February 24, 1888. Avery v. Layton et al. Duress-Bond given during pendency of criminal proceedings-Evidence. Where a bond was given by the defendant in a criminal prosecution during the pendency of the trial, which bond defendant alleged was given under duress but the duress is denied by the obligees, it is not error the jury that if they find from the evidence that the in an action upon the bond for the Judge to instruct bond was obtained by duress, or was given in pursuance of an arrangement to turn aside the course of justice or prevent the punishment of a crime, it is not binding. This is as favorable an instruction as a de fendant is entitled to. obligees from the claims of A. and B. against them for In an action upon a bond given by A. to protect the the sale of certain personal property which A. and B. had bought at a sheriff's sale as the property of C. and which the obligees had again levied on and sold as the property of C., notwithstanding notice of the title of A. and B., it is not error to admit testimony to recover damages for the sale, to indemnify against prove that A. had brought suit against the sheriff to which the bond was given. Error to the Common Pleas of Wyoming County. unto the said Samuel H. Brown and to his heirs | Jan. '88, 139. N H. C. O. Feigned issue, between C. S. Lafferty, the First National Bank of Towanda, Pa., Samuel Howard, Charles Hawley, and Andrew J. Layton, sheriff of Bradford County, plaintiffs, and E. F. Avery, defendant, sur rule to open judgment entered upon a bond given by defendant to plaintiffs and let defendant into a defence. At the trial, before ELWELL, P. J., the following facts appeared: At April Term, 1877, in the Common Pleas of Wyoming County, E. F. Avery entered two judgments against his father, Cyrus Avery, who lived in Bradford County. Testatum fi. fas. to Bradford County were issued on these judgments and the personal property of Cyrus Avery sold to E. F. Avery and A. R. Brown, a brother-in-law of Cyrus Avery. The plaintiffs in the present case being creditors of Cyrus Avery, alleged that the foregoing judg ments were fraudulent, and issued executions and levied upon the property bought by E. F. Avery and A. R. Brown, as above set forth. Cyrus Avery was afterward taken before Judge MORRow of Bradford County upon a warrant of arrest under the Act of 1842, and upon August 17, 1877, held to bail. Subsequently Cyrus Avery and E. F. Avery were indicted in the Quarter Sessions of Bradford County for conspiring to defraud the creditors of the said Cyrus Avery. The remaining facts are fully set forth in the opinion of the Supreme Court, infra. Plaintiffs offered evidence as follows: The personal property of Cyrus Avery having been sold in April, 1877, by the sheriff of Bradford Coun ty; and the witness and Asa R. Brown having | convicted. [You will perceive that there was a become purchasers of, a large part of that prop-lapse of time from the 9th to the 23d of Februerty; and the creditors of Cyrus Avery after-ary, within which it is testified by some of the ward, in the fall of 1877, having issued execu- witnesses there was some talk in regard to the tions against Cyrus Avery and sold considerable settlement of the claims against Cyrus Avery, of that identical property; and Mr. Brown as and that there was a release, to be signed by E. one of the claimants and Edward F. Avery as F. Avery and Brown, prepared, whether upon the another having purchased this property: the Thursday of the week of the sentence or some plaintiffs' counsel now propose to ask the witness other day in that week is not definitely fixed by whether he has not brought a suit against the the evidence, nor is it very material further than sheriff of Bradford County for the sale of the this, that before anything was said, so far as the property. Objected to. Objection overruled. evidence shows about what was to be done with Evidence admitted. (First assignment of error.) the criminal prosecution, there came up this The plaintiffs' counsel offer in evidence judg-question of getting a release from Avery and ment in Wyoming Common Pleas, No. 408, Brown.]. . . . [So that if this bond was given April Term, 1877, E. F. Avery against Cyrus Avery. Together with the testatum fi. fa. and the return. Also, judgment No. 409, with the note, testatum fi. fa. from Wyoming County, and the return of the sheriff upon it showing most of the goods were sold to E. F. Avery and A. R. Brown. For the purpose of showing that these are the two notes and judgments alleged in the indictment as being fraudulent and made in conspiracy between Cyrus Avery and Edward F. Avery for the purpose of defrauding the creditors of Cyrus Avery; to identify these judgments and notes as the ones named in the indictment. Objected to. Objection overruled. Evidence admitted. (Second assignment of error.) The Court charged, inter alia, as follows: [These plaintiffs, being creditors of Cyrus Avery, alleged that those judgments were given for a fraudulent purpose; that they were not bona fide; that it was a transaction between father and son, and that the