Adams v. Barrett

• Decision Date: 31 August 1848
• Docket Number: No. 46.,46.
• Citation: 5 Ga. 404
• Parties: James Adams, Adm'r of Rose, plaintiff in error. vs. N. Barrett, defendant.
• Court: Georgia Supreme Court

5 Ga. 404

James Adams, Adm'r of Rose, plaintiff in error. vs. N. Barrett, defendant.

No. 46.

Supreme Court of the State of Georgia

AUGUST TERM, 1848.

[Adams, Adm'r, &c. vs. Barrett.—The plaintiff in error, having joined issue upon the assignment of errors in this case, with a protestando against the sufficiency and completeness of the bill of exceptions, upon the ground that said bill of exceptions does not contain copies of the several pieces of documentary testimony mentioned therein, and also that the testimony upon interrogate ries of the several witnesses who were examined by commission, is not copied into said bill of exceptions.

The Court, upon argument heard, being of opinion that the evidence, as set forth in the bill of exceptions, is sufficient to enable the Court to understand fully and adjudicate correctly, the questions presented by the bill of exceptions; It is ordered, that the defendant in error take nothing by his said protestation, and that the same be set aside, and that the cause proceed as though no such protestation had been made.]

In Equity, Upson Superior Court, tried before Judge Floyd, April Term, 1848.

The facts may be found embodied in the opinion of the Court. Chappell & Harman, for plaintiff.

Gibson, Poe & Nisbet, for defendant.

Harman, for plaintiff in error, made the following points and relied upon the following authorities:

1st. A deed, the consideration of which, in whole or part, is the compounding or stilling a criminal prosecution for felony, is illegal and void. Story on Con. 507. 1 Story Eq. 300. 3 Kelly, 176.

A Court of Equity will entertain jurisdiction and direct the delivery up, cancellation, or rescission of agreements, securities, deeds, or other instruments which are illegal and void. 2 Stoty's Eg. 5 to 12. 1 Vesey & Beams, 244. 13 Vesry, 581. 11 Ib. 535. 6 lb. 417. 1 Johns. Ch. R. 520—524. Drury on Inj. 10.

Equity will, where discovery is sought as the means of obtaining relief, by delivery up or cancellation of the void instrument, for the purpose of preventing multiplicity of suits, make a decree for the relief sought. 1 Story Eg. 80 to 90.

Equity will give relief to a party who is particeps criminis in the illegal transaction, where the securities or other agreements are repudiated by the party on account of their being against public policy; that the relief is asked by a particeps, is not material in Equity; the reason is, the public interest requires relief should be given, and is given the public through the party. 1 Story, 300 to 305. 11 Vesey, 535. Doug. R. 695, 97, 98. 9 Vesey, 292 to 298. 3 Por. 66 to 74, note 1. Cowp. 790. Eden R. 190.

A party cannot sustain an action for a civil injury, until he has discharged his duty to society by bringing the offender to justice on the criminal side of the Court, (for a felony,) and until the offender is tried and either acquitted or convicted, his civil remedy is suspended. Chitty Crim. Law, 4. 12 East, 409. 2 T. R 751—6. 1 Hale, 540. 4 Bl. Com. 303. Bac. Abrdg. Tresp. E. 2 Trover, D.

By the Court.—Nisbet, J. delivering the opinion.

