Volume IX.

1846.

KEIR

v.

LEEMAN.

to G. Acton. The fifteenth count charged the same as to R. Ellison. The plea then continued: "And so the defendants say that the said consideration for the said supposed promise in the said first count mentioned was and is illegal, and such supposed promise was and is wholly null and void: and this" &c. Verification.

General demurrer. Joinder.

The second count of the declaration resembled the first, except that the promise was laid to be, to pay to the now plaintiff's attorney the costs, as between attorney and client, of the defendants in the suit of W. Emmitt against the sheriff and Acton.

Plea to the second count, corresponding with that to the first count, mutatis mutandis.

General demurrer. Joinder.

The third count of the declaration laid the promise to be to pay to the now plaintiff's attorney the costs, as between attorney and client, of the prosecution; and in other respects corresponded with the first two counts. Plea as before, mutatis mutandis.

General demurrer. Joinder.

In Trinity vacation, 1844, the Court of Queen's Bench gave judgment for the defendants (a); upon which judgment the plaintiff brought error in the Exchequer Chamber. Joinder in error.

The case was argued in last Easter vacation (b).

(a) Keir v. Leeman, 6 Q. B. 308. It has been found that the course of argument in the Court of Error has rendered necessary a rather fuller abstract of the record.

(b) Monday, May 11th, 1846. Before Tindal C. J., Coltman, Maule and Cresswell Js., and Parke, Alderson, Rolfe and Platt Bs. Coltman J. and Alderson B. left the Court towards the close of the argument for the defendants.

1846.

KEIR

V.

LEEMAN.

Bliss, for the plaintiff in error (the plaintiff below). Queen's Bench. The third count contains only a promise to pay the costs of the prosecution against G. Emmitt and the rest, as between attorney and client. As this narrows the promise, it will be most convenient to apply the argument to the third count. The consideration for the promise there laid is that the plaintiff, being prosecutor, would not proceed further on the indictment: and the question is whether that be an illegal consideration for such a promise.

It is necessary to keep in view the distinction between felonies and misdemeanours, and, again, the distinction between different kinds of misdemeanour. It may be admitted, for instance, that the abandoning a prose-` cution for perjury would not be a good consideration for a promise to pay money; that is the doctrine of Collins v. Blantern (a), which it is not necessary to impeach. But the principle will not apply to a prosecution, by a party assaulted, for the assault, unless it be true that all agreements to abstain from the prosecution of misdemeanour of any kind are illegal; and for this no authority can be adduced, except some dicta at nisi prius. The Court below appears to have acted upon a distinction between an indictment for an assault upon the prosecutor and an indictment for an assault accompanied by riot, made upon peace officers and their assistants. This distinction is not tenable. The indictment furnishes no criterion of the magnitude of the offence: an assault may be as grievous a crime as a riot. Such a distinction probably would never have been suggested before the statutes which gave a peculiar cha

(a) 2 Wils. 341.347. See notes to S. C., 1 Smith's Lea. Ca. 154. 168. Also Ward v. Lloyd, 6 M. & G. 785.

Volume IX.

1846.

KEIR

V.'

LEEMAN.

racter to certain assaults by making them felonious.
For instance, it could hardly have been contended that,
before stat. 22 & 23 C. 2. c. 1. s. 7., money might not
be taken to compromise an indictment for slitting the
prosecutor's nose. Whatever distinction exists can
therefore be founded only on the particular facts of the
offence. Compounding a felony would be a distinct
species of offence: it is so at common law, as theft-
bote. [Tindal C. J. In felony there is a forfeiture;
that would take away the means of paying compensa-
tion.] For felonious acts no action can be brought, un-
less an action for stolen goods, where the felon has been
convicted, be an exception; but many misdemeanours,
of which assault is one, may be the subject of either a
criminal or a civil proceeding. For these it is reason-
able that a compromise should be allowed: and, in fact,
it often takes place with the sanction, and, indeed,
at the suggestion, both of magistrates and of judges:
only nominal damages could be expected in an ac-
tion after the defendant had been punished upon in-
dictment; and it is not improbable that, if damages
were first recovered, the attorney general would enter a
nolle prosequi on the indictment; at any rate, the
punishment would be trivial. Before stat. 18 Eliz.
c. 5. an informer upon even a penal statute could com-
promise the information or suit: he may still do so in
the case of proceedings before magistrates; Rex v.
Crisp (a). This statute was not declaratory, but intro-
duced a new principle, as appears from Williams v.
Hedley (b). [Alderson B. Can you suggest the limit
between misdemeanours which may, and those which may

