Sec 484

It used to be said that there was a distinction in this respect between felonies and misdemeanors. But this can be no longer regarded as the law. (1) In many jurisdictions the distinction between felonies and misdemeanors is abolished, and in all jurisdictions it is regarded as artificial, and even where retained, its abandonment is a mere question of time. (2) There are many misdemeanors whose compounding militates far more against public policy than does the compounding of some felonies. It is more important, for instance, that conspiracies to murder, conspiracies to rob, and treasonable conspiracies, should be prosecuted by the state unswayed by private interest, and that private hands should be kept off such prosecutions, than that there should be this rigor manifested in all prosecutions for larceny. If no agreement whose consideration is the holding back a prosecution for larceny should be held valid, there is no offence, touching the public as such, whose prosecution we can consistently allow to be a matter of private arrangement. To adopt the language of Baggallay, L. J., in 1881,1 "it is immaterial whether the charge which was attempted to be compromised was a felony or only a misdemeanor."2 The proper view is that it is a criminal of the solicitors of the parties. D. being again brought before the magistrate, the latter, having been informed of the terms, allowed the prosecution to be withdrawn. D.'s wife having refused to perform her agreement, P. brought an action to enforce the charge, and D.'s wife counter-claimed for a declaration that she was entitled to have the deeds delivered up to her. It was held by James,Baggallay,and Lush,L. JJ. (affirming the decision of Fry, J.), that the agreement to charge the separate property was illegal and could not be enforced, and that the defendant was entitled to the declaration for delivery of the deeds.1 - "The agreement," said James, L. J., "would not have been legal if the lord chief justice, the lord high chancellor, and all the judges of the court of appeal had consented to it."

Distinction between felonies and misdemeanors obsolete.

1 Whitmore v. Farley, 45 L. T. N. S. 101. See supra, sec 345.

2 In the same case Lush, L. J., said: "Although the offence here was a felony, it would not matter if it were a misdemeanor. There are, no doubt, certain cases, as that of an assault, where the parties may compromise the offence without being guilty of an illegal act. But this does not apply to misdemeanors of a serious kind. Embezzlement is only a misdemeanor, yet it is a criminal offence to compromise a prosecution for embezzlement. The principle has been stated by Lord Abinger, C. B., in the case of Davis v. Holding (1M.&W. 159). The court there held that an agreement which was illegal and void, as being against the general policy of the law, should not be enforced, and applied the doctrine to an agreement to abandon a fiat in bankruptcy. The doctrine has also been applied in cases where a debtor has entered into a bargain with certain creditors not to oppose him in obtaining a composition with the general body of his creditors. It is a well-established doctrine that an agreement to forego public rights is an illegal agreement. Whether the felony could have been proved here or not, there is no doubt that a criminal charge was made, and the prosecutrix could not legally withdraw it." See to same general effect Wh. Cr. L. 8th ed. sec 21, 22, 1559; Ball ex parte, Shepherd in re, L. R. 10 Ch. D. 667; Keir v. Lee-man, 9 Q. B. 371; Hinesburgh v. Sumner, 9 Vt. 23; Com. v. Pease, 16 offence to compound, for a personal benefit, a misdemeanor involving an offence against public order; for this would be a corrupt usurpation and prostitution by an individual of a high prerogative of the state. And, whatever we may think on this point, it is settled that no contract will be sustained the consideration of which is the refusal by an individual to aid in prosecuting an offence whose prosecution is a matter of interest to the state. To induce a witness to suppress his testimony is indictable;1 a fortiori is this the case with an agreement to suppress a prosecution as a whole, or to use it as means of private gain; and a contract will not be sustained whose consideration is the commission of an indictable offence. As illustrating this distinction may be cited a case, already noticed, in which it was held that while a merely private and secret assault may be settled by the parties, it is otherwise with an assault connected with a breach of the public peace, and with resistance to an officer in discharge of his duties.2 sec 485. The approval of the magistrate before whom the case was heard cannot legalize such an agreement, however much it might relieve the parties to the compounding from a criminal prosecution. Thus, in a case tried in London in 1881, D., having been arrested at the instance of P., on the charge of having committed the offence of larceny as a bailee, was brought up before a magistrate and remanded. D.'s wife then induced P. to withdraw from the prosecution on D.'s wife agreeing to charge her separate real estate with the amount taken. The title deeds of the property were deposited at a bank in the joint names.

Approval of magistrate does not legalize contract.

Mass. 91; McMahon v. Smith, 47 Conn. 221; People v. Buckland, 13 Wend. 592. See for effect of duress in vacating contract under such circumstances, supra, sec 151 a.

1 Wh. Cr. L. 8th ed. sec 1333.

2 Keir v. Leeman, 9 Q. B. 371; see Davies v. Ins. Co., L. R. 8 Ch. D. 469. In Whitmore v. Farley, 43 L. T. (N. S.) 192, Fry, J., said: "Whether, then, the distinction which appears to me to prevail between cases of felony and cases of misdemeanor, be or be not real, and if I merely look at this case as one of an offence, without specifying to what category it belongs, I will ask myself is it an offence of a strictly private character, or is it one in which the public have an interest." That the proper prosecuting officer may compel a prosecutor to elect between a civil and a criminal suit, see Wh. Cr. Pl. & Pr. sec 384; 2 Burr. 270. See generally supra, sec 345.