offenses and opposed to public policy. In a case before the Supreme Court of the United States, the court said: "The pardoning power, committed to the executive, should be exercised as free from any improper bias or influence as the trial of the convict before the court; consequently the law will not enforce a contract to pay money for soliciting petitions, or using influence to obtain a pardon." This rule will not be inoperative, and its application will not be in any degree modified where the service is for the purpose of procuring a commutation of a criminal sentence. In Kribben v. Haycraft, the court said: "It is a principle of law dictated by the soundest policy that an agreement cannot be enforced by which one person promises to pay another for obtaining or trying to obtain a pardon. The cases are founded on the obvious reason that such contracts are illegal, inasmuch as they tend to encourage the use of improper means to accomplish the object, and are in conflict with the intelligent and proper exercise of the pardoning power. But it is insisted that the promise in this case is not to obtain a pardon but a commutation of the punishment, and that there is nothing in the contract obnoxious to public policy. The distinction is nominal, for the principle is the same in both cases, and all the considerations that uphold the propriety and wisdom of the rule in the one case apply to the other.''3 § 26. For Services which are in Violation of Public Duty. All agreements to perform any act which is punishable in a criminal sense, or to prevent a criminal prosecution, or to suppress evidence in relation to it, are illegal and void. In England it has been held that a printer cannot recover against a publisher for printing a work which con Thrupp v. Collett, 26 Beav. 2 Marshall v. Balto. & Ohio R. R. Co., 16 How. 314, 334. pay him for his services and to re- 3 Kribben v. Haycraft, 26 Mo. 396. tains the life of a prostitute, and the history of her amours with various persons, and it is no answer that the parties are in pari delicto. In a case in Georgia it was held that on the trial of an issue whether a promissory note sued on is illegal, because given for the compounding of a felony, it is not necessary that the defendant shall prove that the party charged was actually guilty of the felony; it is sufficient, if there be an act done, of which he is charged to be guilty, which is prima facie felony. An offense which may, in the discretion of the court, be punished by confinement in the penitentiary, is so far a felony that compounding of it is illegal. Although one 1 Poplett v. Stockdale, 2 Carr. & P. 198. A covenant in a deed not to convey or lease land to a Chinaman is void, as contrary to the public policy of the government, in contravention of its treaty with China, and in violation of the fourteenth amendment of the constitution, and is not enforceable in equity. Gandolfo v. Hartman, 49 Fed. Rep. 181. A contract whereby one aided another in obtaining title to land, sold by an administrator at a price much less than its value, to the injury of the creditors and heirs of the intestate, will not support an action. Smith v. Humphreys, 88 Me. 345; s. C., 34 Atl. Rep. 166. A contract by which plaintiff agreed to refrain from forming a corporation for the construction of waterworks in a certain city, and from carrying on or prosecuting such work, in order that defendant might incorporate for that purpose and conduct the business without competition. is not void as against public policy. Oakes v. Cattarangus Water Co., 143 N. Y. 430; s. c., 38 N. E. Rep. 461. A deed, after reciting that differences existed between a husband and wife, and that they de sired to adjust such differences and provide an adequate support for the wife, conveyed land to a trustee for the purpose of allowing the husband and wife to have the rents and profits, and to "support the wife in such manner as she has heretofore lived." Held, that the deed is not prima facie invalid on the ground that it was made in view of a separation of husband and wife. Barnes v. Barnes, 104 N. Car. 613; s. c., 10 S. E. Rep. 304. A contract by a State authorizing a person to prosecute a claim and providing that his compensa- . tion should be a certain per cent. of the amount collected by him, to be paid out of the proceeds thereof, is not void as against public policy, because making the payment of compensation contingent on success; the contract being authorized by the legislature, which empowers the governor and council, on behalf of the State, to appoint an agent to prosecute the claim and fix his compensation to be paid out of any amount received therefrom. Davis V. Commonwealth, 164 Mass. 241; s. C., 41 N E. Rep. 292. may legally take a promissory note as compensation for a personal injury, yet, if the injury was a crime, such as by our law the parties cannot settle between themselves, and if there be any attempt, by giving of the note, to suppress a prosecution for the offense, it vitiates the whole agreement, even though the note be for less than the actual damages received.' It is not necessary that there should be an agreement in terms to compound a crime. It is sufficient that that was the intention of the parties, and that the agreement was entered into for the purpose of carrying out that intention. It is not necessary that the person receiving the consideration should agree not to commence proceedings against the person accused. The effect will be the same if he binds himself to release the accused from a pending prosecution. Where a third person makes a promise to indemnify an officer for neglecting his duty in the service of a warrant, the promise is based upon an illegal consideration, and, in consequence, is void.3 In an English case, a petition having been presented to the House of Commons, against the return of a member, on the ground of bribery, the petitioner entered into an agreement, in consideration of a sum of money, and upon other terms, to proceed no further with the petition. It was held that this 1 Chandler v. Johnson, 39 Ga. 85; Fivaz v. Nicholls, 2 C. B. 501; Porter v. Jones, 6 Coldw. 