
    Francis James v. Hosea Roberts.
    Where a person has been induced by threats of a groundless prosecution, to execute a note and mortgage, a court of chancery will grant relief, and restrain their collection.
    This is a bill in chancery, reserved in Trumbull county.
    The bill is filed for the purpose of canceling a mortgage, and certain notes given by complainant to defendant, which are alleged to- have been obtained by the defendant without consideration, by means of threats, and putting the complainant in fear of a criminal prosecution, for perjury. The transactions out of which the difficulty arose, commenced in January, 1837. At that time Francis James, the complainant, being the owner of fifty acres of land, sold the same by title bond, to Isaac C. Robe, for five .hundred and twenty-five dollars, payable in four annual payments, for which Robe executed his notes. The deed for the bond was to be made on the payment of the purchase money. In the month of March, 1838, Robe, who had been in possession of the property for something more than a year, being about to go down the river, sold his interest in the land, by assigning the title bond to the defendant Roberts, for twenty-five dollars. Roberts went into the possession of the land, and remained in possession until the month of November, 1838, when the first note for the purchase money, having been for some time due, and unpaid, he sold out his interest in the land, and delivered up the title bond to complainant James; and James delivered over to him Robe’s notes for the purchase money. Roberts delivered over these notes to a man by the name of James Jenard, who brought suit against Robe to recover their amount.
    In that case the deposition of James was taken by Robe, the defendant in that suit. James testified, in substance, that when the notes were delivered by him to Roberts on his receiving back the land, the agreement was, they were to be delivered up to Robe. Roberts asserted, that in this deposition James had sworn falsely. On the ninth of September, 1841, Roberts, in company with two other men, Goodrich and Freeman Deming, started to Ravenna; Roberts says in his answer, that he was going to Ravenna for the purpose of getting out a warrant against James for perjury. They stopped at James’s house, and he went with them to a justice of the peace, who drew up the mortgage and notes now in controversy, and James executed them.
    All the other facts in the case are matters of controversy, and being questions of facts are not inserted here, but are stated in the opinion of the court.
    
      Wm. S. 0. Otis, for complainant.
    The case was submitted for the complainant without argu ment.
    
      Hitchcock, Willson Wade, for defendant.
    
