
    
      Hendricks & Others v. Compton’s Ex’or.
    July, 1843,
    Lewisburg.
    (Absent Cabulíl P., and Brook», J.)
    Laches Injunction to Judgment — Neglect to Make De-fence at Law.-- An obligation given on the retainer of counsel to defend the obligor on a charge of forgery, is assigned by the counsel, and judgment is obtained thereupon by the assignees, on which judgment execution issues, under which a forthcoming bond is taken, and judgment is rendered thereupon. After these proceedings, without any defence having been made at law, and without any excuse for not making it, an injunction is obtained on the ground that the obligor was induced to employ the obligee, by the menace that if he did not, the obligee would act as counsel against him in aid of the prosecution. Hioud, the injunction should be dissolved and the bill dismissed : for if in law such a contract was valid, a court of equity has no right to absolve the party from it; and if in law the contract was invalid, the defence should have been made in that forum.
    On the 26th of February 1824, John Compton junior exhibited his bill to the county court of Tazewell, setting forth, that on the 1st of December 1821, he executed his obligation under seal to John Hinton, for 100 dollars; that at the time of executing the same, he was under an arrest upon the charge of forging a bill of sale; that Hinton advised the prosecution against the complainant, and the complainant has reason to believe that the prosecution would not have been instituted against him, if it had not been for Linton; that after the complainant was arrested, Linton informed him there would be no attorney for the commonwealth at the called court, and said he would be damned if he did not appear at the called court and prosecute the complainant, unless the complainant employed him; and that the complainant became alarmed, and executed his obligation to Linton. The complainant represents that Linton told him a falsehood, for he 193 (Linton) knew *that.the attorney for the cqmmonwealth would be at the called court; states that at the time he executed the obligation to Linton, he was unacquainted with him, but his friends advised him that it was not safe to rest his defence in the hands of Linton, and he was therefore compelled to employ other counsel, who are justly entitled to their fees, because they did not act the same dis-honourable part; and farther states that Linton did in fact go before the justice of the peace, before whom the complainant was examined upon the charge aforesaid, and asked questions against him; that the complainant asked the justice to continue his examination until the next day, in order that he might procure a material witness, and Linton informed the justice he had no such right. These actings and doings of Linton, the complainant insist, are fraudulent and unjust, and contrary to equity and good conscience. The prayer of the bill is that Hendricks & Byars the assignees of Linton, and the said Linton, may be made defendants, and be injoined from all proceedings on the judgment on the forthcoming bond, obtained against the complainant and his sureties.
    The answer of Linton states, that he was employed in a suit between Compton and one Powers, for some slaves; that at the trial the bill of sale mentioned in the complainant’s bill was used, and it was alleged to be a forgery; that the court decided against the plaintiff; and that the same evening (as well as the respondent recollects), he saw the plaintiff on trial for the supposed forgery. The respondent states, that he might then have asked questions to explain the matter, and might have given his opinion to the justice upon any question that might then have arisen; that the justice sent the complainant on to an examining court, and the complainant was put under a guard at the house where respondent then boarded; that on the application of the complainant, an agreement was entered into between 194 *him and the respondent, that respondent would appear at the called court for fifty dollars; that the next day Compton, becoming alarmed by the remarks of several persons, came to respondent and asked him for his opinion ; that respondent gave it as his opinion that he would unquestionably be acquitted at the called court; that Compton, asked respondent what he would take if he was cleared, with the understanding that otherwise nothing was to be paid; that respondent agreed, if he would double the amount, to make that contract with him; and that it was agreed upon between them, and a new obligation executed with that condition. The respondent states that he then returned to the court which he had been attending, but quitted it while yet in session, and attended the called court, and in good faith discharged his duty as counsel; that young mr. Compton, or a gentleman who was about to marry complainant’s daughter, came on to the county, and employed Charles C. Johnston esq. and endeavoured to employ Benjamin Estill, at the sum of 200 dollars; that after the called court was over, respondent went with complainant to the house of Thomas Perry, where they then settled; that respondent then either took a new instrument, or the condition was torn off by consent, he does not recollect which; and that Compton the same night executed to respondent another note, perhaps of 10 dollars, to prosecute a suit against the prosecutor; a proof that he had not at that time the opinion of respondent which he now professes.
    Hendricks & Byars in their answer, (after excepting to the bill upon the ground that there is no equity in it,) say, that being assignees merely of Linton, they know nothing of the contract between the complainant and Linton, or of the attending circumstances, of their own knowledge; that all their knowledge of these matters is derived from Linton, to whose answer they refer. They add, that before bringing suit at law, their agent wrote to 195 *the complainant once, perhaps twice, asking if he had any defence to make against the payment of the obligation; and never receiving any answer, they supposed the complainant had no defence.
    Thomas Perry, a witness to the obligation, deposed that it was executed in consideration that Linton should defend the complainant against a prosecution for forgery, and the condition was torn off in the presence of Compton, Linton observing that the condition was now' of no account. Linton, he says, frequently observed, before it was executed, and in the presence of the plaintiff, that if the plaintiff did not employ him, he (Linton) would prosecute him and send him to the penitentiary; or words to that amount. “Linton, as this deponent believes, was drinking, and going on in his usual way.” Being asked, “Did the plaintiff appear to be alarmed at the threats of Linton?” he answered, “He appeared to be agitated, either from such threats or from his peculiar situation.”
    James M’Neil deposed, that he recollected “hearing Linton sajr to Compton, that if he (Compton) did not employ him, he (Linton) would send him to the penitentiary, or words to that amount; and that he (Linton) would prosecute said Compton, if he did not employ him.”
    David M’Comas deposed, that Linton was busy in starting' the prosecution against Compton for forgery, by telling Powers that he ought to prosecute him. Deponent has an indistinct recollection that Hinton had something to say against Compton on his examination before the justice. He further recollects that Compton asked the justice for a continuance of his case, in order to procure some evidence; and a doubt arising with the justice whether he ought to grant a continuance, the justice called upon deponent for his opinion, (he being the attorney for the commonwealth,) and Hinton asked him to say that a continuance could not be granted, in 196 *order to alarm Compton, that he Hinton might obtain a fee; or words to that amount. He well recollects that Hinton appeared for Compton at the called court.
    William Wynn deposed, that he recollected hearing Hinton tell Compton he was determined to appear against him at the called court, whether he should be employed or not, and would send him to the penitentiary, unless Compton employed him; that his threats on that occasion were well calculated to alarm any man -who knew not Hinton, and was so peculiarly circumstanced as Compton was.
    Pending the suit the complainant died, and it was revived in the name of his executor.
    On the 2d of August 1838, the cause having been pending in the county court more than a year, was, under the act of February 12, 1838, (Sess. Acts of 1838, ch. 64, p. 61,) removed, on the motion of the defendants, to the circuit superior court of the county.
    On the 25th of April 1839, the cause came on before that court. And that court decreed that the injunction be made perpetual, and that the defendants pay to the plaintiff his costs.
    From this decree an appeal was allowed.
    Patton for appellants.
    The injunction ought to have been dissolved and the bill dismissed. 1. The only plausible ground in favour of the decree is, that the obligation was extorted by Hinton’s threats of appearing to prosecute unless he was employed to defend, and that the obligation was therefore given under duress. Now, admitting, for the sake of argument, that the menace, if seriously made, amounted to duress, it is clear that it invalidated the obligation at law, and could have been proved under a plea of non est factum, either general or special. This being so, there is no ground for relief in equity, without a sufficient excuse alleged and proved for not making the defence 197 *at law. Faulkner’s adm’x v. Har-wood, 6 Rand. 125; Cabell’s ex’ors v. Roberts’s adm’rs, Id. 580; Haden v. Garden, 7 Heigh 157. In this case no excuse is offered, nor any reason assigned, for not making the defence at law. But 2, the threat, supposing it proved in its most indefensible terms and spirit, does not amount to duress. Compton was not in the custody of Hinton. The threat was, that he would do that which the law required should be done by some counsel, and from which no injury could result to Compton. If innocent, he would probably be acquitted, no matter who prosecuted him; if guilty, it was no threat from which he was enti tied to be protected, that he would be visited with punishment. 3. It is not pretended that the consideration of the bond was that Hinton should refrain from prosecuting; and if it were, a court of equity would not relieve a party from an obligation given on such consideration. The consideration of the bond was in terms (it is distinctly admitted in the bill) that Hinton, a lawyer, should give his aid in defending Compton from a criminal prosecution. This was a valid, legal consideration. However censurable, in a moral point of view, may have been the attorney’s conduct in holding out to Compton the inducement to employ him which he is represented to have held out, and although his course was not such as comports with the delicacy and scrupulous honour which the members of the profession should and generally do observe, it is nevertheless submitted that such conduct cannot vitiate the obligation given for the retainer, in the hands of bona fide assignees, and after the professional assistance had been faithfully rendered and successfully exerted. It is alike against law and reason, that upon any such grounds a party should be absolved from the obligation to pajr, for services actually rendered, the compensation stipulated to be given for them.
    198*The decree is at all events erroneous (even upon the principles of the court below) in not giving the appellants a decree over against Hinton.
    There was no counsel for the appellee.
    
