
    BRITTIN v. CHEGARY.
    1. An agreement not to prosecute, or in some other way to favor and protect, the criminal, is an essential ingredient, in the offence of compounding crime.
    2. The mere substitution of a new instrument, in the place of a prior instrument alleged to have been forged, in the absence of proof express cr inferential of a corrupt agreement, will not invalidate the subsequent security.
    This was a case certified from the Circuit Court of the county of Morris. The action was originally commenced by attachment, but the attachment was dissolved, saving all liens., by the defendant; who gave bond pursuant to the statute, appeared, accepted a declaration at the suit of the plaintiff, and pleaded ¡«hereto.
    
      The claim of the plaintiff, so far as is necessary to be here stated, was founded on a promissory note made and given to him by the defendant, bearing date the 23d of September, 1840, for $95.-22, and payable in one year after date. The defendant set up as a defence, that the note was void, because given for an unlawful consideration, to wit,, for the purpose of stifling a prosecution against the defendant for forgery. On the trial of the cause before the Chief Justice, several witnesses were examined by the defendant to establish the allegations, on which this defence rested \ and by the plaintiff for the purpose of rebutting the evidence offered by the defendant. Exceptions were taken by the defendant to the charge of the Chief Justice, or to so much thereof, as defined and explained the offence of compounding a felony or other crime; and also to so much of the charge, as related to the character of the evidence necessary to support the defence set up. The bill was not sealed; but it was agreed, that the charge should be certified to the Supreme Court, for its opinion upon the points excepted to and specified as aforesaid.
    No statement of the evidence accompanied the statement of the case sent up.
    CHARGE OF THE CHIEF JUSTICE.
    The plaintiff seeks in this action to recover the amount due on a promissory note made by the defendant, whereby the defendant promised to pay to the plaintiff $95.22 one year after its date. That the defendant made and delivered the note to the plaintiff has been sufficiently proved, and is in fact not denied. The plaintiff’, then, is entitled to recover the amount due on the note, unless the defendant can show some lawful reason why he should not be- held liable. This he has attempted to do. He sets up by way of defence, that the note was given in pursuance of an unlawful agreement, and for an unlawful consideration. He alleges that one Chaulet had committed the crime of forgery, and that the note in question was given to the plaintiff for the purpose of stifling a prosecution against the offender! Or in other words, that the note was given in order to compound a felony, or rather a misdemeanor, and suffer the criminal to escape. This, gentlemen, is a good and lawful defence, if true. It is a defence founded on the morality and policy of the law. No plainer principle of good sense can be addressed to the human understanding, than that the laws and the courts of justice ought not to lend their aid to a man to enable him to enforce a contract unlawful in its conception, corrupt in its object, and at war with the safety and welfare of society; and I can scarcely conceive of any contract that can be entered into more dangerous to the community than bargains for the concealment of crime, and to effect the impunity of criminals. The legislature has been sensible of this, and has forbid such contracts under the sanction of severe penalties. By the 63d see. of our criminal code, it is enacted, that if any person, having knowledge of the actual commission of murder, manslaughter, sodomy, rape, arson, burglary, robbery or forgery in this state, shall conceal, and not as soon as may be disclose and make known the same to a magistrate, he shall upon conviction be deemed guilty of a misdemeanor, and be punished by fine or imprisonment in the state prison, or both. So again by the 52d sec. of the same act it is declared, that if any person take money, goods, chattels, lands, or other reward or promise thereof, to compound, or upon any agreement to compound, any treason, murder, including the crime of forgery, lie shall bo deemed guilty of a misdemeanor, and on conviction shall be punished by fine and imprisonment at hard labor. Now it cannot in this case be pretended that the plaintiff has done any thing contrary to the provisions of the first section which I have just cited. That section is not applicable to the plaintiff in this case, whatever it may be to Mr. Chegary or Mr. Beaupland; for if their names were forged, then they had, in the language of the statute, knowledge of the actual commission of forgery. But the plaintiff, for all that appears here, had not, within the meaning of the statute, any knowledge of the actual commission of forgery. So far from it, he is ignorant to this time whether any forgery was committed or not. Mr. Beaupland told him that the endorsement of his name was a forgery ; but it will not be pretended that if a man tells me that my neighbor has committed murder, or forgery, or any other crime, that I can be indicted and sent- to the state prison because I do not, with hot speed, ran off to a magistrate and tell him the story. I may not believe the story, but whether I believe it or not makes no difference, for my belief is not knowledge of the actual commission of the of-fence. If the man who told me actually saw the crime committed, or otherwise had personal knowledge of the fact, he ought to have gone to a magistrate and had the offender arrested instead of telling me of it. So in this case, if Mr. Beaupland or Mr. Chegary knew that Cbaulet had forged their names, it was their duty to go to a magistrate and complain of him, and if they did not, the hazard is upon them, and not upon those who held the paper, and who did pot know whether the signatures were forged or not. If I hold a note, and when I call on the maker or endorser for payment he tells me his name has been forged, I should be placed in a strange position if I were not at liberty to get my money if I can, but must run off to a justice to swear out a warrant against the man charged with the forgery. I have been thus particular in explaining this branch of the statute, because something was said by the counsel for the defendant that looked as if they supposed the plaintiff was obnoxious to the charge of concealing the crime, and liable to be indicted for doing so. This is not so. But if the plaintiff has violated any law, it is the law contained in the 52d sec. of the act, and to which I will call your attention again. That section forbids a man, upon pain of fine and imprisonment, to take money, goods, chattels, lands, or any other reward, upon any agreement to compound a forgery or other crime. If then, gentlemen, the plaintiff took this note to compound the crime said to have been committed by Chaulet, it is a good defence to this action. But before I proceed to state what in law constitutes the offence of compounding a felony, it is proper I should state to you that the burden of proof rested entirely on the defendant. It is a defence that must be strictly proved, and not left to mere inference. I