Vanover v. Thompson, 49 N.C. 485, 4 Jones 485 (1857)

Aug. 1857 · Supreme Court of North Carolina
49 N.C. 485, 4 Jones 485


A bond, conditioned that the obligee shall not appear as a prosecutor, or asa witness, against the defendant in a criminal proceeding, whether it be a case of felony or a misdemeanor, is null and void.

This was an action of debt, brought originally before a single "magistrate, and by successive' appeals, taken to the *486Superior Court of Aslie, where it was tried before Elijs, J., at the Special Term, June, 1857.

The plaintiff declared on the following bond: “ On, or before, the 25th day of December next, I promise to pay Cornelius Yanover, twenty-five dollars in money, and fifteen dollars in cattle, to be delivered where John Thompson now lives, as witness my hand and seal: now this note to be good and legal, provided the said Yanover shall not appear as a prosecutor, or witness, against James Thompson, with whom the said Yan-over has a controversy. Now if the said Yanover shall thus appear, this note to be null and void.”

The plea was, that the bond was given to compound a prosecution, and against the policy of the law'.

The justice of the peace, before whom the State’s warrant, against the defendant, was returned, testified, that on being informed by the parties, that the matter in controversy was compromised, as set forth in the bond, (being the same day the bond was given,)he dismissed the warrant.

A verdict was taken for the plaintiff, with an understanding that the Court might set it aside, and enter a nofi-suit, if upon consideration, he thought the action could not be sustained. ,

Afterwards, on consideration of the case, the Court ordered a nonsuit; and plaintiff appealed.

Meal, and JBoyden, for the plaintiff.

Mitchell, for the defendant.

Nash, C. J.

There is no error. Three cases, decided at the December Term, 1856, of this court, have settled the principle in contest here. Thompson v. Whitman, 4 Jones’ Rep. 48 ; Ingram v. Ingram, Ibid 188 ; Garner v. Qualls, Ibid 223.

In the first of these cases, it is decided that the concealment of a felony is an indictable offense, and that the offense is greatly aggravated by compounding the felony, that is, “ by an agreement not to prosecute, or make known what has come to the knowledge of the party.” In offenses less than felony, *487.this compounding or concealment is not indictable, but it is, nevertheless, against the policy of the law and the due course of justice, and a court of law will not lend its aid to enforce any such contract or agreement.

In Garner v. Qualls, the same doctrine is held — the court declaring that no executory contract, the consideration of which is contra bonos mores, or against the public policy, or the laws of the State, can be enforced in a court of justice. The consideration there, was the compounding, or suppressing, a prosecution for an alleged forgery. The bond is declared void, although the act may never have been, in the view of the law, a forgery.

In Ingrain’s case, the court declare that an agreement among persons interested in an estate, not to hid against each other at the administrator’s sale, is void, as being against the public policy.

It may be now, therefore, pronounced a settled principle, “ that all contracts founded upon agreements to compound felonies, or to stifle prosecutions of any kind,” are void, and cannot be enforced.

The note upon which the action is brought, has this condition, to wit: “ Now, this note to be good and legal, provided the said Yanover shall not appear as a prosecutor, or witness, against James Thompson, with whom the said Yanover has a controversy; now, if the said Yanover shall thus appear, this note to be null and void.”

A State’s warrant had been issued by a justice of the peace against the present defendant, Thompson,'at the instance of the plaintiff. On its return before the magistrate, Yanover did not appear as a prosecutor, or witness, and the proceedings were dismissed. What was the charge against Thompson, we are not informed, nor is it material in this investigation; the note, upon which the suit is brought, was given for the compounding of a prosecution — -the suppression of testimony in the case — an iniquitous obstruction of the course of justice, which in one class of eases is indictable, and in all, is contrary to the law, and justice.

*488In the defense, it was insisted, that parties are frequently permitted, in the courts in England, to compromise, or come to an understanding on an indictment for a misdemeanor. That is true, but it is always done under the sanction of the court, and after a conviction, to enable the court to properly graduate the punishment of the defendant; and it is frequently done in this State by our Judges. But in nowise can such a case amount to an improper interference with the course of justice.

The bond or note, upon which the action is brought, is void on account of the corrupt and illegal consideration upon which it is founded.

Pee Cubiam. Judgment affirmed.