
    Conderman vs. Trenchard and others.
    In an action upon a promissory note alleged by the defendants to have been given as the consideration for compounding a crime, it is not necessary, in order to render the note invalid, for them prove that the maker, in terms, agreed to compound a crime. If it be apparent that such was the intention of the parties, and the agreement was such as to carry out the intent, that is enough.
    It is not necessary, in order to render such a contract invalid, that the person receiving the consideration should agree not to commence new proceedings against the person accused. It is enough that he obligates himself to release the defendant from a pending prosecution.
    H. having been arrested upon a criminal warrant, on a charge punishable by imprisonment in a state prison, and being in actual confinement, awaiting examination, an arrangement was made between S., the person on whose complaint the arrest was made, and the defendants, by which the latter agreed to give their note to S. for the amount of his claim, constable’s fees, and certain items owing by H. to other parties ; and S. agreed that upon their so' doing H. should be “ released,.so that he could go to work and earn enough to pay up the note.” The note was given, accordingly, and thereupon H. was discharged, and no further proceedings were had, on the criminal complaint. Held that the proof shelving that there was an agreement to terminate the criminal prosecution then pending, for a pecuniary consideration, and its termination in pursuance thereof, the whole proceedings were illegal and corrupt, and the promissory note given in performance of such agreement was void.
    APPEAL, by the defendants, from a judgment entered upon the report of a referee.
    The action was brought to recover the amount of a promissory note for $150.70, given to one G-eorge W. Sherwood, by the defendants, which note was not negotiable, but was transferred to the plaintiff for a valuable consideration, before maturity. The facts in relation to this note, as set forth in the defendants’ answer and established on the trial, were as follows: On the 13th of January, 1869, James B. Hicks, one of the defendants, was charged, on the oath of Q-. W. Sherwood, the payee of such note, with having, abont the month of December previous, obtained from him certain board and livery hire, for himself and other persons, amounting to $69, by the false pretense that he, Hicks, was engaged in buying wood and railroad ties, and that he then had a quantity on hand. That such charge by Sherwood, which was in the usual form of a complaint, was delivered to a justice of the peace of Steuben county, and a warrant in the usual form issued thereon, against Hicks; who was arrested thereon, on the 17th of January, 1869, and brought before the said justice. He then asked for ten days’ time before being examined, which was granted, and Hicks was confined in the lock-up at Hornellsville, to await such examination. That while he was so confined, the other defendants agreed to and with Sherwood, to give the note in suit, being for the said $99, and $42.50 constable’s fees, incurred upon such warrant, together with some other items that Hicks owed other parties, which Sherwood was to assume, and have Hicks released, so that he could go to work, and earn enough to pay up the note. -
    The referee found, as matters of fact, among other things, as follows: “ That on the 27th day of January, 1869, the defendants and said Sherwood entered into an arrangement by which the said defendants should sign and deliver to Sherwood the instrument upon which this action is brought, to secure the payment of Hicks’ indebtedness to Sherwood, together with some other items which Sherwood had become responsible for; and upon doing so, Hicks should be released, so that he could go to work and pay the matter up>; and that the said agreement was carried out so far as executing and delivering the instrument by the defendants, but the same was not paid by said Hicks. That on the delivery of said executed agreement, Hicks was discharged, and no further proceedings were had, in the premises. That there was no agreement on the part of said Sherwood, to settle or compound the crime for which said Hicks was arrested.”
    The referee found, as conclusions of law, that the plaintiff was entitled to recover of the defendants the amount mentioned in said instrument, being $150.70, less $30, with interest on $120.70 from the 28th day of April, 1869, amounting to the sum of $128.18; for which sum he directed judgment to be entered, and from the judgment so entered, the defendants appealed.
    
      Bemis & Near, for the appellants.
    
      Holliday & Benton, for the respondent.
   By the Court, Mullin, P. J.

This action was brought to recover of the defendants the amount due on a note made by them dated January 27, 1869, payable to George W. Sherwood, for $150.70, sixty days from date. The. note was transferred to the plaintiff by the payee, for a valuable consideration.

The defense set up in the answer, and in support of which, evidence was given, at the trial, was that it was given to compound a felony committed by Hicks, one of the defendants. It appears by the evidence, that Hicks had obtained board, and the use of horses and carriages, from Sherwood, named as payee in the note, under the false and fraudulent representations that he was engaged in lumbering, and buying ties, and that he had bought and paid for large quantities. A complaint was made before a justice of the peace of Steuben county, against said Hicks, who was arrested and brought before the justice issuing the warrant, and the hearing of the said matter was, at his request, postponed for ten days, and he was committed for safe keeping, during the ten days, to the lock-up in Hornellsville.

