Roll v. Raguet.

Whatever may be said as to the principle of public policy, it can not be urged that the common law or the statutes were founded upon it. They were both the result of arbitrary maxims, which became rules from necessity in the first place, and were afterward so interwoven into the system of criminal jurisprudence that it was found difficult to carry into effect the penal code of the kingdom, unless those principles were pertinaciously adhered to.

Notwithstanding the strictness with which these principles have been applied, their absurdity has been exposed, and their authority questioned by British judges.

*As in Buller's Nisi Prius, 131: "In assumpsit for money re- [413 ceived to the plaintiff's use, proof that a lamb was driven to London and sold there by the defendant, will be sufficient unless it appear to be stolen, where trover would be the only proper action." And another is mentioned in Buller, "where a nurse ran off with a dead man's money, the administrator was permitted to bring an action for the amount."

In this country, the reason of the rule has ceased. Felony, or that species of it which it is alleged was attempted to be compounded in this suit, is followed by no forfeiture of life, limb, or estate.

The case of Boardman v. Gore et al., 15 Mass. 331, embraces much of the discussion on the point now before the court. Judge Parker observes, "that whatever may have been the reason in which the common-law doctrine was founded, it is plain that the reason has ceased with us. In the few cases of felony which are punished with death here, it may be that the principle is still in force, so far as that the felon may not be sued in a civil action until after acquitted or pardoned.

For if convicted, he will be executed, and as felonies include a trespass, the action dies with crime. But there seems to be no reason why the injured party may not have an action for his damages, where the wrong-doer is living, and has estate sufficient to compensate the wrong.

I assume this principle, then, that before a prosecution can be said to be compounded, there must have been one commenced. It is not alleged in the pleadings that one was pending, or that any proceedings of a criminal nature had been had.

All the authorities quoted by complainant's counsel proceeded on this principle. 1 Comyn on Contracts, 28, 30, 32. The text con

Roll v. Raguet.

tains the precise proposition I have presented, and the leading case of Collins v. Blanturn, 2 Will. 341, is quoted to sustain it. On examining this authority, it appears that an indictment had been found for perjury, and in consequence of receiving a bond for several hundred pounds, the plaintiff, who was a witness, agreed not to appear or prosecute. In a suit brought upon the bond, the 414] court very *properly decided that they would not lend their

aid to enforce it.

The quotation from Powell, 93, is to the same point. 1 Swift, 237, like Bacon's Abridgment, embodies all the authorities referred to, with the addition of the judges' comments, but no one case is here to be found which conflicts with the principles I contend for. In Johnson v. Ogilby, 3 P. Wms. 277, the chancellor expressly says, "This is a criminal prosecution, and the agreement is to stifle it;" and on referring to the reporter's account of the case, it appears an indictment had been prepared for a cheat, and just before the trial came on, it was compounded. Evans' Notes on Pothier, which are referred to by plaintiff's counsel, support the same position.

In Harding et al. v. Cooper, 1 Starkie's N. P. Cas., a prosecution had been commenced against the defendant for having fraudulently obtained his discharge as a bankrupt, and a bill of indictment was found. An agreement was made by defendant's father-in-law, to give his acceptance for two shillings sixpence upon the pound, and the prosecution was abandoned in consequence; and Lord Ellenborough expressly says, in giving his opinion "that it is an agreement to drop a prosecution, and is therefore illegal." In Waite v. Harper, 2 Johns. 386, defendant agreed to give a certain sum if plaintiff would not oppose his discharge under the insolvent law; the contract was held to be fraudulent, as tending to stifle a due scrutiny into the claim of defendant to his discharge.

Bruce v. Lee et al., 4 Johns. 110, proceeded on the same ground, that the agreement was to stifle a scrutiny into the bankrupt's claim to a discharge.

Thus far the plaintiff in error and his authorities. Our view of the law is this: It is perhaps the moral duty of every man to inform the proper authority of all offenses that he knows have been committed; but it is not his legal duty. The sin of omission is not a crime, however strong may be the claims of society upon the conscience. No man wishes to be a public prosecutor. The odium universally attached to such a profession would forbid any hon

Roll v. Raguet.

orable man to embrace it. Until, then, some public act is performed by *which the right of the public, in the development of [415 crime and the punishment of the criminal is clearly establisheduntil an oath is made that an offense is committed, legally speak. ing-no prosecution is pending, and of course none can be "dropped" or "compounded." It is clear that the owner of goods which have been stolen, should he obtain his property from the thief, by the promise that he would not prosecute him, would still be entitled to retain his property. It was his before the promise was made, and no subsequent act of his, or of the felon, could deprive him of his right.

Should, however, the felon be indicted, and the owner of the goods be the only prosecuting witness, his promise to the person would certainly prevent his testimony from being received, and the prisoner would be acquitted; still the prosecutor would have the goods.

