#### J. P. JOHNSON v. J. J. PITTMAN and R. L. PITTMAN.

(Filed 28 September, 1927.)

1. Bills and Notes — Consideration—Criminal Law — Threats — Public Policy — Actions.

Where the plaintiff has obtained the signature of the defendant on a promissory note jointly with his brother, under a threat to have the latter indicted at once for giving plaintiff an unhonored check on the bank, without duress, and the plaintiff in consequence has abandoned a suit in which attachment proceedings had been issued against the defendant’s brother and another in whose possession the property attached was at the time: *Held,*the bare threat against the defendant’s brother did not amount to compounding a felony or stifling a criminal prosecution, and the note itself being founded upon a sufficient legal consideration is valid and enforceable against the defendant.

2. Same — Pleadings—Issues—Instructions—Appeal and Error.

Issues should arise from the pleadings in the;cause, and where it is alleged in the answer that the note sued on was obtained under an agreement that was unlawful and the note therefore unenforceable, the submission of an issue as to whether the note in suit was obtained from the defendant to prevent a criminal prosecution is insufficient, did not arise from the pleadings and is reversible error, and an instruction predicated thereon is also error.

Civil action-, before *Harris, J.,*at February Term, 1927, of Hah-NETT.

Tbe plaintiff instituted tbis action against J. J. Pittman and his brother, R. L. Pittman, to recover upon a promissory note for $3,112.50 executed by the defendants to the plaintiff.

The evidence tended to. show that on or about 29 December, 1924, plaintiff sold and delivered to the defendant, J. J. Pittman, sixty-nine bales of cotton. J. J. Pittman gave in payment for the cotton a check drawn on the Merchants and Farmers Bank of Fayetteville for the sum of $7,757.52. The plaintiff presented the check in due course for payment and the same was protested. Thereupon, on 1 January, plaintiff instituted a suit against J. J. Pittman, Weatherford-Crump Co., Southern Railway Co., and Farmers and Merchants Bank of Fayette-*299ville, and issued a warrant of attachment and claim and delivery. J". J. Pittman bad consigned tbe cotton to 'Weatherford-Crump Company, and it bad been delivered to tbe Southern Eailway for transportation and was then in transit. J. J. Pittman paid tbe plaintiff approximately $4,646.00, leaving a balance due of $3,112.50. Tbe defendant Pittman testified that tbe Weatherford-Crump Company bad deducted something over $3,000 from bis draft to cover shortage in weight of cotton sold by him on prior occasions to said Weatherford-Crump Company, and that this was done without bis knowledge or consent, and for this reason bis check was not good.

After tbe civil action bad been instituted by tbe plaintiff be telephoned tbe defendant, E. L. Pittman, to know if be could tell him anything as to tbe whereabouts of bis brother, J. J. Pittman. E. L. Pittman testified that tbe plaintiff told him “that be bad bad a lot of trouble about a cotton transaction be bad with him (J. J. Pittman), bad a check returned unpaid, and that be bad to have bis money, and if be did not have it by tbe next day or something to take tbe place of it that be was going to indict him (J. J. Pittman), have him arrested and put in jail. . . .-.-On tbe following morning be called me again and told me that unless be bad tbe money or that matter was arranged by 2 o’clock that be would see that be (J. J. Pittman) was arrested and put in jail, and that if be wanted to take tbe matter up further that be could do so with bis attorneys, Clifford p & Townsend. In tbe meantime my brother came in from Charlotte on tbe 11:45 train that day. I signed a note for nothing in tbe world except to keep my brother from being arrested and put in jail. I received nothing of value and did not owe tbe plaintiff anything. I signed tbe note about 12 o’clock. He bad given us until 2 o’clock 'to get tbe matter closed with bis attorneys, and my brother carried tbe note to Lillington tbe same day and delivered it to Mr. Young, attorney for defendants, with instructions to deliver it to Clifford & Townsend, attorneys for plaintiff.”

