37 Tex. 47 | Tex. | 1873
We think the court erred in overruling the exceptions to the defendant’s plea in this case. The plea should set forth the illegality of the acts of Captain Collins, the commandant of the military post of Brenham; that his acts were illegal, and that he had no authority in like cases to arrest and imprison. The pleading was insufficient in law, if his allegations had been proven.
But the verdict in this case is so manifestly against the evidence, that a new trial should have been granted, and it was error in the court to overrule the motion.
A brief analysis of the evidence, such as is contained in the appellant’s brief, serves to show that the verdict is not supported by the testimony. Five witnesses, Norton, Simon, Allen, Bassett, and Thwacker, are called to make out the defense of duress. Three of these witnesses, Allen, Simon, and Norton, state that Johnson was not in arrest at the time he made the settlement with the appellant. Thwacker confirms this statement, upon the. information of others. Bassett only states, with some hesitation, that Johnson was under arrest at the time the settlement was made. Two of these witnesses, Norton and Simon, were upon the arbitration which took place between the parties, and had very ample opportunity for knowing the facts of which they testify. But it is very questionable whether an arrest, such as appears to have- been made in this case, could, if satisfactorily proven, constitute a defense to this action. It must at least be shown that the arrest operated to force Johnson into a contract under which he has suffered,, or is about to suffer, some wrong or injury; and if it be shown that
Reversed and remanded.