father having become embarrassed in his business transactions, in order to make a feather bed to rest himself upon, got his son to agree to cover up the property so that the creditors could not reach it.] Under that allegation these plaintiffs issued an execution against Cyrus Avery, alleging that because the judgments of the son were fraudulent they were therefore worthless and did not stand in the way of creditors levying upon the property which had been bought in on those fraudulent judgments. The purchasers at that sale were E. F. Avery and A. R. Brown. Mr. Brown was a relative, and whether he would be affected by the fraud of the father and son is not very important here because he is not a party to this suit. [These plaintiffs issued their execution, levied upon that property, and sold it to different parties at sheriff's sale; other persons became purchasers and the moneys received from that sale were appropriated by the sheriff upon other claims, so that a portion only, I believe, of the executions were paid by those sales.] We come now in the regular order of events to consider what next occurred after they were for the purpose of making good any loss which these parties might sustain because of the conspiracy, so far as that is concerned, it would be a good consideration.]. . . . If the object and purpose in taking an instrument in writing, bond, obligation, note, or anything else, be to thwart the cause of justice and turn it aside from its proper channel, it would be invalid because illegal, and the object and purpose would be contrary to the policy of the law. Nothing should transpire to prevent justice being administered. [I can very well understand that there would be a difference between that case, where parties stopped a prosecution where it had been commenced, dropped it on receiving compensation, or on receiving an obligation that was still executory, and where he has followed it through to the end of the law and obtained a conviction. There he has so far performed his duty to the public. If a public wrong is committed it should be prosecuted not only for the punishment of the offender, but for the protection of the community against others in like cases offending. And where a party has prosecuted a case to the end, I don't think it would be sufficient of itself to defeat an obligation that he might take by his say. ing to the Court, the party has satisfied me.] ... If the bond was void, obtained by duress or by improper statements, it could not be confirmed, no matter what defendant may have said to Mr. Bunnell about it or to anybody else. If it was fraudulent when it was made, it was always fraudulent and remains so still no matter what he might say. [If, however, it was given, not for the purpose of affecting the legal proceedings against the defendant, but for the purpose of squaring things up and compensating the plaintiffs for the conspiracy, then this evidence can be made use of for the purpose of corroborating the claim on the part of the plaintiffs.]" Verdict for plaintiffs, and judgment thereon, whereupon defendant took this writ, assigning as error, inter alia, the foregoing admissions of evidence and the portions of the charge of Court included between brackets as above. The bond in this case was given under duress. The consideration for it was the hope of obtaining a modified sentence and the plea of the "law taking its course." James W. Piatt and D. C. De Witt (Ross & withstanding notice of the title of E. F. Avery Dersheimer with them), for plaintiff in error. 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 liti. gation. 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. Miller v. Miller, 18 Smith, 493. Foshay v. Ferguson, 5 Hill (N. Y.), 156. United States v. Huckabee, 16 Id. 431. 6 Wait's Actions and Defences, 649. Jones v. Rogers, 36 Ga. 157. Foley v. Greene (R. I.), 1 New Eng. Rep. 16. On the trial of the 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 The defendants in error denied that the bond was executed under duress, and alleged on An agreement in consideration of stifling or compounding a criminal prosecution, or proceed-one. ings for a felony or a misdemeanor of a public the contrary that the overtures which resulted in nature, is void. Riddle v. Hall, 3 Out. 120. Bredin's Appeal, 11 Norris, 241. Ham v. Smith, 6 Id. 65. Bank v. Kirk, 9 Id. 49. Work's Appeal, 9 Smith, 444. Coal Co. v. Coal Co., 18 Id. 188. Ormerod v. Dearman, 4 Out. 564. Connrey v Macfarlane Adms., 1 Id. 362. April 16, 1888. THE COURT. the settlement of their debts and the execution of 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 The issue in find from the evidence that the bond was obtained this case was framed in order to determine the by duress, or was given in pursuance of an arvalidity of a bond given by Avery to the defen-rangement to turn aside the course of justice, or dants upon which judgment had been regularly to prevent the prosecution or punishment of crime, entered in the Common Pleas of Wyoming it was not binding, and their verdict should be in 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. favor of the defendant in the issue. This was as favorable an instruction as the defendant was entitled to ask. 