John P. Dixon v. Emery Olmstead, 9 Vt. 310

The opinion of the court was delivered by Redfield, J. The principles, applicable to cases of this character, are very well settled. The only difficulty here is in determining to which class of cases this-belengs. If this is to be treated strictly as a compounding of felony, and, as such, an indictable of-fence, it is past all controversy that the plaintiff eannot recover. For both parties are to be considered in pari delicto, and the case will then be determined by the well known maxim, potior est conditio defendentis.

It needs -no laboured argument to show the doctrines upon this subject or the reasons, upon which they are founded. They are too familiar with the profession to require much comment.

Whenever a contract has for its object the contravention of the express provisions or prohibitions of some statute, or any other act or omission, which is against good morals and not allowable in the forum of conscience, or subversive of sound, wholesome policy in government, such contract, while it remains executory upon both parties, is of no binding force whatever, and both parties are, in contemplation of law, the same as if the contract had never been made.

But if the contract had been executed on the one part, by the payment of the consideration of the corrupt agreement, and the other party refuses to perform his stipulations, no action can be maintained against him, either upon the contract or to recover back the consideration. These principles have been long established, and upon reasons of the soundest policy. There are some few cases of exception to these general rules, by express statutory provisions, such as money lost at play, which may be recovered back again by the losing party, although he is admitted to be equally in fault with the other party.

This exception is one founded on a higher policy than the rule itself. There are other cases, in which the party paying his money is treated as the oppressed party, and is permitted to recover back money paid, on the ground of some supposed infirmity or some peculiar liability to outrage or extortion, from the circumstances in which he is placed at the time.

Thus, in the case of a usurious loan, the party, paying interest beyond the legal rate, is allowed to recover back the amount, as so much money extorted from him by a supposed duress of circumstances, although it must be admitted the money was paid voluntarily and in direct contravention of the express provisions of the statute. And in the same light are viewed illegal wagers, before the money is paid over to the winning party, also money paid for the illegal assurance of lottery tickets, and money paid to induce creditors to sign the commission, or to aid the bankrupt in obtaining his certificates.

But these are all considered as excepted cases, on the ground of some superior policy in the rule excepting these eases from the general rule. In many of the cases there is an express statutory exception, and others are so similar, as not to be distinguished from them. But the present case is one which could not strictly have occurred at common law.

It is not precisely a compounding of felony, and the indictment in the county court, charging the of-fence as such, was held insufficient, on the ground that no felony' had been committed within our jurisdiction. — And still it cannot be admitted, that the transaction was an innocent one, on either side. Our legislature, previous to the provisions made by Congress on the subject, did provide for the surrender of fugitives from other States. This was to be made by the warrant of any two justices oí the peace, of the county where the arrest should be made.

It was under this statute the defendant was proceeding to bring the plaintiff to trial for an alleged felony, committed in the State of New Hampshire. For the purposes of this trial, it must be considered first, that the plaintiff was guilty of the offence. For if when he was threatened only with legal process, and the ordinary proceedings in such cases, he saw fit to come forward and compromise the matter, it is not in his mouth to deny his guilt. (And it was so held in Swasey v. Mead & Chase, Orleans Co. Sup. Ct.

March T. 1832.) And again, if the plaintiff saw fit, as in this case, to give in evidence the declarations of defendant and his agent, that he had procured warrants in New Hampshire and in this State, to arrest the plaintiff on this charge, these declarations thereby became evidence, and as the verdict was directed, on the ground that the jury should be heve all the evidence, it must be considered that such warrants had been taken out in the manner alleged.

Hence the plaintiff in this case is to be treated as a fugitive from justice, just about to be arrested, and surrendered in obedience to the laws of this State, for his trial in another jurisdiction. In this state of the case, the plaintiff pays money and other property to defendant, for the purpose, and with the agreement to compound and stifle this prosecution. It is not pretended that defendant threatened the plaintiff with any other than a legal and usual prosecution for the offence.

And no man can be considered as under duress, when he is threatened, or indeed visited, by the ordinary modes of legal process, either in civil or criminal proceedings. Our legislature have seen fit to institute this mode of securing the surrender of fugitives from justice. The policy of such a law is very apparent. It is desirable, above all things, that the State should never prove a sanctuary for crime, a refuge for the guilty violators of just laws,^either here or elsewhere. Such, undoubtedly, would be the case, if no provision for surrendering fugitives from justice existed.

And where such laws do exist, it cannot be doubted that compounding a prosecution under them is indictable, as a high misdemeanor. And it is certainly difficult to see why the parties are not in pari defacto. An innocent man seldom wishes to prevent the ordinary course of justice. And whether the accused be innocent or guilty, it cannot be admitted, that any right whatever exists to counteract or resist the operation of the law. Such contract could hardly be less immoral, nor could it be less against sound policy, than if there had been the compound-of a felony committed here.

The fact that the forgery is considered as committed within the territorial limits of another jurisdiction, and, of course, technically not against our law, does aiot, in any sense, justify the offender in buying off from a regular prosecution for the offence, nor justify the courts in giving countenance to the transaction, by aiding the party in recovering property, surrendered in furtherance of such.an illegal contract. Nor do we feel warranted in treating the plaintiff as the innocent victim of the defendant.

Every man here knows his rights, and knows, and feels too, that those rights are held sacred, not only by our own tribunals, but equally in our sister States. If innocent, he has a right to expect an acquittal; if guilty, he may or may not be convicted, but in neither case can he feel warranted in bribing the first minister of justice, (as the party aggrieved always will be,) not to institute, or to discontinue a prosecution already instituted.

We know, indeed, that an innocent man may, from want of firmness, or want of trust in the fairness of our tribunals, or the integrity of witnesses,, or from horror at being suspected of crime, be induced to pay money, even perhaps to' compound and stifle a prosecution. But, however innocent one may be of the offence charged, such an escape could not fail to involve the party in almost equal guilt with the actual offender. And we do not perceive any such constraint in the present case, as would be likely to enable persons to extort money at will from the innocent, although not unsuspected.

What has been said has not been done with any intention to cast suspicion upon the character os conduct of any one, but from necessity to show the degree of guilt attaching to the plaintiff’s conduct. And, at the same time, it is apparent the defendant does not escape through his own innocence,. but because the plaintiff’s hands are too corrupt to handle the price of guilt,, which he must therefore lose, and which the defendant retains from necessity, and against the Isaws- both oi honor and good conscience. The judgment of the county court is therefore affirmed.