satisfaction and discharge of the assault and imprisonment. In another (the third) plea the previous agreement and consent of the defendants were omitted. Both pleas were held bad on demurrer. There was clearly no satisfaction, because the forbearance of C. M. was only the act of a third party. The remarks which appear to be in favour of the present defendants were extrajudicial. It was said that the agreement was either illegal or no satisfaction: now, as it clearly was no satisfaction, the illegality is not shewn by the decision. Lord Ellenborough insists also upon the right of the Crown to the statutable penalty in that case: this ground (if not removed by Rex v. Crisp (a)) is inapplicable here. Lord Ellenborough's language may be dwelt upon but, if it be understood in the sense requisite for the defendants, his reasoning goes too great a length; for it would apply to all proceedings which are criminal in form. He did, however, seem to go as far in Poole v. Bousfield (b), 1807, where, at Nisi Prius, he held that an agreement to discharge from a debt, in consideration of the debtor not moving in Court to make the creditor answer the matters of an affidavit, was illegal and void. Probably the reliance will principally be on the language used in Edgcombe v. Rodd (c) by Le Blanc J., who said that the prosecution was for a public misdemeanour; that, if the plaintiff had acted illegally, the defendants ought not to have consented to the bargain; if legally, his discharge could be no consideration, and the consent of the defendants was It is clear that this asserts too much. All indictable offences are public: and, if it be sought

unnecessary.

(a 1 B. & Ald. 282.

(c) 5 East, 303.

(b) 1 Campb. 55.

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to distinguish between those cases where an action will
lie and those where it will not, the principle fails: it

may well be that the public is more interested in some
cases where an action will lie than in some where it will
not. A riot or an unlawful assembly may produce in-
jury to the prosecutor. In Beeley v. Wingfield (a),
1809, a party convicted at Quarter Sessions of a mis-
demeanour in ill treating his parish apprentice, gave
the prosecutor, a parish officer, a promissory note to
cover part of the expenses of prosecution; in consider-
ation of which the Court of Quarter Sessions passed
a sentence lighter than would have been passed other-
wise. This Court held the consideration for the note
to be not illegal. No stress can be laid on the cir-
cumstance that the party there had been convicted: it
appeared, as a fact, that the payment did interfere with
the course of justice: the objection was quite as strong
as on the third count in the present case, where the
agreement is stated to be for the costs of the prosecu-
tion. If such an arrangement is to be permitted at all,
it is better that it should be made at an early stage.
In Baker v. Townsend (b), 1817, a party was convicted
at Quarter Sessions of an assault; and the Court
respited the judgment, and allowed that, and another
alleged assault, and all matters in difference, to be re-
ferred the arbitrator awarded a sum in satisfaction of
the assaults, and another in satisfaction of all costs.
incident to the proceedings: and, debt being brought
on the award, the count was held good on demurrer.
In a recent case, Elworthy v. Bird (c), an agreement for
a separation of husband from wife, though comprehend-

(a) 11 East, 46.

(c) 2 Sim. & Stu. 372.

(b) 7 Taun. 422.

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ing a compromise of indictments for assault, was en- Queen's Bench. forced in equity. In Kirk v. Strickwood (a) an action was brought on a promissory note given by a party convicted of disobeying an order of maintenance, to cover the amount of maintenance due and costs, sentence having been deferred with a view to the arrangement: and the party, after giving the note, was fined a shilling and discharged. This Court, on the authority of Beeley v. Winfigeld (b), held the action maintainable.

In Comyn on Contracts, p. 24. (2nd ed.) ch. 2., the rule (8), adopted from Pothier's Traité des Obligations, Part. I. chap. I. sect. 1. art. 7. s. 98. (c), is thus given: "However general the terms may be in which an agreement is conceived, it only comprises those things respecting which it appears that the contracting parties proposed to contract, and not others which they never thought of." If, therefore, there be any state of facts, consistent with the record, under which the agreement declared upon could be legal, it is not to be gratuitously assumed that the contractors had any thing illegal in view; and then the declaration is not answered. To the same effect are Jones v. Waite (d), Haines v. Busk (e), Sewell v. The Royal Exchange Assurance Company (g), and Harrington v. Kloprogge (h); and the principle was taken for granted in Holland v. Hall (i). The agreement is, not to proceed further. Now, if the Attorney General

(a) 4 B. & Ad. 421.

