1804. WHITE against JONES. his custody, the defendant had notice of the faid premises. To this there was a general demurrer and joinder. Wood in fupport of the demurrer. This was a mere irregu larity in the juftification 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 Marfhal, who is at any rate bound to obey the rule of the court, and cannot be liable as for an efcape in fo doing. Lord ELLENBOROUGH C. J. but we cannot help the Marthal. It is an unfortunate mistake, [294] defendant out of cuftody in one cause, intitled" White against Mendel," and the Marshal has discharged him in another cause, a joint action of White against Mendel and J. O., for which he had no authority. I will affume that Mendel was only charged in the Marthal's cuftody in one caufe at the fuit of White; but then the rule was nugatory, being intitled in a caufe of "White against Mendel," and the defendant not being charged in his cuftody in any fuch caufe. The rule therefore did not justify him in discharging his prifoner 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. # EDGCOMBE against RODD and Others. 1804 Friday, June 8th, The tolera under that fhall find 50l., or in defureties in fault be committed to pri next feffions,' and on conviction for fon till the TO trefpafs for an affault and falle imprisonment, the defendants pleaded, ift, not guilty; 2dly, that the affault and tion act, t imprisonment were by virtue of a warrant under the hands and W. & M. feals of the defendants, three juftices of the peace for the county vides (f. 18.) c. 18. pro. of Cornwall,granted by them against the plaintiff upon a complaint that any permade to them as fuch juftices by C. M. of a certain mifdemeanor fon malici by the faid C. M. alleged to have been theretofore committed ing any, difously didurbby the plaintiff against the ftat. 1 W. & M. (c. 18. f. 18. the fenting contoleration act): whereupon the plaintiff for default of fuch gregation fureties as are in that ftatute expreffed was committed to the act on proof prifon of Bodmin in the faid county till the next quarter feilions, before a juf&c. And afterwards and before the faid quarter feffions, &c. it tice of peace, was agreed between the plaintiff and C. M. with the confent of the defendants, that C. M. fhould not further profecute the plaintiff for the faid alleged offence, and should confent to his discharge at the then next enfuing quarter feffions, &c. in full fatisfaction and difebarge of the faid affault and imprisonment. And then the defendants averred, that at the then next enfuing quarter feffions, &c. (a, C. M. did not further profecute the plaintiff for the alleged offence, and then and there confented to the plaintiff's the Crown. discharge; and the plaintiff was by order of the fame court dif- To an action charged accordingly. And the plaintiff then and there accepted against maC. M.'s not further prosecuting him for the faid alleged offence, giftrates for and his confent to the plaintiff's discharge, and the plaintiff's falfe impridischarge thereon, in full fatisfaction and discharge of the affault fonment they charge preferred before them for an offence against that claufe, and a commitment pleaded a for want of fureties under it, to the next fellions; and that before the next feffions it was agreed between the profecutor and the now plaintiff, with the content of the commilling magifirates the now defendants) that the profecution fhould be dropped, and the plaintiff be discharged at the feffions for want of profecution; that the plaintiff was accordingly then and there fo discharged in full fatisfaction and discharge of the af fault and imprisonment held this was no legal fatisfaction; for either the agreement was illegal, as ftifling a profecution for a public mifdemeanor, and thereby impeding the courfe of justice; or the fatisfaction, if any. was moving from the profecutor only, and not from the juftices; their authority over the profecution being at an end after the commitment of the plaintiff, and their confent afterwards to the profecutor dropping the profecution being a mere nullity, and no fatisfaction for a prior injury, if any, received by the plaintiff from their act. [295] (4) One of the defendants was stated as one of the juftices before whom the feffions was holden. feit 20l to trefpafs and Q3 and 1804. againft RODD and Others. and imprisonment of the plaintiff. There was a third plea only differing from the laft in omitting to ftate the agreement before EDCCOMBE the next quarter feffions after the commitment between the parties, with the confent of the juftices to drop the profecution; but only stating that at the next quarter feffions after the commitment, the faid C. M. did not further profecute the plaintiff for the alleged offence, but confented to his discharge; and that the plaintiff was then and there difcharged by order of the fame Court in full fatisfaction and discharge of the faid trespasses, &c. which. Jame premises the plaintiff then and there accepted in full fatisfaction [296] and difharge of the feveral trefpaffes, &c. To thefe fpecial pleas there were demurrers, ftating, with the common causes, these fpecial caufes, that they did not fhew with what mifdemeanor the plaintiff was charged by the faid complaint, nor whether the complaint were in writing, or upon the oath of C. M. or any other perfon; nor for what mifdemeanor the plaintiff was committed. ་ Burrough, for the plaintiff, faid that, without entering into the fpecial caufes of demurrer, the pleas were avoided by the ftat. W. & M. c. 18. f 18. whereby any perfon, guilty of the offence with which