      In this ease, it is confidently believed that a careful examination of the testimony will show clearly that all the material allegations of the bill are disproved, and if so, it must of course be dismissed.
    But supposing we are mistaken in this view, and that the court find that the consideration of these notes and this mortgage was the prevention of a criminal' prosecution, is the complainant entitled to the relief sought ?. We insist that he is not. It is to be observed here, that he takes nothing by the allegation that the charge was false. In cases of' this kind, the court never look to the collateral inquiry, whether the prosecution stifled, the charge made, is well or ill founded. The inquiry is, what induced .the promise — what consideration moved the parties ? Was the object to prevent an investigation — to suppress inquiry ? If yea, the law declares it contrary to sound policy, and subjects both parties to the rule, that courts of justice will leave them where they find them; that they will lend their aid to neither. Such is the language of the authorities. Thus, in 2 Kent’s Com. 366, and 4 Ohio Rep. 418, it is said “ a contract, the consideration of which is to conceal a crime, or stifle a prosecution, is necessarily repugnant to public policy,” etc. So, in Johnson v. Ogilby, 2 P. Wms. 277, the agreement was to “ stifle ” a “ criminal prosecution.” So, also, in Harding v. Cooper, 1 Stark. N. P., the agreement was “ to drop a prosecution.”
    But if the law would permit this inquiry to be made, the complainant here attempts to impeach both his own deed and his own note, on this ground. Of course he must offer some proof tending to show the falsity of the charge made. He, however, has utterly failed to do so. On the contrary, it is shown that he admitted the deposition complained of to be false; and the matters therein stated are, moreover, shown to be untrue by several witnesses. If, therefore, the court shall find the consideration of the mortgage and notes in this case to have been the suppression of a criminal prosecution, the naked question presented, is, will a court of chancery interfere, at the instance of the maker of them, to decree their surrender or cancellation ? We insist that it will not. Waiving, for the present, any argument based on the well established principle, that equity never interferes in favor of parties in pari delicto, we insist that the question is no longer an open one in this • state; that is fully settled by the case of Raguet v. Roll, from Hamilton county.
    That case has been before this court, in different shapes, four different times, and arose out of this state of facts: Raguet suspected, and accused, Roll’s son of larceny, and threatened a prosecution, but agreed to omit it, and to use his influence to prevent an investigation, if Roll and his son would execute their two notes, for $500 each, and secure the same by mortgage. This proposition was accepted, and the notes and mortgage were executed accordingly.
    Upon one of these notes Raguet commenced suit, and the same came, before the Court in Bank, on the question of the sufficiency of a plea setting forth- the above facts. The plea was sustained, and the court clearly and distinctly declared the principle governing all cases of this kind, in these words : “ Whenever an agreement appears to be illegal, immoral, or against public policy, a court of justice leaves the parties as it finds them; if the agreement be executed, the court will not rescind it; if executory, the court will not aid its execution.” 4 Ohio Rep. 419. *
    After this, Raguet caused a scire facias to be issued, to which a plea of the same facts was interposed, and the same came on for hearing at the Dec. term of this court, A. D. 1835, when the court sustained the plea on the ground that, in cases of this kind, “ the law is, in executed contracts, that the parties are to be left precisely as they are found. The law lends no aid to either plaintiff or defendant.” 7 Ohio Rep. (pt. 1) 78.
    Raguet then brought an action of ejectment on the mortgage, which came before this court on a motion for new trial, and was decided at the December term, A. D. 1836. In that case it was distinctly held, that the legal title passed to Raguet; that the mortgage was an executed contract, and the ejectment might be maintained by virtue of it. The court say, “ The distinction between an executed and executory contract, whose consideration is unlawful, is a very plain one. In the former case, the court will not annul; in the latter, they will not enforce ; and this course, so totally opposite in the two cases, is intended to be subservient to the same end, the prevention of an immoral act.” 7 Ohio Rep. (pt. 2) 70.
    In Cowles v. Raguet et al., 14 Ohio Rep. 38, the same facts again came before the court, on a bill in chancery, presenting a much stronger case for relief to Roll, than the present case makes for the complainant. In that case Cowles had purchased the mortgaged premises, under a decree upon a junior mortgage, dated in 1835, and his bid left a surplus of $1,500, which of course belonged to Roll, unless properly applicable to some other valid existing incumbrance. In 1832, after forfeiture, Raguet had assigned the mortgage and notes to McMieken, for the benefit of his creditors. Cowles filed his bill asking to be permitted to appropriate the surplus to the payment of the mortgage money due to Raguet or his assignee. Roll was party, and defended on the ground of the illegal consideration of the mortgage and notes. Here was a case where the action of the court became necessary to prevent the money from going into the hands of Roll, and, inasmuch as that became necessary in order to meet the spirit and reason of the law governing such contracts, it was not withheld; but the court decreed, that the surplus money should be applied to the payment or redemption of the mortgage, and denied the validity of his defense. To allow the position assumed by him, the court say, “ would in effect amount to a rescisión, by a judicial tribunal, of an executed contract, the consideration of which was against public policy, and which would be contrary to the opinion of the court, as expressed in the case already cited from 4 Ohio Reports.”
