There is another remarkable instance of contracts falling under the class of which we have been treating -namely of illegality created by the rules of common law, which it will be right to specify before proceeding to the next branch of the subject. It consists of contracts, void, because having a tendency to obstruct the administration of justice. Such was the very contract in Collins v. Blantern (a), before mentioned-the case which first established that the person who has executed a deed is not estopped from showing by way of defence, that it was executed for an illegal consideration, although he would not have been allowed to defend himself on the ground that there was no consideration for it at all. In that case, five persons were indicted for perjury, and it was agreed that Collins, who was their friend, should buy off the prosecutor's evidence by giving him a note for £350, in consideration of which he undertook not to appear at the Assizes. And it was further agreed that, in *order to indemnify Collins against the consequences of being called upon to pay the note, Blantern should give Collins his bond conditioned for the payment of £350, the same sum for which the note was made. In an action brought upon the bond, the Court of Common Pleas held that it was void, and that a plea showing the consideration on which it was given was a good answer to the action. There is a case of
(a) 2 Wils. 341, 1 Smith, L. C. 387, 8th ed.
Unwin v. Leaper (b), which involves the same principle. There, an action of ejectment had been brought by Unwin against Leaper, when the latter gave notice of his intention to sue Unwin for certain statutable Penalties incurred by him. Thereupon it was arranged that the action of ejectment should be dropped, that Unwin should pay down £50 towards Leaper's expenses in that action, and that Leaper should not proceed with the suit for the penalties; and the Court of Common Pleas held that the £50 which had been paid might be recovered back as a payment made in order to compromise a penal action. In another instance (c), where one of two parties *to an agreement to suppress a prosecution for embezzlement, sued the other for an injury indirectly arising out of that agreement, he was not allowed to maintain the action.
Of the soundness of these decisions, to use the words of the Court of Queen's Bench, in speaking of that in Collins v. Blantern, no doubt can be entertained, whether the party accused were innocent or guilty of the crime charged. If innocent, the law was abused for the purpose of extortion (d); if guilty, the law was eluded by a corrupt compromise, screening the criminal for a bribe (e).1
(b) 1 M. & Gr. (39 E C. L. R.) 747.
(c) Fivaz v. Nicholls, 2 C. B. (52 E. C. L. R ) 501. But where a just and bond fide debt actually exists, even though the transaction between the parties out of which the debt arises possibly involves a criminal liability, as for instance, where the debt is in respect of moneys received but not paid over by the debtor and so possibly embezzled, a threat to prosecute would not it seems necessarily vitiate a subseqent agreement by the debtor to give security for the debt he justly owes: Flower v. Sadler, 10 Q. B. D. 572 (C. A.), affirming 9 lb. 83.
(d) Goodall v. Lowndes, 6 Q. B. (51 E C. L. R.) 464; and see Davies v. London and Provincial Marine Ins. Co., 8 Ch. Div. 469; 47 L. J. (Chanc.) 511.
(e) Keir v. Leeman, 6 Q. B. (51 E. 0. L. R.) 316.
1 Thus, no action will lie on a contract to procure the appointment of clerk
Here, however, it is convenient to observe that there are some instances, in which indictments for misdeof a court, or any office relating to the administration of justice: Haralson v. Dickens, 2 Car. L. Rep. 66; Lewis v. Knox, 2 Bibb, 453; Carleton v. Whitcher, 5 N. H. 196; Proprietors v. Page, 6 lb. 183; or to promote the election of a candidate for office: Swayze v. Hull, 8 N. J. 54; Dearborn v. Bowman, 3 Metc. 135; Duke v. Asbee, 11 Ired. 112. So of the procuring or defeating by improper means or personal influence the passage of an act of the legislature: Wood v. M'Cann, 6 Dana, 366; Clippinger v. Hepbaugh, 5 W. & S. 315; or the use of interest to procure the pardon of a convict: Norman v. Cole, 3 Esp. 253; Hatzfield v. Gulden, 7 Watts, 152.
So, where in contemplation of an assignment for, or composition with creditors, or of bankruptcy, an agreement whereby one creditor is to receive more than the others, cannot, if unknown to the rest, be enforced: Jackson v. Lomas, 4 T. R. 169; Smith v. Cuff, 6 M. & S. 160; Baker v. Matlack, 1 Ashm. 68; Mann v. Darlington, 15 Pa. St. 312. (See Bradshaw v. Bradshaw, 9 M. & W. 28, and Hornton v. Riley, 11 lb. 492, as to the debtor's right to recover back money so paid, which right is distinguished from the principle in pari delicto potior est conditio defendentis, on the ground of advantage being taken of the debtor's circumstances to exercise oppression over him.)
A class of cases, however, should be here referred to as of a constant occurrence. These depend on contracts based on a compromise or compounding of some offence. It is well settled that an agreement to compound a felony will not be enforced, and any security based upon such a consideration will be void; on the other hand, some prosecutions for misdemeanors, as for example, for bastardy: Holcomb v. Stimpson, 8 Vt. 144; Maurer v. Mitchell, 9 W. & S. 71; Robinson v. Crenshaw, 2 Stew & P. 276; or, for assault and battery: Price v. Summers, 2 South. 578 (unless when coupled with a riot: Keir v. Leeman, 6 Q. B. (51 E. C. L. R.) 308; in error, 9 lb. (58 E. C. L. R.) 371; or with an intent to kill: Gardner v. Maxey, 9 B. Mon. 90), are allowed to be compromised by the parties, and to form a valid consideration for promises based on such compromise. Where, however, the relation of debtor and creditor has existed between the parties, the compromise of prosecutions for secreting property, for obtaining money under false pretences, and the like, is, if not held to form an illegal consideration (as it was in the late case of Shaw v. Reed, 30 Me. 105), at least looked upon with the strongest disfavour, as affording a ready instrument to abuse and oppression: Prough v. Entriken, 11 Pa. St. 81. The result of the authorities generally upon this subject appears to be, that where the misdemeanor is one in which the welfare of society is immediately concerned, agreements based upon their compromise will not be sanctioned (and its having been done originally by the leave of the Court makes no difference: Keir v. Leeman, 9 Q. B. (58 E. C. L. R.) 394), but the rigor of the rule will be relaxed in proportion as the general welfare ceases to be interested, and the offence and its punishment becomes personal between the parties, and still more as the prosecution loses a criminal complexion, and assumes a civil one. In perhaps the mo6t recent prominent case in England, Keir v. Leeman, supra, which went on error from the Queen's Bench to the 248 meanours may be compromised. It is well known that a party committing certain private injuries may be inExchequer Chamber, Chief Justice Tindal, in delivering the opinion of the latter tribunal, said, that if the matter were res integra, they would have no doubt in holding that any compromise of any misdemeanor, or any public offence, was an illegal consideration to support a promise, and that it was remarkable what very little authority, consisting rather of dicta than decision, there was to support such considerations. " 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." And the current of more recent authorities on this side of the Atlantic, sets strongly against the validity of such considerations : Clark v. Richer, 14 N. H. 44; Com. v. Johnson, 3 Cush. 454; Gardner v. Maxey, 9 B. Mon. 90.-r.