Avery v. Layton

[618] Opinion, Mr. Justice Williams: The issue in this case was framed in order to determine the validity of a bond given by Avery to the defendants in error upon which judgment had been regularly entered in the Common Pleas of Wyoming county. The allegation of Avery was that the bond had been obtained from him by duress. The evidence given on the trial shows that the obligor and Cyrus Avery, his father, had been indicted in the Quarter Sessions of Bradford county for conspiring to cheat and defraud the creditors of Cyrus Avery, and that upon a trial before a jury they had been convicted. The verdict was rendered against them on the 9th February, 1878, and the sentence was postponed until the 23d day of the same month. In the interval, E. F. Avery paid or secured the several creditors of Cyrus Avery against whom it was alleged the conspiracy was directed, and gave the bond in controversy. The purpose of the bond was to protect the obligees from the claims of E. F. Avery and one A. R. Brown against them for the seizure and sale of personal property which Avery and Brown had bought at sheriff’s sale as the property of Cyrus Avery, and which the obligees had again levied on and sold as the property of the same defendant, notwithstanding notice of the title of E. F. Avery and Brown. The proceeds of such second sale having gone in part payment of the debts of Cyrus Avery which E. F. Avery was paying or securing at this time, the bond was given to protect the creditors at whose instance the sale was made, and close out the prospect for further litigation. On the 23d February, 1878, when the defendants were called for sentence, the court was made aware of what Avery had done in the premises, and thereupon sentenced the defendants to pay a fine of five dollars and the costs of prosecution. On the trial of this issue E. F. Avery insisted that he executed the bond under the influence of representations made to him by the creditors and their attorneys, that if he did not do so he would be sentenced to the penitentiary, while if he executed the bond his sentence would be a nominal one. The defendants in error denied that the bond was executed under duress, and alleged on the contrary that the overtures which resulted in the settlement of their debts and the execution of [619] the bond were made by Avery; that they assigned to him the several claims against his father which,he paid or secured; and that they made no threats or promises to induce the execution of the bond by him except a promise that the court should be advised of whatever he might do for their protection. Here was a plain question of fact for the decision of the jury. It was fairly and clearly presented to them by the court. They were instructed, if they should find from the evidence that the bond was obtained by duress, or was given in pursuance of an arrangement to turn aside the course of justice, or to prevent the prosecution or punishment of crime, it was not binding, and their verdict should be in favor of the defendant in the issue. This was as favorable an instruction as the defendant was entitled to ash. His contention is rather, as it seems to us, with the jury than with the court, for the verdict shows that they gave credit to the testimony on behalf of the obligees and rejected his version of the transaction. They found that the bond was not executed under duress, that it was not intended to prevent the due administration of the criminal law, but was given voluntarily, for the purpose of making reparation for the offence of which he had been found guilty. We cannot see that they were misled by the learned judge in his charge either as to the evidence they were to consider, or the rules of law by which they were to be governed. The admission of the offer to show that E. F. Avery had brought a suit against the sheriff to recover damages for the sale to indemnify against which this bond was given, was proper for the purpose of showing the situation and interest of E. F. Avery in the issue trying. The admission of the evidence which is the subject of the second assignment, was proper for the same reason and because it was part of the history of the transaction out of which the giving of the bond in suit resulted. The language of the learned judge complained of in the third assignment, was not his own characterization of the conduct of the father and son, but a statement of what the creditors of Cyrus Avery, the plaintiffs in the issue, alleged against him and E. F. Avery, his son. The statement in the charge [620] to which exception is taken in the fourth assignment of error, was not strictly accurate, but it was not material'to the question on which the case evidently turned. The real contest was over the circumstances connected with the execution and delivery of the bond; upon this subject the charge was correct both in its recitals of the evidence and its instructions. None of the assignments of error is sustained. The judgment is therefore affirmed.