The plaintiff alleges, that he is a poor, ignorant old man, 75 years of age, and he never had a lawsuit before in his life. *Page 17 In January, 1848, the defendant issued a writ against him and his son and one Davis, in case for conspiracy, laying the damage at $500. The officer, one Wells, came to his house about midnight and arrested him and, after exciting his fears by telling him, that the lawyer, who issued the writ, said he would do well to compromise by giving his note for $300, and by telling him, that, if it went to court, (8) the state would take it up and ruin him, and, for the second offense would hang him, advised him, as a friend, that he had better go to the house of the defendant and settle, and said he thought he could get him off for $100. After being in custody until morning, he concluded to go to the defendant and buy his peace. The officer took him to the defendant's house, some twelve miles distant. He was not at home, and the plaintiff, after remaining under arrest all day, his alarm and apprehension being increased by the combined artifice of the wife of the defendant and the officer, agreed, if he could be discharged, to execute a note to the defendant for $100, and pay the officer $13, which was accordingly done, and he was liberated. The plaintiff further alleges, that the defendant had no cause of action against him whatever; that the alleged ground of complaint was that his son, who had been summoned as a witness in the case of the State for Farmer and wife and others against one McLure, on his bond as Clerk and Master, had failed to attend at October Term, 1845, in consequence of which the case was continued; and the charge was, that his son had staid away, by a conspiracy between the plaintiff, his son and Davis. The plaintiff admits, that his son did not attend at that term; but avers that he attended before and afterwards, and his testimony was in no wise material, and he was subsequently discharged by the defendant from attendance, and the case was decided by arbitrators, before whom his son was not examined.
The plaintiff further alleges that he had no agency in keeping his son from attending court, and no wish to do so; that he had no interest, connection or concern with the suit, and knew not that the defendant had any; that the defendant was not a party of record, and the plaintiff had no knowledge or belief that he was beneficially interested. The plaintiff avers, that, one year after he had recovered before the arbitrators, the defendant issued the writ, without cause and (9) for the mere purpose of taking advantage of him, and had, by the falsehood and artifice of his agent and co-adjutor, the officer who served the writ, taken advantage of his ignorance and fears, and extorted from him the note of $100, upon which the defendant has since taken judgment and is about to issue execution. The prayer is for a perpetual injunction.
The defendant denies that there was any concert between him and *Page 18 the officer, to take advantage of the plaintiff and extort the note from him. He says, that, believing the plaintiff had entered into a conspiracy to keep his son from attending Court, whereby he was greatly injured, he directed his attorney to issue the writ, left home and did not return, until after the case was compromised and the note executed, when he received it and intended to collect it. He does not state the grounds of his belief as to the alleged conspiracy, nor aver the materiality of the testimony of the plaintiff's son, nor assign any motive why he should wish him not to attend, and gives no color to the charge of conspiracy; nor does he show any damage, except he thinks he had to pay the costs of the term for a continuance. He admits, however, that it does not so appear on the record, and he admits he recovered before the arbitrators, without the testimony of the plaintiff's son; but he says that, though not a party of record, he was beneficially interested; and complains, that the award was only for $175, when more was due, but he does not aver that the result would have been different, if the plaintiff's son had been examined, or that he desired to examine him. He says, "that as to the age and ignorance of the plaintiff, your respondent knows but little, and as to his poverty, that is immaterial." "He believes his wife and son and brother compromised the case in his absence, because she was desirous of keeping your respondent out of litigation." He does not believe that they resorted (10) to any artifice or fraud to alarm the plaintiff, who compromised willingly, not because he was in fear, but because he knew himself to be guilty. He further says the officer was not authorized to act as his friend in effecting the compromise, "nor was he authorized, by any undue or false and extravagant language, to endeavor to coerce the plaintiff into a compromise. Whatever of nonsensical, false or other matter the said deputy sheriff conveyed to the plaintiff, your respondent claims that he is in nowise responsible for, even if the facts were true; and that the officer was barely authorized to make known to the defendants in that suit the terms upon which they could have the suit compromised; for this defendant, so far from combining with the officer, was not even friendly towards him and had no confidence in him. At what hour of the night or day the deputy sheriff served the writ, your respondent is ignorant."
