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this regard he can be in no worse condition than those living in the city who have no children, and yet who pay for the support of the schools. Every man in a county, a town, a city, a State, is deeply interested in the education of the children of the community, because his peace and quiet, his happiness and prosperity, are largely dependent upon the intelligence and moral training which it is the object of public schools to supply to the children of his neighbors and associates, if he has none himself. The police government, the officers whose duty it is to punish and prevent crime, are paid out of the taxes. Has he no interest in their protection, because he lives farther from the court-house and police-station than some others? Clearly, however, these are matters of detail within the legislative discretion, and therefore of power in the law-making body within whose jurisdiction the parties live. This court cannot say in such cases, however great the hardship or unequal the burden, that the tax collected for such purposes is taking the property of the taxpayer without due process of law.

law applicable to the case was correctly stated by the learned judge, and we discover no error in the admission of evidence.

The main question arises under the eleventh assignment. The plaintiff in error offered to prove substantially that he stated to the justice of the peace before whom the prosecution was about to be instituted, the facts as he had heard them, and he was advised by the justice that they were sufficient upon which to base a criminal prosecution against the defendant in error. The evidence was rejected.

When a prosecutor fully and fairly submits to his counsel, learned in the law, all the facts which he knows are capable of proof and is advised that they are sufficient to sustain a prosecution, and acting in good faith on that opinion does institute the prosecution, he is not liable to an action for malicious prosecution although the opinion is erroneous. Shall the advice of a committing magistrate have the same effect? We think not. Justices of the peace are not required to be learned in the law. In fact, generally through the State they are not. They are not qualified by a course of study to give advice on questions of law. They do not pur

These views have heretofore been announced by this court in the cases of Kennard v. Louisiana ex rel. Morgan, 92 U. S., 481; State Rail-sue it as a profession. They are not charged road Tax Cases, Id., 575; Kirtland v. Hotchkiss, 100 Id., 491; McMillen v. Anderson, 95 Id., In the case of Davidson v. New Orleans, 96 U. S., 97, the whole of this subject was very fully considered, and we think it is decisive of the one before us. Judgment affirmed.

37.

Supreme Court, Penn’a.

BROBST v. RUFF.

In an action for malicious prosecution the defendant cannot be permitted to prove that he acted under the advice of a magistrate.

with the duty of advising any person to commence a prosecution. They ought not to act as attorney or agent for one in regard to a prosecution he is about to institute before them. Their duties are judicial. They may in the discharge thereof reduce the substance of the complaint to writing in the form of an information by the prosecutor. Then they judicially determine whether the facts therein averred, be sufficient to justify the issuing of a warrant.

An educated business man may be much better qualified than many inexperienced justices of the peace to advise as to the law; yet I am not aware that the advise of such a person has ever been held to protect against damages

Error to the Court of Common Pleas of Leigh for a malicious prosecution. county.

The conclusion at which we have arrived is Opinion by MERCUR, J. Filed October 2, not in conflict with any decision of this court.

1882.

To maintain an action for malicious prosecution the plaintiff must prove the prosecution to have been made without probable cause and that the prosecutor was actuated by malice towards the plaintiff. Malice may be inferred from the want of probable cause; but if there be probable cause it matters not that the prosecution be malicious. If the act be lawful the motives of the prosecutor will be inquired into. Whether certain facts constitute probable cause must be determined by the court, but whether such alleged facts exist, it is for the jury to find. The

It is the logical sequence of the rule declared in Walter v. Sample, 1 Casey, 275. In that case the prosecutor had acted under the advice of a member of the bar. The protecting power of the rule extends no further than the advice of one learned in the law. In an action for malicious prosecution the defendant cannot be permitted to prove that he acted under the advice of a magistrate: Straus v. Young, 37 Md., 282; Olmstead v. Partridge, 82 Mass., 381.

There was no error in permitting the amendment after a trial on the merits.

Judgment affirmed.

JORDAN v. ELLIOTT.

Where a party seeks to be relieved from the obligation of a contract on the ground of duress per minas regard will be had to age, sex and condition of life, and if the threats employed were such as were calculated to deprive one individually of his freedom of will, he will be relieved from liability, even though they were not of such a character as would produce a like effect on a firm and courageous man.

