17 Tex. 195 | Tex. | 1856
This suit was brought by the appellant on a note of hand, given by the defendant to one Saunders, and endorsed by him to the appellant. The defendant set up in his answer several defences against the note sued on, in each of which he alleges that the plaintiff had notice : and here, although out of the proper order, we had as well , say, that notice to the plaintiff, before the endorsement, is clear beyond controversy. It is not necessary to state the several defences set up by the defendant in his answer, because they all range under the following heads :
First, that the note was given under duress, and in fear of bodily injury, and great and irreparable loss of property.
Second, that it was given without any legal consideration.
And, lastly, that it was procured by fraud and combination.
We propose discussing these points in the order here presented. It is admitted that, at Common Law, duress, to avoid a deed or contract,.must be under such cirucumstances as to put a man of ordinary nerve in fear of life or limb, or other great bodily jnjury; and that the fear of the loss of mere property, will not sustain the defence of duress per minas. These are admitted to be sound legal propositions, by the ancient
It is believed, however, that more modern decisions have still further modified the rule, and that it is not essential to make out the defence of duress from the fear of the loss of property, that the inability of the threatener should appear to answer in damages to the sufferer, if his property had been injured or destroyed ; that if there was reasonable ground to fear such loss or destruction of property, it would sustain the defence. It has been so held in South Carolina, uniformly,, it is believed, since about the year seventeen hundred and ninety. (See 1 Bay, R. 13 ; Id. 470 ; 2 Bay, 241 ; 5 Hill, 154.) We can perceive no solid ground of objection, in so extending the doctrine of duress, founded in principle or policy. But we need not discuss it, because it does not necessarily arise in the case under consideration. The defendant has, in this case, made the inability of the threatener to pay damages an element of his defence, and the question is not presented, what would be the law if he had not so made it. It has been,
The defendant sustained his defence of a want of consideration, unless the evidence offered by the plaintiff, that the note was given in consideration of the settlement of a ground of action, that the plaintiff’s assignor had against the" defendant. The compromise of a right of action would, in general, be a sufficient consideration to support an action. If Saunders, the payee of the note, had a cause of action against the defendant for an illicit intercourse between the defendant and his wife, it would have been a good consideration for the note ; but, in that case, it would have been important to have shown that she was his wife. If she was not, but only the kept mistress, the intercourse with her would have been a gross immorality on the part of the defendant, but would have been no ground of action for damages by the payee against the defendant. It was, therefore, essential to have shown that the relation of husband and wife really existed between the payee of
We proceed to the third and last ground, that the note was procured by a fraudulent combination of divers persons, some named and others not known. We believe the evidence fully sustains this defence. In the first place it raises a strong suspicion, that the charge made by the payee, Saunders, of an intercourse between the defendant and the woman he called his wife, was made by him without any grounds whatever, but made the occasion of the fraud designed to be perpetrated
We believe that there is no error presented by the record : and the judgment is affirmed.
Judgment affirmed.