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1804.

his custody, the defendant kad natice of the said premises. To this

there was a general demurrer and joinder. WHITE

Wood in support of the demurrer. This was a mere irreguJones. larity in the justification of bail, which was intitled “ White

against Mendel and another," instead of mentioning the other defendant's name. But whether bail were put in or not, or irregularly put in, it will make no difference as to the Marshal, who is at any rate bouiid to obey the rule of the court, and cannot be liable as for an escape in so doing.

Lord ELLENBOROUGH C. J. It is an unfortunate mistake,

but we cannot help the Marshal. The rule was to discharge the ( 294 ] defendant out of custody in one cause, intitled “ White against

Mendel," and the Marshal has discharged him in another cause,
a joint action of White against Mendel and 7. O., for which
he had no authority. I will assume that Mendel was only
charged in the Marshal's custody in onc cause at the suit of
White; but then the rule was nugatory, being intitled in a cause
of “ White against Mendel," and the defendant not being
charged in his custody in any such cause. The rule therefore
did not justify him in discharging his prisoner in an action to
which it did not apply.
The other Judges concurring,

Judgment for the Plaintiff.
Marryat was to have argued for the plaintiff

.

18042

June 8the

EDGCOMBE against Rods and Others. Friday, TO trespass for an affault and falle imprisonment, the defend- The toletaants pleaded, ist, not guilty; 2dly, that the assault and tion ac,

W. 6 M. imprisonment were hy virtue of a warraot under the hands and

f. 18. pro. seals of the defendants, three justices of the peace for the county vides (f. 18.) of Cornwall, ranted by them against the plaintiff upon a complaint that any per

fon malicia made to them as such justices by C. M. of a certain miflemeanor

ovlly dilurbby the said C. M. alleged to have been theretofore committed ing any, difa by * the plaintiff against the stat. I W. & M. (c. 18. f. 18. the senting contoleration ad): whereupon the plaintiff for default of such gregation fureties as are in that statute expressed was committed to the act on proof

under that prison of Bodmin in the said county till the next quarter sessions, before a jus. &c. And afterwards and before the said quarter sessions, &c. it tice of peace,

shall find was agreed between the plaintiff and C. M. with the consent of the

sureries in defendants, that C. M. should not further profecute the plaintiff gol., or in defor the said alleged offence, and should consent to his discharge fault be comat the then next ensuing quarter sessions, &c. in full fatisfaction

mitted to pri

fon till the and difeharge of the frid affault and imprisonment. And then

next sessions, the defendanis averred; that at the then next ensuing quarter and on con. feffione, &c. (@', C. M. did not further prosecute the plaintiff viction forfor the alleged offence, and then and there consented to the plaintiff's the Crown. discharge ; and the plaintiff was by order of the fame court dis. To an action charged accordingly. And the plaintiff then and there accepted against maÇ. M.'s not further prosecuting him for the said alleged offence,

gittrates for

trespass and and his consent to the plaintiff's discharge, and the plaintiff's falfe impridischarge thereon, in full satisfaction and discharge of the allault fonment they

pleaded a charge preferred before them for an offence again that clause, and a commitment for want of fureties under it, to the next sessions ; and that before the next seslions it was agreed between the prosecutor and the now plaintiff, with the content of the com. milting magisirates the now defendants) that the prosecution should be dropped, and the plaintiff be discharged at the feffions for want of prosecution ; that the plaintiff was accordingly then and there fo discharged in full fatisfa&tion and discharge of the affault and imprifonment: held this was no legal fatisfaction ; for either the agreement was illegal, as ftiffing a prosecution for a public misdemeanor, and thereby impeding the courfe of justice ; or the satisfaction, if any, was moving from the prosecutor only, and not from the justices ; their authority over the profecution being at an end after the commitment of the plaintiff, and their confent afterwards to the prosecutor drop.; ping the prosecution being a mere nullity, and no satisfaction for a prior injury, if any, received by the plaintiff from their act.

* [ 195 ) () One of the defendants wag kgted azone of the juftices before phom the selfions was holden.

and

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1804. and imprisonment of the plaintiff. There was a third plea only

differing from the list in omitting to state the agreement before EDCCOMBE the next quarter fesfions after the commitment between the

against RODD

ties, with the consent of the justices to drop the prosecution ; but and Others. only stating that at the next quarter sessions after the commit

ment, the said C. M. did not further profecute the plaintiff for the alleged offence, but consented to his discharge ; and that the plaintiff was then and there discharged by order of the fame Court in full satisfaction and discharge of the said trespasses, &c. which.

Jame premises the plaintif then and there accepted in full satisfaction [ 290 ) and discharge of the several trepasses, &c. To these special pleas

there were demurrers, ftating, with the common causes, these special causes, that they did not show with what misdemeanor the plaintiff was charged by the said complaint, nor whether the complaint were in writi"g, or upon the oath of C. M. or any other person ; nor for what misdemeanor the plaintiff was committed.