In such case, evidence is sometimes admissible to show that the person subjected to duress had heard that the person using the threats was of a violent disposition, for this may be a circumstance which among others led to the execution of the contract.

Error to the Court of Common Pleas of Bradford county.

Feigned issue, wherein Thomas R. Jordan and Sarah Jordan, his wife, in right of said wife, were plaintiffs, and Olive Fox Elliott, defendant, to determine whether a certain judgment note given by defendant had been obtained by fraud or by duress per minas.

declined, begging Jordan to postpone the matter for a day, as she was not in a fit condition to transact business. Elliott also interposed at this point, entreating Jordan not to trouble defendant. Jordan, however, thrust his clenched fist in Elliott's face, commanding him to be quiet, and turning to defendant, said "By the Eternal, if this thing is not settled to-day, I have my lawful remedy, and I will put your son in jail before night." This speech defendant construed to be a threat that Jordan would institute criminal proceedings against her son. And, being thoroughly frightened, she finally agreed to sign whatever Jordan should tender her. He, thereupon, wrote out on the spot the following judgment note:

$7,419.78. TOWANDA, PA., May 1, 1877. After death, for value received, I promise to pay Mrs.

Sarah Jordan, or bearer, Seven Thousand Four Hundred and Nineteen Dollars and Seventy-Eight Cents, with in

terest, without stay of execution, and I hereby authorize any Prothonotary or Attorney of any Court of Record, to

On the trial, before CUMMIN, P. J., the follow- appear and confess judgment for the above sum with ing facts appeared:

The defendant, Olive Fox Elliott, was a widow of about 77 years of age. Her son, Edward T. Elliott, resided with her. Said Edward T. Elliott applied from time to time to the plaintiff, Jordan, for loans of money. Jordan advanced the amounts asked for, taking as security a judgment note from Elliott, the amount of which, exclusive of interest, was $7,419.78. He also held, in addition to this note, a policy of insurance for $10,000 on Elliott's life, which the latter had assigned to him as collateral security. Jordan desiring to obtain additional security for the debt, pressed Elliott from time to time therefor, and Elliott finally agreed to give him a new judgment note for the entire amount due, in which defendant was to join as surety. On May 1, 1877, Jordan called at defendant's house in order to see her son about this new note. While he was talking to the son, defendant entered the room. As to what followed, defendant testified substantially as follows:

As she came into the room she saw Jordan pacing up and down, and heard him say, "Perhaps, this bitter cup may pass." She asked him to sit down, but he declined, and continued to walk to and fro gesticulating wildly. Elliott asked him repeatedly not to trouble the defendant, but to these requests Jordan paid no attention, and in a very fierce and excited manner continued to talk of the amount due him.

Defendant became very much alarmed at this conduct, and began, together with several other women in the room, to cry. Jordan then proposed to her to give him a judgment note for the whole amount due. This proposition she at first

costs, and waive the benefit of all laws exempting property from levy and sale on execution, and the right of inquisition on real estate. With interest from 14th of February, 1877, it being understood this note is not to be entered unless others are going to be.

Defendant signed it, but in her agitation, wrote her maiden name, instead of her married one, a mistake which she testified she had never before made, and which was, at Jordan's request, immediately rectified. Jordan then withdrew, but the next day called again, and was let in at the door by defendant. Being alarmed at his coming, she asked him to go away. replied that he only wanted to leave some papers which belonged to her, and, accordingly, produced Elliott's judgment note and the policy of insurance on Elliott's life, which he had assigned to her. He then tendered to her the following receipt which he desired her to sign:

He

Received, Towanda, Pa., May 1, 1877, of Thomas R. Jordan, a certain judgment note, dated 2d month, 14th day, 1877, for $7,419.78, due at Forty-five days to the order of Thomas R. Jordan, and signed E. T. Elliott. Also a certain Policy No. 51,958 in the Connecticut Mutual Life Insurance Co., of Hartford Conn., for $10,000, on the life of E. T. Elliott, which said policy was assigned by E. T. Elliott to Thomas R. Jordan, as a collateral security for a loan of moneys, and by the said Jordan to me the

aforesaid securities being this day assigned, sold and

surrendered to me for which I have executed and delivered to Mrs. Sarah Jordan my own judgment note dated May 1, 1877, for $7,419.78 with interest from 14th February, 1877, and due after my death. [Which last said note contained a stipulation that it is not to be entered unless others are going to be. Now I hereby waive said stipulation and consent and agree that judgment may be entered on my said note at any time at the option of the holder thereof.]