    This, it will be observed, was a case in chancery, and yet the court adhered firmly to the doctrine settled in the previous cases, and refused to do any thing which might, by possibility, operate to rescind an executed contract based upon an illegal consideration. On what ground, then, can the complainant ask the rescisión of the mortgage in the present ease ? How can the two be distinguished ? We submit, that to grant the relief sought, would subvert the authority of all the cases above cited. But these decisions, in Ohio, are not peculiar. The same doctrine is fully recognized, and the same distinction acted upon in Inhabitants of Wooster v. Eaton, 11 Mass. 375 to 379, and we have been utterly unable to find an authority or even a dictum to the contrary. The complainant, therefore, cannot have his mortgage canceled.
    But as to the notes secured by it, he is equally destitute of any equity. This follows, necessarily, from the previous argument. Indeed, it is impliedly and necessarily settled by the cases above cited. To grant him relief in reference to the note, would be to cancel the mortgage, to declare it a void incumbrance, and effectually to overrule all the principles laid down in the several cases above cited from the Ohio Reports; it would be to do indirectly what the court would not do directly, a course never adopted by courts of justice, and directly condemned in the case of Cowles v. Raguet et al., above cited.
    Aside from these decisions, however, we insist that the relief sought as to these notes cannot be granted, for the following reasons :
    1. There is ample and adequate remedy at law, and of course no necessity for the interference of this court. A court of chancery never interferes to set aside or rescind a contract, to which there is a legal defense, unless under very peculiar circumstances. It leaves the parties to their" rights at law. Indeed, the power of the court to interfere at all in such cases, has been much doubted. In some cases it has been directly denied; in others, the relief has been delayed and the cause continued until the question could be tried at law; while in others, where the facts were undisputed or some difficulty attended the defense at law, relief has been given at once. See the case of Hamilton v. Cummings, 1 John. Chy. 522, where the authorities are collected and the subject fully discussed. In that case the general authority is admitted, but the chancellor says it is in all cases a matter of discretion, and in reference to both the bonds against which relief is there sought, finds there would be difficulty attending the defense at law, and this is made the ground of his interference. In the present case no special circumstances are alleged in the bill; none in fact exist. The notes remain in the hands of the original payee; if given for an illegal consideration, there is at law a perfect defense— no difficulty intervenes to prevent complainant from setting it up; and there is no necessity for the interference of a court of equity, for the exercise of the discretion spoken of by the chancellor in the case last cited.
    2. The complainant is precluded from relief by the fact that he is a party to the illegal contract, and by the application of the well known rule, “ in pari delicto potior est conditio defendentis.” With such agreements, neither courts of equity nor of law will interfere. If parties will enter into such immoral or illegal contracts, they must abide the consequences without asking the aid of courts of justice. “ Whenever an agreement appears to be illegal, immoral, or against public policy, a court of justice leaves the parties as it finds them.” 4 Ohio Rep. 419; 7 Ohio Rep. (pt. 1) 79; 14 Ohio Rep. 38; 2 Stark. 88, 102, note; 1 Swift Di. 219; 1 Story Eq. 296, and cases there cited.
    3. If chancery would not necessarily refuse its interference, the complainant has not made such a case as entitles him to relief. He must do equity before he asks it. But the case shows, beyond a doubt, that he is indebted to the respondent; that such indebtedness constituted a part, if not the whole, of the consideration of the notes in question. That indebtedness he ought in equity to discharge. We admit, to its fullest extent, the rule, that a contract predicated in part upon a legal and in part upon an illegal consideration, is void, and cannot be made the basis of an action. But the application of the rule is limited to cases where the contract is sought to be enforced, either at law or in equity. Where the obligor seeks to avoid, it by the aid of a court of chancery, it- does not apply. There he must first pay, or offer to pay, the amount in equity due, or to comply with his contract, so far as the consideration is legal. Such is the law relative to bonds and other contracts tainted with usury, and all analogous eases. This is a familiar principle, requiring for its recognition no reference to authority. Such payment, or offer to pay, is obviously dictated by the rules of common honesty, and is a condition precedent to the right to seek relief in a court of equity. The present complainant has failed to comply with it, and therefore his bill must be dismissed.
   Caldwell, J.

