Wildey v. Collier, 7 Md. 273

7 Md. 273 | Md. | 1854

Tuck, J.,

delivered the opinion of this court.

We suppose that the money claimed in this case was due to the appellant, and that his object in taking the mortgage was to secure his debt, without any design to obtain a nolle prosequi by improper means. It is quite apparent, that Mrs. Collier, not being indebted to the appellant, became a party to the mortgage for the sole purpose of inducing him to use his efforts in obtaining the nolle prosequi, making her property responsible for a debt not her own. This, it is true, a feme sole may do, but the question here is, whether this deed is not avoided by the law for the reasons assigned in the record?

Courts of justice are generally open to suitors for the recovery of just claims, but considerations of public policy are often deemed paramount to private rights, and where they are opposed, the latter must yield. There is no doctrine better settled than that agreements to obtain executive clemency, by means of pardons or writs of nolle prosequi, cannot be enforced. The reasons are obvious. They are designed to protect the exercise of this power from abuse through the intervention of designing persons, and although in the particular instance no improper influences may have been resorted to, the public interest in such questions requires that the principle should be enforced in all cases. It may, sometimes, as between the parties, be unjust to a claimant who has rendered valuable services for another in his distress, but rules of law, founded on public policy and the safety of society, will not be set aside to sustain such individual demand. Without going into these doctrines at length, it may suffice to refer to the following authorities, where the subject is fully discussed: Collins vs. Blantern, 2 Wilson, 341. Smith’s Lead. Cases, 154. 1 Chitty’s Crim. Law, 4. 1 Camp., 45, Wallace vs. Hard-acre. Chitty on Contracts, 571, 582, (Ed. 1851.) Story on Cont., sec. 202. Parsons on Cont., 365, 380. Keir vs. Leeman, 51 Eng. C. L. Rep., 308, and 58 Eng. C. L. Rep., 371. Marshall vs. Baltimore & Ohio Rail Road Co., 16 Howard, 334.

It is true, as argued by the appellant’s counsel, that the party here only undertook to apply to the governor for what the executive had authority to grant, and that there was nothing illegal in his making efforts to obtain ihe nolle prosequi. Bait it does not follow that the case is relieved thereby from the objection taken on the part of the appellee. The executive is still, liable to be misled, and induced to act upon considerations suggested by a party having an interest to produce false impressions on his mind; and to shield that department of the government and protect the community against the improvident exercise of its prerogatives, the law has declared that a recovery cannot be had on such undertakings. The same reason, applies with equal force in support of claims for obtaining the passage of laws by the legislature. We do not say that services of that kind may not be compensated when publicly rendered by advocates disclosing f.heir true relation to the subject, bu^ certainly not when the character in which they solicit is unknown. And yet in all such instances, the legislature, most probably, would be asked to do only what there was ample power to grant.

There is much danger of abuse in the exercise of the pardoning power and in granting writs of nolle prosequi, arising from the manner in which such applications are generally presented. They were, before the adoption of the present constitution, preferred and acted on ex-parte, the governor necessarily relying on the imperfect, not to say, false, lights that such circumstances might afford. It is easy to perceive that this danger is greatly increased where the party urging the application is unknown to the executive, the paid agent of the accused, or is acting under the strongest inducements to varnish or misrepresent the facts by reason of his own interest in the success of the measure. No class of cases presents a more striking illustration than that to which the presentment mentioned in this record belongs. If it be understood as the law of the State that such compromises are binding and may be enforced, we may anticipate an increase in number of presentments for raising money under false pretences, and for conspiracies to defraud, found at the instance of persons defrauded, hoping thereby ultimately, as here expected, to secure the payment of their claims against the offenders. Although there may be cases in which compromises have been allowed, there are none, as far as we are informed, for arresting prosecutions by obtaining a nolle prosequi or otherwise, in cases affecting the public interest as closely as offences like that charged against Slaney. We take the rule as laid down by Lord Eldon, in Norman vs. Cole, 3 Esp., 253, where one Tunstall, being under sentence of death, the plaintiff was prevailed upon to lodge thirty pounds in the hands of the defendant, to be applied to the purpose of procuring him a pardon. The plaintiff, being held to strict proof of the means employed to obtain the pardon, stated, that Tunstall was a man of good character before his conviction; that one Morland, being a person of good connections and having access to persons of interest, (he money was to be given to him for so using his interest, by representing, in favorable terms, the case and character of Tunstall. Lord Eldon would not let the cause proceed, saying, “ Where a person interposes his interest and good offices to procure a pardon, it ought to be done gratuitously and not for money; the doing an act of that description should proceed from pure motives, not from pecuniary ones. The money is not recoverable.” We suppose that the appellant who undertook to obtain the nolle prosequi could not have expected to succeed by means legs exceptionable than those condemned by Lord Eldon.

The same principle was recognized in Hatzfteld vs. Gulden, 7 Watts, 152, where the plaintiff sued to recover compensation for services rendered the defendant in procuring his pardon. The court there remarked, upon tiie means employed by the plaintiff, as showing that he was not actuated by pity or friendship, or a sense of justice, but for his own gain and emolument. It is true, th'e means resorted to by Wildey do not appear, and we are not to infer,' in thié particular Case, that the power was unwisely exercised in consequence of the representations made by him to the governor; but it is quite plain, that motives of interest instigated his exertions in behalf of the accused, and if the manner in which his part of the engagement was performed could affect the case, which,- however, we deem wholly unimportant, the onus was certainly on him to show the means by which the governor had been induced to act favorably upon the application.

We perceive nothing in the case to exempt it from the operation of the principles upon which the law reprobates contracts of this character, and concurring with the judge below in his view of the transaction, we must affirm the decree; but we do’ not consider it a case for costs.

Decree affirmed.