§ 700. Contracts to do acts which are indictable, or punishable criminally; or to conceal and compound such acts; or to suppress evidence in a criminal prosecution, - are void.2 Thus, it is a good defence to an action for not supplying manuscript to complete a work, according to agreement, that the matter of the intended publication is of an unlawful and indictable nature.8 So, also, a contract to indemnify a printer for publishing a libel,4 or to save harmless any person intending to commit an assault, is void. So, also, a bond, note, or other promise, is void, if it be given in consideration of compounding a prosecution for felony, treason,5 or a public misdemeanor;6 or in consideration of concealing treason and felony,7 it being a punishable misprision; or of compounding informations on (1870), the parties bet $100 on the election of General Grant, and Shaw not having $100 to deposit, put into the hands of the stakeholder the promissory note of a third person for $175, which the stakeholder handed over to Gardner after the election, and he collected $175 of the maker. Shaw was allowed to recover of him the amount above $100 as for money had and received.
1 See note to Lord v. Dall, 1 Bigelow, 158.
2 Badger v. Williams, 1 Chip. 137; Bowen v. Buck, 28 Vt. 308 (1856). 3 Gale v. Leckie, 2 Stark. 107.
4 Poplett v. Stockdale, 2 C. & P. 198, per Best, C. J.; Ry. & Mood. 337.
5 Fivaz v. Nicholls, 2 C. B. 501. A note given to compound felony is so void, that it is not necessary to prove that a felony had in fact been committed. Chandler v. Johnson, 39 Ga. 89 (1869). And see Porter v. Jones, 6 Cold. 313 (1869). As to agreements to stifle a prosecution, see Crooke v. Powerscourt, 16 W. R. 969 (1868, Ir. Q. B.). Agreeing to discontinue a pending prosecution is as much an illegal consideration for a note as a contract not to prosecute. Conderman v. Trenchard, 58 Barb. 165 (1870).
6 Prole v. Wiggins, 3 Scott, 607; 3 Bing. N. C. 230; Collins v. Blantern, 2 Wils. 347; Queen v. Barmston, 3 Nev. & Per. 167; Edgcombe v. Rodd, 5 East, 294; Commonwealth v. Pease, 16 Mass. 91; Ayer v. Hutchins, 4 Mass. 373; Commonwealth v. Cony, 2 Mass. 523; Hinesburgh v. Sumner, 9 Vt. 23; Den v. Moore, 2 South. 470; People ». Buckland, 13 Wend. 592; Bell v. Wood, 1 Bay, 249; Cameron v. M'Farland, 2 Car. Law Repos. 415; Harding v. Cooper, 1 Stark. 467; Taylor v. Lendey, 9 East, 49; Pool v» Bousfield, 1 Camp. 55.
7 4 Black. Comm. 120, 121; 1 Chitty, Crim. Law, 3, 4.
penal statutes, in criminal cases; 1 or of compromising an assault with riot and obstruction of a public officer.2 So, also, an agreement to pay a sum of money to an officer for an escape from mere arrest, or from prison; and an agreement, by a third person, to indemnify an officer, for neglecting his duty in the service of a precept, being founded on a consideration to do an illegal act, are void.3 But if the agreement be by a creditor, and the object be only to try a contested title, it would probably be good.4 The same general rule applies where an officer takes a bond or note of a prisoner, confined for a criminal offence, in consideration of his going at large, and as a security for his return into custody; because the indulgence is a violation of his duty on the part of the officer, for which he is indictable.5 So, also, a contract to reprint a literary work, in violation of a copyright secured to a third person, is void.6 So, also, a contract to indemnify a person for a future act known to be a trespass, is void; although, if the act be not known to be a trespass, the contract would be binding.7 But to render a contract void on the ground that it stifles a prosecution for a criminal offence against the promisor, it is necessary that the promise should be made for gain, and not merely out of weakness or motives of compassion and kindness.8 And where an act occasioning only private injury, though criminal in itself, has been already committed, a contract under seal to make satisfaction therefor to the individual injured, in consideration of a waiver of prosecution, would seem to be good.9 Thus, a bond given to a person injured by an assault and battery, to make satisfaction and to prevent prosecution, has been held to be good.1 But this exception seems to be doubtful, and at all events only applies to cases where the misdemeanor is purely personal.2 If it be a public misde-
1 4 Black. Comm. 364; 1 Russell on Crimes, B. 2, ch. 13.