Several of the defendants desired to set him at liberty, so that he might go to work, and earn enough to pay the debt to Sherwood, the costs incurred in the proceedings, and several small debts due to other persons. Evidence was given, on the trial, tending to prove that before the note was given, it was agreed that if given, the proceedings should cease, and Hicks be set at liberty. Evidence was also given, tending to prove that the note was given in payment of the debts and expenses referred to above, but not for the purpose of compounding the offense with which Hicks stood charged. It was conceded that the prosecution ceased with the giving of the note, and Hicks was set at liberty. The referee finds that the defendants and Sherwood entered into an arrangement by which the defendants should sign and deliver to Sherwood the note in question to secure the payment of Hicks’s indebtedness to Sherwood, together with certain other items for which Sherwood had become responsible; and upon so doing, he, Hicks, should be released, so that he could go to work, and pay the matter up; and the paper in question was then signed and delivered, and Hicks discharged, and no further proceedings had in the premises. The referee further finds that there was no agreement on the part of Sherwood to settle or compound the crime for which Hicks was arrested.

Bishop, in his work on Criminal Law, (§ 648,) defines compounding crime as being an agreement with the criminal not to prosecute him. By the Revised Statutes, (vol. 3, 5th ed. p. 969, §§ 18, 19, and by § 12, p. 973,) it is made a crime for any person having actual knowledge of the commission of a crime punishable with death, or in a state prison, or in a county jail, or by a fine, who shall take money or property of another, or any gratuity or reward, or any engagement or promise to compound or conceal such crime, or to abstain from prosecuting, or to withhold evidence; and upon conviction, the offender shall be punished, &c. The prohibition of the statute extends beyond the mere agreement not to prosecute, and subjects to punishment those who conceal the crime, or agree to conceal evidence. In Chitty on Contracts, (p. 673,) it is said: “ Any contract which can prevent or impede the course of public justice is illegal.” And he illustrates the proposition thus : An agreement in consideration of suppressing evidence, or stifling or compounding a criminal prosecution or proceeding for a felony, or misdemeanor of a public nature, as perjury, &c., is void. (Steuben County Bank v. Mathewson, 5 Hill, 252. Coppock v. Bower, 4 M. & W. 361. Daimouth v. Bennett, 15 Barb. 541. Porter v. Havens, 37 id. 343. Keir v. Leeman, 51 Eng. Com. Law, 308. People v. Pease, 16 Mass. 91. Jones v. Rice, 18 Pick. 440.)

The important question arising on this appeal is, whether the consideration of the note on which the action is brought was an agreement to compound a felony or misdemeanor, or to conceal the commission of either, or to withhold evidence in relation thereto, or to do any other act preventing or impeding the course of public justice. Hicks was in custody on process issued upon a criminal complaint; the object of Sherwood, and the persons signing the note, was to release him, not after an examination of witnesses to be produced against him, but before and without any examination. He was to be released so that he might go to work, and earn money to pay the note. To obtain this end, the abandonment of the proceedings against him was an essential requisite; and that they were not suspended, so as to be revived again, is shown by the fact that the costs of the pleadings were included in the note. Sherwood was not to appear against him, and he did not. The arrangement was consummated, and Hicks released.

It is not necessary for the defendants to prove that Sherwood, in terms, agreed to compound a crime, in order .to render the note invalid. If it is apparent that such was the intention of the parties, and the agreement was such as to carry out the intent, it is enough. The person injured by the criminal act of another, in his person or property, may take from the wrongdoer .compensation for the wrong. But he must not enter into any agreement to prevent, or stifle, a prosecution for the crime. If it were necessary to prove an express agreement to compound the crime, impunity could always be secured, and the suppression and defeat of criminal prosecutions would be made a source of profit. If the holder of forged paper may for a consideration surrender it to the forger and retain the price of his iniquity, because he did not in terms agree not to prosecute the criminal, the desired end will be obtained more effectually without, than it could be with, such an express agreement.

It is not necessary, to render invalid such a contract, that the person receiving the consideration should agree not to commence new proceedings against the person accused. It is enough that he obligates himself to release the defendant from pending prosecution. For if this were not so, a prosecutor might institute new proceedings every day, and use them to extort money from the offender.

It is almost of daily occurrence that persons instituting criminal proceedings agree to abandon them, upon being paid a consideration; and that contract is deemed to be perfectly just and fair, because it is not agreed not to institute any new or other prosecution. The only way to put an end to a practice so corrupt and oppressive, is to declare all such contracts to discontinue criminal prosecutions that are pending, and all agreements not to institute a criminal prosecution, as immoral and illegal.