      
      See monographic note on “Laches” appended to Peers v. Barnett, 12 Gratt. 410.
    
   STANARD, J.

The injunction in this case was sought and obtained by the testator of the appellee, to a judgment on an obligation given on the retainer of counsel to defend the party on a charge of forgery. The ground on which it was sought was not that such an obligation, on such a consideration, was by law invalid, for that would be untenable; nor that the service had not been rendered, for it confessedly was; but that the obligor was induced to employ the obligee by the menace, that if he did not, the obligee would act as counsel against him in aid of the prosecution. That the conduct imputed to the obligee is a gross violation of professional delicacy, propriety, and even morality, no one with just perceptions of professional selfrespect and duty would controvert. Whether, however, it would amount to such coercion, duress or extortion, as to invalidate the contract for compensation for the services thus in a manner imposed on the party, is a question purely legal, and proper for the adjudication of a court of law, on being presented to that forum as a defence to a suit for the compensation. Without considering' that question in this case, it suffices to say, that if the law would not sustain such defence, in other words if in law such a contract was valid, a court of equity has no right to absolve the party from it; and if in law the contract was invalid, the defence should have been made in that forum. In this case no excuse, is suggested, or even intimated, much less proved, for not making the defence at law. On the contrary, after the obligation : : : passed into the hands of assignees, who, for *aught that appears, are honest claimants for value, judgment at law is suffered to pass in their favour without an attempt at such defence; and it is only after the party, being pressed by execution, has delayed it by a forthcoming bond, and is again pressed by execution on the bond, that this defence is brought forward in a court of equity against these assignees. It is not fit that the aid of that court should be given to a party asking it on 'such grounds and under such circumstances ; especially as it appears that after the service was rendered, and when the party was free from the influence of a pending prosecution, and of the apprehended aid . that the obligee might give to it, he ratified the contract for the compensation by making it unconditional.

My opinion .therefore is, that the injunction ought not to have been granted; and that the decree perpetuating it is erroneous, and ought to be reversed with costs, the injunction dissolved, and the bill dismissed, with costs to the appellants in the county and superior courts.

The other judges concurring, decree entered accordingly.  