Town of Hinesburgh v. Sumner

31 Am. Dec. 599, 9 Vt. 23

• Court: Supreme Court of Vermont
• Decided: January 15, 1837
• Status: Published

Opinion

Collamer, J.

delivered the opinion of the court.

In assumpsit,it may now be considered as settled, that every- defence, except tender,and the statute of limitations, may be given in evidence under the general issue. If, therefore, the evidence offered by the defendants, constituted or tended to prove any legal defence, it should have been admitted, as the general issue was pleaded. It is true, the testimony did not tend to prove duress, as no unlawful imprisonment was either suffered or threatened. The grand juror was the prosecuting officer for these penalties to final judgment, and he had power to receive the amount of the fine and cost, and discharge the prosecutions, or to enter a nolle prosequi.. However it may be considered in England, in relation to notes, as commercial paper, we, in this case, and as between, the original parties to this note, consider it, under our law, open to all- objection in relation to its consideration or inception. The compounding of penalties is an offence at common law, of dangerous tendency, highly derogaory to public example, and prosecutions are no more to be improperly suppressed by public informing officers, than by common informers. And all bonds or notes, into the consideration ol which the compounding of a penalty, or the suppression of a prosecution therefor, in any part enters, are void and uncollectable. The officer has a right to receive the amount of the fine and costand pay it into the public treasury, and were that all there was of this note, inasmuch as the town- treasurer has received it, it might be good and collectable. But it is contra bonos mores, and of dangerous tendency, that any prosecuting officer may induce such settlement by using his official influence and power, to threaten with other prosecutions, and to offer to suppress them, in order to procure a settlement o-f those already commenced and pending. In this case the testimony tended to show, not merely that the two appealed prosecutions were settled, and made up this note, but that two other criminal prosecutions, of what precise character we are not informed, were suppressed as an inducement to the giving of this note.

This is hardly attempted to be justified even by the plaintiffs counsel, in argument. We think the testimony should have been admitted, and the jury instructed, that, if such proposition was made by the officer, and thereby the defendants were induced to give this note, they should find for the defendants.

Judgment Reversed.

Phelps, J. Dissenting.