sideration, or that it was the only consideration for the note. As to the first, his claim is that, the plaintiff and Hooker being partners, it was a legal impossibility for the latter to embezzle partnership funds, and therefore his misappropriation of the funds was not a crime, and the agreement not to prosecute him was perfectly harmless. We are not prepared to concede this proposition, either as a question of law or morals. Gen. Stat. 1894, § 6710. But we are not called upon to decide the question, for, if the promise not to prosecute was not illegal, because it related to a supposed crime which it was impossible for Hooker to commit, it necessarily follows that a promise to refrain from doing that which it is legally impossible to do cannot be a valid consideration for the execution of a promissory note. Therefore, if, as the court has found, there was no other consideration for this original note except such promise, it was wholly without any consideration."

In the instant case the defense relied upon, as disclosed by § 8 of the answer, was that, the note having been executed under the circumstances therein enumerated, the same was against public policy and without consideration.

It is essential to the existence of a contract that there should be parties capable of contracting, their consent, a lawful object, and sufficient consideration, and not against public policy; and when it is shown that the purpose of the party benefited by the contract was not to promote the ends of public justice, but was to secure the payment of a debt, it should not receive the favorable consideration of a court of justice.

Duress-threats to prosecute

relative.

In Union Cent. L. Ins. Co. v. Champlin, 11 Okla. 184, 55 L.R.A. 109, 65 Pac. 836, Justice Hainer quotes with approval Chief Justice Story on the doctrine of public policy as follows: "Public policy is, in its nature, so uncertain and fluctuating, varying with the habits and 17 A.L.R.-21.

fashions of the day, with the growth of commerce and the usages of trade, that it is difficult to determine its limits with any degree of exactness. It has never been defined by the courts, but has been left loose. and free from definition in the same manner as fraud. This rule may, however, be safely laid down, that whenever any contract conflicts with the morals of the time, and contravenes any established interest of society, it is void as being against public policy."

It is contended by plaintiffs that defendant cannot be heard to claim benefit under §§ 900 and 901, Rev. Laws 1910, because of the alleged threats to prosecute Hugh Greever, because, under these statutes, duress consists of a threat of "unlawful confinement of the person of the party, or of husband or wife of such party, or of an ancestor, descendant, or adopted child of such party, husband or wife."

The indebtedness to the bank was past due; nothing to indicate that Hugh Greever was personally liable for this indebtedness; the indebtedness was due from a corporation of which Hugh Greever was the chief stockholder and manager. While the bank officials deny that any threats to prosecute were made, the jury found otherwise, probably influenced in so deciding by the fact that, this indebtedness not being the personal obligation of Hugh Greever, the threats were resorted to for the very purpose of inducing the execution of the note by W. W. Greever and defendant.

It will be borne in mind that Hugh Greever did not sign the note. When the meeting was had in the office of the attorney for the bank, threats were made that Hugh Greever would be prosecuted unless arrangements were made to pay the $5,000 claimed to have been embezzled by Hugh. It was at that time suggested that, if W. W. Greever would pay $2,000 cash, and execute his note for $3,000, securing the same by a mortgage upon certain property in Frederick, there

would be no prosecution of Hugh. When it was discovered that there was a prior mortgage on the Frederick property, and W. W. Greever only had an equity in the same, it was then suggested that W. W. Greever go to Frederick and see if C. B. Greever, the defendant, would sign the note with him, which was subsequently done. Therefore it clearly appears that C. B. Greever was only surety for W. W. Greever, but plaintiffs say in effect, even if it be conceded that W. W. Greever could rely upon the defense of "duress," that the plea would not be available to C. B. Greever, and claim that a surety cannot plead duress of his principal where no statute is violated.

Under §§ 900 and 901, Rev. Laws 1910, if the jury believed that threats were made to prosecute Hugh Greever, and that W. W. Greever was thereby induced to execute the note, and the threats were the sole consideration for the execution of the same, then the defense of duress would be available to W. W. Greever. The defendant, C. B. Greever, having signed the note as surety for his father, W. W. Greever, then the surety would be allowed to plead the defense available to the principal, if it appeared that a statute of the state had been violated in obtaining the note from the principal.