Burrough, for the plaintiff, said that, without entering into the special causes of demurrer, the pleas were avoided by the Atat. 1 W. & M. c. 18., 18. whereby any person, guilty of the offence with which the plaintiff was charged before the defendants, “ upon proof thereof before any justice of peace by two ! witni fits thall find two fureties to be bound by recognizance “ in 50!, and in default of such furetics shall be committed * to prifun, there to remain till the next quarter sessions; and “ upon convi&tion of the said offence at the said sellions, shall “ be liable to the penalty of 201. to the use of the Crown." It was not therefore in the power of the prosecutor and the magistrates combined together, after the latter had committed the plaintiff to custody for trial for this offence, in default of the sureties required by the Statute, to agree to his difcharge, as that tended to deprive the crown of irs security for the payment of the penalty, in case the plaintiff had been convided. The first of the special pleas is founded upon an accord and satisfaction; but nothing can be pleaded as a fati-faction which is not a legal one; and this is not so for the reason meptioned. But further the consent of the magiftrates to the plaintiff's discharge was of no consequence; for having once committed him, they had no · longer any control over the profecution. It was fill in the

power of the prosecutor to go on with the prosecution, though [ 297 ) against the coulent of the magiftrates. The defence is not put

upom

opon the ground that the prosecutor and the magiftrates had 1804. been guilty of a joint trespass against the plaintiff, and that

EDGCOMBE the latter had accepted satisfaction from one of them on account

againi of such trespass, which might have been pleaded as accord and RODD satisfaction. Neither is it to be compared to the discretionary and Others power sometimes exercised by this Court upon application for an information, which in the exercise of their lawful discretion to grant or refuse it, they will sometimes, to prevent oppreffion, make it part of the terms of granting it, that the party applying shall not bring any action for the same injury, or shall dismiss his action, if brought. For this Court have a legal control over proceedings instituted by their authority, and may stay the further prosecution of them if they see just cause for it. But justices of peace have no such discretionary power vested in them by law. Then the second special plea ftands on the same foot; it is entire, and the fatisfaction which is part of it, cannot be struck oui. (This was admitted è contrà). If it could, the special causes of demurrer would apply.

Dampier contrà. There is nothing illegal in parties compromising a misdemeanor. In Johnson v. Ogilby (a), Lord Chancellor doubted whether an agreement, the object of which was to get rid of a criminal prosecution for a fraud, could be enforced in equity : but it being answered at the bar that this was different from the case of compounding a felony; and that where the indictment was for a fraud, and the party injured agreed to acsept satisfaction, as in conscience he ought ; this was lawful, and the fraud was cognizable and relievable as well in equity as at law. Wherefore the obje&lion was no further insisted on.

[ 298 3 (Lord Ellenborough, C. J. Is it not illegal to compound a prosecution for perjury? The case of Collins v. Blantern (6) proceeded on that ground; where a bond given to secure aa agreement for that purpose was holden to be void.] That was as a bribe to fifle the prosecution, which admits of a different consideration. If these defendants had done any thing illegal, or had acted from corrupt motives in stopping the prosecution, they could not have set up the agreement as a defence. And as to the right of the Crown being defeated, no forfeiture could vest in the Crown before convi&ion, and till conviction every person is to be presumed innocent. But whatever right might have rested in the Crown, nothing which the magistrates did could (0) 3 P, Wms, 279.

(6) 2 Wilf. 341-9.

defea;

Q4

1804 defeat it; but it was still competent to the Crown to have pro.

ceeded for the penalty. (Lord Ellenborough, C. J. Has not the EDGCOMBE agains

law required, for the prefervation of the public peace and the Rodd protection of persons conforming to the toleration act, that and Others, those who are charged before the magistrates on fatisfactory

evidence of a breach of that law should find fureties, or be imprisoned till the next feflions ?] Here the plaintiff was imprisoned till the next fellions: and therefore the public had the security required. But it does not follow, though there might be just ground for the commitment, that there was fufficient to convict the accused: as two witnesses are required to justify the commitment, it seems to follow that the offence must be established at the trial by the fame number, and one of the witncffes might have died in the interval. So matter of defence may be brought forward to warrant an acquittal on the merits. The agreement

was that Marsbal would not prosecute the plaintiff at the [ 299 ) felfons; that was a benefit as far as it went to the plaintiff,

though another might profecute : and any confideration, howexer flight, is sufficient to uphold an agreement.

Comber v. Wane (a), (which has been doubted (b), is the only cafe which says, it must be a reasonable satisfaction: But the true rule is laid down in Andrew v. Boughey (c), where one declared upon an agreement for the delivery of 400lbs. of good wax, and a breach by delivery of 373lbs. of bad wax; to which the defendant pleaded that 20lbs. of wax had been given and ace cepted in fatisfaction: and this was holden to be a good bar ; for, though it were not of one hundredth part of the value of the plaintiff's loss, yet by his own accord and agreement, and his acceptance of the wax, this injury was dispensed with. Here Marsbal, having in the first instance submitted his complaint to the defendants, would not have acted properly in compromising the prosecution without their confent ; fuch consent therefore was a confideration moving from them.

And when the party injured and the accused were satisfied that the prosecution should drop with the consent of the magistrates, there was no more illegality in such a transaction than when the same thing is done by the consent of this Court, which is in common experience in cases of personal misdemeanors. [Lawrence J. alked what

(0) Sed vide Fitch v. Sutton, ante, 230.

(a) 1 Stra. 426
(6) Dy. 75. 4.

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