McNamee v. Buck, 28 Vt. 308

The opinion of the court was delivered by

Redeield, Ch. J.

The question in the present case is, whether, the plaintiffs’ agent having induced the giving of the note in suit, by representing that a prosecution, for obtaining goods by false pretences, had been instituted in the State of New York, and the proper steps taken to arrest the defendant Buck, in this state, for the purpose of carrying him into New York for trial, and by agreeing to settle and stop the prosecution, the note is collectable, even if, in point of fact, the representations were false.

The plaintiffs’ agent having obtained the note by these representations, and the plaintiffs now seeking to enforce the note, implicates the plaintiffs in these transactions of their agent. And having made the representations and induced the defendants to act upon them, they would now he estopped from denying them, so that as to both parties probably, as is held in Dixon v. Olmstead, 9 Vt. 310, "we may now regard as facts all the representations which were made and acted upon, and equally that the defendant is to be treated, as he chose to treat himself, as guilty.

In this view of the facts it is obvious, from the English cases referred to in the argument, and which are thoroughly reviewed in the late case of Kier v. Leeman, 6 Ad. & Ellis, N. S. 308, that they are not, perhaps, altogether reconcilable; or the principle, upon which they profess to go, easily to be discovered. But it is certain that the English statutes and the English practice, allow the party aggrieved far more control and agency in wielding criminal prosecutions for his own private advantage than has ever been allowed here. It seems to be supposed there, that in a certain class of inferior misdemeanors, the party aggrieved, and who has a private remedy for the same act, may use the criminal prosecution for the mere purpose of compelling a settlement of the private injury, and when the party is satisfied, the public prosecution is disposed of by a nominal fine. This has always been the English practice as to assaults and batteries, and it is obvious they have extended it to a class of misdemeanors affecting chiefly the interest of private persons, like nuisances; Baker w. Townsend, 7 Taunt. 422; Elworthy v. Bird, 1 Sim. & Stu. 372; Beesly v. Wingfield, 11 East. 46; Draye v. Iberson, 2 Esp. C. 643 ; Fallowes v. Taylor, 7 T. R. 475.

But in a class of cases quite numerous in the English books, it seems to have been considered that if the prosecution was one affecting public morals or example, it could not be controlled by a private party, for his own purposes. Of this character are the following: Pool v. Bousfield, 1 Camp. 55, which seems to have been a case of paying money to hush a prosecution for perjury in an affidavit; Edgcomb v. Rodd, 5 East. 294, was a prosecution for disturbing a religious meeting, and the court held it could not be compromised by the parties mainly affected; Collins v. Blanton, 2 Wilson, 341, 349, where it was held that a contract to withdraw a prosecution for perjury is founded on an unlawful consideration, and void; and in the principal case referred to, Kier v. Leeman, it was held that the “ parties might compromise all offences, though made the subject of a criminal prosecution, for which the injured party might sue and recover damages, but that in the present case the offence is not confined to personal injury, but is accompanied with riot and obstruction of a public officer in the execution of his duty. These are matters of public concern, and therefore not legally the subject of a compromise.”

This is the latest English case on the subject which has been brought to our notice. The distinction here attempted, if we correctly apprehend the meaning of the learned judge, is between prossecutions for such acts as exclusively affect private persons, and involve no considerable proportion of moral turpitude, or any infamy of punishment, or personal disqualification, or seriously affect the public, that is between assaults and batteries, and nuisances, and offences of this grade, and such as involve the offender in infamous punishment, and personal disability, and extensively concern the public order and well-being. There is another distinction aimed at, but not well defined; it is that the class of crimes which the English law will not allow the injured party to compromise, are those which involve something entirely different from the mere act which constitutes a private injury. As theft, for instance, which always involves a trespass, or embezzlement, which involves a liability for the money or thing embezzled ; but beyond all this there is involved a felonious purpose and intent, which constitutes the essence of the crime, and which seriously concerns the administration of public justice.

To apply these distinctions to the present case, it is obvious that the obtaining goods by false pretences, does involve an act for which a private action will lie, as was held by this court in Poor v. Woodburn, 25 Vt. 234. It is true, the party selling the goods under the alleged false pretences, is precluded from an action of tort, by insisting upon his securities taken upon the sale and attempting to enforce them, thereby affirming the sale. It is considered that he must, upon the earliest notice of the alleged fraud, abandon his securities and demand the. goods, Kingsford v. Merry, 34 Eng. R. 607. If so, he may bring trover as in the case last cited, and in Fitzsimmons v. Joslin, 21 Vt. 129, but the party cannot hold on upon his contract for the price of the goods, and also sustain an action for the fraud, as the remedies are deemed inconsistent; bu'- there is something more than the mere conversion of the party’s goods in this offence. There is involved fraud of a very dangerous character to public confidence, and in the punishment of which the public have a deep interest, and which, by the law of most commercial states, is attended, upon conviction, with infamous punishment and personal disability. At common law, this class of frauds was regarded as intimately related to, if not in fact, a part of the crimen falsi.

We think, therefore, that by the rules of the English common law, the use made of this prosecution for the public offence, to compel security for the price of the goods, renders the contract void as against the soundest principles of public policy. In regard to this class of offences, with us denominated high crimes and misdemeanors, under the revised statutes, it was long since decided by this court, that prosecutions after the offender was arrested and bound for his trial before the court having jurisdiction to try, must be by the public prosecuting officers; State Treasurer v. Rice et al. 11 Vt. 339. The important distinction between the mode of prosecuting offences in England and this country, is there pointed out, and commented upon by Williams, Ch. J., and in this state, there can be no question, we think, that the use made of this public accusation of crime has long been regarded as an abuse of public justice to private and sinister ends, which the law will not allow. The cases of Sumner v. Hinesburgh, 9 Vt. 23; and Dixon v. Olmstead, id. 310,. seem to cover the important question involved in this case, and the case of Shaw v. Spooner, 9 N. H. 196, is almost identical with the present, and ail these cases stand, as we think, upon ground that is altogether unassailable.

I question, very seriously, whether, in this state, a private person has any right to use any public or private prosecution for crime of any grade, for the purpose of inducing a settlement, security or payment of a private claim for private loss or injury. At all events it must be considered as well settled everywhere, that no such use can be made of a prosecution for a crime of the character here indicated.

The fact, that this note was given for the agreed price of the goods, is certainly not decisive. The party without the use made of the public prosecution, might not have been able to obtain security for that amount, or any part of it. If so, he should not have resorted to this abuse of a public prosecution. It is not duress, but illegality which makes this contract ineffectual. This, of course, may be taken advantage of by all parties in defense.

Judgment affirmed.

Case Details

Case Name: McNamee v. Buck

Court Name: Supreme Court of Vermont

Date Published: Feb 15, 1856

Citation: 28 Vt. 308

Court Abbreviation: Vt.