The bill alleges that at the time of the making of the mortgages and notes to Roberts, Roberts and the Demings called on James at his barn; that Roberts told him he was going to prosecute him for perjury; that he was on his way to Ravenna for that purpose; that he had two witnesses who would swear that the statements in his deposition were false, and that unless he would settle with him, he would have to go to the penitentiary ; that he asked for time to consult his family and neighbors; that Roberts refused, telling him that nothing but immediate compliance would save him, and that he might consult the Demings, who were friendly to him; that he, James, did advise with the Demings, who told him he had better settle with Roberts; and that thereupon, being greatly alarmed, he executed the notes and mortgage, for the purpose of saving himself from the threatened prosecution.

The bill also alleges the innocence of complainant from said charge ; and states that in his deposition he only swore to such facts as he well remembered to be true. The bill further states that the consideration paid to Roberts by James, for delivering up the land, was twenty-five dollars, which was paid at the time of the transaction.

The answer denies the principal allegations of the bill. Roberts states that he procured a copy of the deposition of James from the clerk of the court of Trumbull county; that he started in company with the Demings to go to Ravenna for the purpose of instituting the prosecution; that when they got to Charleston, in the neighborhood of where James lived, Freeman Deming proposed that they should go and see James; that he read to him the deposition; that James said it was false, that he had never sworn to it, that he signed it without reading; and that James proposed to settle it, and asked him, Roberts, on what terms he would settle it; that he told James that he could not settle for the state, but that for his own part he would settle ; that James requested the Demings to say nothing about it, and that they shortly after went to a justice of thé peace, who drew up the notes and mortgage, and that James executed them. Roberts states that the consideration of the notes and mortgage arose out of the arrangement he made with James to deliver up to him the land. He says that James agreed to give him seventy-five dollars; that James paid him twenty-five dollars in cash, and that for the remaining fifty he gave him the notes of Robe, amounting to $525 ; that Jenard had brought suit on these notes, and failed, and that he, Roberts, had to pay the costs, which amounted to $83.81; that the fifty dollars on the contract respecting the land, these costs, and the costs and damages which he might afterwards have to pay on account of the false deposition of James, constituted the consideration of the notes and mortgage.

The first inquiry which we propose to make is, whether there was any valuable consideration for these notes and mortgage. This necessarily leads us to examine, in the first place, what was the contract between Robe and -Roberts, in reference to the notes of Robe held by James ?

Susannah Robe, the mother of Isaac Robe, states that Roberts told her that the bargain between him and Isaac, was, that he was to pay twenty-five dollars and keep the notes for Isaac, as they were paid off. She says that after Roberts had sold out to James, and had got from James the notes he held on Isaac, she heard that Roberts was trying to sell the notes, and she went to him and told him what she had heard. He denied it, and said he was about to start south on a peddling tour, and that he would take the notes to Isaac, who then lived in Licking .county.

Seth Oviatt says that Roberts told him, that he was to pay Robe twenty or twenty-five dollars, and clear Robe of the contract, or lift the notes — witness is not certain as to the language. '

James E. Robe states, that shortly after the sale of thwrand to Roberts, when his brother Isaac was about to leave this part of the country, they went together to the shop of Roberts, and his brother said to Roberts : You will see old James and get those notes, and stand between me and all harm.” . Roberts said he would.

Seth Oviatt, jr., said he heard Roberts say that he had bought the article for the land, from Robe; that he paid Robe twenty-five dollars for it; that he got a piece of wheat and some wood or saw logs, and that when he got the notes he was to deliver them up to Robe.

Isaac Robe states.that the contract was, Roberts was to pay him twenty-five dollars for the land, and lift his notes.

On the other side, we have the testimony of Asahel E. Goodrich and Horatio Roberts, who state, that at the time the contract was made, Robe said he did not care a damn about the notes, that he had got two hundred dollars worth of timber off the land; and Horatio Roberts says that he, Robe, said he was going away, and did not expect to return. Chancey Richards says that he had a conversation with Robe about the contract. In that conversation, Robe told him he did not care a damn about the notes; Roberts might lift them or not, as he chose.

Here it will be seen are five witnesses on the one side, whose testimony goes directly to prove that the contract was, that Roberts should lift these notes of Robe’s, and save him from all liability on them. On the other side, we have the testimony of three witnesses, whose testimony goes to show that. Robe expressed a perfect carelessness about what should become of the notes; still this evidence is perfectly compatible with his, considering himself freed from all liability on their account. Indeed we think that would be the fair inference from it. We think the direct evidence in the case proves very clearly that the contract between Roberts and Robe was, that Roberts should lift the notes for Robe. But the circumstances of the case, we think, place the matter beyond all doubts. No other understanding in reason could have existed between the parties. Roberts could not get the title to his land without paying off the amount of the notes. Robe, who, from the evidence, is a responsible man, and the owner of real estate, transferred the title bond for the land to Roberts, and put him into possession, leaving the whole of the purchase money unpaid. Now that Robe should sell out his title for twenty-five dollars, and pay the whole of the purchase money for the land, is inconsistent with all our notions of men and things.

The next questipn arising in the case is, what was the understanding between James and Roberts in reference to these notes of Rohe’s, at the time Roberts delivered up to James the land with the title bond, and James delivered up these notes to Roberts ?

The claim of the defendant is, that the contract was, that he was to receive seventy-five dollars from James for deliver ing up the land; that twenty-five dollars was paid in money, and he took these four notes of Robe’s for $525, for fifty dol lars.