This bill is filed by the administrator of Rose, and charges, that whilst in life, he had committed mayhem upon the person of the defendant Barrett, that prosecution had been instituted by Barrett, against him for the offence, and that suit for damages had also been commenced—that pending these proceedings, an agreement had been entered into between the parties for the settlement and abandonment of the prosecution—that in consideration of the abandonment of the prosecution, Rose had corruptly agreed to convey to the prosecutor, Barrett, a certain tract of land, and that in pursuance of the agreement, a deed to the land had been executed, and had come into the possession of Barrett, and that an action of ejectment had been brought, and was still pending in favor of Barrett, to recover possession of the land conveyed by the deed. Other matters are charged in the bill, but are not material to the points first to be considered. The bill prays a perpetual injunction of the action of ejectment, and that the deed be delivered up and cancelled. This prayer is predicated upon the assumption, that the contract under which the deed was made to Barrett, is illegal and void, as being against the laws and public policy of the State, in this, that the consideration of said contract was mainly, if not solely, the compounding of a felony. The answer admits the facts generally, as stated in the bill, but denies that the consideration of the agreement was the abandonment of the prosecution, insisting, that the sole consideration was the settlement and dismissal of the civil action. It also states that the deed was duly delivered to the defendant, in pursuance of his agreement with Rose. Upon the trial, a good deal of testimony was introduced, to which it is unnecessary to advert. The errors complained of, grew out of the instructions of the Court to the jury, and his declining to instruct them, as requested by counsel for the plaintiff. The alleged errors in the bill of exceptions, and in the assignment, assume divers forms. They may be reduced to three. The great question in the case, grows out of the charge of the Court, which is in the following words: "Even admitting that you are of opinion that said deed was undoubtedly founded in part, or in the whole, upon a bad or illegal consideration, to wit: upon the consideration ofcompounding, abandoning, or stifling the said criminal prosecution; still, neither Rose, nor the complainant, his administrator, could upon such ground, maintain a Bill in Equity, to set aside such deed. The principle which governs in such cases, is, that Courts of Equity will not interfere actively, in favor of either party—neither in favor of the party executing the deed to set it aside, nor in favor of the party to whom it was executed to enforce it—that the Court will leave the parties as it finds them, as being both equally participants in the crime, and will not interfere to set aside the consequences which spring out of that crime, and are tainted thereby." To this charge the plaintiff excepted. The other two points spring out of the following request of counsel for the plaintiff, to wit: "that the Court instruct the jury, that if they believe that the only consideration for the deed, was the settlement of the civil suit or suits; still, said consideration was bad and illegal, because by law the defendant Barrett, was not entitled to bring and maintain his said suit, or suits for the civil injury, until he had prosecuted to an end, the indictment for mayhem. And if it was contrary to law and to the policy of law, to permit a party in a case like the one before the Court, to maintain a civil action for damages before prosecuting the criminal offence to an end; it was equally contrary to the policy of the law, and illegal, to permit him, after having brought such inadmissible civil action, and settled the same for a stipulated compensation, to recover by the aid of law, the property or money which was the price of such settlement; and Equity, as well as law, will aid in preventing such a recovery, by setting aside the agreement, or deed on which such recovery was sought to be had, or the property sought to be conveyed."

The Court declined to give any direct charge upon this request, upon the ground that any such charge was unnecessary and uncalled for by the pleadings, and to this refusal the plaintiff excepts, maintaining, that such a charge was called for by the pleadings, and maintaining the doctrine as expressed in the request. The Court, however, did instruct the jury, that if the law was, as claimed by the counsel for plaintiff in the above request, still it would not affect the decision of the case, because, upon that supposition, Rose and Barrett were parties to a settlement and conveyance, founded on an illegal consideration, and the Court would not interfere in favor of Rose, to set aside a conveyance, howeverillegal, in which he and Barrett were equally participants in an illegal and inadmissible transaction. To which charge the plaintiff also excepted.

I shall consider these questions in the inverse order in which they are here presented. The last charge of the Court, which gave rise to the last exception, goes upon the assumption that the law is as stated by counsel for the plaintiff in his request. The proposition is, that a person injured by mayhem, is not entitled to sue for the civil injury, until he has prosecuted the offender to conviction or acquittal on the criminal side of the Court. Concede this to be true, then, says the Court, Barrett having sued Hose for damages, before prosecuting him to conviction or acquittal, and they having agreed to settle the civil suit, are equally participants in an illegal transaction, and the Court will not lend its aid to Hose to set aside a conveyance made by him to Barrett, in consideration of such settlement. This proposition of the Court is not the same with that stated by the counsel for the plaintiff. The counsel, after stating in his request, the rule of law, to wit: that Barrett, the person injured, is not entitled to sue civilly, until he has pursued the criminal prosecution to an end, proceeds to state, that if he does so sue, and compounds the civil suit, it is against the law and the policy of the law to permit him, (Barrett,) to recover by the aid of the law, the property or money which was the price of such settlement or compounding; and he farther proceeds to state, that Equity will aid in preventing such recovery, by setting aside an agreement or deed made in pursuance of such settlement. The counsel, we think, has correctly apprehended the law, as applicable to just such a settlement as the one supposed, and the Court has misapprehended it. If such a contract be void, (and it unquestionably would be upon the assumption granted,) for what reason is it void? Because it is founded on a consideration, (to...