When tbe note fell due tbe defendant, E. L. Pittman, asked for an extension of time. This was granted and tbe defendants executed a renewal note. When tbe note fell due a second time tbe defendant, E. L. Pittman, again requested and received indulgence, and signed a renewal note, dated 15 July, 1925, and due 15 October, 1925, which is tbe note upon which the suit was brought. In October, 1925, the defendant Pittman refused to pay the note, alleging that the consideration thereof was illegal and against public policy, and that tbe note was void. J. J. Pittman, who purchased cotton from tbe plaintiff, is insolvent.

*300The issues and answers of the jury thereto are as follows :

1. Did the defendant, R. L. Pittman, execute the note sued upon to prevent a criminal prosecution of bis brother, J. J. Pittman, threatened by the plaintiff? A. Yes.

2. Was the indebtedness represented by the note sued on contracted through the false and fraudulent representations of J. J. Pittman, as alleged in the complaint? A. No.

3. If so,'what damages did the plaintiff sustain thereby? A. $3,112.50.

4. Did the defendants fraudulently conspire and confederate together, and thereby induce the plaintiff to accept their joint note for the indebtedness of J. J. Pittman with no bona fide intention of paying said note, and thereby induce the plaintiff to take a nonsuit in the case of J. P. Johnson against the Southern Railway Company, and others, thereby surrendering securities held by the Southern Railway Company and Weatherford-Crump Company, one or both, to the damage of the plaintiff? A. No.

5. If so, what damages is the plaintiff entitled to recover on account of the same? A.

From judgment upon the verdict plaintiff appealed.

*J. 0. Clifford for plaintiff.*

*Young & Young for B. L. Pittman.*

BeogdeN, J.

Is a bare threat to procure a warrant or to have a person arrested upon a criminal charge sufficient to invalidate a note given for a valid debt, arising out of contract?

There is no allegation of duress in the complaint and no evidence thereof in the record except the threat made by the plaintiff to have the defendant, J. J. Pittman, arrested. So that the inquiry is narrowed to the sole question as to whether or not the threat made by the plaintiff constitutes compounding a felony or stifling a criminal prosecution, or obstructing the full and free exercise of the law with respect to the particular case and the unhampered and unhindered application of the law to trial and punishment of the accused. It is a general rule of law in this jurisdiction, running like a golden 'thread through the decisions from *Smith v. Greenlee,*13 N. C., 126, to *Aycock v. Gill,*183 N. C., 271, that all executory agreements to compound felonies, to stifle criminal prosecutions of any and all kinds; to suppress evidence or to hinder or retard the full weight and the free course of the criminal law are contrary to good morals, enlightened conscience and public policy, and therefore void; arid further that all notes or bonds given in recognition of such and upon such illegal consideration are invalid and not collectible.

*301There are many decisions of this Court declaring tbe invalidity of executory contracts of this nature.

Agreements which have been held void in this State as contrary to public policy may be classified as follows:

1. To chill bidding at a public sale or to retard or paralyze open and fair competition. But the rule does not extend so far as to prevent several individuals from uniting in their bidding, if it is done in good faith and without an inequitable or illegal purpose. *Smith v. Greenlee,*13 N. C., 126; *Blythe v. Lovingood,*24 N. C., 20; *Bailey v. Morgan,*44 N. C., 352; *Ingram v. Ingram,*49 N. C., 188; *King. v. Winants,*71 N. C., 469; *Henderson-Snyder Co. v. Polk,*149 N. C., 104.

2. To assent to a *nol. pros,*of a criminal case in consideration of the payment of a sum of money. *Comrs. v. March,*89 N. C., 268.

3. Not to prosecute for crime. *Garner v. Qualls,*49 N. C., 223.

4. Not to appear as a witness against the accused. *Thompson v. Whitman,*49 N. C., 48; *Vanover v. Thompson,*49 N. C., 486.

5. To settle the estate of an intestate without taking out letters of administration, or taking the oath required or giving bond. *Sharp v. Farmer,*20 N. C., 122.

6. Giving a note for purchase price of stock in a railroad, for purpose of enabling the company to secure state funds, with agreement that note was not to be paid. *McRae v. R. R.,*58 N. C., 395.

