| Conn. | Jun 15, 1852
There are several matters to which our attention has been called, supposed to be suggested by this motion, to which we have not thought it necessary to advert. They are immaterial. Some other questions deserve consideration.
1. The declaration contains two counts; one special, declaring on the note in suit; the other a general money count; both counts intended to set up the same cause of action. In the special count, it is alleged, that the defendants, in and by a certain writing or note, under their hands, by them well executed, promised, &c. Under this allegation, it appeared, or proof was offered, that Arnold, one of the defendants, executed the note in no other way than by affixing, with his own hand, his mark between his name and the word “mark;” thus, “Ethan Arnold's X mark;” and that the written words
The note, thus executed, was objected to as evidence under the first count, on the ground of variance between it and the note. We think there was no essential variance. It has always been holden, that an instrument may be well executed by the mark or cross of the signer; it is the making of the mark, by himself, by his own hand, which constitutes the execution of it under his hand; the written name only designates whose mark or execution it is. This is essentially different from the cases cited by the defendants, in which the averments in the declaration were, in substance, that the notes were executed by the defendants, their own names, in their own proper hand-writing, being thereunto subscribed, &c. Nor is the case altered, by the fact, that Phelps guided the hand of Arnold in making the mark, so long as Arnold acted freely.
2. The defendants claimed, at the trial, that the note in suit was given without consideration; and that said Arnold was a blind man, and did not know the object or purport of the note to which his mark was affixed. But the plaintiff claimed, that a violent assault and battery had been committed upon him, by several persons, with whom the defendant Arnold was confederate, and who were impelled and influenced by him to commit the assault; and that the note in question was understandingly executed by Arnold, on a settlement and as a compromise of the damages claimed by the plaintiff of him; and to prove that the note was thus given, R. R. Phelps, Esq., was called as a witness, to testify, that when the note was executed, one Spafford, a confederate in the assault, in the presence and hearing of Arnold, stated the circumstances of the assault, and Arnold's connexion with it. The proof thus offered Was objected to, and admitted.
Although Arnold was blind, yet he could hear; and if facts were stated in his hearing, which implicated him, as a participator in the crime, and showed his liability, to the plaintiff; and when this matter was the subject of consideration and conversation, and he made no contradiction, nor explanation, nor offered to do so; this certainly conduced to prove his assent to the facts thus stated, and of course, that
3. It was urged in defence, that, when this note was executed by Arnold, he was blind, and could not and did not read the note; that he was then under an arrest, and was held in custody under a criminal prosecution; that he was, in that condition, overcome by threats, and was not a free and voluntary agent in executing the note. In charging the jury upon this part of the defence, the court said, that threats, in order to avoid the note, must have been such as would have intimidated a man of ordinary firmness. Of this instruction the defendant complains.
If this had constituted the entire instruction of the court to the jury on this subject, we might well doubt whether the jury were not probably misled by it. Taken by itself, it was calculated to withdraw their attention from the particular circumstances of the case, and the peculiar condition of Arnold, as the defendants claimed them to be, and to fix it upon the case of a man of ordinary firmness, which the defendants denied Arnold to be. But the whole evidence was before the jury, not only as to the actual state and condition of Arnold, whether a man of ordinary firmness or not; but the evidence of the threats, if any, and of what nature they were, and in view of it all, the court, in addition, correctly informed them, that if Arnold had mind enough fairly and fully to comprehend the cause and object of the note, and the nature and extent of it; and if he acted as a free and voluntary agent in executing it, the note would be good; otherwise, it would be absolutely void. This is the fair import of the charge; and the judge was not requested to be more specific. And it seems to us to cover the whole ground of objection; and that a jury of ordinary intelligence could not have been misled, by the general principle first advanced by the judge, which was legally correct, connected with his subsequent remarks.
4. Nor had the defendants good cause of complaint, that the judge charged the jury, that a lawful arrest and detention, where there was no abuse of process, was no duress. This is an elementary principle. 1 Sw. Dig. 311. 2 Inst. 482.
The question upon the whole of this part of the case, was,
5. In connexion with the foregoing, we notice another claim of the defendants somewhat analogous in principle. It was, that the note was given under the pressure of a criminal prosecution, and to induce a suppression of it. The plaintiff denied this, and claimed, that the pendency of the criminal process had no influence, and was not intended to have influence, in procuring the note. And here again, the court charged the jury, that if the note was given freely to satisfy the plaintiff’s private claim for damages, it was good; but void, if, as the defendant claimed, it was given, either in whole or in part, to suppress an enquiry into the commission of an offence, or to prevent, in any measure, the administration of criminal justice. We cannot believe that the defendants have suffered from a charge in so many ways intended to protect their rights.
We have looked over this motion attentively, and we see no cause to grant a new trial.
New trial denied.