The testimony of Susannah Robe, (that we have alluded to above,) is to the effect that he, Roberts, had received these notes, to deliver them over to Isaac Robe.

Seth Oviatt states, that after Roberts had given up the land to James, he had a conversation with Roberts about what he got for it. Roberts stated that James gave him twenty-five dollars; Robert's at the same time remarked that he had had the use of the land.

On the part of the defendant, Horatio N. Roberts, Edward H. Oviatt and Samuel Thomas, state that they were at the house of Roberts when the contract was made, and that Roberts received seventy-five dollars, twenty-five in money, and Robe’s notes at fifty dollars. Here is a direct conflict of testimony. It will be seen that there are three witnesses testifying on the part of the defendant, and two on the part of the complainant. Although the defendant has the advantage so far as the number of witnesses is concerned, yet when we take the other facts and circumstances of the case in consideration, we think the evidence very strongly preponderating in favor of the complainant. That Roberts and James, after the title bond and the land had been delivered up to James, should make these notes of Robe’s, given for the entire purchase money of the land, which Roberts had purchased, and the amount of which, as we before remarked, he was bound to pay before he could obtain his title for the land, and which, if we are right-in our conclusion above, he had contracted to lift, and hand over to Robe, the subject of sale for a valuable consideration is altogether unreasonable. Besides, that these notes, that amounted to $525, with a considerable amount of interest on them, should have been sold for fifty dollars, adds to the improbability of such a transaction. The other theory is the reasonable and consistent one. James received back his land, and the title bond which he had given. He did not pay for the land, he only paid for such interest as Roberts had in it, with all the purchase money unpaid, and he delivered up the notes that embraced the entire consideration for the land under the contract that by this arrangement had been put an end to. If we are right in this, it establishes two important facts in the case : 1st. That the deposition of James, taken in the case of Jenard v. Robe, was true in stating that these notes were merely delivered up by him, and not sold.

And, secondly: That the mortgage and notes given by James to Roberts, and which are sought to be set aside by this proceeding, were made without any pecuniary consideration passing from Boberts to James. The next, and only remaining question of fact in the case is, whether these notes and mort gage of James to Boberts, were obtained through fear, occa sioned by threats of Boberts to prosecute James, criminally, for perjury.

Now, we think this appears from the answer of Boberts to have been the case, although he denies it in words. He states that he started that day in company with the Demings to go to Bavenna, for +he purpose of commencing a criminal prosecution ; that one of the Demings, when they had got to Charleston, proposed that they should go and see James; that they went to him, and he read to him the deposition; that James admitted that it was not true, and asked how he could settle, and requested them all to say nothing about it. Boberts’s own answer, as given by himself, shows that he understood James to mean a settlement of the prosecution; he replies, that he cannot settle for the state, for he had no authority to do so; but for his own part, he would settle for one hundred and fifty dollars. They went before a justice, had the writings executed, and Boberts proceeds no further with the prosecution.

Freeman Deming, who was in company with Boberts, says he heard no threats made use of by Boberts towards James, and that neither he nor his brother advised James to settle.

Lyman Deming states, that he was at work with Freeman Deming — that Goodrich Deming came after Freeman, and would have .him to go with him, on particular business, and that they went off together.

Witness states, that he afterwards told Freeman that he had found out what he, Freeman, went for; Freeman said he ad vised James to settle it, as Boberts threatened to send the constable after him.

Abel Fowler states, that soon after the transaction, he told. Freeman Deming that it was no use for him to deny that he advised James to settle it; that Freeman replied that he did not deny that he advised James to settle; that Boberts said he would take him with a state’s warrant if he did not settle.

Alanson Baldwin states, that in a conversation which he had with Roberts, he, Roberts, said that James owed him one hundred and fifty dollars, and if he did not settle with him, he would prosecute him, or sue him, or take him up for a false oath; that if James did not settle with him, he would make a wood chuck skin of him before he got through with him.

A majority of the court, who sit in this case, are of opinion that the evidence shows that the consideration of the notes and mortgage, was to stop the threatened prosecution by Roberts..