On this principle, courts of equity have held that agreements between persons, the consideration of which was past cohabitation, are to be enforced. Johnson v. Ogilby, 3 P. Wms. 279; Annandale v. Harris, 2 P. Wms. 433.

Second. It is said, however, that the contract is void because it is against public policy. The public have an interest, I readily admit, in the reformation as well as the punishment of the guilty, and the example of public punishment is both proper and necessary..

But there is a stronger reason why a contract of the nature now excepted to should be supported than can be urged against the execution. Crime is rendered such, not unfrequently, by being made public. Reformation is, in almost any case, made hopeless by similar means. If, then, a young man who has defrauded his employer while a clerk, to a large amount, should be induced, when accused of the act, to do justice to the injured party, and, in a spirit of penitence, be willing to make amends, and to effect so desirable an object his father should join in the security, why does not public policy sanction such an agreement?

Is it immoral; is it opposed to a full or perfect control of the criminal laws of the country over the subjects of these laws? Restitution is a moral duty. A moral obligation is always held to be a good consideration to support a contract. By our statutes defining and punishing crimes, no restitution *is ordered to [416 be made on conviction. There is no judgment that the criminal shall pay to the injured party the value of the property purloined.

Roll v. Raguet.

If the party injured had no right to receive back his goods before conviction, the doctrines of the Goths and Vandals, whose code is referred to in 3 Kent's Com., must prevail.

The property stolen vested in the government, and thus the authority that framed the law, by an act of moral turpitude on the part of any man, became accessory to his guilt.

The party injured may forbear to prosecute. He is not compelled to inform. How, then, can the state interpose and complain of a violation of her unwritten law in compounding prosecutions, as opposing good morals?

In the absence of all statutory provisions on the subject, the rules of the common law, so far as they are consistent with our institutions, must doubtless prevail. In the application of these rules to the present case, whether the defense sought to be sustained is such a one as ought to have been made, is to be gathered from all the facts stated in the plea. It is alleged, that the father consented to become security, to prevent his son from being sent to the penitentiary. This implies guilt. In cases somewhat similarly situated the usual averment is, that the prosecution, if there was any, was groundless, and the accusation without any foundation in truth. A bond given to a person injured by an assault and battery, to make satisfaction and to prevent prosecution, was held to be legal and valid. Price v. Summers, 2 South. (N. J.) 578.

We have no statute by which the concealment or compounding of offenses is punishable. Our legislature have not found it necessary to enact any law on the subject, and their silence is evidence that there was no necessity for their interference. Even in England the courts have exercised a discretion in permitting the parties to compound, and this, too, without the assistance of a statute. And in Ohio, a law was passed a few years since, that on complaint before a justice of the peace, for an "assault and battery," the parties might compound on the trial, and prevent any further prosecution.

417] *In Beeley v. Wingfield, 11 East, 56, a note was taken by the parish officers from the defendant, who was prosecuted for a misdemeanor; the amount of the note was forty-two pounds, and the consideration the expenses of the prosecution. The note was given on the intimation of one of the justices of the sessions, that the punishment would be proportionably lighter; and this note was held

Roll v. Raguet.

valid by the court of King's Bench, and a similar decision, in principle, is to be found in Baker v. Townsend, 8 Taunton, 424.

Can it, then, be contended that it is against public policy for the injured party to receive a security for the amount of the property he has lost, where no restitution is made by statute, and no remedy by law?

Is the unfortunate person who has lost his goods to permit what the defendant's counsel contend is public policy, to take from him all right to recover, all right to secure?

If he loses his chattels he can sue the finder, but if they are stolen the felon is protected, according to the construction of those opposed to us. We do not thus reproach the law with injustice.

Dr. Paley, in his chapter on promises, at page 93 of his Moral Philosophy, justly remarks, "It is the performance being unlawful, and not the unlawfulness in the subject or motive of the promise which destroys its validity; therefore, a bribe after the vote is given, the wages of prostitution, the reward of any crime after the crime is committed, ought, if promised, to be paid. For the sin and mischief of this supposition is over, and will be neither more nor less for the performance of the promise." And, again, “a promise can not be deemed unlawful where it produces, when performed, no effect beyond what would have taken place had the promise never been made."

The defense in this case is a disgraceful one to the plaintiff in error. To say nothing of the father's duty, not to question his motive, or suspect his integrity, we must be satisfied he has exposed the turpitude of his son, and wishes now to defend himself under his own consciousness that it is better for his child to become morally infamous than that the parent should expend part of his fortune to conceal his obliquity. No parallel case with the present can be found in the books. Every case I have met with, [418 every case quoted by the opposite counsel, proceeds on the supposition that a suit was actually prosecuted, or an indictment or information actually pending when the composition of the offense was made.

AMES, on the same side.

By the COURT:

A father and son join in giving a promisory note, for the consid