will not say, that the defendant must prove the offence of compounding this forgery by the same, or by as clear and convincing proof, as the attorney-general would be bound to do in order to convict Mr. Brittin, if he were indicted for compounding the forgery; but I feel bound to say, that in order to make out this defence, nothing must be left to inference or presumption I do not mean that this defence may not, like other matters, be proved by a variety of facts and circumstances relied on to establish the evil intention of the plaintiff, or the corrupt conscience imputed to him in taking this note. But such facts must be clearly and positively proved, and not left to be inferred merely from certain other facts, which, though tending to, may not justify such inference. Again, I feel it my duty to state that the law is, as contended for by the plaintiff’s counsel, that if from the evidence in the cause it turns out that there were two considerations that might have moved the parties to the contract in question, one of which was a lawful one, the other unlawful, the law will imply that the note was made for the lawful consideration, unless it be clearly and substantially proved that it was made for the unlawful consideration. One or two more preliminary remarks have been made necessary by the arguments of counsel. It has been said that in cases of this kind it sometimes turns out, that one party is more to blame than the other, and that the rule which avoids the contract does not apply. The cases cited, however, in support of this position, have no application to this case. If the defence set up here is true ; if this note was taken to compound a forgery, then both parties are in pari dilicto, and we cannot weigh their consciences in golden scales to find out which was most corrupt. Once more, if the note is void upon the ground that it was given to compound a crime, then any promises made afterwards by the defendant to pay the money were void promises, and the plaintiff cannot recover upon them. To recur, then, to the only question, namely, whether this note was given by the defendant, and accepted by the plaintiff, to compound the crime of forgery. I cannot but think, that there has been some misapprehension among counsel, on the subject of compounding offences. It has been argued as if they supposed that it was unlawful for a man to take payment of his debt from a man who is charged with forging the note which he holds for it; or to receive payment or security for that debt, if the holder of the note is told or believes that the note was a forgery. This is not so. It would be a most extraordinary thing, if I had Chaulet’s note for $1000 or $5000, purporting to be endorsed by Mr. Beaupland, and if the latter told me that his endorsement had been forged by Chaulet, and I go to Chaulet and demand payment of the money, and he offers to pay me my money, I must not take it and give up the note upon pain of being indicted and sent to the state prison for compounding the forgery. I have no hesitation in saying that such a transaction would not be unlawful. On the contrary, if I receive a counterfeit note for $50, and have reason to believe that the man from whom I received it knew it was a counterfeit, or had himself manufactured it, I am not obliged, upon my suspicions, to lose my money and hazard a criminal prosecution against the man who gave me the bill. So if I hold a note or a bond for $1000 or $5000, or for any other sum, and a third person tells me it is a forged instrument, but offers to take it up and give me other security for the debt, I may lawfully do it. Such a transaction is not compounding a felony, but getting my own money. To constitute that offence, a man for a price or reward, paid or promised to him, mustagree to stifle a public prosecution, or at least must agree not to be a complainant or prosecutor. If, for instánce, Chaulet had gone to Mr. Beaupland, who alone knew of the forgery, and given him a note or other security for any sum of money, upon an agreement that Beaupland should pay the forged endorsement, and not expose or prosecute him criminally for the forgery, it would be an unlawful contract. So, if a man steals my property, and then gives me security for the value, or for more or less, provided I will not complain, prosecute or appear against him, it is a composition of the felony and the contract is void. And it is so, not because I was to blame for getting my property, but because I acted under the influence of a bad and corrupt conscience, by which I was willing, for the purpose of promoting my own interest, to become in a moral sense a particeps criminis, and to sacrifice the public interest, peace, security and welfare, to my own interest. I do not mean to say that the payment or promise to pay must be a gratuity to the plaintiff. It may be, as in this case, a promise to pay to the plaintiff what is really and honestly due to him; and yet, if he take a security from the criminal, or from a third person, given to him in consideration of an agreement not to complain of, nor appear as a witness against, the offender, the promise or contract is void. This I take to .be the law; the whole current of authorities fully establishes it, and such were the decisions in the case of the Union Bank v. Garrabrant and of Tuttle v. Richards, I think. The question, then, in this case is, whether there was any agreement, express or clearly implied or understood, between the plaintiff and the defendant, that the plaintiff should not complain of, or be in any way instrumental in prosecuting Chaulet and bringing him to public justice. This being the question, the jury will apply themselves to the evidence in the cause, and try that issue by that evidence. I mean to give no opinion as to what the evidence amounts to, or how you ought to find. I will not attempt to repeat the evidence ; you have heard it all, and it must be fresh in your memory. I will only say, that if any terms or conditions of an unlawful character, were publicly held out and proclaimed by the defendant, as those on which he would give his own notes, and if the plaintiff was present and within hearing, and he, acting in concert with the others, handed in his paper and took the defendant’s notes, he must be considered as taking it upon the terms thus publicly proposed, and if those terms were unlawful he must abide the consequences. My meaning is this: that it is not necessary that the defendant should prove that the plaintiff, in so many words, promised that he would stifle a public prosecution, or that he would not appear or complain against Chaulet; but then you must be as much satisfied from the evidence in the cause that such was the agreement made between the parties, and upon which the plaintiff took this note, as if such promise or agreement was proved to have been spoken by himself, or else he ought not to be prejudiced by it. Finally, gentlemen, if from all the evidence in the cause you are satisfied that the defendant gave his note in consideration of a promise or agreement to stifle a criminal prosecution against Chaulet, and that the plaintiff received the note in pursuance of such an agreement on his part, then you ought to find for the defendant. But if you ure not so satisfied, your verdict ought to be for the plaintiff.
    P. _D. Vroom for the defendant.
    