In the language of the Court in Heath v. Cobb, 17 N.C. 191, the plaintiff "was under duress, in the eye of a Court of Equity. He was not in a condition to be dealt with; he could not and did not stand on his rights." No one can believe that the plaintiff executed the note for the purpose of making compensation for an injury done to the defendant. On the contrary, every one who hears the bill and answer *Page 19 read over, is convinced that he executed it to relieve himself from the state of alarm and embarrassment in which he was involved.
The equity of the bill rests upon three allegations — the plaintiff was a poor, ignorant, old man, who had never had a lawsuit in his life. The defendant, without probable cause, issued a writ against him for a conspiracy — damages $500. The plaintiff, being arrested and having his fears excited by the falsehood and artifice of the defendant's agent, executed the note to relieve himself.
The answer does not meet this equity. "As to the age and ignorance of the plaintiff, your respondent knows but little" and "his poverty is immaterial." Can this be called a full and fair answer (11) to the first allegation?
He says he honestly believed the plaintiff was guilty of a conspiracy; but he sets out no ground for his belief, and leaves the mind at a loss, even to conjecture, why he should have taken up such an idea. A witness, in an unimportant suit upon the bond of a Clerk and Master, fails to attend at one term, having attended punctually before and after, until discharged. The plaintiff, his father, has no interest or concern in the case, nor did he know that the defendant had; and this forms the basis of a grave charge of conspiracy.
As to the third allegation, the defendant says "he is ignorant at what hour of the night or day the defendant made the arrest"; but he positively denies that he was authorized to coerce a compromise by exciting the fears of the plaintiff, and claims not to be responsible, if such was the fact. The officer was the agent of the defendant in executing the writ, and it is admitted that he was authorized to make known to the plaintiff the terms upon which the suit could be compromised. Such being the case, it was as little as the defendant could have done to make inquiry as to the truth of the allegations, made in respect to the conduct of his agent, before he adopted his act, by receiving the note and attempting to collect it, and, especially, before he swore to the answer, and then to have stated his belief. His neglect to do so raises an inference against him. In fact, he admits the allegation, but claims not to be responsible for the unauthorized acts of the officer. Upon this point of morals, the defendant is clearly in error. It is as much against conscience to attempt to avail one's self of the iniquity of an agent, after it is known, as if there had been pre-concert. There is but a slight share of distinction between the guilt of one, who receives goods, knowing them to be stolen, and of him, who procures the theft to be committed. We think the answer is unfair (12) and evasive. It is error to dissolve the injunction, and it ought to have been continued until the hearing, because the equity of the bill is not met. *Page 20
Perhaps, when the case is heard, the proof may show that the defendant had good cause of action. If so, it may be proper to adopt the course taken in Heath v. Cobb, 17 N.C. 187, and, instead of making the injunction perpetual, the Court may be induced to hold up the judgment, as a security for any damages the defendant may be able to recover in an action at law; and, to this end, to remove the impediments to such action, growing out of the compromise and the Statute of Limitations. But we presume it will require a strong case to justify such a course, when the damage is trifling, and "the play is not worth the candle." It is clear that the defendant cannot, conscientiously touch one cent of the plaintiff's money, until he has established his damages by an action at law. And we cannot help feeling, that the conduct of the plaintiffs wife, in her laudable wish "to keep him out of litigation," would have been more praiseworthy, if she had let the old man go home, without giving his note.
The defendant will pay the costs of this Court.
PER CURIAM. Reversed.
Cited: Black v. Baylees, 86 N.C. 535; Osborne v. McCoy, 107 N.C. 731.
(13)