Defendant at first declined to sign this paper, but, at length, consented to do so, upon Jordan's

assuring her that it was a mere receipt for the papers which he had delivered to her. She did not read the paper nor was she aware of the contents thereof. As soon as the receipt was signed, Jordan threw the old judgment note of Elliott in the fire, and immediately afterwards quitted the house.

Defendant's account of what transpired upon both of the occasions when Jordan was at her house was corroborated by several witnesses who were present. Jordan, being examined, denied the truth of many of defendant's allegations, and admitted the truth of others, but stated that he had used no undue influence to induce the defendant to sign the note or the receipt, and that she was perfectly cognizant of the contents of both those papers before she signed them. The note was entered up with the accompanying receipt on May 2, 1877. On May 7, 1877, on affidavit of defendant, the court granted a rule to show cause why the judgment should not be opened.

Depositions having been taken, this rule was made absolute, and the present feigned issue subsequently awarded.

Upon her examination in chief on her own behalf, defendant was asked, inter alia, the following question: "Had you at the time of Jordan's visit heard anything about his reputation as a man of violence?" Objected to by plaintiffs. Objection overruled. Question allowed. Exception. Defendant then replied, "I had always heard that he was a violent man, but I never saw anything of it personally until that day."

Plaintiff's presented, inter alia, the following points: 1. The signature of the defendant to the note, and stipulation for immediate judgment being admitted, the burden of proof of want of consideration is upon the defendant; and unless she has satisfied the jury of such want of consideration by clear and satisfactory evidence, their verdict on this point should be for the plaintiff. Answer. We affirm the point. The law is correctly stated in it. The burden of proof is upon the defendant, Mrs. Elliott, if she seeks to set aside this judgment note for want of consideration, the burden is upon her to show this want of consideration by clear and satisfactory proof. When a party signs a paper, the presumption is that they understand what they are doing, and the law holds them to it. And if they seek to set it aside, the burden is upon them to show the want of consideration, or whatever other cause they may seek to set it aside.

3. The claim of duress, or that the note was signed under compulsion, is one easily set up by

a person desiring to get rid of an honest transaction, and when it rests upon the unsupported testimony of a defendant, should have little weight with a jury. Answer. This point we affirm as a general proposition, but what weight is to be given to the evidence is for the jury, and it is not for us to say whether it should be little or much. But where a party seeks to set aside a paper for the causes alleged in this point, and there is no other proof in the case than the testimony of the party seeking to set it aside, it would not be sufficient of itself, as we think, to set aside a paper of that kind. The effect of the evidence, and what would satisfy your mind as sufficient, of course is for you and not for us, and you will determine what is sufficient to set aside such a paper. But when we say that the unsupported testimony of the party would not be sufficient to set aside a paper, you are to understand that we do not take that question from you. It is for you to say what is sufficient to set aside a paper of this kind. We do not determine the question for you. It is not for us to say what would be sufficient to set it aside. There might be circumstances which would justify the setting it aside, and the question of the evidence and of the effect of it is for you and not for us.

The plaintiffs also presented a number of points, to the effect that there was no such evidence of such fraud or duress, per minas, as would suffice to invalidate the judgment. All of these points the court refused.

The court charged, inter alia, as follows:

"There is no question that the note was signed by Mrs. Elliott on the first day of May; the signature is not denied; but it is alleged that the note was obtained from her by false representations, or by threats, or duress, and that she did not have the control of her will at the time she signed the note; that there was such restraint put upon her by what was said by Mr. Jordan, and what was done there, and the manner in which he did it, that she was put into such a state of terror and fear that she was not competent to act for herself; and that really what she did was the will of the person making the threats, and not her own will. This is really the important part of this issue. It will be for you to consider all that occurred on that day. You will notice who was present, what was said, and how it was said, and what was done, and the circumstances under which these things were done. It will be also your duty to consider the writing that was executed that day, and the signature upon it; the terms of the paper itself, and what effect it was to have upon the person or property of the person signing it, and what

effect it was to have on her enjoyment of her thus obtained from Mrs. Elliott was filed, and property.