      J. J. Scofield for the plaintiff.
    Cases cited by the defendant’s counsel. Commonwealth v. 
      Peace, 16 Mass. R. 91; Benham v. Carey, 11 Wend. R. 83; Bruce v. Lee, 4 John. R. 411; Tuxbury v. Miller, 19 John. R. 311.
    Cases cited by the plaintiff’s counsel. 1 Bouvier L. Dict, 291; 1 Hale, 546; Roscoe, Cr. Ev. 362; Chitty on Contr. 646; 4 Bl. Com. 134; Wallace v. Hardacre, 1 Camp. 45; Chitty on Contr. 673; Byles on Bills, 70; Ward v. Allen, 2 Metcalf, 53; Irnes v. Rice, 18 Pick. 440; Harding v. Cooper, 1 Starkie, R. 467; Rex v. Stone, 4 Carr, and Payne, 379; 2 Cow. Phil. Ev. 296, 298; Starr v. Peck, 1 Hill, 272; U. S. Bank v. Davis, 2 Ib. 459 ; Broom’s Legal Maxims. 353, 354: 50 Law Lib.
    
   Carpenter J.

delivered the opinion of the court.

This case comes up unaccompanied by any statement of the facts proved at the trial in support of the defence set up by the defendant; our inquiry therefore is simply as to the abstract propriety of the charge of the judge to the jury, upon the points excepted to. The point pressed on the argument, and it appears to me to be the only point really brought into question, is in relation to what constitutes the offence of compounding a felony, or other criminal offence; in the present case, what constitutes the offence of compounding the crime of forgery. I see nothing in the charge, standing by itself, as to the kind and character of the evidence necessary to prove the offence, calculated to mislead the jury. We cannot admit the possibility of the jury having been misled by its application to supposed facts, of which we know nothing; and to which therefore we cannot apply the remarks of the judge. We cannot advise the setting aside the verdict upon mere conjecture, but only on account of some obvious error in the charge, by which the rights of the defendant have been infringed. I see no ground therefore on which to set aside the verdict, unless there be some error in the doctrine of the charge as to what constitutes the offence.

In relation to this point, I apprehend, the charge is substantially correct. An agreement not to prosecute, or in some other way to favor or protect the criminal, is an essential ingredient in the offence of compounding crime. The bare taking of one’s own goods again, which have been stolen, or other amends, is no offence at all, unless some favour be shown to the thief; otherwise it is, if he receive them on an agreement not to prosecute. 4 Bl. Com. 133; 1 Hawkins by Carwood, 73; 1 Hale’s P. C. 546, 619. The application of this principle, to the case, where amends have been made to the person injured by a forged bill or other security, is obvious; the substitution of a good bill for a forged bill, or the payment of the forged bill, if unaccompanied by any stipulation to suppress evidence or to stifle a prosecution, has never been held to be unlawful. No case has been produced, and I suppose no case can be produced, in which such substitution or payment, independent of any agreement to conceal the offence or to forbear a prosecution, has been held to avoid the subsequent security so received; or to expose the person receiving such security or payment, to the penalties incident to misprision of felony. Wallace v. Hardacre, 1 Camp. 45, and Ward v. Allen, 2 Metcalf, 53, are express authorities to the contrary. Without going farther than is necessary for the decision of this cause, it is now sufficient to say, that the mere substitution of a note in the place of a prior note alleged to have been forged, independent of proof, express or inferential, of a corrupt agreement, will not invalidate the subsequent security. The case seems to me to have been fairly pot to the jury, and I am of the opinion that the Circuit Court should bo advised to render judgment for the plaintiff in accordance with the verdict.

Circuit Court advised to render judgment on the verdict.

Nkvtus and Whitehead, J. J. not having heard the argument, expressed no opinion.  