(c) Tome 1. p. 45. (ed. 1781.).

(b) 11 East, 46.

(d) 5 New Ca. 341., in Erch. Ch. ; affirming the judgment of C. P. in Waile v. Jones, 1 New Ca. 656. Judgment of Exch. Ch. affirmed in Dom. Proc., Jones v. Waite, 9 Cl. & Fin. 101.

(e) 5 Taun. 521.

(h) Note (a) to Palmer v. Bate, 2 Br. & B. 678. (i) 1 B. & Ald. 53.

(g) 4 Taun. 856.

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had entered a nolle prosequi, the plaintiff would have necessarily abstained from proceeding: that is the only mode, strictly speaking, of discontinuing an indictment; Elworthy v. Bird (a): and, from Rex v. Fielding (b), it is probable that the Attorney General would have so acted, the plaintiff having received compensation. A similar principle was acted on by Lord Hardwicke in The Mayor, &c. of York v. Pilkington (c). Besides, it is not averred here that any public crime had been committed there is no averment of a riot, or of an assault upon a public officer, in fact. The last four counts of the indictment itself contain no charge of assaulting any public officer, but only G. Key and other individuals; this is therefore quite within the principle of Harrington v. Kloprogge (d), where the agreement was held good for so much as could lawfully be agreed for. Suppose the defendants were innocent: might not the plaintiff abstain from proceeding? [Maule J. Would that be a good bargain in the case of an indictment for felony ?] Cases of felony are distinguished from those of misdemeanour: it will be admitted that in some cases indictments for misdemeanour may be compromised for money.

Martin, contrà. It appears by the record that the promise here was made in consideration of the plaintiff abandoning a prosecution for assault on persons acting in aid of a peace officer in the execution of his duty; an offence which, by stat. 9 G. 4. c. 31. s. 25., subjects the offender to two years' imprisonment with (b) 2 Bur. 719.

(a) 2 Bing. 258.

(c) 2 Atk. 302.

(d) 2 Br. & B. 678.

hard labour. That is, at any rate, a part of the agreement which is illegal: and, if illegal, it vitiates the whole; as appears by the authorities cited in Mr. Smith's note to Collins v. Blantern (a), the judgment of Tindal C. J. in Shackell v. Rosier (b), and Com. Dig. Action upon the Case upon Assumpsit (B 13.), (F 4.), (F7.). The consent of the Court could give no legality to such a contract. It is suggested that a nolle prosequi would be a legal mode of putting an end to the indictment: but, if the prosecutor were to engage, for a payment of money, to obtain the nolle prosequi, that could constitute no legal contract. The argument proves too much the Attorney General might enter a nolle prosequi on an indictment for felony. The cases mentioned in the latter part of the argument on the other side are inapplicable to the present question. Holland v. Hall (c), cited for the plaintiff, is a strong authority against him there the contract was primâ facie illegal, though, if certain other facts had existed, which were not shewn either to exist or not to exist, the contract would have been lawful: but the Court held it to be illegal ; and Abbott J. said: "If there be, on the face of the agreement, an illegal intention, is it too much to say, that the burden lies on the party who uses expressions primâ facie importing an illegal purpose, to shew that the intention was legal?" Harrington v. Kloprogge (d) decides merely that, where a party agrees to assign any office of which he may become possessed, this will be construed as having in view only assignable offices.

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(a) 1 Smith's Lea. Ca. 169.

(c) 1 B. & Ald. 53.

(d) 2 Br. & B. 678.

(b) 2 New Ca. 634. 646.