-rights of

surety on note secured by.

Section 2682, Rev. Laws 1910, defines "extortion" to be the "obtaining of property from another with his consent, induced by a wrongful use of force or fear, or under color of official right."

Section 2683, id., says that "fear such as will constitute extortion may be induced by a threat, either: First, to do an unlawful injury to the person or property of the individual threatened, or to any relative of his or member of his family; or, second, to accuse him, or any relative of his or member of his family, of any crime."

Section 2686, id., provides: "Any person who, by any extortionate

means, obtains from another his signature to any paper or instrument, whereby, if such signature were freely given, any property would be transferred, or any debt, demand, charge or right of action created, is punishable in the same manner as if the actual delivery of such property or payment of the amount of such debt, demand, charge or right of action were obtained."

If the threats to prosecute were made, the same would constitute extortion; it therefore follows that plaintiffs' contention on this point is not tenable.

It is further contended on the part of the plaintiffs that the court committed error in admitting the statements made by W. W. Greever, to the defendant, for the reason, as alleged by the plaintiffs, that W. W. Greever was not the agent of the bank, and that there was no proof that the officials of the bank or anyone with authority authorized him to represent to the defendant that Hugh Greever would be prosecuted unless the defendant signed the note. As to whether W. W. Greever, under the circumstances, was the agent of the bank, it is not necessary to decide. However, that question has been passed upon by the supreme court of Arkansas in the case of Beale & D. Dry Goods Co. v. Barton, 80 Ark. 326, 97 S. W. 58, wherein it is said: "In an action on an obligation whereby a father guaranteed payment of the debts of his sons, it appeared that an attorney employed by the creditors of the sons to secure the obligation from the father made representations to the father concerning the prosecution of the sons, which representations induced the father to make the obligation. Held, that the representations of the attorney were binding on his clients, though the attorney was also employed by the father to represent and protect his sons."

We are of the opinion that the judgment of the trial court should be affirmed, and it is so ordered. All the Justices concur.

NOTE.

The effect of the innocence of the person threatened upon rights and

Bills and notes

"Does the counterclaim contained in the defendant's answer herein upon its face state facts sufficient to constitute a cause of action?"

Mr. Achilles H. Kohn for appellant. Messrs. Everett B. Heymann and Jacob Schnebel, for respondent:

Defendant's counterclaim alleges in effect the compounding of a felony; this is so even if, as asserted by him, the counterclaim avers in terms, not that a crime actually was committed, but merely that plaintiff so stated.

Conderman v. Trenchard, 58 Barb. 165; Catskill Nat. Bank v. Lasher, 165 App. Div. 548, 151 N. Y. Supp. 191, affirmed in 221 N. Y. 551, 116 N. E. 1039; Osborn v. Robbins, 36 N. Y. 365; State v. Carver, 69 N. H. 216, 39 Atl. 973; Chandler v. Johnson, 39 Ga. 86; People v. Gardner, 144 N. Y. 119, 28 L.R.A. 699, 43 Am. St. Rep. 741, 38 N. E. 1003, 9 Am. Crim. Rep. 82.

A note given, either wholly or partly, for the purpose of compounding a felony, is an illegal contract, and moneys paid thereon cannot be recovered back, notwithstanding that duress, undue influence, or threats were employed to obtain such note.

Haynes v. Rudd, 102 N. Y. 372, 55 Am. Rep. 815, 7 N. E. 287; Doucet v. Massachusetts Bonding & Ins. Co. 180 App. Div. 599, 167 N. Y. Supp. 892; Strauss Linotyping Co. v. Schwalbe, 159 App. Div. 347, 144 N. Y. Supp. 549; Barrett v. Weber, 125 N. Y. 18, 25 N. E. 1068.

