#### John Heath v. John Cobb.

"Where a judgment was confessed to tile prosecutor by a prisoner confined in jail on a charge of larceny and arson, under circumstances which induced the court to enjoin it, but without any misconduct on the part of the prosecutor, it was held, that it should stand as a security for the amount which might be recovered in another action to be brought by the prosecutor for the same trespass.

The bill was filed in Lenoir, in 1826, and alleged that the plaintiff being old, infirm and poor, was falsely accused by the defendant, a man of wealth and influence, of stealing cotton, and afterwards burning the gin house to conceal it — that being arrested on this charge, and unable to find sureties for his appearance, he was confined in jail from the 10th of August 1835, until the commencement of the term of the Superior Court, in October ensuing — that during this period, the defendant, by his agents, informed him, that if ho would confess a judgment for S 150, it should not bo enforced, if he, the plaintiff, suffered corporal punishment in consequence of the prosecution — that believing from this proposition, that the defendant would not only abandon the prosecution, but wished him so to understand it, in consequence of his poverty, his forlorn situation, and his imprisonment, ho consented to do so *;*and being brought into the court-house from the jail, confessed tiie judgment. The plaintiff then averred his innocence, and that the grand jury, after examining the witnesses for the prosecution, *ignored*the bill of indictment against him. The prayer was for an injunction against the judgment.

The defendant in his answer, insisted, that the plaintiff was guilty of the theft with which he was charged, and that while awaiting his trial, frequently made application to him to compound the prosecution, and offered to pay him ¡S 250, the estimated amount of his damages, which the defendant positively refused — that after repeated solicitation, he consented to permit the plaintiff to confess the judgment mentioned in the bill, in satisfaction of the damages he had sustained. But the defendant positively denied, that he ever promised the *188plaintiff that the judgment should not be enforced, in caso corporal punishment was inflicted upon him, or that ho over gave the plaintiff to understand, or any reason to hope, that the confession of the judgment should in any way affect the criminal prosecution.

A replication was filed and testimony taken, which is stated in the opinion of his Honor, Judge Haul.

*Movdccai,*for plaintiff.

Gaston, for defendant.

Haul, Judge.

It appears from the testimony in this case, that the plaintiff was a principal actor, in selling the cotton that had been stolen from the store-house of the defendant. From his advanced age, it is not very likely that ho participated in fact, in the arson which was committed to conceal the theft. But it is more than probable, that he was privy to it. All the circumstances of the case form a mass of evidence against him, of a very suspicious character. Being in this predicament, it is necessary to ascertain, whether lie confessed the judgment to the defendant under a sense of justice, and with a view to make remuneration for the injury done him, or whether he did so from the influence of fear or apprehension, arising from the prosecution then pending against *him;*and with a hope that the due course of law might thereby be averted ; and whether the latter expectation was not cherished by the overtures made to him by the defendant and his agent.

Freed from ail restraint, it is not very likely that a man, whose conduct has been represented in so criminal a point of view, should in the course of a few weeks return to a sense of reason and justice, and voluntarily make amends to the injured party for a crime that he had committed, and thereby tacitly acknowledge that he was the author of it. The defendant’s first object seems to have been, to be compensated for the Iqss he had sustained, rather than bring to punishment an infirm old man. In the first, he was governed by a sense of justice due to himself. In the latter, his humanity might, have been predominant, He forebore making any set*189tlement with the plaintiff, owing to an apprehension that Its interfering with the prosecution against the plaintiff, might make it a nullity. But he took counsel, and was advised that he could not compromise the prosecution *;*hut that if the plaintiff was found guilty, ho could say, that he would not crave a judgment against him. To this he assented; and of this the plaintiff was informed by the defendant’s agent *Blount,*whilst he was in jail. Connected with this part of the case is the testimony of *Daniel Daughtry.*Ho says that Blount, the defendant’s agent, told him to tell the plaintiff, that if he would come into court, and confess judgment for Si 50, that ho should have a. credit of twelve months ; and that if he suffered any corporal punishment, the judgment should be void. *Daughtry*states, that he made this known to the plaintiff, and that the plaintiff asked his advice. He, *Daughtry,*told him he did not know what would be sworn against him. Plaintiff said it might be best to confess a judgment, for he was fearful of false swearing. *Daughtry*then informed *Blount,*that the plaintiff was willing to confess a judgment. To a question asked *Blount,*he said, he did not *recollect*having such coversation with *Baugh-, try,*but he does not say, that such conversation did not take place. He states himself however, that he fold plaintiff, if he was found guilty, the defendant would not crave judgment against him. *Frederick Jones*says that *Daughtry*came to *Blount,*and wished a compromise of *Heath’s*business. *Blount*told him, that if he would give S 250, and leave the state or county, he would do so. *Daughtry*then asked, what would become of the prosecution ? *Blount*answered, he would see to it, or attend to it. ■ *John Stephens,*who seems to have been a fellow prisoner of plaintiff says, that *Blount*went into the jail as often as twice, and proposed to the plaintiff to make up for a certain sum, and told him that lie would not see. him take the whipping he would have to take, for twenty dollars.

