Sec 486

There are many unlawful acts which may be proceeded against both criminally and civilly. Thus, an assault and battery may be sued for as a trespass on the person, entitling to damages, or as an offence against the public peace; a cheat may be sued on as deceit, entitling the party injured to damages, or as either a cheat at common law, or an offence under the false pretence statutes, exposing the offender to conviction in a criminal court. If we were to say that no case could be compromised which involves a criminal offence, we would not only say that litigation to the bitter end is imperative in multitudes of cases in which compromises are on general grounds eminently proper, but we would almost indefinitely extend litigation by holding parties who do not in such cases prosecute liable to criminal prosecutions themselves. It is essential, therefore, to keep criminal and civil prosecutions strictly separate, in all cases in which both may be instituted for the same act. In England this is in part effected, so far as concerns felonies, by the rule that a party who fails to prosecute for the felony in a criminal court, when such prosecution is within his power, is precluded from suing in a civil court the offender for damages incurred through the felony.1 In this country, however, the English rule is not properly applicable in those jurisdictions in which the power of prosecution is vested exclusively in public officers;2 and neither in this country nor in England has the rule been supposed to apply to misdemeanors.3 Assuming, therefore, that there is now no case in which the fact that a criminal prosecution can be brought for an act sued upon in a civil court is ground for abating the suit, it follows that there is no reason why such a suit, if begun, should not be settled by compromise, supposing the settlement does not imply the illegal stifling of the prosecution. "In all offences which involve damages to an injured party for which he may maintain an action, it is competent for him, notwithstanding they are also of a public nature, to compromise or settle the private damage in any way he may think fit."4 This is clearly the case after convictions for assault, in which cases the court trying the criminal offence will be influenced, in imposing sentence, by considering how much the offender had to pay, and how much the prosecutor received.5 And a bond conditioned for the abatement of a public nuisance, in consideration of the abandonment of a prosecution for the nuisance, has been held valid;6 and the same view has been applied to prosecutions for infringing trade-marks;7 to bastardy prosecutions;8 to prosecutions for Settlement of private suit not precluded by the fact that a criminal prosecution lies for the same act.

1 Whitmore v. Farley, 45 L. T. N. S. 99; aff. S. C, 43 L. T. N. S. 192; supra, sec 151 a.

1 Ball ex parte, L. R. 10 Ch. D. 667; Wh. Cr. Pl. and Pr. 8th ed. sec 453; Wellock v. Constantine, 2 H. & C. 146; London Law Times, Apr. 12, 1879.

2 See Wh. Cr. Pl. and Pr. 8th ed. sec 453.

3 Ball ex parte, ut supra; Fissington v. Hutchinson, 15 L. T. N. S. 390; Boody v. Keating, 4 Me. 167; Nowlan v. Griffin, 68 Me. 235; Boston, etc. R. R. v. Dana, 1 Gray, 83.

4 Per cur. Keir v. Leeman, 9 Q. B. 395.

5 Baker v. Townsend, 7 Taunt. 422; Beeley v. Wingfield, 11 East, 46; El-worthy v. Bird, 2 Sim. & S. 372.

6 Fallowes v. Taylor, 7 T. R. 475.

This, however, is questioned in Keir v. Leeman, 9 Q. B. 394.

7 Fisher v. Apollonaris Co., L. R. 10 Ch. 297.

8 Wh. Cr. L. 8th ed. sec 1741; Hol-cornb v. Stimpson, 8 Vt. 144; Howe v. Litchfield, 3 Allen, 443; Maurer v. Mitchell, 9 W. & S. 69, overruling Shenk v. Mingle, 13 S. & R. 29; Maxwell v. Campbell, 8 Oh. St. 265; Burgen v. Straughen, 7 J. J. Marsh. 583; Stephens v. Spiers, 25 Mo. 386. "No reason is perceived why a person may not receive from one guilty of a private injury satisfaction for such injury, and the fact that this is received while the person may be in confinement does not assault and battery;1 though when such prosecutions are used to extort money, all securities thereby obtained are void.2 And where merely private injury has been effected, the party injured may recover on securities given to him to indemnify him for his losses, though a part consideration may have been his forbearance to prosecute criminally for these injuries, on which a criminal prosecution might have been sustained.3 - In a case in 1882 in Georgia, D.'s widow having instituted a suit against K., under the Georgia statute, for damages sustained by her through her husband's killing by K., K. gave her his notes in consideration of the settlement of the suit. It was held that the notes were valid and the consideration good, whether K. was actually concerned in the killing of D. or not.4 - But wherever the consideration is the illegal abandonment of a criminal prosecution, the contract fails. Thus, where a party charged with cheating at cards gave a promissory note to the party detecting him in consideration of the offence not being prosecuted, a decree was entered requiring the note to be surrendered as improperly obtained.5 Such abandonment may, under local law, be with the assent of the prosecuting attorney, and if so, it does not invalidate a contract of which it is the consideration.6 But, unless the settlement is authorized by law, it vitiates any contract of which it is the consideration. sec 487. The question of the legality of settlements of this class is largely dependent upon the local law in reference to the discontinuance of prosecutions. In some jurisdictions, the right to enter a nolle 'prosequi belongs to the duly authorized prosecuting attorney; in some to this officer with the approval of the render the transaction illegal." Craig, J., Heaps v. Dunham, 95 111. 588, citing Schommer v. Farwell, 56 111. 542.

Question depeudent upon local law of nolle prosequi.

1 Price v. Summers, 2 South. 578; Rushworth v. Dwyer, 1 Phila. 26; see Gray v. Seigler, 2 Strobh. 117. That notes given to compromise a prosecution of assault and battery, when a public offence, are void, see Jones v. Rice, 18 Pick. 440; Vincent v. Groom, 1 Yerg. 430.

2 See Corley v. Williams, 1 Bailey, 588; supra, sec 151.

3 Plumer v. Smith, 5 N. H. 553; Stone v. Hooker, 9 Cow. 154.

4 Dodson v. McCauley, 62 Ga. 130.

5 Osbaldiston v. Simpson, 13 Sim. 513.

6 Price v. Summers, 2 South. 578; Maurer v. Mitchell, 9 W. & S. 69; Robinson v. Cranshaw, 2 St. & Port. 276.

court.1 Where the right of discontinuing prosecutions is thus defined by law, it cannot but be held that a settlement of a prosecution by a private individual is not only inoperative, but is not a consideration on which a contract can be sustained. On the other hand, it is equally clear that the proper public officer may impose as a condition of a nolle 'prosequi that the defendant should reimburse, as far as is practicable, the prosecutor. In prosecutions for larceny this is eminently proper, since in those prosecutions it is part of the sentence of the court that the defendant should restore the property stolen "if not already restored," recognizing the duty of final if not intermediate restitution. And there is no reason why the same distinction should not be applicable to prosecutions for cheats.2