Cardozo, J., delivered the opinion of the court:

Plaintiff sues upon a promissory note. Defendant answers that there was duress, and counterclaims. for the recovery of payments already made. No question is before us in respect of the adequacy of the

answer considered as a defense. The point to be determined is the validity of the counterclaim.

The substance of the counterclaim is this: The defendant's brother-inlaw, one Bloch, was bankrupt and the plaintiff's debtor. The plaintiff informed the defendant that Bloch was guilty of criminal misappropriation of its funds, and threatened to arrest him and send him to prison unless it received the defendant's notes for the amount of the indebtedness. The defendant believed that the plaintiff would carry out its threats. The pressure thereby exerted overpowered and constrained his will. He executed the notes to save his brother-in-law from jail, and to save his sister, Bloch's wife, from the shame of her husband's disgrace, and the loss of her sole support. The note in suit is one of a series on which payments have been made. The defendant asks judgment that the payments be returned.

We think the defendant, if a victim of duress, was at the same time a wrongdoer when he stifled a charge of crime. In such circumstances the law will leave the parties where it finds them.

stilling charge of crimerecovering payment.

Bills and notes- Haynes V. Rudd, 102 N. Y. 372, 55 Am. Rep. 815, 7 N. E. 287. Neither is permitted to recover from the other. The contract is not helped by the suggestion that, for all that appears, Bloch may have been innocent. That issue, beyond doubt, would be irrelevant if prosecution had begun. Gorham v. Keyes, 137 Mass. 583, 584; Steuben County Bank v. Mathewson, 5 Hill, 249. We are asked to hold otherwise where prosecution is merely threatened. Some cases do, indeed, give effect to that distinction. The prosecution, once initiated, they say, must be left to take its course; the prosecution, merely threatened, may be bought off, if directed against innocence. Cowen, J., so held in 1843, upon a trial in the supreme court. Steuben County Bank v. Mathewson, supra. His de

cision has been followed in some jurisdictions (Manning v. Columbian Lodge, 57 N. J. Eq. 338, 38 Atl. 444, 45 Atl. 1092; Schultz v. Catlin, 78 Wis. 611, 47 N. W. 946; Woodham v. Allen, 130 Cal. 194, 62 Pac. 398; Rieman v. Morrison, 264 Ill. 279, 285, 106 N. E. 215; Deere v. Wolff, 65 Iowa, 32, 21 N. W. 168), and rejected elsewhere (State v. Carver, 69 N. H. 216, 219, 39 Atl. 973; Koons v. Vauconsant, 129 Mich. 260, 95 Am. St. Rep. 438, 88 N. W. 630; Jones v. Dannenberg Co. 112 Ga. 426, 430, 52 L.R.A. 271, 37 S. E. 729). We think it has not been law in this state since the ruling of this court in Haynes v. Rudd, supra. There the plaintiff gave his note under duress to stifle a prosecution, threatened, but not begun. We approved a charge that "an agreement to suppress the evidence of a crime alleged to have been committed" was as illegal as one "to suppress the evidence or refrain from prosecuting a crime which had been in fact committed." In so far as Steuben County Bank v. Mathewson, supra, is to the contrary, it was thereby overruled.

The principle thus vindicated is simple and commanding. There is to be no traffic in the privilege of invoking the public justice of the state. One may press a charge or withhold it, as one will. One may not make action or inaction dependent on a price. Jones v. Merionethshire Permanent Ben. Bldg. Soc. [1892] 1 Ch. 173, 183, 61 L. J. Ch. N. S. 138, 65 L. T. N. S. 685, 40 Week. Rep. 273, 17 Cox, C. C. 389. The state has, indeed, no interest to be promoted by the prosecution of the innocent. Steuben County Bank v. Mathewson, supra, at pages 252, 253; Manning v. Columbian Lodge, supra. That consideration, if it were controlling, is as applicable to agreements to discontinue as agreements to abstain. The state has an interest, however, in preserving to complainants the freedom of choice, the incentives to sincerity, which are the safeguards and the assurance of the prosecution of the