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 In the interval, E. F. Avery paid or secured the offence of which he had been found guilty. the several creditors of Cyrus Avery, against We cannot see that they were misled by the 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, not 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 F. 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 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 con nected 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. July '87, 38. H. 8. P. N. was also made without I.'s knowledge. In an action by P. Bros. against I. upon his contract, I. claimed that if called upon to indemnify P. Bros. he was entitled to any collaterals held by them as security for the debt, and that their action in making the above settlements without his knowledge and consent had released and discharged him from his obligation: Held, that though I. was a surety his equity being subsequent to that of the indorser, he had no claim to stand in P. Bros.' place as against them: Held, also, that if P. Bros. had exercised all reasonable diligence in the collection of the note and collaterals, and had applied the proceeds thereof at their true value, they had done all they were required to do gation and were therefore entitled to recover. in order to fix I. for the amount of his collateral obli Error to the Common Pleas of Bradford County. Debt, by Horace Pomeroy and S. W. Pomeroy, trading as Pomeroy Bros., against Walter G. Tracy, to recover $500, with interest thereon, from April 16, 1877. On the trial, before MORROW, P. J., the following facts appeared: The Towanda Eureka Mower Company made their note to Pomeroy Bros. for $5000, payable to the order of O. D. Bartlett, and due at ninety days, which was indorsed for the company's accommodation by O. D. Bartlett and John F. Means. This note was renewed from March 15, 1888. time to time until January 3, 1877. This last note was protested for non-payment, and suits were brought against the maker and O. D. Bartlett, one of the indorsers, and judgment ob Tracy v. Pomeroy. Principal and surety-Subrogation-Collateral securities-Contract. Where a party binds himself by a separate obligation at the instance of the obligee to pay whatever sum, not exceeding $500, said obligee may fail to collect upon a promissory note, and the collaterals held therefor, his is an independent undertaking on the part of the obligor, and when compelled to pay in accordance with his contract, he has no claim on collaterals by subrogation or otherwise. P. Bros. holding a promissory note indorsed by B. & M., and secured by a judgment for $5000 against J. S. M. assigned by B. to P. Bros. as collateral, entered into an agreement with I., by which I. promised to pay to P. Bros. "any sum which they may fail to collect on said note or from said collateral, not exceeding the sum of $500." The note having been protested, P. Bros. entered up the judgment assigned as collateral security and levied upon certain real estate as the property of M. which they bought in at sheriff's sale. This real estate being claimed by the wife of M., P. Bros. made a settlement in an ejectment suit against M. and his wife for this land, by which, in consideration of the sum of $3250, they assigned their interest in the judgment against M. to his wife, and allowed a judgment to be entered for the real estate in favor of the wife. This was done without any notice to I. P. Bros. also made a settlement with the second indorser M., who was embarrassed and made a compromise with his creditors, whereby they released him from all further liability in consideration of a certain hond and mortgage, from which it was in evidence that P. Bros. received an amount not exceeding $800. This settlement tained. Upon January 6, 1877, three days after the last note was given, Bartlett assigned to Pomeroy Bros. $5000 of a certain judgment of $10,000 against John S. and S. D. Madden as collateral for the payment of the note given by the Towanda Eureka Mower Company. On April 16, 1877, W. G. Tracy, the defendant, entered into the following agreement with Pomeroy Bros. : "Whereas, Pomeroy Brothers are the holders of a certain promissory note, made by the Towanda Eureka Mower Company, to the order of O. D. Bartlett, at 90 days, for the sum of $5000.00, and indorsed by the said O. D. Bartlett, which note was dated January 3, 1877, and whereas said Pomeroy Brothers, hold the assignment of a portion of a judgment against J. S. Madden, as collateral security to said note, and whereas said Pomeroy Brothers desire further security on said note, now, in consideration of said request, and the sum of $1.00 to me in hand paid, the receipt whereof is hereby acknowledged, I hereby promise to pay to said Pomeroy Brothers any sum which they may fail to collect on said note, or from said collateral, not exceeding, in the whole deficiency which I am to make up, the sum of $500.00 with interest