapprehended. The pleading is drawn with great precision and perspicuity, and it contains the precise allegation, the proof of which was rejected. The averment was appropriate to the defense of duress, and would have been inappropriate in an answer alleging the compounding of a felony.

We are also of opinion that the learned judge erred in rejecting the proof offered by the defendants, that the note was given to procure the release of the accused from imprisonment on the criminal charge. The purpose for which it was executed was a matter of fact, within the knowledge of the witness, and as to which he was competent to testify. (McKown v. Hunter,30 N Y, 628, 629; Bell v. Shebley, 33 Barb., 613; Cassard v.Hinman, 1 Bosw., 207.)

The defendants should have been permitted to prove the subject-matter and terms of the settlement, made on the 4th of January, between the principal defendant and the payees of the note in suit. It is not necessary to decide the question whether the agreement of compromise then concluded would be binding as an accord and satisfaction, in the nature of an account stated, in respect to indefinite and unliquidated damages, though that view of the law seems to be supported by most of the recent authorities. (Cool v. Stone, 4 Iowa 320; McDaniels v.Lapham, 21 Vt., 222; Babcock v. Hawkins, 22 id., 561;Merriam v. Leonard, 6 Cush., 150, 151, per SHAW, Ch. J.;Stockton v. Frey, 4 Gill, 424; Woodard v. Miles, 4 Fost., 294; Billings v. Van Derbeck, 23 Barb., 546; Crans v.Hunter, 28 N.Y., 389.) It is sufficient to say that the proposed proof was appropriate, in connection with the advice of Rice's counsel that he could not sue the defendant for private damages. It was relevant and material to the inquiry whether the claim of $500 for the same matter was made in good faith, or whether it was resorted to as a mere pretext to cover illegal exaction.

The judgment should be reversed, and a new trial should be ordered.