***

"It will be also your duty to consider the situation of the parties, and what Mr. Jordan went there for, and how he was prepared in advance for obtaining the signature which he desired.

"It will be your duty to consider the age and sex of the parties to this transaction, and all the circumstances surrounding the procurement of this signature. Now, it was perfectly competent for Mrs. Elliott, if she desired to do so, to have given her note, and to have signed this paper waiving the stipulation which was contained in the note, in consideration of the taking up of the notes which her son was liable for to Mr. Jordan. She had a right to do that, and if she did it in the exercise of her own will, she is bound by it, just as any other person would be bound, and the transaction in itself is not unlawful. It is a lawful transaction, and the only questions for you to decide are the questions raised by this issue-whether she was induced to sign this note by false representations, such as we shall hereafter explain to you in the points submitted, or whether she did it under the pressure of threats and violence which deprived her of the exercise of her own will. If she did in that way, then it was not her contract, and she would not be bound by it. * * * You will also consider what took place upon the occasion of Mr. Jordan's second visit as having a bearing on this question."

Verdict and judgment for defendant. Plaintiffs thereupon took this writ, assigning for error, inter alia, the admission in evidence of defendant's testimony as to her having been told that plaintiff, Jordan, was a violent man, and the answers to plaintiff's various points. For plaintiff in error, Messrs. W. H. Jessup and Henry Streeter.

Contra, D. A. Overton, Esq.

Opinion by GORDON, J. Filed April 10, 1882. On the first of May, 1877, Mrs Olive Elliott, a widow, aged seventy-seven years, executed to Mrs. Sarah Jordan, wife of Thomas R. Jordan, a judgment note (not under seal), in the sum of $7,419.78, payable "after death." The alleged consideration for this note appears in a paper purporting to be Mrs. Elliott's receipt, bearing the same date as that of the note, but, in fact, executed the day after, that is to say, the delivery to Mrs. Elliott of a note of her son, E. T. Elliott, to Thomas R. Jordan, in the same amount as the obligation above stated, and the assignment of a policy on the life of E. T. Elliott, in the sum of $10,000, and which, it seems, Jordan held as collateral security. The note

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judgment confessed thereon the next day after its execution, and within five days thereafter application was made to open it, in order to permit a defense on the ground of duress and fraud, and, on the sixth of the following May, the rule was made absolute and a feigned issue directed. The substantial question of this case is, whether there was such evidence of duress and fraud in the execution of the note as justified its sbumission to the jury. The court below thought there was, and submitted it accordingly. In this we think there was no error. The circumstances which surrounded the old lady, and which induced, or rather compelled, her to execute the paper in controversy, were of an extraordinarily rough, impudent and fraudulent character.

As first executed, it was without consideration. The arrangement between Jordan and E. T. Elliott was that the latter was to renew a former note, with his mother as surety, but instead of this, and in face of the opposition of the son, a note executed by the mother alone was taken. Practically, this made little or no difference, for, so far as we can gather from the evidence, E. T. Elliott was insolvent; legally, however, it made the difference between some consideration and no consideration. As the matter then stood, there was simply the assumption by Mrs. Elliott of the debt of her son without any consideration whatever.

The receipt, already referred to, supplies this defect by setting forth the assignment to the defendant of her son's note and the collateral life policy. But this transaction has an exceedingly suspicious appearance. It was evidently an after-thought, and designed to meet the omission of the day before.

This conclusion is strengthened by the false date which seems to have been intended to make the note and receipt appear as contemporaneous acts. When these facts are considered, together

with the circumstances under which it was obtained, we cannot but regard the whole affair as one of gross fraud and imposition.

It was drawn by himself; he put it into what suited himself, not only without her consent, but in spite of her protest that she wanted nothing from him but his absence from her house, and on his determined persistence, anxious only to be rid of the person of a man whom she most justly hated and feared, at the same time refusing to receive either the note or the policy, she put her name to what he had written. What a mere mockery of justice to call this paper the agreement of Mrs. Elliott!

