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.