2 Keir v. Leeman, 9 Q. B. 392; 2 Lead. Crim. Cases, 221, 241, note (2d ed.); Bowcn v. Buck, 28 Vt. 308 (1856).
3 Hodsdon v. Wilkins, 7 Greenl. 113; Ayer v. Hutchins, 4 Mass. 370; Churchill v. Perkins, 5 Mass. 541; Denny v. Lincoln, 5 Mass. 385; Webber v. Blunt, 19 Wend. 188. 4 Clark v. Foxcroft, 6 Greenl. 296.
5 Churchill v. Perkins, 5 Mass. 541; Denny v. Lincoln, 5 Mass. 385; Ayer v. Hutchins, 4 Mass. 370; Hodsdon v. Wilkins, 7 Greenl. 113.
6 Nichols v. Ruggles, 3 Day, 145.
7 Davis v. Arledge, 3 Hill (S. C), 170.
8 Ward v. Allen, 2 Met. 53; Commonwealth v. Pease, 16 Mass. 91.
9 Johnson v. Ogilby, 3 P. Wms. 278; Price v. Summers, 2 South. 578; Plumer v. Smith, 5 N. H. 553; Stone v. Hooker, 9 Cow. 154. See also Edgcombe v. Rodd, 5 East, 303.
1 Price v. Summers, 2 South. 578. See also Keir v. Leeman, 9 Q. B. 371.
2 See Osbaldiston v. Simpson, 13 Sim. 513, where promissory notes delivered by one person to another to induce the latter to forego a prosecution against him for cheating at cards, were decreed to be given up, on the ground that it would be extremely dangerous to allow a party to be a judge in his own cause, and to determine in his own favor, what amount of penalty ought to be paid for a breach of the law committed by another person, notwithstanding he may have suffered from it. See also Ex parte Critchley, 3 Dowl. & L. 527; s. c. 10 Jur. 112. A question of this character was recently considered by the House of Lords in Williams v. Bayley, Law R. 1 H. L. 200 (1866). A son had forged his father's indorsement; and the father, to stifle a criminal prosecution of his son, had executed an agreement to make an equitable mortgage of his property in settlement. The question was whether the agreement was good in equity. Lord Chancellor Cranworth said: "Here are several forged notes. The bankers, in the presence of the father and of the person who forged them, both being persons of apparent respectability in the country, carrying on business as tradesmen, and the father having the presence and the assistance of his solicitor, the bankers say to him what amounts to this: 'Give us security to the amount of these notes, and they shall all be delivered up to you; or do not give us security, and then we tell you we do not mean to compound a felony; ia other words, we mean to prosecute.' That is the fair inference from what passed. Now, is that a transaction which a court of equity will tolerate, or is it not ? . . . . Many grounds on which a court of equity has acted in such cases do not apply in this case. . The parties were not standing in any fiduciary relation to one another; and if this had been a legal transaction, I do not know that we should have thought that there was any pressure that would have warranted the decree made by the Vice-Chancellor. But here was a pressure of this nature. We have the means of prosecuting, and so transporting your son. Do you choose to come to his help, and take on yourself the amount of his debts-the amounts of these forgeries? If you do, we will not prosecute; if you do not, we will. ... Is that or is it not legal ? In my opinion, my lords, 1 am bound to go the length of saying that I do not think it is legal. I do not think that a transaction of that sort would have been legal, even if, instead of being forced on the father, it had been proposed by him, and adopted by the bankers; and I come to that conclusion upon this short ground, that in Wallace v. Hardacre, 1 Camp. 45, although the decision there, founded upon the facts of that particular case, was against the view I am taking, yet there Lord Ellenborough positively states that which has always been understood to be the correct view of the law upon meanor, no contract to compound or stifle it would bo binding.1 this subject, namely, that although in that case there was no reason for treating the agreement as invalid, yet it would have been otherwise if the agreement had been substantially an agreement to stifle a criminal prosecution. And although that was merely a dictum, in a nisi prius case, yet on all occasions I have found, on looking at the reports, by the late Lord Campbell, of Lord Ellenborough's decisions, that they really do, in the fewest possible words, lay down the law, very often more distinctly and more accurately than it is to be found in many lengthened reports; and what is so laid down has been subsequently recognized as giving a true view of the law as applied to the facts of the case. Now, is the agreement in question, or is it not, one the object of which is to stifle a criminal prosecution ? If there be any case in which that character can be properly given to an agreement, I think that this is such a case; and therefore, in my opinion, the decree is perfectly right/'