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Adams s. Barrett.

By the Court.-NISBET, J. delivering the opinion.

This bill is filed by the administrator of Rose, and charges, that whilst in life, he had committed mayhem upon the person of the defendant Barrett, that prosecution had been instituted by Barrett, against him for the offence, and that suit for damages had also been commenced-thrat pending these proceedings, an agreement had been entered into between the parties for the settlement and abandonment of the prosecution-that in consideration of the abandonment of the prosecution, Rose had corruptly agreed to convey to the prosecutor, Barrett, a certain tract of land, and that in pursuance of the agreement, a deed to the land had been executed, and had come into the possession of Barrett, and that an action of ejectment had been brought, and was still pending in favor of Barrett, to recover possession of the land conveyed by the deed. Other matters are charged in the bill, but are not material to the points first to, be considered. The bill prays a perpetual injunction of the action of ejectment, and that the deed be delivered up and cancelled. This prayer is predicated upon the assumption, that the contract under which the deed was made to. Barrett, is illegal and void, as being against the laws and public policy of the State, in this, that the consideration of said contract was mainly, if not solely, the compounding of a felony. The answer admits the facts generally, as stated in the bill, but denies that the consideration of the agreement was the abandonment of the prosecution, insisting, that the sole consideration was the settlement and dismissal of the civil action. It also states that the deed was duly delivered to the defendant, in pursuance of his agreement with Rose. Upon the trial, a good deal of testimony was introduced, to which it is unnecessary to advert. The errors complained of, grew out of the instructions of the Court to the jury, and his declining to instruct them, as requested by counsel for the plaintiff. The alleged errors in the bill of exceptions, and in the assignment, assume divers forms. They may be reduced to three. The great question in the case, grows out of the charge of the Court, which is in the following words: "Even admitting that you are of opinion that said deed was undoubtedly founded in part, or in the whole, upon a bad or illegal consideration, to wit: upon the consideration of

Alans vs. Barrett.

compounding, abandoning, or stifling the said, criminal prosecution; still, neither Rose, nor the complainant, his administrator, could upon such ground, maintain a Bill in Equity, to set aside such deed. The principle which governs in such cases, is, that Courts of Equity will not interfere actively, in favor of either party-neither in favor of the party executing the deed to set it aside, nor in favor of the party to whom it was executed to enforce it-that the Court will leave the parties as it finds them, as being both equally participants in the crime, and will not interfere to set aside the consequences which spring out of that crime, and are tainted thereby." To this charge the plaintiff excepted. The other two points spring out of the following request of counsel for the plaintiff, to wit: "that the Court instruct the jury, that if they believe that the only consideration for the deed, was the settlement of the civil suit or suits; still, said consideration was bad and illegal, because by law the defendant, Barrett, was not entitled to bring and maintain his said suit, or suits for the civil injury, until he had prosecuted to an end, the indictment for mayhem. And if it was contrary to law and to the policy of law, to permit a party in a case like the one before the Court, to maintain a civil action for damages before prosecuting the criminal offence to an end; it was equally contrary to the policy of the law, and illegal, to permit him, after having brought such inadmissible civil action, and settled the same for a stipulated compensation, to recover by the aid of law, the property or money which was the price of such settlement; and Equity, as well as law, will aid in preventing such a recovery, by setting aside the agreement, or deed on which such recovery was sought to be had, or the property sought to be conveyed."

The Court declined to give any direct charge upon this request, upon the ground that any such charge was unnecessary and uncalled for by the pleadings, and to this refusal the plaintiff excepts, maintaining, that such a charge was called for by the pleadings, and maintaining the doctrine as expressed in the request. The Court, however, did instruct the jury, that if the law was, as claimed by the counsel for plaintiff in the above request, still it would not affect the decision of the case, because, upon that supposition, Rose and Barrett were parties to a settlement and conveyance, founded on an illegal consideration, and the Court would not interfere in favor of Rose, to set aside a conveyance, however

Adams vs. Barrett.

illegal, in which he and Barrett were equally participants in an illegal and inadmissible transaction. To which charge the plaintiff also excepted.