The case of Porter v. Havens, (supra,) is a very striking illustration of the strictness with which the courts construe contracts affecting the administration of justice. In that case G-. F. Havens being under two indictments, one in this State, and one in Vermont, and in custody on process in Vermont, upon one of them, he, and his father as his surety, entered into an agreement with one Bowen, to whom G. F. Havens was indebted in the sum of $2400, to give him notes for his debt, part of them signed by both him and his father, and part by George alone, under an agreement that they should be deposited in the hands of a third person, until the criminal prosecutions were ended, without further trouble or expense to said George, except counsel fees—then to be delivered, upon Bowen delivering to the persons holding the notes, discharges from certain claims; and the delivery was to be upon the further condition that he, Bowen, should not arrest or cause George to be arrested, on any process, but should cease all proceedings against him. When this arrangement was made, there was in the hands of the sheriff, process for the arrest of George, for the money owing by him to said Bowen. The criminal prosecutions being terminated, the notes were delivered to Bowen, and he transferred them to the plaintiff. On the trial the foregoing facts were proved; and the defendant having rested, the plaintiff proved by one Tracy that he was present at and drew the contract, and that there was no connection, to his knowledge, between the settlement and the indictments, other than appeared in the writing itself; and the arrangement as to the deposit and delivery to Bowen of the notes was, as he understood, for the benefit- of the father. Bowen had nothing to do, so far as the witness knew, with the criminal prosecutions, except the one for false pretences in obtaining money from Bowen. The plaintiff offered to prove that the arrangement was not made at Bowen’s request ; that there was no agreement or understanding that Bowen should suppress or withhold any evidence, or to put an end to the prosecutions; and that he never did put an end to them, but that the same was done by the courts, without his procurement or interference; and that the said notes were not given to compound a felony or criminal offense. The evidence was rejected, and there "was a verdict for the defendants. The general term affirmed the judgment, holding the contract immoral, illegal and void, and that the contract being unambiguous and clear, must be construed by itself; and that the parol evidence offered was, therefore, incompetent. The court construed the agreement by Bowen not to arrest, or cause to be arrested, the said George, as an agreement not to prosecute him for either of said criminal offenses, and for that reason illegal, because there was inducement and consideration to discontinue and terminate the criminal proceedings, and plainly to accomplish that result the note was given.

The' facts found by the referee, in this case, show an agreement to terminate the criminal prosecution then pending, for a pecuniary consideration, and its termination in pursuance of it. I cannot doubt but that such an agreement is unlawful and void.

The further finding that there was no agreement to settle or compound the crime for which Hicks was arrested, is not only not supported by the facts proved and found, but is wholly inconsistent therewith. If the referee intended to find that there was no such agreement in terms entered into, his finding may be justified by the evidence of Sherwood and his attorney, Holliday. But it is not necessary that the agreement should be to compound the crime; it is enough that such is the legal effect of it, and that such was the intention of the parties.

Compounding a criminal offense is not, I have endeavored to show, the only thing that renders a contract void. An agreement not to give evidence, or to stifle a proseention, is just as corrupt as an agreement to compound a felony or otherwise; assuming that the word compound does not embrace all the acts which may be resorted to to prevent, embarrass or terminate a prosecution, in which sense it seems sometimes to be used.

It is suggested that by recent decisions of the Court of Appeals, obtaining money or other property by false pretences is not a felony, but is a misdemeanor. That it was an offense which the person injured might compromise, and hence it was not unlawful for him to receive from the wrongdoer compensation for the injury done him.

The difficulty in this case is, not that Sherwood received compensation, but it is that in consideration of receiving such compensation, he agreed to abandon a pending criminal prosecution. It is said in Chitty on Contracts, (p. 674,) that the general rule is, that when an offense may be made the subject of a civil action, as well as of an indictment, and criminal and civil actions are instituted, an agreement to pay the costs of the civil suit, on its being stopped, is binding, if the costs of the criminal proceeding are not included in the arrangement, and it is no part of the bargain that the indictment shall be abandoned.

In Kier v. Lamon, (51 Eng. Com. L. 308,) it was held that a party may compromise any offense, though made the subject of an indictment, for which he might recover damages in a civil action; but if the offense is of a public nature, no agreement can be valid that is founded on a consideration of stiffing a prosecution for it. The right to recover compensation, in such cases, is regulated by statute, and to prevent abuse, the words prescribed by it should be followed. (3 R. S. 1021, §§ 70 to 74, 5th ed.) Those sections require that in cases of assault and battery, and other misdemeanors for which the injured party has a remedy by civil action, he shall appear before the magistrate before whom the criminal proceedings are pending, or before a county judge, and acknowledge satisfaction, in writing; and this officer, in his discretion, on the payment of the costs, may dismiss the proceeding.

[Fourth Department, General Term, at Rochester,

September 5, 1870.

hfothing of the kind was done, in this case. If, therefore, the statute applies, it does not aid the plaintiff. If it does not, and Sherwood had the right to compromise irrespective of it, his compromise was rendered illegal by reason of the agreement to discontinue the proceedings.

This case furnishes an illustration of the mischief that would result from permitting complainants to make contracts with those accused of crime. The note contains over $42 for fees of the constable' who made the arrest. That a most unjust advantage was taken of Hicks, not only in respect to the fees taken, but in requiring him to furnish security for claims the accuracy of which he had no means to ascertain, is evident.

The whole procedings were illegal and corrupt. The judgment must therefore be reversed, and a new trial ordered; costs to abide the event; and the order of reference vacated.

Mullin, P. J., and Johnson and Talcott, Justices.]  