10 Me. 325 | Me. | 1833
The opinion of the Court was delivered by
The deed, under which the plaintiff holds the premises in question, is attempted to be avoided on the ground? that it was obtained by duress, by threats, or by imprisonment, or upon an illegal consideration, or because not executed freely and voluntarily.
It does not appear from the evidence to have been extorted by threats of any kind. To constitute duress by imprisonment,
The acts and declarations of the constable were not legal.evidence against the plaintiff, unless it had appeared that they were adopted by him, or done or said in pursuance of a common object. Of this, there is no evidence whatever. The plaintiff was a relative of the constable; but he is not thereby implicated or made responsible for his acts. It might render it more probable that they would be engaged in a common object, but there must be other evidence than the relationship to render the one accountable for the acts and declarations of the other. The testimony rejected had a tendency to prove that the officer conducted harshly, and had it appeared that the plaintiff had also conducted harshly or oppressively, there would have been such evidence of a common object as might have rendered this testimony admissible. But there is no proof of misconduct on the part of the plaintiff, nor was it proposed to
In Burdett v. Colman, 14 East, 163, there was no objection to the testimony in regard to the conduct and cries of the mob. Sir Francis had declared his intention to yield only to superi- or force. The mob had interposed in his favour. There was no evidence that he expected or desired their assistance ; but he resisted the peaceful execution of the warrant, with which the sergeant at arms was charged; and they manifested a disposition to aid him in the stand he took. Under this aspect of things, the question was, whether the sergeant at arms had exceeded his authority in calling in the aid of the military. And whether there was any privity between Sir Francis and the mob or not, their conduct fully justified a resort to an armed force, as a measure of precaution. In Sherwood v. Marwick, 5 Greenl. 295, there was evidence that the defendant was concerned in the procurement of the false register, of which the other party concerned, Sutton, had made a fraudulent use, in his transactions with the plaintiff', and this was such evidence of privity between them, as might properly go to the jury, in determining whether the defendant was implicated or not, by the acts and doings of Sutton.
But it is contended that it was not legally competent for the complainant, or the plaintiff-, acting in her behalf, to withdraw her prosecution, and to waive further proceedings thereon. —■ When criminal process has been instituted to bring an offender to justice, public policy requires that it should not be terminated by any understanding between the complainant and the accused, but that it should be pursued until withdrawn by the proper authority, representing the State. But the process re
In the case before us, the complainant perceived that by the adjustment, there would no longer arise any conflict of claims or rights between them, and being satisfied that she should not be further molested, she acceded to th e arrangement proposed ; and we are not prepared to pronounce this course of proceeding unlawful.
But if it was, an executed contract cannot upon this ground be disturbed. The law does not interpose for either party, in transactions founded upon an illegal consideration. If such contract be executory, the law will not lend its aid to enforce it, or if executed, to defeat or avoid it. This principle was fully considered in the case of The inhabitants of Worcester v. Eaton, 11 Mass. 368, and it is in point to show that if the adjustment of the prosecution had been illegal, the deed in question could not be avoided.
It is however insisted that the deed is void, because not given freely and voluntarily, and it is urged, that it cannot be so regarded, if the giving up of the prosecution operated in any degree upon the mind of the grantor. In point of fact the graiit- or took time to deliberate, asked and received advice, rejected
Judgment on the verdict.