This action is upon a promissory note for $500, made by the defendants on the 13th day of January, 1860, payable one year from date, to Burrill Rice and Esther Jane Rice or bearer, and transferred by them to the plaintiff. *Page 376
The defense set up is that the note was obtained by extortion, duress and fraud, and was given for an unlawful consideration, to wit: the settlement of criminal proceedings instituted for an alleged rape, by the defendant, Sterling Robbins, upon the said Esther Jane Rice, and that the plaintiff received the note without the payment of value therefor, and with notice of the consideration and the circumcumstances under which it was given.
The action was tried at the circuit by the court and a jury, and resulted in a verdict for the plaintiff for the amount of the note.
The case shows that Sterling Robbins, one of the makers of the note, was complained of before a magistrate, at the instance of the plaintiff, by Esther Jane Rice, the wife of Burrill Rice, the payees of the note, for a rape upon her, and was thereupon arrested upon criminal process, and taken before the magistrate, and detained until he gave the note in question, with Giles Robbins, his father, as his surety, and then was suffered to go at large, and that no further criminal proceedings have been had against him, though evidence was given tending to show that the note was given for the civil damages to the payees, and not as a settlement of the criminal complaint; also that the plaintiff, when he took the note, was cognizant of the consideration, and of the circumstances under which it was given.
After such evidence was given, the defendants offered to show that on the 4th of January, 1860, an agreement was made between Burrill Rice and defendant, Sterling Robbins, by which Rice settled with Robbins for the damages which he had sustained from the alleged rape by Robbins upon his wife, Robbins agreeing to pay him $50 in full thereof, $5 of which he paid down, and the residue he was to pay when he should have threshed his oats. This was objected to by the plaintiff as incompetent and immaterial, and excluded by the court.
There is one view in which I think this evidence was competent. One line of defense was, that the note was given in settlement of the criminal charge, and any evidence tending *Page 377 to show that fact was admissible. Now, if it could have been shown that Rice had already settled the claim for civil damages arising out of the alleged rape, for $50, part of which had been paid, it tended to show that this note for $500 was not given in settlement of those damages, but really in settlement of the criminal charge, as alleged in the answer. The defendants, therefore, were entitled to put that fact before the jury, by the testimony of the witness by whom they offered to prove it, to be weighed with the other evidence which had already been given tending to the same result.
The defendants also offered to prove the falsity of the charge of rape, and that it was part of a plan or combination to extort money on the note in suit from the defendants. This was objected and excluded.
I think this offer of the defendants was clearly admissible. If the defendants could have shown that the payees of the note combined to extort money from the defendants by a false charge of rape against the defendant, Sterling Robbins, and thereby procured the note to be given, it was within the line of defense marked out by the answer, and in its character competent and material as a defense to the note in the hands of the payees, or of any person who received it with notice of such facts.
The defendants having excepted to the exclusion of the evidence above referred to, it follows, if I am right in the view above taken, that they are entitled to a new trial. I am of the opinion, therefore, that the judgment should be reversed and a new trial granted.
All the judges concurred in the foregoing opinions, except GROVER, J., who concurred in the result, and HUNT, J., who took no part in the case.
Judgment reversed. *Page 378