9 W. Va. 358 | W. Va. | 1876
This was an action of debt brought in the circuit court of Pendleton county, by Eli Simmons against Ja-
The facts certified, as all that were proven at the trial, are as follows : In 1860, the 'plaintiff sold the defendant land, who, thereupon, executed the bonds named in the declaration; that some time in the month of Decern-
The defendant having'appeared, and filed his demurrer and pleas, thereby recognized this case as in the court, and waived thereby all delects in the taking of the rules, if any really existed. Harvey v. Shipwith, 16 Grat. 414. The court-properly refused to grant the defendant oyer of the bonds, the excuse for not making profert of them, alleged in the declaration, that they were in the defendant’s possession, being a sufficient excuse. Smith’s Admr. v. Lloyd’s Ex., 16 Grat. 295. The court properly overruled the defendant’s general demurrer to the entire declaration. For, though the third count was fatally defective, in failing to aver non-payment of the debt, (Green v. Dulaney, 2 Munf. 518), yet as the other counts were good, the demurrer to the entire declaration was properly overruled.
The objection to the first and second counts, that they do not sufficiently identity the bonds is not sound; for they not only give the amounts of the bonds, when payable, and to whom, but also their date — that is--day of-, 1859, and thus these bonds are fully described. And, though, according to the averments of these counts, the bonds were blank in their dates; yet this would not vitiate the bonds, and the court, upon the demurrer, must assume that these bonds on their face had the day and month of their dates blank, and they are thus perfectly described in the declaration.
It is insisted by the appellant, that evidence, tending to shew duress, was improperly admitted, under the issue, in this case. We incline to think that) even if objected to, the testimony tending to shew duress, in the receipt of Confederate money, should have been received under the issue joined in this case. But it is unnecessary, to decide whether the evidence now complained of by appellant, ought, if objected to at the time, to have been permitted to-go to the jury; lor, as the record does not shew that any objection was made to the reception of this evidence,-it must be regarded as properly before the
The only remaining question is, should the court have granted a new trial ? In deciding this question this Court should not only consider all tlie facts certified, but also such facts as are matters of general histoi’y, affecting the whole people, of which the courts take judicial notice ; such as that the late war was pending at the time these bonds were surrendei’ed, having commenced in Virginia on April 27, 1861. The Protector, 12 Wall. 100. Agnew v. Allston, 15 Wall. 555; that Confedei’ate notes were issued early in the war, by the Confederate Government, and that these notes, in a shoz't time, became almost exclusively the currency of the the Confederate States; Thorington v. Smith, 8 Wall. 7; that at the time the first of these bonds was surrendered,
Before determining whether the jury were justified in finding that the bonds sued upon tvere surrendered under duress peí’ minas, let us examine the law as to what constitutes such duress. Lord Coke says: “Itmust- not be
Was the first bond surrendered under duress per minas, as above defined.
