
    George W. Hudson vs. William C. Brown and John Smith.
    
      Single Bill — Agreement to compound a Felony — New Trial.
    
    A. had a considerable sum of money stolen from him by the slave of B., a part of which was recovered, and for the balance B. gave A. his single bill, and A. did not prosecute the slave for the felony. The jury having found, upon the evidence, that an agreement not to prosecute the slave formed no part of the consideration of the single bill, on appeal, held, that the verdict was not so clearly unsupported by the evidence that it could be disturbed.
    BEFORE -WARDLAW, J., AT YORK, FALL TERM, 1858.
    Tbis was an action of debt on a single bill for $259 50, given bj the defendants to the plaintiff. The defence was that the bill was given to compound a felony.
    The report of his Honor, the presiding Judge, is as follows: “ The plaintiff, living in York district, had a considerable sum of money stolen from him. His suspicions were directed towards Jake, a negro fellow of the defendant Brown, who lives in Hnion. He went into,Union, and the matter became the subject of neighborhood inquiry. A physician practicing in Brown’s family, said to Brown: ‘ I think Jake has the money, and if you will search his box you will find it.’ Brown’s wife said, ‘Yes, a. little negro told me Jake had a large roll of money in his box.’ Brown was not then well— said he was sick — did not have Jake’s box searched, and seemed unwilling to make search.
    “The plaintiff applied to a magistrate of Union district. The magistrate wrote a paper which he called a 1 search warrant,’ and deputized a constable to whom he delivered it, for the purpose of having search made at Brown’s. The constable went under tbe warrant, as be supposed, and by consent of Brown; be searched by nigbt, and in Jake’s box found $50. He stayed at Brown’s and conversed witb bim that nigbt. Next morning be beard from Jake that Brown bad $30 of tbe money; and Brown, upon application to bim, acknowledged that be bad $30 wbicb be supposed belonged to tbe plaintiff, and wbicb be said Jake bad given to bim for a watch. Of this, Brown bad said nothing tbe nigbt before. During tbe next day tbe constable discovered that tbe paper wbicb tbe magistrate banded to him bad not been signed.
    “In various ways, not fully explained, tbe plaintiff recovered a large portion of his money; still of tbe $898 wbicb be said be bad lost, $259 50 were missing. A day was appointed for a trial at Brown’s. These parties ..and some neighbors met,' but no legal proceedings were, commenced. Brown said that tbe plaintiff would prosecute Jake if be did not get bis money — that be would whip bis negro himself, but be did'not wish tbe law to whip him — that be did not want bim cut up, as be intended to sell bim; and that if the plaintiff would wait until January, be would pay bim bis money. Tbe plaintiff agreed to wait, and thereupon tbe single bill sued on was given.
    “ That day, tbe plaintiff, in conversing about tbe matter, said, ‘ I have nothing more to do witb it — I have Brown’s note for tbe balance of tbe money, and have given all up to bim.”
    “On bis way home tbe plaintiff said to a neighbor who inquired about bis success, that be had got Brown’s note for tbe balance of tbe money — that be bad bad possession of tbe negro, and bad intended either to bold .him till be got bis money, or to prosecute him.
    
      “ Tbe negro was well whipped witb a strap in tbe presence of Brown' and others — Brown making great threats to scare bim, and frequently saying to him, ‘ I have got ’ to pay tbe money, and you’ve got to tell where it is.’ Thirty or forty dollars were known, to have been then and afterwards got by Brown from Jake, and'those to whom Jake had given portions of the money; of this, none was paid to the plaintiff!
    “I instructed the jury, that so far as the compounding of a prosecution against Jake constituted the consideration of the single bill, the instrument was void; that the right to _retain money of the plaintiff which might be got from Jake, was not an illegal consideration ; nor was a moral obligation, which, under certain circumstances, the defendant, Brown, might have felt himself under, to indemnify the plaintiff against the loss occasioned by the the theft of Brown’s slave. I submitted the facts with careful reference to the distinctions just mentioned. The verdict was for the plaintiff, the amount of the single bill and interest.”
    The defendants appealed and now moved this Court for a new trial, on the grounds:
    1. Because the evidence was clear and uncontradicted, that the note was given to compound a felony, and it is respectfully submitted that the consideration of-said note was illegal and void, and the plaintiff was not entitled to recover.
    2. Because his Honor charged the jury that if the defendant, W. 0. Brown, the owner of the negro boy Jake, gave the note in question to the plaintiff for the money which Jake had stolen from him, from a conviction that it was morally right for him to do so, and without any agreement to stop a prosecution for said offence, the plaintiff was entitled to recover.
    8. Because there was no evidence that the note was founded on any such consideration.
    
