26 Mich. 518 | Mich. | 1873
This was a suit by defendant in error, on a covenant set out in the declaration, and the first objection is, that a breach is not assigned.
■ The plaintiff in error contends that his covenant was in the alternative, and that he had the right either to collect the Eaton notes of Brooks, and pay over the, agreed sum from the proceeds on or before July 1, 1868, or after the latter date to pay the same sum from his own means, and that the averment of non-payment after July first, did not negative performance through collection of Brooks, and payment out of such collection, but merely negatived the •second alternative.
The only other objection deserving notice is, that the jury were not allowed to pass upon testimony bearing upon the question of illegal obtainment of the covenant.
The record manifests that evidence was adduced, having ■tendency to show that Seiber was arrested in Detroit and taken to Pontiac on a charge made against him by Price, •for false pretenses. That while he was before the justice on that charge, he gave the covenant in settlement of the transaction out of which grew the very criminal accusation •on which he was under arrest, and that he was then immediately discharged. He, himself, testified that he was told at the time by some one, that if he did not settle they would take him to Jackson.
His counsel, in substance, solicited a charge that if the ■covenant was given' to stifle the criminal prosecution, or if the arrest and imprisonment were caused merely with a
If the stopping of the prosecution was understood as entering into or forming any part of the consideration of the covenant, or if Price resorted to the criminal prosecution to obtain civil redress, and accordingly did, by means of the pressure of such prosecution, obtain it in the shape of the covenant, or if Price made the criminal prosecution a handle for getting the covenant, and thereupon Seiber
The judgment mast, therefore, be reversed, with costs,, and a new trial ordered.