29 Conn. 232 | Conn. | 1860
If this cause had gone to the jury on the general issue, as we think it should have done, instead of being involved in special pleadings, much of the argument here, if not of the controversy below, would have become un
The action is on a note of hand, given by the defendants in consideration of a certain compromise effected by the plaintiff in his own behalf and that of others, with one Samuel Richards, a brother of the defendants. To this action the defendants have pleaded four pleas. They say, first, that there were pending in the circuit court of the United States two certain actions brought by the plaintiff as guardian of Julia Liddy and Sarah Campbell, against said Richards, for frauds and wrongs by him committed upon them, to their great dishonor and injury ; which actions the defendants say were really insustainable in law or equity, and of wliich the plaintiff had full knowledge; and that said note was given in consideration of the plaintiff’s forbearing the further prosecution of said actions and for no other cause or consideration. In the second plea they aver that the said Richards was prosecuted criminally, at the instance and procurement of the plaintiff, for certain crimes and misdemeanors alleged to have been committed by him against said Julia and Sarah; and that said note, besides the payment of $100 in money, was given in consideration that the plaintiff would consent that said prosecution should be abandoned, and, so far as depended on him, discontinued. The third plea is made up of the facts stated in the first and second plea combined, and needs no further notice. The fourth plea avers that while said civil actions were pending in the circuit court aforesaid, the plaintiff represented that he was guardian to said Julia and Sarah, and as such settled said suits, and all claims in their behalf, or of either of them, upon said Richards for said alleged frauds and wrongs, and took from the defendants, besides said $100, the said note in satisfaction; while in fact he was not guardian to either said Julia or Sarah, and had no authority to make said compromise or to discharge said Richards from said claims, and did fradulently impose upon these defendants in getting said note.
Let us examine the instructions given, and see what they were. The defendants asked the court to instruct the jury, as matter of law, .that the two suits in the circuit court could not be sustained in law or equity, and that the withdrawal of them by the plaintiff, (he knowing that they could not be sustained,) would not be a good and valid consideration for the note. No evidence however was offered to prove such knowledge in the plaintiff in fact; but the defendants insisted that as a principle of law the plaintiff was bound to know, and must be held to know, that the actions could not be maintained.
Now, it appears to us that this claim of the defendants, if well founded, could not be of the least importance in the result; for the judge charged the jury that however this
Besides, if we were to examine this question of law, we can not assent to the correctness of the defendants’ claim, that the plaintiff was bound to know the law herein at his peril. Eor some purposes, it is true, a man can not plead ignorance of the law, especially as an excuse for not doing what the law requires of him, or for doing what it forbids. But nothing can be further from the truth than that this maxim is applicable hi all cases. If so, what becomes of bona fide compromises, settlements and -amicable arrangements, the very object of which is to avoid the uncertainty of the law, when perhaps there is no uncertainty as to facts ? It could never be endured that bona fide arrangements of this kind should be held to be of no validity. Besides, if the plaintiff is held to know what the law is in this case, so are the defendants, and it follows that the defendants and their brother Samuel have voluntarily given up this defense, if they could have made it successfully in those actions, preferring to avoid the publicity of a trial, (so little creditable to those concerned,) rather than encounter the hazard of defeat and the further hazard of aggravated damages. Had the defendants persevered in their choice to the present time, we think it would have been far better for them than this renewal of the controversy, and placing on the records of the court a transaction which will be read and known while courts and records shall endure.
Nor are we at all satisfied that the law is so, that the actions in the circuit court would not have been maintained, if the facts could have been fully proved. Why might they not ? It is said they were actions for seduction, and that a
But these defendants can not be allowed to avail themselves of any such rule of law in this case, for two reasons ; and we do not regret that it is so. First, the note in question was given after the seduction, and it has always been held that such a note is good, on the idea, we presume, that it was in honor and justice due as some indemnity for the loss of character, certainly so in view of the seducer, and as a means of future support to the woman he has ruined. And in the next place, we are strongly inclined to the opinion, that those two actions in the circuit court would have been sustained on a demurrer or motion in arrest of judgment, by reason of their peculiar facts. Let us see if it is not so. Those declarations state that Samuel Richards, living in Wethersfield, in this state, had been in the practice of procuring young girls, under the pretense of employing them in his family, for the mere purpose of seducing them and keeping them for purposes of debauchery and prostitution; that said Julia and Sarah, being about fourteen years old, without parents or relatives or the means of support, were
Now, if fraud and damage are enough to sustain an action on the case, which has been the law ever since and before the case of Paisley v. Freeman, 3 T. R., 51, here is enough stated, one would think, to sustain the actions in the circuit court; and the defendant in those actions must have been suspicious that it might be so, as it would have been very easy for him to have brought the question to the test. But he declined to do so, preferring an amicable adjustment to the consequences of a trial.