All that is relied on by the appellee, as proving that he was influenced by fear of imprisonment, is that the appellant, when he offered him Confederate notes in payment of the bond, said to him: “ it was more than he dared do, to refuse to receive Confederate money in payment of the bond; that he would be liable, for refusing to take it, to be considered disloyal, and to he put in prison, and kept there until the end of the war.” This was said in a county over which the Confederate government then had jurisdiction de facto. Each of these parties, so far as the record shows, had equal opportunity to know what were the laws under which they were living, and by these laws no one was under obligation to receive 'Confederate notes in the payment of any debt, and, of course, no one could be considered to be disloyal for declining to receive them in the payment of any debt, or could, by so doing, render himself liable to imprisonment, or any other punishment. The record does not
The appellant had no control of any military force, and no influence with the Confederate authorities, civil •or military, which he might use against the appellee; -he •could not have induced them, in violation of their own laws, to imprison the appellee; he did not pretend to-have, or threaten to exercise, any such influence; he had no power to imprison the appellee, and he did not threaten to do so. We must, therefore, regard the declaration of the appellant, made at the time he offered to pay the first bond in Confederate notes, as a foolish expression of opinion., which ought not to have influenced any man of ordinary intelligence and firmness, nor was the receipt, at that time and place, of Confederate notes, in payment of the debt, any evidence of imbecility of intellect, or timidity of mind. The court knows, judicially, that Confederate notes were then but slightly depressed, and were received, throughout the Confederate States, in payment of debts. In truth, they were then far less depressed than United States treasury notes afterwards, during the progress of the war, became. These Confederate notes* when received by the appellee, were worth at least as much, as compared with gold, as were United States notes shortly after the close of the war. The appellee* in receiving them, only did what the great mass of the people living in the Confederate States, uninfluenced by fear, were then doing, daily. The statement of the ap-pellee, that he surrendered his first bond, “ through fear of being considered disloyal, and of being arrested, and
The surrender of the second bond was not even alleged to have been done through fear of imprisonment. When surrendered, in the fall of 1S62, there was not only no threat made of any sort, but nothing was said, so fax as the facts certified show, that, could have excited fear in even the most timid; the appellee simply says, “ that he gave up the bond, though not agreeing to the transaction, but preferring to wait-for times of peace, when the whole matter could be investigated.” It is not alleged that he so told the appellant; this purpose was “ internal and secret.” The surrender of the bond, as paid in full, showed, so far as the appellant could know, that he did agree to the transaction, and his secret purposes were immaterial. The fact, that he thought no more thereof, until seven years after the war closed, is evidence that this secret purpose ivas not of a decided character. It is true, that the manner in which the bond of the appellant’s father-in-law, for $300, payable in Confederate money, ivas given to the appellee, indicates trickery on the part of the appellant, and the appellee properly objected there, to its being credited on this last bond, but some time afterwards, when this last bond was surrendered, his conduct indicates clearly that he had changed his mind. He appears then to have agreed to it, as a credit on the appellant’s last bond, and it being there with other payments and offsets, fully satisfied, he surrendered the bond. In this transaction the appellee acted with full knowledge of all the facts, and must be held bound by his actions.
It is insisted, however, that this case should be ruled by the decisions in the court of Mann v. Lewis, &c., 3 W. Va. 215, and Mann v. McVey, 3 W. Va. 232. This
In the present case, it does not appear that the appellee was a Union man. We cannot infer this, merely from his reluctance to receive Confederate money in payment of a- debt, especially as we find him offering to pay a debt of his own in Confederate notes-; nor does it appear that the appellant was a sympathizer with the Confederacy. In those cases, the appellant told the appellee that the Confederate Congress had-passed an act, making Confederate notes a legal tender, and the court relied strongly on this fact as proving duress or fraud. It ought not to have been relied on as establishing either duress or fraud, for it was a public fact, and each party had an equal opportunity of knowing whether it was true or false. In those cases, the bonds were surrendered in the latter part of 1863 and in 1864, when the court says Confederate notes were worthless, or nearly so. In the present case, the first bond was surrendered when Confederate notes were but slightly depreciated; in fact, worth as much as United States notes shortly after the close of the war. The court, too, in those cases, refused to make any allowance for the value of the Confederate notes received by the appellees, asserting that it was unlawful for the appellees to have here used, and passed, Confederate notes — a position repudiated by the Supreme Court of.the United States, in Thorington v. Smith, 8 Wall., and also by this Court, in 6 W. Va. And, lastly, those'
The refusal of the court to set aside the verdict of the jury, and grant a new trial, and the judgment of the court, in accordance with the verdict of the jury, were erroneous, and must be reversed, and the appellant recover of the appellee his costs expended in this Court; and the verdict of the jury must be set aside, and a new trial awarded the defendant, the costs of the former trial to abide the event of the suit.
"Verdict set Aside, asd New Triad Awarded.