
    Abner Corley v. Albert Williams. Same v. Frederick Williams.
    Columbia,
    
      May, 1830.
    A promissory note given to the prosecutor, by a surety to the recognizance of vhe party prosecuted, in consideration of an agreement to abandon the prosecution, is illegal, and void, although the only offence charged were a common assault upon the prosecutor.
    Tried before Mr. Justice Gantt, at Edgefield, Spring Term, 1830.
    The plaintiff had instituted a-prosecution for an assault and battery upon him, against one'Drury Kirksey, and the defendants became sureties for the latter, in a recognizance to appear, and answer to the charge. Previous to the succeeding term of the Court of Sessions, Kirksey absconded; and to avoid their liability on the recognizance, the defendants gave their promissory notes to the plaintiff, for $25, each, upon his agreeing to abandon the prosecution: in pursuance of which agree-m'ei.t, the parties appeared before the magistrate, by whom the recognizance of the defendants had been taken; and he, at the request of the plaintiff, surrendered it to them.
    The plaintiff now brought suit against them, by summary process, on >be¡r respective notes; but the recovery was resisted, pn the ground, that the consideration was illegal.
    
      The presiding Judge was of opinion, that the consideration was not illegal. The compromise of prosecutions for assault and battery was of every day’s occurrence,, and was always allowed, whore the only complaint was the personal injury done to the prosecutor. The maxim, ex turpi contractu non oritur actio, did not apply, for it was not base to repair an injury. The plaintiff was, in fact, intitled to an action for the private wrong; and the interest of the public in such a matter, was always allowed to merge in a just and adequate satisfaction to the injured party. The fine imposed was nominal, where satisfaction had been made. The notes in suit were given as a satisfaction for the private injury, and the cessation of the prosecution,, as to every substantial purpose, followed of course. The magistrate may have erred in surrendering the recognizance; but, for that, he alone was responsible.
    Decree for the plaintiff in both cases.
    The defendants now moved to reverse the decrees as contrary to law. /
    Bauskett, for the motion.
    Every compromise of a criminal prosecution is an interference with the due course of justice, and is therefore illegal, and void. I Com. on Contracts, 30. Bell v. Wood, 1' Bay, 249. And there is no distinction, iri this respect, between prosecutions for felonies, and for misdemeanors. Chitty on Contracts, 220. 5■ East. 290.
    It is true, that where the offence is a,mere private injury, a light,' or merely nominal, punishment, will be inflicted, if satisfaction has been made to the injured party; but this cannot be done without the sanction of the Court, whose province it is, to inquire, and determine, whether public justice is, or is not, concerned in the punishment of the offender. 1 Ch. Crim. Law, 7. Even this practice has been reprobated ; but if it be allowable, still it is not to be tolerated, that private individuals should usurp the functions of the, Courts, and deal'with prosecutions, at their own discretion, as, private property. *,
    It is said that the notes were given as a satisfaction of the private injnry. Even if it had been so intended ; if thére liad been a civil suit, in which the defendants were bail, and the plaintiff had released the action in consideration of these notes; yet tlie abandonment of the prosecution also entered into the. consideration, and that being illegal, the whole contract was vo¡cj_ i Qom> on Contracts, 26.
    But the notes were never intended as a satisfaction of the private injury. The plaintiff agreed only to abandon the pro-secutjonj anc| wag n0 )jajl. t0 a sujt for tJle cjvji injury; on the contrary, it would remove an obstacle to the recovery of substantial damages. The consideration of the notes, was the removal of the defendants’ liability on the recognizance, and in that the plaintiff had no interest, and could not make it the subject of a contract beneficial to himself. He had no legitimate control over it, and could only reach it indirectly, and surreptitiously, by means of an illegal contract.
    Griffin, contra.
    
    As a general rule, it is admitted, that agreements for the compromise of public prosecutions are illegal, and void; but .every rule has its exceptions, and all the authorities agree, that an exception is allowed to the rule in qdestion, in the case of misdemeanors of a private character. 1 Ch. Crim. Law, 4. 7. In one of the authorities cited on the other side, the rule is expressly limited to prosecutions for felonies, or misdemeanors of a public nature. Chitty on Contracts, 200. And on the same page, of the same book, it is said, that an agreement to make the prosecutor of an indictment, for a mere private injury, as an assault, a reasonable satisfaction, in consideration of proceedings being stayed, is not illegal.
    It is said, however, that the sanction of the Court must be first obtained. But how is such sanction to be obtained, until the case has got into Court 1 In all cases, the treaty between the parties must precede any application to the Court to confirm it. If the parties are in Court, they cannot be dismissed without its consent. If the defendant has been convicted, his “speaking with the prosecutor,” cannot suspend the sentence, unless the Court agree to it. All that is meant, then, by the sanction of the Court being necessary, is, that the compromise of the parties cannot have the effect of putting an end to the prosecution, unless it is approved by the Court. No formal application for confirmation is necessary, until some step is taken in the prosecution ; and if .any is taken, the compromise is interposed, and the Court pronounces upon it. In the present case, the magistrate having surrendered the recognizance to the defendants, instead of certifying it to the Court, it was impossible to carry the question of the compromise to the Court. That however cannot affect its legality. -If illegal, it is void; if legal, it is a good consideration for the notes; and the question may be tried in rhis action. 'The presiding Judge has decided, that'the case is within the exception allowed to the general rule; and the authorities shew the decision to be correct.
    If a compromise with Kirksey would have been good, it is difficult to perceive, why a compromise with the defendáis is not equally so. The plaintiff, it is'said, had' no ihterest in the recognizance ; neither had he an interest in the fine which might have been imposed on Kirksey: but the object of both was the punishment of an injury done to him, and if a pecuniary satisfaction is permitted to be substituted for the one, it is impossible to understand, why it may not also be substituted for the other.
   Colcock, J.

delivered the opinion of the Court.

In this case we are constrained to differ from the presiding Judge. The payment of the money ( cannot be considered a satisfaction for the private injury sustained by the plaintiff, for his right of action against Kirksey remains unimpaired. The notes were given, simply, to relieve the defendants from their liability on the recognizance; and the agreement, therefore, seems to me to come within the general principle. Besides, the agreement is utterly nugatory. The Court, upon a proper representation of the matter,, might have granted leave to dispose of the prosecution in the manner agreed upon, if it had been shewn, satisfactorily, that Kirksey had left the State. But the magistrate had no authority to stop the prosecution, or destroy the record; and his surrender of the recognizance, neither relieves the defendants from their liability, nor puts an end to the prosecution. The consideration of the notes being illegal, they are void in law: and the decrees must be reversed.

Johnson, J. and Evans, J. concurred,.

Motion granted.  