33 N.Y.S. 286 | N.Y. Sup. Ct. | 1895
The action is upon an instrument under seal, executed by the defendant and others, by which they guarantied and became sureties severally, in limited amounts, for the payment of an indebtedness to the amount of $900 of Charles L. Lancaster to the plaintiff. The consideration expressed in the agreement was one dollar, and the forbearance of proceeding by civil action to collect from Lancaster for two years. The defendant alleges that the consideration was the promise of the plaintiff to delay and stifle the criminal prosecution before then instituted against Lancaster by indictment for grand larceny, founded: upon the charge of appropriating to his own use the money of the plaintiff, of which he was treasurer; and the trial court found that such was the consideration. This finding was supported by the evidence in so far that Lancaster’s proposition to pay a specified sum of such indebtedness, and procure such undertaking of guaranty, was accepted by the plaintiff with the understanding that he "should be released from the custody in which he then was, and the prosecution upon the indictment suspended. The preliminary payment was made, and the agreement of the defendant and others executed and delivered. Lancaster was thereupon released from custody upon Ms own recognizance. This was done ai the instance of the plaintiff, through seme of its members representing it in that behalf, to enable Lancaster to seek service, and obtain the means of making payment to the plaintiff as contemplated. The plaintiff was at liberty to accept the obligation of sureties for the payment of the amount of the liability of Lancaster for the deficit, notwithstanding the pendency of the criminal prosecution, and it would be effectual unless rendered invalid by an agreement on the part of
It is a rule of the common law that an agreement to compound, stifle, or suppress a criminal prosecution for a felony cannot constitute a valid consideration, and that a contract based upon such a consideration is void. It is deemed a matter of public policy, involving the welfare of society, that persons should not, by motives of pecuniary interest, be permitted to interfere with, impede, or prevent prosecutions for felony and other offenses of a public nature. Bank v. Mathewson, 5 Hill, 249. Conderman v. Trenchard, 58 Barb. 165; Conderman v. Hicks, 3 Lans. 108. It is urged that this doctrine is not applicable to the contract made by the defendant and others, because it does not appear that there was any consideration for their undertaking other than that expressed in it, which was a valid one. It is true that it does not appear that any agreement on the part of the plaintiff, or any one in its behalf, to use any means or effort to relieve Lancaster from criminal prosecution, or to delay or suspend it, was communicated to the defendant or to those who with him executed the agreement; but that agreement was obtained by Lancaster to carry out his proposition, and was accepted by the plaintiff; and the consideration upon which it was procured by him, and delivered to the plaintiff, was that before mentioned, as found by the trial court. The contract was infected with the taint of the consideration upon which, as between the plaintiff and Lancaster, it was obtained by him or in his behalf, and delivered to and accepted by the plaintiff; and therefore the defendant’s undertaking was not disconnected with the illegal purpose, nor was it founded upon a new or independent consideration. In the opinion of the trial court, delivered by Judge Titus (26 N. Y. Supp. 525), the reasons for the conclusion there reached are so well and fully stated as to render any addition to them quite unnecessary on this review.
The judgment should be affirmed. All concur.