the plaintiff was charged before the defendants, "upon proof thereof before any justice of peace by two witne fles fhall find two fureties to be bound by recognizance "in 50% and in default of fuch furetics fhall be committed to prifon, there to remain till the next quarter feffions; and upon conviction of the faid offence at the faid feffions, shall be liable to the penalty of 20l. to the use of the Crown." It was not therefore in the power of the profecutor and the magiftrates combined together, after the latter had committed the plaintiff to custody for trial for this offence, in default of the fureties required by the ftatute, to agree to his difcharge, as that tended to deprive the crown of its fecurity for the payment of the penalty, in cafe the plaintiff had been convicted. The first of the fpecial pleas is founded upon an accord and fatisfaction; but nothing can be pleaded as a fati-faction which is not a legal one; and this is not fo for the reafon mentioned. But further the confent of the magistrates to the plaintiff's discharge was of no confequence; for having once committed him, they had no longer any control over the profecution. It was ftill in the power of the profecutor to go on with the profecution, though [297] against the consent of the magiftrates. The defence is not put " apon the ground that the profecutor and the magiftrates had been guilty of a joint trefpafs against the plaintiff, and that the latter had accepted fatisfaction from one of them on account of fuch trefpafs, which might have been pleaded as accord and fatisfaction. Neither is it to be compared to the difcretionary power fometimes exercifed by this Court upon application for an information, which in the exercife of their lawful difcretion to grant or refuse it, they will fometimes, to prevent oppreffion, make it part of the terms of granting it, that the party applying fhall not bring any action for the fame injury, or fhall difmifs his action, if brought. For this Court have a legal control over proceedings inftituted by their authority, and may stay the further profecution of them if they fee just caufe for it. But juftices of peace have no fuch difcretionary power vested in them by law. Then the fecond special plea ftands on the fame foot; it is entire, and the fatisfaction which is part of it, cannot be struck out. (This was admitted è contrà). If it could, the fpecial caufes 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 profecution for a fraud, could be enforced in equity but it being anfwered at the bar that this was different from the cafe of compounding a felony; and that where the indictment was for a fraud, and the party injured agreed to acsept fatisfaction, as in confcience he ought; this was lawful, and the fraud was cognizable and relievable as well in equity as at law. Wherefore the objection was no further insisted on. [Lord Ellenborough, C. J. Is it not illegal to compound a prosecution for perjury? The cafe of Collins v. Blantern (b) proceeded on that ground; where a bond given to fecure an agreement for that purpose was holden to be void.] That was as a bribe to stifle the prosecution, which admits of a different confideration. If thefe defendants had done any thing illegal, or had acted from corrupt motives in ftopping the profecution, they could not have fet up the agreement as a defence. And as to the right of the Crown being defeated, no forfeiture could veft in the Crown before conviction, and till conviction every perfon is to be prefumed innocent. But whatever right might have vefted in the Crown, nothing which the magistrates did could (a) 3 P. Wms. 279. Q4 (6) 2 Wilf. 341-9. defeat 1804. EDGCOMBE againft RODD and Others. [298] 1804. EDGCOMBE against Rond and Others, defeat it; but it was still competent to the Crown to have pro ceeded for the penalty. [Lord Ellenborough, C. J. Has not the law required, for the prefervation of the public peace and the protection of perfons conforming to the toleration act, that thofe who are charged before the magistrates on fatisfactory evidence of a breach of that law fhould find fureties, or be imprifoned till the next feffions ?] Here the plaintiff was imprifoned till the next feffions: and therefore the public had the fecurity 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 witnefies are required to justify the com mitment, it feems to follow that the offence must be established at the trial by the fame number, and one of the witneffes 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 Marfbal would not profecute the plaintiff at the [299] feffions; that was a benefit as far as it went to the plaintiff, though another might prosecute: and any confideration, however flight, is fufficient to uphold an agreement. Comber v. Wane (a), (which has been doubted (b), is the only cafe which fays, 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 lofs, yet by his own accord and agreement, and his acceptance of the wax, this injury was difpenfed with. Here Marfbal, having in the first instance fubmitted his complaint to the defendants, would not have acted properly in compromifing the profecution without their confent; fuch confent therefore was a confideration moving from them. And when the party injured and the accused were fatisfied that the prosecution should drop with the confent of the magiftrates, there was no more illegality in fuch a tranfaction than when the fame thing is done by the confent of this Court, which is in common experience in cafes of perfonal misdemeanors. [Lawrence J. asked what (b) Sed vide Fitch v. Sutton, ante, 230. (a) Stra. 426. |