The declaration in those suits, in a word, stated that through fraud and deceit said Richards had obtained the possession of those little girls, carried them to Wethersfield, away from
Under the second issue the defendants offered evidence to prove the allegations contained in the second plea, and claimed that the note was tainted and made void on account of the facts therein stated. The court charged the jury as to the effect of these facts in accordance with the defendants’ claim; and so far certainly the defendants have no ground of complaint. In the latter part of their request to the court for its instructions to the jury on this issue, the defendants ask the court to charge the jury, “ that if the plaintiff in any manner induced the defendants to believe that said criminal suits would be withdrawn and abandoned if said note was given and said money paid, and the defendants were thereby led to give the note, the same was void.” The facts here supposed fall quite short of the settlement of a criminal prosecution by agreement, which is the point of the objection if there be any. If such a settlement had been made, it would, we admit, be a valid objection to the note, as the court had explicitly told the jury. The jury must have found that the note was given in settlement of damages and for loss of services, and if the defendants did entertain the hope, or even the belief, that this step would somehow lead to an abandonment of the prosecution by the state attorney, that expectation can have no effect upon the character of the note. And further, were it important, this particular objection does not appear to us to be embraced in the defendants’ plea or in the issue joined to the jury.
In the progress of the trial, the defendants introduced one Gilbert, who testified that he was present when the note in suit was given, and that he was desirous of bringing about the compromise, and took an active part therein. On the cross examination he said he had several conversations with said Smith, at Hartford, and in the cars going to Hartford, which, conversations the plaintiff claimed, and the court found, related to and terminated in the settlement of which the note constituted a part. To this evidence on the cross examination the defendants objected, because the conversations were not had in the presence of the defendants. The court very properly overruled the objection. This was not an attempt to prove a fact by hearsay testimony, or by what a stranger said in the absence of the party, but to show the character of the note — in what it originated and on what consideration it was founded. Certainly this inquiry was entirely proper, and the testimony in its nature admissible, whether the defendants were present or absent.
The only thing remaining for consideration is the objection taken to the testimony of Mr. Brace, the secretary of the Children’s Aid Society. He testified that there was not, to his knowledge, any vote on the records of the society disapproving of the conduct of the plaintiff, Mr. Smith, touching the suits in the circuit court. Here was a negative. How could it be proved otherwise than by parol evidence ? Had the records been present in court and examined, it would only appear that there was no vote to be found; and why may not an officer of the society, familiar with its records, and perhaps the keeper of them, testify that he has never seen any such vote ? Certainly he would have to say thus much, if his testimony had been taken by deposition in New York, or if he had the book now before him and before the jury. We think he may as well examine the records in New York as here, whether in the presence or in the absence of the jury. It is
We are asked further to grant a new trial for a verdict against evidence. The evidence is fully recited in the motion, and has been minutely commented upon by counsel. On a careful review of this testimony we are inclined to think the verdict correct as it stands. Some little doubt perhaps might arise with regard to the exact character of the consideration of the note, whether it was or not tainted with the illegality set up in the defendants’ second plea in bar. But the testimony is not altogether clear for the defendants on this point. It is certainly essentially contradicted, and the weight of the proof is with the plaintiff. As we have said, we are most of us satisfied that the verdict is correct as the jury have rendered it, and certainly it is not so much against the weight of evidence in the minds of any of us, as that we can say that the jury did not take a fair, dispassionate and impartial view of the evidence before them, which is all they were bound to do.
The salient points of this case are such that we do not feel ourselves called upon to set aside the verdict unless the path of duty is very plain. We can not consistently encourage attempt's to avoid the payment of a note given for the benefit of
On the whole, then, we do not advise a new trial.
In this opinion the other judges concurred.
New trial not advised.