313; Gorham v. Keyes, 137 Mass. 583; Kimbrough v. Lane, 11 Bush, 556; Lindsay v. Smith, 78 N. Car. 328; Baker v. Farris, 61 Mo. 389; Shaw v. Reed, 30 Me. 105; Shaw v. Spooner, 9 N. H. 197; Badger v. Williams, 1 D. Chip. 137; Goodwin v. Crowell, 56 Ga. 566; Snider v. Willey, 33 Mich. 483; Sumner v. Sumner, 54 Mo. 340; Wright v. Rindskopf, 43 Wis. 344; Roll v. Raguet, 4 Ohio, 400; Vanover v. Thompson, 4 Jones L. 485; Halthaus v. Kuntz, 17 Ill. App. 434; Henderson v. Palmer, 71 Ill. 579; Taylor v. Jaques, 106 Mass. 291; Peed v. McKee, 42 Iowa, 689; 3 Hodsdon v. Wilkins, 7 Greenl. 113; Ayer v. Hutchins, 4 Mass. 370; Churchill v. Perkins, 5 Mass. 541; Denny v. Lincoln, 5 Mass. 385; Webber v. Blunt, 19 Wend. 188; Clark v. Foxcroft, 6 Greenl. 296. A contract to reprint a book in violation of a copyright belonging to a third party is void. Nichols v. Ruggles, 3 Day, 145. agreement was illegal. It was held, also, that the written agreement was admissible in evidence, for the purpose of insisting on the illegality of the transaction, in answer to an action for the sum so agreed to be paid, without its being stamped. In Vermont it has been held that the consideration of a contract must not only be valuable, but lawful; hence there can be no recovery by one for his time and service, the purpose and tendency of whose employment was to obstruct the administration of justice, by influencing State witnesses, and by inducing the State's attorney to hold back in the discharge of his official duty in prosecuting the defendant charged with adultery.2 § 27. For Services in Opposing a Public Enterprise.— It is well established that all covenants that have as their object the defeat or obstruction of any public enterprise are in contravention of public policy and void. The courts will not lend their aid to the enforcement of any agreement of this nature, and they will not afford relief to any person who has put his property in peril for any purpose of this character. Among cases that fall under this rule are those relating to the opening of a street, or of a public road. In Smith v. Applegate, it was held that a promissory note given by the applicants for a public road to a caveator against such road, in consideration of the caveator's withdrawing his opposition to the road, and permitting the return to be recorded, is void, being founded on an illegal consideration. A contract on the part of the caveator to withdraw his opposition to the laying out of a highway, is against the policy of the law, and, therefore, void. In the opinion in this case, the court said: "The same considerations apply with increased force to a controversy touching the laying out of a public highway. Any one aggrieved is at liberty to caveat against the road. He is under no obligation to do so. He may, at his pleasure, abandon his opposition. But he may not lawfully bind himself to withdraw his opposition, nor may he contract to receive a price 1 Coppack v. Bower, 4 Mees. & W. 361. 2 Barron v. Tucker, 53 Vt. 338. for so doing. The obvious and unavoidable tendency of such a practice to unjust litigation, the lure it would hold out to private cupidity, to the great detriment of public interests, render it necessarily repugnant to the policy, and subversive of the beneficent designs and provisions of the statute." In a recent case before the Court of Chancery of New Jersey, complainant conveyed property to his father 1 Smith v. Applegate, 23 N. J. Law, 352, 358. "It is very clear that the contract in question never could have been enforced against the caveator. If the caveator having agreed to withdraw his opposition, and having received a price for so doing, had refused to comply with his contract, and persisted in his opposition to the road, this court surely never could have enforced a compliance with the contract on his part, nor awarded damages for his non-compliance. The contract upon him would have not been obligatory. This consideration, alone, demonstrates that the contract is illegal, as against public policy. The contract, moreover, to be valid, must be binding upon both parties. If not binding upon one it is binding upon neither, and if the contract of the caveator is illegal, and by reason of its illegality forms no valid consideration for the contract of the applicants, the execution of the illegal contract constitutes no better consideration. When the note in question was given there was no consideration for the promise on the part of the makers, but a promise on the part of the payee, illegal, inoperative and not binding upon him. The contract was void. The fact that it had been executed by one of the parties will not authorize the enforcement of an il legal contract as against the other." Ibid. A town has no power to agree, for a valuable consideration, to discontinue a highway. The mode of discontinuing highways is fixed by statute with a provision for an appeal by any party aggrieved, and a town cannot, at its mere pleasure, discontinue them. And a town cannot enforce a promise of the other party of which its own promise to destroy a public right was the consideration. Town of Cromwell v. Conn. Brown Stone Quarry Co., 50 Conn. 470. The commission of a lawful act is not actionable though it proceeded from a malicious motive. A public road was laid out along the division line of the unimproved lands of two persons, and the land was afterwards cleared and sown. To save expense, they agreed each to fence to the middle of the road. Held, that the agreement to enclose the land was illegal, and either one had the right to remove his portion of the fence. and was not liable for injury sustained by the other in his crop, then ready for harvesting, whether the motive for the removal of the fence was malicious or otherwise. Jenkins v. Fowler, 24 Pa. St. 308. See also Dingledein v. Third Ave. R. R. Co., 9 Bosw. 79, 89; Dygert v. Schenck, 23 Wend. 446; People v. Cunningham, 1 Denio, 524; People v. Lambier, 5 Denio, 9; Renwich v. Morris, 3 Hill, 62; s. C., 7 Hill, 575; Merriwether V. Nixon, 2 Smith's Lead. Cas. 297. |