The question then presents itself, Can the court grant relief in such a case ? It is contended on the part of the defendant, that the court cannot grant relief; that the contract is opposed to sound morals and public policy, and that the court will not move in the matter, but leave the parties where it finds them. Numerous authorities are cited to sustain this position, amongst others the case of Raguet v. Roll, 4 Ohio Rep. 419. In that case, it appeared from the plea, on the averments of which the court made the decision, that Raguet agreed that he would not only not prosecute, but that he would use his influence to prevent a prosecution, and that he would not appear as a witness against the accused.

The court considered this contrary to public policy. They say: “ Whenever an agreement appears to be illegal, immoral, or against public policy, a court of justice leaves the parties as it finds them; if the agreement be executed, the court will not rescind it; if executory, the court will not aid in its execution.” This is no doubt a well established principle, but we do not think it applies to the present case. A majority of the court are of opinion that James was entirely innocent of the crime charged against him, and that this was known to all parties concerned; that the charge was got up merely for the purpose of extorting money from him by operating upon his fears, and that fearing the consequences of the prosecution, notwithstanding his innocence, he executed the notes and mortgage.

He is proved, by a great number of witnesses, to be a very weak and cowardly man, and a number of remarkable instances .are given of the effect of fear on him. Cowardice is a great defect of character, but where a party is compelled through fear to do acts which are only calculated to injure himself, they have never, in the legal sense of the term, been regarded as immoral or contrary to public policy. A true public policy requires that all groundless prosecutions should, if possible, be prevented, and that every facility shall be afforded to the innocent to escape from such a calamity; and we think an innocent party may, with great propriety, ask to be relieved from the consequences of a groundless charge.

There will be a decree for the complainant.

Hitchcock, 0. J., having been of counsel, did not sit in this case.

Avert, J.,

dissenting. That it is against public policy to stifle a criminal prosecution, is a settled doctrine of the common law. A note, bond or agreement, intended to effect such a purpose, .being founded upon an illegal consideration, is, therefore, held to be void. Courts of justice will not lend themselves to carry into execution any such agreement — and holding both parties who consent to engage in it to be guilty, will not allow themselves to interfere in behalf of either, nor to give countenance in any shape to such a transaction.

This wholesome doctrine has been recognized as the law of Ohio, in all the various forms in which the question has been heretofore presented to the court. In the 4th Ohio Rep. 400, Roll v. Raguet, the principle is distinctly asserted, “ a court of justice leaves the parties as it finds them; if the agreement be executed, the court will not rescind it; if executory, the court will not aid in its execution.” I do not believe there would be wisdom in the attempt to overturn, or in any way ■depart from that principle.

The complainant sets forth in his bill, besides other matters therein stated, that in 1837 he sold a tract of land to Isaac C. Robe for $525, payable in four annual installments. He gave to Robe an article of agreement, and took his four promissory notes for the purchase money. Robe, in the course of a year or somewhat more, assigned all his interest in the article to Roberts, the defendant, for $25; and Roberts afterwards, for the consideration of $25, delivered up the article to the complainant, to be canceled. On the 25th of July, 1840, Roberts obtained, with complainant’s consent, the possession of the article, for the purpose of using it as evidence in a suit he had pending in the common pleas of Trumbull county. Roberts afterwards, on the 9th of June, 1841, in company with Freeman and Goodrich Deming, called on the complainant, at his residence in Portage county, and accused him of the crime of perjury, in a certain deposition by him given before one Luther L. Brown, Esq., to be used in evidence in the aforesaid cause pending in Trumbull county. Roberts stated that he had two substantial witnesses by wrhom he could prove the perjury; that he was then on his way to Ravenna to commence a criminal prosecution for said crime, and unless complainant would forthwith give him his notes for the sum of 150 dollars and a mortgage to secure payment of them, he would straightway prosecute him for the crime of perjury. The complainant protested he was innocent, and asked for permission to consult with his neighbors and with his wife, but was refused, and he was then and there induced to execute to Roberts his three promissory notes for $50 each, and a mortgage to secure their payment. The prayer of the bill is for a decree, that the notes and mortgage be delivered up to the complainant, and for such other relief as may be according to equity.

This bill of the complainant, it will be observed, distinctly asserts, that the notes and mortgage were given to stifle a prosecution for perjury. It does not hint at any other real or pretended consideration, as existing in the case.

