26 Mich. 70 | Mich. | 1872
Feller was sued on a note which he had signed as surety
The judge finds a valuable consideration for the note, so that the plaintiff was entitled to judgment, unless the alleged duress appeared. Upon that subject he found that Smith was arrested upon an unfounded charge of bigamy, on the complaint of a person acting as agent for the plaintiff and other creditors; that the agent, after the arrest, proposed to drop the charge and settle with Smith for a certain sum of money; that the officer suffered Smith to go off with the agent, at the request of the former, some twenty miles, the officer not accompanying them; that while thus away from the officer, Smith took legal counsel, and. was advised that he was not liable on the criminal charge, because, as matter of fact, he had been married but once; that Smith nevertheless made a settlement with the agent, giving the note in suit in security for a portion of what he was to pay; that Feller .signed the note at Smith’s request; that while the negotiation and settlement were, going on, the sheriff had not exercised any control over Smith, and had nothing to do with him; but after they were concluded, the sheriff told him, “You are clear now;” that “there was no settlement, or attempted settlement of a felony,” and that, “while the arrest was treated as continuing, the settlement was of matters entirely independent of the matters charged in the warrant of arrest,, and Smith knew he could not be legally held under, or,for the charge made.”
Unless this finding is a finding of duress, it is obvious
: To make out the defense of duress of imprisonment, it must appear that the party’s action has been influenced by the restraint. If he has only paid, or secured, a just debt, while held in custody, the 'transaction is not to' be avoided, unless he did so because of the custody. The question is one of fact, whether he was coerced, or- acted willingly; and the conclusion of coercion is not a necessary and unavoidable one from the fact of unlawful restraint. Still less would it be unavoidable in a case like the present, where the party is suffered to go at large, and has every assurance that the restraint, at most, can only subject him to a litte inconvenience.
Had the circuit judge been required to find specifically opon the question of duress, he might perhapsjhave found it
It is proper to state here, that it does not appear hut that the arrest of Smith was upon process good in form, nor hut that the complaint against him may have been made in good faith. Smith, it seems, had actually been living with the complainant’s sister, as husband with wife, and having afterwards married another woman, the complainant may possibly have believed in his legal guilt, until the arrest brought out the real facts. There are forcible inferences from the record, the other way; hut it is not our province to draw inferences of fact. We -make this statement for the purpose of precluding any conclusion that we are discussing a case in which it is found as a fact, that sham process has been employed by parties who could have had no motive but to force the result which was reached.
The judgment must be affirmed, with costs.