Spaulding v. Crawford , 27 Tex. 155 ( 1863 )

Moore, J.

The ground upon which the court refused to permit the co-obligor, Williams, to make himself a defendant is not disclosed by the record. He was made a party defendant in the original petition; and counsel state in their brief, that the suit was discontinued against him for want of service. The record does not show that process was even issued against Williams, or that it was discontinued as to him. The transcript shows, however, that but an imperfect record of the proceedings, had in the cause in the court below, has been preserved, or brought before this court. Under these circumstances, it will not be unreasonable to indulge the presumption that, if a full record of all the proceedings that were had in the District Court was before us, it would appear that the rulings of the court were correct; especially as the refusal to permit Williams to make himself a party, is not perceived to have resulted in any injury to the plaintiff in error. It is his duty, as the party bringing the case into this court, to present to it such a transcript of the proceedings in the court below, as will enable this court fully to understand and act upon the facts which were before the court of original jurisdiction.

Courts, it is said, will watch, with some degree of jealousy, contracts made by a party while under imprisonment; and if there is ground to suspect oppression or imposition, they will set the contracts. aside. (1 St. Eq., sec. 239.) But if the imprisonment Was lawful, that is, if it was by virtue of legal process, the plea is not supported, unless it appear that the arrest was upon process sued out maliciously and without probable cause; or that, While the party was under lawful arrest, unlawful force, constraint, or severity, was inflicted upon him, by reason of which the instrument was executed. (2 Green. Ev., sec. 802.) In this case Williams, as to whom alone it is pretended there was any duress, Was under lawful arrest, but does not, during the time, appear to have been under actual restraint. He had abundant opportunity of counseling with, and taking the advice of, his attorneys and friends. No threats or improper influences are shown to have been used to induce him to give the bond. But if it had been executed through duress by Williams, it seems that the co-obligor, Spaulding, could not take advantage of this to avoid it as to himself. (2 Green. Ev., sec. 302, and cases cited.) Nor can it be seen that Williams being a party would put him in any better attitude.

From some of the facts disclosed in the record, an inference might, perhaps, be indulged, that the execution of the bond was induced by an agreement on the part of the obligee, that he would not further prosecute Williams on the charge upon which he had had him arrested, and that it would be suffered to drop by his failure to cause the attendance of the witness, when the case should be called to a hearing by the justice of the peace. If this was the case, the obligation was unquestionably void, because such an • agreement would be in violation of public policy, and would tend to impede the administration of the law, and stifle public justice. But the defendant in the court below did not attack the bond upo® this ground, or allege this to be'the fact with reference to it; and, under these circumstances, it would be gratuitous for the court to do so.

There was testimony from which the jury were warranted in concluding that the horses in dispute belonged to Crawford, and had been taken possession of and driven away by Williams; and if this was the case, the trespass and possession of the property would certainly afford a sufficient consideration to support a promise, by the wrong-doer, for its- return to the owner. The judgment is affirmed.

Judgment affirmed.-