1 Wallace v. Hardacre, 1 Camp. 45; Edgcombe v. Rodd, 5 East, 303; Johnson v. Ogilby, 3 P. Wins. 279; Harding v. Cooper, 1 Stark. 467. In Keir v. Leeman, 9 Q. B. 392, Tindal, C. J., reviews the cases and dicta upon this question. He says: "It seems clear, from the various authorities brought before us on the argument, that some misdemeanors are of such a nature,that a contract to withdraw a prosecution in respect of them, and to consent to give no evidence against the parties accused, is founded on an illegal consideration. Such was the case of Collins v. Blantern, 2 Wils. 341, 347, which was the case of a prosecution for perjury. It is strange that such a doubt should ever have been raised. A contrary decision would have placed it in the power of a private individual to make a profit to himself by doing a great public injury. It is difficult to comprehend the case of Johnson v. Ogilby, 3 P. Wms. 277, 279, as stated, in Peere Williams's Reports. There a prosecution for a fraud was suppressed, and that suppression made the consideration for an agreement to pay money. The distinction between felony and misdemeanor seems to have been the foundation of the decision, if it was made, by Lord Talbot, a distinction overruled in Collins v. Blantern, which was decided at a later period. It is not, indeed, at all clear that the indictment for the fraud was compromised, as a part of the agreement, or that the fraud was an indictable one: and perhaps the case may be so explained. If not, it cannot, we conceive, be sustained as law.
"In Drage v. Ibberson, 2 Esp. 643, however, Lord Kenyon adverted to, and stated that he should adhere to the class of cases which held that the consideration for an agreement, being the settling of a misdemeanor, might be good in law. Thus a settlement of an indictment for a nuisance, preferred by public authority, was held (Fallowes v. Taylor, 7 T. R. 475) a lawful consideration for a bond binding the defendant to remove the nuisance; we presume, on the ground, which however is not very satisfactory, that the main object of the prosecution, the removal of the nuisance, was thereby effected. But the court seem to have overlooked the consideration that a be within the rule.1 The doctrine sometimes taken, that the rule never applied to misdemeanors, but only to felonies,2 is now exploded, and it may generally be considered unlawful to compound a misdemeanor, subject to very few exceptions,3 as well as felonies,4 and the case of Keir v. Leeman was unanimously affirmed in the Exchequer Chamber.6
§ 701. The obtaining of money by false pretences is one of those crimes which it is unlawful to agree not to prosecute, and a note given for such forbearance is void in the hands of the payee.1 And even assaults and batteries have been held to defendant who had infringed a public right was thereby entirely freed from the punishment due to a violation of public law. In Edgcombe v. Rodd, 5 East, 294, Le Blanc, J., assigns this as a reason for the consideration being illegal, that there the prosecution was for a public misdemeanor, and not for a private injury to the prosecutor. It is difficult to reconcile this principle, which we think a just one, with the decision in Fallowes v. Taylor, 7 T. R. 475; nor can Pool v. Bousfield, 1 Camp. 55, be reconciled with it. There an agreement to stifle a motion against the defendant, that he should answer the matters of an affidavit, was held illegal.
" But there is a class of cases, such as Beeley v. Wingfield, 11 East, 46, and Baker v. Townsend, 7 Taunt. 422, which do not at all break in upon sound principles. These are cases where the private rights of the injured party are made the subject of agreement, and where, by the previous conviction of the defendant, the rights of the public are also preserved inviolate. As Gibbs, C. J., in the latter case, well observes, ' the parties have referred nothing but what they have a right to refer. They have referred the several assaults' (by which we understand him to mean their several rights to damages for those assaults); ' these may be referred. They have referred the right of possession; that may be referred. The reference of all matters in dispute refers all other their civil rights;" which words show our previous interpretation to be correct. The case of Beeley v. Wingfield was after conviction; and the promissory note seems merely to have been given for the expenses of the prosecution, and was obviously a part of the punishment inflicted by the court after conviction of the offence.
"Indeed, it is very remarkable what very little authority there is to be found, rather consisting of dicta than decisions, for the principle, that any compromise of a misdemeanor, or indeed of any public offence, can be otherwise than illegal, and any promise founded on such a consideration otherwise than void. If the matter were res integra, we should have no doubt on this point. We have no doubt that, in all offences which involve damages to an injured party for which he may maintain an action, it is competent for him, notwithstanding they are also of a public nature, to compromise or settle his private damage in any way he may think fit. It is said, indeed, that in the case of an assault he may also undertake not to prosecute on behalf of the public. It may be so; but we are not disposed to extend this any further.
"In the case before us, the offence is an assault coupled with riot and the obstruction of a public officer. No case has said that it is lawful to compromise such an offence."
1 Clubb v. Hutson, 18 C. B. (n. s.) 414. And see Shaw v. Reed, 30 Me. 105; Shaw v. Spooner, 9 N. H. 197.
§ 702. A compromise of a civil process, or of a private injury, is, however, binding; as where an officer accepts a note or bond from a prisoner convicted of a breach of the excise laws, for the purpose of saving his property from sale, or his body from imprisonment.6 In any case where the imprisonment is not for the purposes of punishment, but only for security of a debt, or an obligation, and the officer accepts bail, it is binding, because his duty is to accept it under such circumstances.7 So, also, where the prosecution is merely for fraud, and the parties make a compromise thereof, by which all legal proceedings are agreed to be stopped, it will be binding.8 And a promise to pay money to one through whose land a road had been laid out, for withdrawing his opposition to opening it, is binding.9