Abel B. Jones versus Calvin Rice, 18 Pick. 440

Putnam J. delivered the opinion of the Court. The facts reported disclose, that divers persons committed an aggravated riot and assault upon the plaintiff and others, and that the note was given partly for the damages and expenses which the plaintiff and others had sustained, and partly for their agreement no further to prosecute for the offence against the public. The sum of $ 52 was given for the damages and expenses, and $ 132 for the compounding of the misdemeanor ; part was paid in money, and the balance was secured by the note now sued.

Cases have been cited from the English authorities which sustain the distinction between considerations arising from the compounding of felonies, which is admitted to be illegal, and the compounding of misdemeanors, which is alleged to be lawful ; but it appears that there is a conflict in the decisions upon this matter. In Drage v. Ibberson, 2 Esp. R. 643, Lord Kenyon held, that the consideration for settling a misdemeanor was good in law. And the case of Fallowes v. Taylor, 7 T. R. 745, proceeds upon the same principle.

It was there held by Lord Kenyon and the rest of the court, that a bond given to the plaintiff (who was clerk of the quarter sessions and who was directed to prosecute the defendant for a public nuisance,) conditioned to remove the nuisance, was valid, notwithstanding it was taken by the plaintiff for his own use, he agreeing not to prosecute for the nuisance. We do not think, that such a power is vested in individuals. It would enable them to use the claim of the government for their own emolument, and greatly to the oppression of the people.

It has a direct tendency to obstruct the course of the" administration of justice ; and the mischief extends, we think, as well to misdemeanors as to felonies. 1 Russell on Crimes, 210; Edgcombe v. Rodd, 5 East, 301. The power to stop prosecutions is vested in the law officers of the Commonwealth, who use it with prudence and discretion.

If it were given to the party injured, who might be the only witness who could prove the offence, he might extort for his own use, money which properly should be levied as a fine upon the criminal party for the use of the Commonwealth The case at bar furnishes a strong illustration of the illegality of such a proceeding. The plaintiff claimed and got the note to secure to his own use four times as much as in his own estimation his individual damage amounted to.

Now the sum thus secured might be more or less than the rioters would have been fined ; but whether more or less is altogether immaterial; for no part of it belonged to the party. He might settle for his own damage from the riot; but it would enable the party to barter away the public right for his own emolument, if we were to hold that the consideration of this note was lawful. We are all of opinion, that the nonsuit must stand.