#### *Jacob B. Banks vs. Pleasant Searles.*

*A*note given in part as compensation, and partly to compromise a prosecution for an assault and battery, is not void, the consideration being adequate to sustain the action.

*Before*O’Neall, J., Edgefield, January, *Extra*Term, 1842.

This was an action of assumpsit on a note of hand. The defendant relied on the defence that it was given to compound a criminal prosecution. It appeared that the plaintiff had been badly beaten by a man named Yancev Freeman. The defendant, with others, was charged with being concerned in the affray. Indeed, the defendant was supposed to be the agitator of the whole affair. The plaintiff procured a warrant to be issued against all supposed to be concerned, including the defendant, and was about suing out a writ in trespass, when, at the instance of the defendant, the whole matter was compromised, and the defendant gave his note for $200. The defendant was allowed to go into an investigation of the fight, and to shew, if he could, that he was wholly unconnected with it. In this, however, he certainly failed, for the proof was abundant to shew, that if he did not cause the assault and battery to be committed, he was at least a party to it. The jury were told, if the note was given to compensate the plaintiff for the injury he received, and the defendant was concerned in the assault and battery, that notwithstanding it might have been also agreed that the prosecution should stop, yet the note might be recovered. If the defendant was wholly unconnected with the assault and battery, and the note was given to compromise the prosecution alone, then it could not be recovered.

The jury found for the plaintiff, and the defendant appealed, on the annexed grounds.

1. That the note in this case, having been given to com-, promise a criminal prosecution, was void, for want of consideration.

2. Because the note, in airy point of view, was void, as part of its consideration was the compromise of the cri~. minal prosecution.

*357Griffin, for the motion,

cited 2 Hill, 625; 1 Bail. 588 ; Chev. 178, *Scott vs.*Gillman; 3 Taunt. 226; Cliitty on Bills, 98, *in a note;*Bail, on Bills, 563 ; Cliitty on Contr. 51,536; 15 Pick. 529; 7 Term, 197.

Burt, contra,

contended that the consideration of the note was sufficient. He said an indictment for an assault and battery could scarcely be considered a criminal prosecution. He cited 2 Hill, 625, and relied upon this case as full authority.

*Curia, per*

O’Neall, J.

In this case we concur in the instructions given by the Judge below to the jury. There is in every assault and battery a public offence and a civil injury. The compensation of the latter has always been encouraged by the imposition of a much less punishment, where it has been made, than would have been otherwise done. Indeed, it is not regarded as of any great importance to the public, that common assaults and batteries should be severely punished. It is generally supposed, if the parties be reconciled, and compensation to the party inj ured is made, that all the ends of justice havé been answered. If, therefore, the defendant was liable to answer for the injury which the plaintiff sustained, he will be regarded as making his note the measure of damages ; and hence it could not be assailed as in the whole or in part resting on an illegal consideration. The jury have found that the defendant was answerable for the assault and battery, and according to the rule stated, his note must be sustained. The three cases previously decided in this State on this subject, I regard as perfectly reconcilable with each other, and as sustaining the rule laid down in this case. In *Corley vs.*Williams, 1 Bail. 588, the indictment was against Kirksey, for an assault and battery. The defendants were his securities ; he absconded. To compromise the matter, and stop the prosecution, they gave their notes for $25 each, and the magistrate gave up their recognizance. It was held that the whole consideration of the notes then was to stop the prosecution, and therefore illegal. This was the only view which could be taken of that case, for the defendants were in no shape liable for the civil injury; they Were alone connected with the criminal prosecution. So *358in *Hearst vs. Sybert,*Chev. 177, the *note was*given by a third person to a mother, for an assault and battery on her child, where there was no allegation that the battery was so enormous as to deprive her of his services, and where it was given to prevent *a*prosecution, it was held that the note could not be recovered, because the mother had no right of action for such an assault and battery on her child. This was placing the defendant’s exemption from liability on the ground that there was no consideration, not that it was illegal. In *Mathison & Kingsley vs.*Hanks, 2 Hill, 625, the defence was, that the note was given in satisfaction of an an assault and battery committed by the defendant; it was held that it was a good consideration. This case settled, as' I conceive, the rule that where the defendant is liable for the assault' and battery, a note given by him to settle it is founded on a legal consideration. The motion is dismissed.

Richardson, Evans, Earle, and Butler, JJ., concurred.