Roberts, in his answer, which is under oath, denies the greater part of the allegations in the bill. He asserts th^t the com plainant called upon him, and proposed to take back the land contract, and pay him $75 — to which proposition he acceded, and thereupon gave up the contract; that complainant paid him $25, and not being able, at the time, to pay the remaining $50, delivered to defendant the notes he held against Robe. He says further, that the complainant did not give up the notes against Robe to be canceled, but he gave them up on account of the $50 — the balance which he owed the defendant— telling him that he should not give up the notes to Robe, but should sue and collect them.

The deposition of the complainant, in giving which, it is alleged he committed perjury, was taken before Luther S. Brown, Esq., on the 9th of March, 1841, to be used in a cause in the common pleas of Trumbull county, between James Jenard, plaintiff, and Isaac C. Robe, defendant. It states the contract for the sale of the land, and sets out the four negotiable promissory notes, payable one, two, three and four years after date. It further states, that the deponent purchased the article from Roberts, for which he paid him $25, and gave him up the notes for the land; that he supposed the notes were all settled; for Roberts said that Robe had told him to take up the notes and keep them, as deponent supposed, for Robe. To the inquiry, whether he ever disposed of the notes, the deponent’s answer is, that he never did to any person, but delivered them up to Roberts to keep for Robe.

The deposition further asserts, that Roberts came to deponent, stating that he was about to be sued for the notes, and he wanted the article; that deponent asked Roberts if he had kept the notes in his possession, and he gave no satisfactory answer: and that, to the question, What did Roberts agree to give you, at the time he got the article ?” deponent’s answer was, “ He said I should have half of what he could collect on the notes.”

Now, there were present at the time of the transaction — that is, the sale of the article by Roberts to the complainant — three witnesses, who all support Roberts in the statement of the contract, as given in his answer, and contradict the complainant’s testimony concerning the sale — that the consideration was $25, and that the notes were not disposed of, but were delivered up to Roberts for Robe. Here is no inconsiderable array of witnesses, to establish the charge of falsehood against the complainant.

Opposed to them are two witnesses, Susannah Robe and. Seth Oviatt, neither of them present at the transaction, who testify to declarations of Roberts concerning the contract, which are regarded as inconsistent with the testimony of the three, and which are supposed to show that the contract between Roberts and the complainant was for $25, and no more, and that the notes were merely given up by the complainant for the use of Robe.

So much testimony to the falsehood of some' of the statements in the deposition, needs to be met by rather strong testimony and circumstances, before all belief in it can be destroyed, and before relief can be granted in equity, against the direct denials, under oath, in the answer. The improbability that two such men as these parties have shown themselves to be, should attempt a speculation of the kind, is not, to my mind, strong enough for the purpose. To me it seems not incredible, that both Roberts and complainant should have supposed it possible, and have actually thought of trying to make something out of these negotiable notes in their possession, and that, without scrupulously consulting either the rights or the interest of Robe. Especially may this be believed, if any reliance can be placed upon that part of the complainant’s deposition which represents the agreement spoken of, when Roberts last got possession of the article — that complainant “ should have half of what could be collected on Robe’s notes.”

Concerning the alarm and fear of the complainant, when ac cused of the criminal offense, there may be room for conjeeture upon the evidence, that it was conscience that madé a coward of him, in the case.

The statement of the complainant, that he was not allowed to consult his friends or his wife, cannot be entitled to very great consideration; because he was left by Roberts and the others, with his family, after the threat, and he had time for reflection and consultation, before he started to meet Roberts, and complete the arrangement at the office of the magistrate.

But whatever may be determined as to the guilt of the complainant, whether the whole evidence taken together be sufficient or not, to establish the charge of falsehood, there is reason for believing that Roberts, upon the evidence within his reach, had the intention, which he averred, of prosecuting the complainant ; certainly, there is no absurdity in supposing that such was his real intention. And the actual guilt or innocence of the complainant, is not a question properly arising in the case, as I had supposed; it is the character of the contract — was it really made and intended for the suppression of a criminal prosecution ? In the case before referred to, in 4 Ohio Rep. 400, which has established the rule in this state, the plea as there given, contains no averment that the party executing the instrument, was either guilty or innocent, but only that he was suspected and accused.” A plea, therefore, is good without such averment.

I was not able to concur in opinion with the other two members of the court who sat in the cause. I think the complainant showed no cause for relief, and that his bill ought to be dismissed.  