      Williams, for appellant.
    A note given to compound a felony or misdemeanor of a public nature is void. Chit, onCon., 673, 674; Bell vs. Administrators of Wood., 1 Bay, 249; Bostich, Assignee of Wood, vs. McLaren and Borders, 2 Brev. 275; Gorley vs. Williams, 1 Bail., 588. For evidence that the note sued on was given to stop prosecution, see report. A mere moral obligation to pay a demand is not a sufficient consideration to support a promise, unless a legal liability has once existed. Mills vs. Wyman, 3 Pick., 207; Dodge vs. Adams, 19 Pick., 429 ; Chit, on Con., 47. If consideration of note was partly, that Brown should get plaintiff’s money which the negro had stolen, and which was supposed could be got, and partly that no prosecution should be had against the negro, plaintiff cannot recover. A contract is void in toto if a part of it is illegal, either.by virtue of a statute or at common law. Chit, on Con., 693.
    
      Wilson, contra,
    cited 2 McM., 356; Price vs. Sumner, 2 South., 598; Plummer vs. Smith, 5 N. EL, 553; No. 44, Amer. Jurist, 255; Chit, on Con., 47; Glasgow vs. Martin, 1 Strob., 89; 2 Sp., 33.
   The opinion of the Court was delivered by

Wardlaw, J.

This is an appeal from the finding of the jury upon facts: for the instructions which were given informed the jury “that so far as the compounding of a prosecution against Jake constituted the consideration of the single bill, the instrument was void;” and the verdict for the whole amount of the single bill, in effect, has answered that the objectionable purpose did not enter into the consideration. This verdict is said to have been against evidence “clear and uncontradictedyet the appointed judges of fact have decided otherwise, and a careful examination of circumstances might lead those'who would try facts by a written report of'testimony, to entertain strong doubts. Let it be observed that tbe plaintiff was not present at the conversation of Brown about whipping the negro, but when the application for'time was reported to him, said that he would wait till January: further, that no legal proceedings had been instituted, the plaintiff was not bound to institute any, and nobody else was in any way restrained from doing so: that the punishment of the slave, by directions of the master given in the domestic forum, was contemplated and actually had: that the exertions of the plaintiff to recover the balance of the money, which he had lost, were arrested by the execution of the single bill, and some portion of that balance afterwards obtained by Brown; and that some unpleasant connection of the master with the possession by his slave of a large sum of money, may have stimulated his sense of an obligation to repair the damage, which too great an indulgence toward the slave may have brought upon a neighbor. It could hardly be said that no plausible view of the evidence could have been taken by the jury, under which sufficient inducements for the single bill were found, independent of any agreement or purpose of the obligee to stifle a prosecution, or hinder the course of criminal justice. Let it be admitted that the moral obligation which is spoken of in the report would not have formed sufficient consideration for a promise: — It is then merely frivolous, not illegal: and a sealed obligation which it has induced, becomes voluntary, not void. The seal importing a consideration, the instrument is none the worse because it is what the obligor ought to have made, although before making it, he was not legally bound to do so.

Objection, in the argument here, has been taken to the proposition implied in the first part of the instructions, that the instrument sued on may have been in part good, and in part bad, if part^of the consideration was good, and other part contrary to policy and good morals. The verdict for the whole renders a full examination of this point now unnecessary : but it may prevent misconception to admit that the good consideration of money to be got from Jake was too intimately connected with the bad consideration of a prosecution against bim compounded, to allow of any apportionment, if both considerations existed. Those who would examine this point may find the distinction between statute and common law, laid down in 1 Mod., 35, and Hob., 14; and numerous cases explanatory of the circumstances which modify or control the distinction, collected in the case of Armstrong vs. Toler, 11 Wheat., 258.

The motion is dismissed.

WITHERS, Whitner and Glover, JJ., concurred.

MuNRO,-J., absent.

O’Neall, J.,

dissenting, said, I dissent. I think that the single bill was given to compound a felony.

Motion dismissed.  