I shall consider these questions in the inverse order in which they are here presented. The last charge of the Court, which gave rise to the last exception, goes upon the assumption that the law is as stated by counsel for the plaintiff in his request. The proposition is, that a person injured by mayhem, is not entitled to sue for the civil injury, until he has prosecuted the offender to conviction or acquittal on the criminal side of the Court. Concede this to be true, then, says the Court, Barrett having sued Rose for damages, before prosecuting him to conviction or acquittal, and they having agreed to settle the civil suit, are equally participants in an illegal transaction, and the Court will not lend its aid to Rose to set aside a conveyance made by him to Barrett, in consideration of such settlement. This proposition of the Court is not the same with that stated by the counsel for the plaintiff. The counsel, after stating in his request, the rule of law, to wit: that Barrett, the person injured, is not entitled to sue civilly, until he has pursued the criminal prosecution to an end, proceeds to state, that if he does so sue, and compounds the civil suit, it is against the law and the policy of the law to permit ` him, (Barrett,) to recover by the aid of the law, the property or money which was the price of such settlement or compounding; and he farther proceeds to state, that Equity will aid in preventing such recovery, by setting aside an agreement or deed made in pursuance of such settlement. The counsel, we think, has correctly apprehended the law, as applicable to just such a settlement as the one supposed, and the Court has misapprehended it. If such a contract be void, (and it unquestionably would be upon the assumption granted,) for what reason is it void? Because it is founded on a consideration, (to wit: the settlement of an illegal suit,) which contravenes public policy. The deed in this case, to be more specific, is void, because procured by Barrett by his own violation of a legal duty, and by his own violation of public policy. Against the law and against his legal duty he has sued for damages, before prosecuting Rose to the end. The illegal suit is the consideration of the compromise, or I should rather say, the consideration grows out of the illegal suit. The deed is the fruit of his illegal act. Now, I think it clear, that if he proceeds at Law

Adams vs. Barrett.

to make that deed available, he would be successfully met by a defence, that the deed is void. It is equally clear that Equity will not aid him to enforce it. It is a conceded point, I apprehend, that Equity will not lend her aid to enforce securities against law and public policy. See Howell, administrator, &c. vs. Fountain and others, 3 Kelly, 176.

This, too, seems to me to be one of the cases in which Equity would interfere at the instance of Rose, to set aside this deed, because he is not with Barrett, equally a participant in an illegal transaction. They are not in pari delicto. And it is upon the idea that they are, that I think the Court has erred. In what does the violation here, of the law consist? It consists in the sueing out of the action for damages against Rose, before prosecuting him to conviction or acquittal. Rose is no party to this transaction. It is done without his co-operation and against his consent. He has nothing to do with the guilt or crime of the suit. As to that he is an innocent man. If a fraudulent combination with Barrett to defeat public justice, by suppressing a prosecution, by sueing on the civil side of the Court, and by then compromising the civil action, were proven, then the case would be very different. Then Rose would be in pari delicto. But very different is the case. No such collusion is proven or can be inferred. From the illegal act of Barrett springs the deed. His own violation of a legal duty, is the basis of the settlement. The consideration of the deed is the abandonment of a suit brought without authority of law, by Barrett against Rose, not only without the consent of the latter, but we are obliged to conclude, decidedly against his will. Rose, it is true, violated the law in committing the mayhem, but that offence does not enter into this transaction, For that he is accountable, wholly irrespective of this transaction. The settlement of the civil suit does not estop even Barrett from prosecuting him-certainly nobody else. How can he be said to be equal in crime with Barrett? How different is such a transaction from the compromise of a felony? There both parties unite to defeat the criminal justice of the State. There both parties combine to stifle a prosecution, which is not only lawful, but which it is the duty of one party to push to a conclusion. Here all that can be said of Rose, is, that he buys his peace from the consequences of an unauthorised civil suit. If it be said that crime attaches to him in the settlement, because he was at first guilty of

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Adams vs. Barrett.

a violation of law, in perpetrating the mayhem, I reply, I see not how that offence can be connected with this subsequent and independent transaction. But if in this way guilty, to what extent? Surely not equally with Barrett. Suppose that in this case, (according to the assumption,) Rose had filed his bill to set aside this deed. Then the case would fall exactly within one of those classes of cases, where, Mr. Story says, Equity will interfere to set aside securities. Equity, says Mr. J. Story, will cancel agreements and other securities :

1st. Where there is actual fraud in the party defendant, in which the party plaintiff has not participated.

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2d. Where there is a constructive fraud against public policy, and the party plaintiff has not participated therein, &c. The two first classes of cases seem scarcely to require any illustration. Since it is manifestly a result of natural justice, that a party ought not to be permitted to avail himself of any agreement, deed or other instrument, procured by his own actual or constructive fraud, or by his own violation of a legal duty or public policy, to the prejudice of an innocent party." 2 Story's Eq. Ju. secs. 695, 695 a. So that upon this point, which is really an abstract point, we think the Court was wrong.

The counsel for the plaintiff asked the Court to instruct the jury, that a person injured by mayhem, is not entitled to sue for the civil injury, until he has prosecuted the offender to conviction or acquittal. This position was preliminary to the farther charge desired, and necessary to it. The farther charge, as we have seen, the Court gave, upon the supposition that counsel was right in the above position, declining to give any opinion upon that position, because not made necessary, and not called for by the pleadings. We do not see that the whole, or any part of the desired charge, was made necessary by, or fairly grew out of the pleadings. The complainant's prayer for the cancellation of the deed, is founded on the fact, as charged in the bill, that the consideration of the deed was the abandonment of the prosecution, and on that alone. The bill presents no such point as the one propounded by the counsel, nor does the answer. It is the duty of the Court to instruct the jury, when requested, upon any point which is fairly made by the pleadings, or which appertains to the issues made. But it is no part of his duty to give opinions upon what are termed abstract questions of law, such as do not spring

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