From this evidence, the impression on my mind is irresistible, that the judgment was confessed under the influence of a hope held, out by the defendant *Blount,*either *190that the due course of law would be averted, or that if it was not, and the plaintiff was punished, the judgment should be of no effect. No doubt the plaintiff may owe, and injustice ought to pay to the defendant the amount of the judgment confessed. But individual justice to the defendant is not to bo preferred to the public justice that is due to the community. Sound policy forbids it; and the prosecution against the plaintiff may he some proof why it should forbid it. For the defendant says, that although the testimony appearing in this case was presented to the grand jury, they found the bill not a true bill, as lie supposed, through humanity to the aged prisoner. Might it not have been too, through a favorable impression made upon the jury by the prosecutor, after the confession of the judgment to him ?

I think the defendant ought to ho enjoined from proceeding on, or making any use of the judgment complained of. But it may he held as a security for any amount, which the defendant shall hereafter recover against the plaintiff. And the plaintiff is enjoined from pleading the statute of limitations, in any suit that may be brought by the defendant, to recover the amount, due on account of the subject matter, for which the judgment was confessed.

Ruí-etN, J udgel

The evidence satisfies my mind, that the judgment was confessed by the plaintiff for the sake, at least, of softening the prosecutor. It is not alone for the agreed damages for the civil injury. Nobody can believe, that such a security would have been given, had the indictment been at an end. The judgment is the original security given, and is therefore open for this court to act on, as a bond would bo at law. The plaintiff was under-a duress in the eye of a court of equity, He was in prison, charged with an infamous offence, and imped to conciliate both the injured party and the court. Securities thus obtained ought not to be obligatory. Free consent is wanting. I do not put it on the ground, that the defendant or his agent practised upon the plaintiff’s fears, or used improper means to influence. *191him. They acted as fairly as they could, and did nothing wrong, except in the single fact of taking a judgment from a man in the plaintiff’s situation and state of mind. He was not in a condition to be dealt with, in reference to the act, out of which grew the criminal charge. He could not and did not stand upon his rights. He felt himself in the other’s power, and with a spirit subdued, was willing to surrender them, without reference to the actual damage sustained by the defendant, and to yield to any of his demands, upon the hope, clearly entertained by him, that he would fare the better upon the prosecution. I think both upon the principle of the public policy, which forbids the compounding of prosecutions, and of duress as understood in a court of equity, the plaintiff must he relieved.

But as I by no means consider the defendant obnoxious to the censure of actual oppression or imposition *;*and as his loss, by the theft and the burning connected with it, are established beyond doubt j and as the participation of the plaintiff in the former act is clear, and that in the latter, probably to be inferred, I think the judgment is not forthwith to be perpetually enjoined. While the defendant cannot have full advantage of it, the court must take care, that he suffers no loss by if. During its existence, the defendant could bring no suit at law for tbe trespass. But tbe plaintiff is not to escape answering altogether for the trespass, and at the same time avoid the judgment in this court. The defendant may therefore have liberty to institute now an action at law, to establish the trespass alleged by him, and the damages sustained, in which the plaintiff shall not plead the statute of limitations ; and the judgment must stand as a security for the damages, that may be assessed by the jury *;*and after the verdict, the parties have leave to move for further directions.

Put; Curiam:. — Decree aceort>IN<sj.t.