from this date. Witness my hand and seal the 16th day of April A. D. 1877. "W. G. TRACY. [Seal.]" Pomeroy Bros., having issued execution against the Maddens, upon the interest in the judgment (1) The assignment by Pomeroy Brothers to Elizabeth Madden of their interest in the judgment against J. S. & S. D. Madden, which had been assigned to them by O. D. Bartlett as collateral security for the note of the Towanda Eureka Mower Company, indorsed by said Bartlett and John F. Means, was a conversion of it to their own use, and they are chargeable with its full value. Answer. This point is refused under the evidence in this case. (Third assignment of error.) assigned to them, levied upon certain real estate, and sold it as the property of John S. and S. D. Madden. A deed was made by the sheriff to Pomeroy Bros. for this Madden land, which was, however, claimed by Elizabeth Madden, wife of John S. Madden, and the Pomeroys brought an action of ejectment against her and her husband to recover possession of the land which they had purchased at sheriff's sale. This ejectment suit was finally settled under an agreement in writing filed, whereby an award of arbitrators, with the same force and effect as two (2) If the jury believe Pomeroy Brothers verdicts and judgments thereon, was made in released their interest in the Madden judgment favor of Mrs. Madden, for the land in question, which they had obtained as security for their inand she and her husband executed to the Pome- debtedness against O. D. Bartlett, without the roys a mortgage, subsequently paid, for $3250, consent of Walter G. Tracy, who is the surety which was all that the Pomeroys ever obtained of the said Bartlett, said release operates as a on the Madden judgment. At the time of making discharge of said Tracy from all liability therethis settlement, and as a part thereof, Pomeroy for, and therefore the plaintiffs cannot recover in Bros. assigned to Mrs. Madden all their interest this case. Answer. Refused. (Fourth assignin this judgment against J. S. and S. D. Madden, ment of error.) which had formerly been assigned to them by O. D. Bartlett as collateral security. The Pomeroys had also obtained from John F. Means, the subsequent indorser on the Towanda Eureka Mower Company note, who was embarrassed and made a compromise with his creditors, a bond and mortgage for $10,000 on forty acres of land in the township and borough of Towanda in consideration of which they released Means from all further liability upon said note. This mortgage was taken by Pomeroy Bros., together with one R. O. Smith, to whom Means was indebted. Judgment was afterwards obtained upon the mortgage, and the land sold and bought in by the Pomeroys and Smith. It was in evidence that the value of the interest therein belonging to the Pomeroys did not exceed $800. The Towanda Eureka Mower Company was insolvent, and the Pomeroy Bros., having realized only about $4000 out of the collateral securities for the original note and its renewal to January 3, 1877, brought this suit in accordance with the terms of the agreement entered into by Walter G. Tracy of date April 16, 1877. The defendant claimed that as a surety for Bartlett he was entitled to a re-assignment of the Madden judgment given by Bartlett to the Pomeroys as collateral security, and that by the plaintiffs' assigning this collateral without his knowledge or consent he was released and discharged from his obligation. He also claimed that the settlement made by the Pomeroy Bros. with Means by which they released Means from further liability, being made without his knowledge or consent, operated as a further discharge (3) The acceptance by the Pomeroy Brothers from John F. Means of his bond and mortgage dated July 8th, 1879, given to them and R. O. Smith to secure the payment, inter alia, of the note of the said Towanda Eureka Mower Company, indorsed by said Bartlett and said Means, and the agreement contained in the said bond that the said Means was to be released from further liability upon said note, and the subsequent sale of the mortgaged premises upon said mortgage, satisfied said Pomeroy Brothers' indebtedness against said Means, and released Walter G. Tracy, the surety of said Bartlett. Answer. Refused. (Fifth assignment of error.) (4) If the jury believe Pomeroy Brothers released John F. Means from further liability upon said note of the said Towanda Eureka Mower Company, when they accepted his said bond and mortgage without the consent of Walter G. Tracy, said release operated as a discharge of said Tracy, and the plaintiffs cannot recover. Answer. Refused. (Sixth assignment of error.) Verdict for plaintiffs for $797.50, and judgment thereon. Whereupon the defendant took this writ, assigning for error, inter alia, the refusal of the points above quoted. Rodney A. Mercur, for plaintiff in error. Munn v. McDonald, 10 Watts, 273. from his obligation, and that therefore the plain-without notice to the surety. tiffs could not recover. The defendant requested the Court to charge, inter alia, as follows :— Davis v. Funk, 39 Pa. St. 243. he is en |