#### Swan, &.c. *vs*Chandler and Phillips.

Appeal from the Marion Circuit.

Pet,. &'Sum..

Case 24.

Contracts. *Consideration. Compounding felonies.*

Case stated.

*December*18.

*Janas*Simpson

delivered fke opinion of the Court.

The appellants executed their promissory note to A. Lanham, for one hundred and four dollars, payable three *98months after date. Lanham assigned it to thé áppél^66S’ W^° brought suit thereon by petition and sum-, mons.

A note given that payeeewouia Won fo/a^supposed felony,,instituted against him, and not apagaiiXtaiüm°6is' not binding.

I'f any part of the a'piomise1]»1 v°ií • cious and illegal mon law or by whoVtfgreement tract'toimpede Won dof eXubiic justice°is illegal, lie poficynto per-to'setuíaníad^nshment’lof vvhich is deemed public^welfare^ *imcts^Qn )°n'*

The appellants íiléd a plea, alledging in substance, that a prosecution had been commenced against the appellant, Swan, on a charge of having feloniously bitten off a portion of Lanham’s ear; and for the purpose of stopping that prosecution, On an agreement to compound the proceedings for the supposed felony, the note sued on was executed, and for no other consideration.

Issue having been taken on that plea, and the jury having found a verdict for the plaintiffs, a motion for *é.*ñeW trial by the appellants was overruled and judgment rendered against them for the amount of the note.

The evidence conclusively establishes the existance of a criminal proceeding against Swan on the alledged charge; the agreement of the parties for the payment by Swan, of one hundred and fifty dollars to Lanham, who in consideration thereof, agreed tó stop said crimi- . .. r nal proceeding, binding himseit not to appear at any future time, as a witness against Swan; and the execution of the note sued on for part of the one hundred and fifty dollars, the residue having been paid.

| Whether the private injury, for which Lanham had p. right to a civil action against Swan, was álsd embraced ^he agreement, is not, in our opinion, material. The ['doctrine is well Settled, that if any part of an éntire ^consideration be vicious and illegal, either at common ¡law or by statute, the whole agreement is void: *(Chitty*on *Contracts,*692; 3 *Bibb,*500; *6 Dana,*91.)

Whether, therefore, the right of Lanham to redress for the personal injury he sustained, did or not, form one of the elements of the contract between the par-ties> ffn(b constituted a portion of the consideration of the note sued on, is unimportant, if the other object contemplated by them, and which evidently formed the chief inducement to the agreement, Was illegal.

contract to impede thé due course of public justice is illegal, It is against public policy to permit indi*99viduals to settle and adjust offences of a criminal nature, the punishment of which is deemed essential to the general welfare. The effect of such contracts, is to encourage the commission of crime, and the law denounces them as impolitic and .illegal: *(Ckitty on Contracts,*673.) The same author states that “perhaps an agreement to make the prosecutor of an indictment for a misdemeanor, or, peculiarly of a private nature, and ¡ occasioning a private injury, (as for an assault,) a rea-1 sonable satisfaction in consideration of proceedings be-1 ing stayed, may not be illegaland refers to some decisions in support of this proposition. If, however, this doctrine should be allowed to prevail here, to the full extent intimated, it would have no application to the present case, inasmuch as the proceedings against Swan were not merely for a misdemeanor, but for an offence made felony by the statute.

It is error for the-Court to instruct the jury upon a question which is irrelevant to the issue, or where the principle assumed by the Court ianot law.

The Court, at the instance of the plaintiffs, instructed the jury, that the written agreement of the parties, and the satisfaction made, would bar Lanham from bringing any action against Swan for damages for a personal injury. The instruction was improperly given for two reasons: First. It was wholly irrelevant to the issue, and calculated not to enable the jury to arrive at a proper conclusion in their deliberations, but to exercise an improper influence on their minds in determining the law and the facts of the case.. And, secondly. The effect of the agreement, if it does include in its provisions both the public wrong and the private injury, is-not such as the instruction ascribes to it. The promise is entire; it is not, in its nature, capable of separation it is founded on an entire consideration, which cannot be apportioned; the whole contract and agreement of the parties is, therefore, illegal, and no part of it cam-be enforced by either party.

The verdict of the jury is, therefore, in direct opposition to the evidence, and palpably wrong. On this ground, and also |or the improper instruction to the jury by the Court as aforesaid, a new trial should have been awarded.

*100*Shuck*for appellants; *Rountree and Fogle*for appellees.

Wherefore, the- judgment is reversed and cause remanded for a new trial and further proceedings in conformity with this opinion.