7. Securing a note and mortgage from a mother upon agreement not to prosecute her son. *Corbett v. Clute,*137 N. C., 546.

8: To “request court to be as lenient as possible” with one accused of crime or to mitigate the punishment. *Aycock v. Gill,*183 N. C., 271.

9. To withdraw a pending indictment. *Lindsay v. Smith,*78 N. C., 328.

In other jurisdictions the following executory agreements have been held void as contrary to public policy:

1. To destroy the evidence in a criminal case, to wit, a bottle of liquor. *S. v. Carver,*69 N. H., 216; 39 Atl., 973.

2. To have a husband discharged from arrest if the wife would execute a note. *Jones v. Dannenberg Co.*(Ga.), 37 S. E., 729.

3. Not to have the defaulting cashier of a bank arrested. *American National Bank v. Helling*(Minn.), 202 N. W., 20.

■ 4. Not to prosecute for purchasing stolen hides. *Fred Rueping Leather Co. v. Watke*(Wis.), 116 N. W., 174.

5. Promise to sign or be more likely to sign a petition for mitigation of punishment. *Buck v. Bank,*27 Mich., 293.

In all the cases in North Carolina it appears that in each instance when- the executory contract was made that there was an unlawful *302agreement, and tbis unlawful agreement, express or reasonably implied from all tbe circumstances, constituted tbe corrupting and invalidating vice of tbe transaction.

Tbe various angles and aspects of tbe question are discussed in an exhaustive annotation found in 17 A. L. R., 325.

Our conclusion based upon all tbe decisions in tbis State, and also upon a large number of decisions in other jurisdictions, is that tbe mere threat of arrest contained in tbe present record does not of itself render tbe note in controversy void.

Tbe first issue was submitted to tbe jury over tbe objection of plaintiff. Tbis objection is sustained. Tbe issue omitted tbe essential element of unlawful agreement between tbe parties at tbe time tbe note was executed. Tbe issue submitted in *Corbett v. Clute, supra,*contains the essential elements prescribed by tbe law in such cases. Furthermore, tbe defendant alleged in tbe answer that tbe plaintiff “promised tbe defendant and tbe said J. J. Pittman that if tbe defendant would execute and deliver to tbe plaintiff tbe said note covering tbe amount of tbe alleged claim and tbe shortage on tbe part of said J. J. Pittman, that tbe plaintiff would not institute said criminal action and indictment against tbe said J. J. Pittman, but would forbear from said action. Issues ordinarily arise upon tbe pleadings, and tbe form of issue submitted did not present tbe question as set up in tbe pleadings.

Tbe judge charged tbe jury: “(Now tbe defendant, R. L. Pittman, says that be is not liable on tbis note for tbe reason that be'executed tbis note for tbe purpose of saving and keeping bis brother, J. J. Pittman, from being arrested and put in jail, and that that was tbe only consideration for which be signed tbis note, and no other.

Now, tbe court will charge you, gentlemen, in tbe outset that if you believe by tbe greater weight of tbe evidence — tbe burden being on tbe defendant, R. L. Pittman, to satisfy you by tbe greater weight of tbe evidence — that that was tbe consideration for which be signed tbis note and nothing else, that tbe law says that is against public policy, and be would not be liable on tbis note. If you believe by tbe greater weight of tbe evidence that was tbe only consideration for which be signed, namely, that be signed it in order to keep bis brother, J. J. Pittman, from being arrested and put in jail; if you are not so satisfied by tbe greater weight of tbe evidence, then you would find that be is liable on tbis note which be executed and signed; that is bis only defense, and if so, be was not liable and ought not- to pay it, and judgment could not be rendered against him, if be signed it for that reason and that reason only.”

*303Tbe plaintiff excepted to tbe charge and tbe exception is sustained.

Tbe vital question in tbe case was not wbetber tbe defendant, R. L. Pittman, was desirous of keeping bis brother out of jail, but wbetber or not be endorsed tbe note for bis brother by reason of an unlawful agreement.

Upon consideration of tbe entire record, we bold that tbe plaintiff is entitled under tbe law to a

New trial.