10 N.H. 532 | Superior Court of New Hampshire | 1840
The plaintiffs having procured leave to amend their declaration, in anticipation of the defence which might be set up against their claim upon the note, (ante 165,) the question now made is, whether they can recover in this suit upon their original demand, which is the subject of the new count, introduced by the amendment.
There was a lawful debt due from the defendant to the plaintiffs. This is not disputed. While this existed, an arrangement was made between them, by which the plaintiffs received the note of a third person for part, and the note of the defendant for the residue, with certain property in payment of costs, and discontinued the criminal proceedings which have been instituted against the defendant.
It is not necessary to enquire whether, in case the settlement had been voluntary on the part of the defendant, and without any illegality attending it, the transaction would not have operated as a payment and discharge of the account for the goods sold, so that the plaintiffs could afterwards have sustained no action upon it. The promissory note of the party is not always a discharge of a precedent debt for which it is executed. Ante 505, Jaffrey vs. Cornish. For the purposes of this case, it may be assumed that such would have been the intention of the parties, and the operation of the transaction, had the settlement been made fairly, without any coercion, or misuse of criminal process.
But it appears that this arrangement was procured by duress of the defendant. He had the right to refuse to be bound by that settlement, (9 N. H. Rep. 200,) and he has
The settlement being avoided, by reason of its illegality, has no operation to discharge the original demand; and the plaintiffs’ cause of action upon that is not revived by the subsequent avoidance of the note, but the note being now a nullity, so much of the plaintiff's’ account has never been legally settled. It is, in this respect, as if those proceedings had never taken place. The plaintiffs’ debt is not to be considered as having once been paid, and afterwards restored by a revocation of that payment, but the settlement being avoided by the defendant, there has been no payment, and the original cause of action has existed from the beginning. 6 D. & E. 52, Puckford vs. Maxwell; 1 N. H. Rep. 282, Wright vs. First Crockery Ware Company; 3 N. H. Rep. 348, McCrillis vs. How.
The objection, therefore, that this suit was commenced when no right of action existed on the account, cannot be maintained. The defendant cannot allege that the settlement was illegal, being procured by duress, but legal to extinguish the plaintiff’s’ original demand, for a time, until he saw fit to revive it again by his election to avoid the note.
But it is farther objected, that the plaintiff's cannot maintain an action, until they return the property received upon that settlement.
If the plaintiffs, upon the facts existing in this case, might, upon their own motion, have avoided this settlement, on account of its illegality, and because it was procured by an agent who had no authority for the purpose, and they had done so, the case would have presented a different aspect. We are inclined to think the defendant, in a case of that character, would be entitled to say that the plaintiffs could not avoid a settlement by which he was willing to be bound, and maintain a suit upon the original demand, until they had
But the defendant made the election to avoid what had been done. He cannot add to that election a condition that the plaintiffs shall return the property received, before they sustain a suit on their claim, which, as the case now stands, has never been discharged. The avoidance being on his part, their right of action is not impaired by the fact that they have unlawfully received some of his property ; and he must take his remedy for the duress, and for the recovery of the property, by an action for that purpose.
Judgment for the plaintiffs.