The transaction of the preceding day, which

We are aware that neither under the rule of the civil nor common law, as formerly expressed, would there be sufficient to release Mrs. Elliott from her contract. For, according to Blackstone, the threats to produce such an effect must be of such a character as to induce a well grounded fear in the mind of a firm and courageous man of the loss of life or limb; and the rule of the civil law was of like import; the fear must be of that kind which would influence a man of the greatest constancy, “Metus non vani hominis, sed qui in homine constantissimo cadat." As we have already said, the fantastic heroics of Jordan would not have been sufficient to induce a courageous man to do that which he was not disposed; hence, if this rule is to be applied to the case in hand, the defense is insufficient. But, fortunately for the weak and timid, courts are no longer governed by this harsh and inequitable doctrine which seems to have con| sidered only a very vigorous and athletic man

produced the note in question, was both scandalous and violent. Jordan's sudden appearance in the hall of Mrs. Elliott's house; his tragic exclamation as though in soliloquy, "Perhaps this bitter cup may pass," when in the sitting-room, his rapid pacing back and forth with fierce gesticulation. When pressed by the old lady to leave until the next day, that she was at that time not fit to do anything, he answered by lifting up his hand and invoking the God of heaven to bear him witness that he would have the matter settled, or forth with prosecute her son. All these things were well calculated to fill her with great fear, and the more so, as she had heard that this man was one of great violence, and had threatened to shoot her son. But the fear thus produced was naturally much aggravated by Jordan thrusting his fist in Edward's face, and ordering him to keep quiet, when he attempted to interfere; for it thus became evident that Edward, instead of being able to protect his mother, lacked the power or cour- | hood, overlooking entirely women and men of age to protect even himself. Then, when this Edward, the son, began to tell Jordan how he might have defeated his collateral by taking his own life, the climax was reached; then it was "the girls began to weep and cry," and the old lady now ready, as she says, through terror and alarm to do anything to put an end to this, as it appeared to her, frightful scene, signed the note. Even in this act there occurred a circumstance | which shows the confusion of her mind, for she signed her maiden name, a thing which, on ob-proved by the judicial mind, both of this country serving, she declared she had never done before since her marriage. This mistake was promptly corrected on Jordan's order to add the name "Elliott," and thus we have the signature "Olive Fox Elliott."

Jordan, having now accomplished his object, departs, but only, as we have seen, to reappear the next day, in order to correct by Mrs. Elliott's hand what he had neglected to accomplish the day before, and to force upon her a valueless consideration, which she refused to accept.

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weak nerves. Pothier regards this rule as too rigid, and approves the better doctrine, that regard must be had to the age, sex and condition of the parties. Since that fear, which would be insufficient to influence a man in the prime of life and of military character, might be deemed sufficient to avoid the contract of a woman or man in the decline of life: Evans' Poth. on Oblig. I, 18. And we think the opinion of Mr. Evans expresses the dotrine which is now ap

and of England, that is, that any contract produced by actual intimidation ought to be held void, whether, as arising from a result of merely personal infirmity, or from circumstances which might produce a like effect upon persons of ordinary firmness. Parsons, in his work on contracts (Book I, p. 395), considers the rule now to be, that where the threat whether of mischief to the person, property or reputation, is such as to destroy the threatened party's freedom of will, the law will not enforce a contract executed under such a threat. This view of the law has strong support in the case of Williams v. Bayley, H. L. Ca., 1 L. R., 200. A son had obtained money from a bank on froged indorsements; on discovery, the bank officers insisted on a settlement to which the father should be a party, He, knowing the fact of the forgeries by his son, though there was no direct threat of

Now we are free to admit that, to a man of ordinary courage, this fuss and fume of Jordan might have been regarded as a mere farce, and would probably have been productive of a consequence no more serious than a summary and unceremonious ejectment of the intruder from the premises. But to this old lady, helpless as she was, and unprepared either to encounter or deal with such sham heroics, the matter was al-prosecution, yet, under this pressure, executed together different, and the jury were justified in believing that she was much frightened, and that her will was so controlled thereby that the obligation which she signed was not her free and voluntary act.

an agreement to mortgage his property, and the notes with the forged indorsements were delivered to him. Held, the agreement was invalid; Lord WESTBURY, in his opinion, holding that there were two reasons for refusing to enforce it:

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