(a) 1 B. & Ald. 282.

(b) 8 East, 378.

1846.

KEIR

V.

LEEMAN.

not, be the subject of a compromise? What would you Queen's Bench. say to an indictment for a nuisance affecting a whole parish? Could that be referred to arbitration?] It could and the practice is not uncommon (a). The lawfulness of compromising indictments for misdemeanours was recognised in Johnson v. Ogilby (b), a. D. 1734, a case of prosecution for fraud; in Drage v. Ibberson (c), 1798, also a case of prosecution for fraud, where Lord Kenyon adhered to the distinction, suggested in Johnson v. Ogilby (b), between felony and misdemeanour, though Collins v. Blantern (d) was cited. In Rex v. Lord Falkland (e), 1795, all matters in difference between the prosecutor of some indictments for perjury and the defendants were referred, with the acquiescence of Lord Kenyon. Some doubts have been expressed as to this proceeding, on the ground of its supposed inconsistency with the language of Lord Kenyon himself in Rex v. Coombs (g) and Rex v. Rant (g): but the only doubt was, whether it was not necessary to obtain the leave of the Court before a compromise was made between the parties. That admits the principle: and here the leave of the Court appears on the record. Mr. Watson's view (On Arbitration, p. 59) of the result of all the cases is, "that indictments for assaults, nuisances, &c., may be referred to arbitration, by leave, or by authority of the Court where they are depending; but without such permission, or authority, indictments cannot

(a) See Dobson v. Groves and Regina v. Dobson, 6 Q. B. 637.

(b) 3 P. W. 277. 279.

(d) 2 Wils. 341. 347.

(c) 2 Esp. N. P. C. 643.

(e) Kyd on Awards, 66 (2nd ed.). See Watson on Arbitration, p. 60. note (1) (3d ed.).

(g) Kyd on Awards, 64. See Watson on Arbitration, 59, 60.

be referred." In Collins v. Blantern (a) the indictment was for perjury and it was expressly pleaded that the agreement was unlawful. The agreement was, not to give evidence. [Alderson B. I do not see how a party could have performed that agreement, if he had been subpoenaed.] Here the agreement is only not to proceed further: it does not appear that the plaintiff is a witness, or bound over; he may be merely a voluntary prosecutor. In Fallowes v. Taylor (b), 1798, a party, who had been directed by the magistrates in Quarter Sessions to prosecute for a public nuisance, and had prepared (but not preferred) bills accordingly, took a bond to himself for 500l., conditioned for the removal of the nuisance: and the Court held the consideration legal. That case is the stronger, because the plaintiff had not, as here, a personal ground of action for the thing done. Edgcombe v. Rodd (c), 1804, is relied upon for the defendants. There an action was brought against magistrates for assault and false imprisonment: they pleaded that C. M. had obtained a warrant from them against the plaintiff for a statutable misdemeanour, on which the plaintiff had been committed till the Quarter Sessions: and that afterwards, before the said sessions, it was agreed by C. M. and the plaintiff, with the consent of the defendants, that C. M. should not further prosecute, and should consent to the plaintiff's discharge at the sessions in full satisfaction and discharge of the assault and imprisonment that this was done, and the plaintiff accepted the non-prosecution and the discharge at sessions in full

(a) 2 Wils. 341. 347.

(b) 7 T. R. 475. See the judgment of Lawrence J.
(c) 5 East, 294.