Barron v. Tucker

The opinion of the court was delivered by Veazey, J. Chanceller Kent lays down the rule that the consideration of a contract must, in order to entitle the party to recover, “ not only be valuable, but it must be a lawful consideration, and not repugnant to law, or sound policy, or good morals. Ex turpi contractu actio non oritur ; and no person even so far back as the feudal ages, was permitted by law to stipulate for iniquity.” 2 Kent Com. *466. In Smith on Contracts, page 141, the author says : “ There is another remarkable instance of contracts falling under this class, namely, of illegality created by the rules of common law. It consists of contracts void because of having a tendency to obstruct the administration of justice.” And he cites Collins v. Blantern, 2 Wils. 341; Unwin v. Loper, 1 M. & Gr. 747, E. C. L. R., vol. 39; Kier v. Leeman, 6 Ad. & E. 316, E. C. L. R., vol. 51. There are numerous cases in the English and American reports, including those of Vermont, which illustrate the general rule that contracts are illegal when founded on a consideration contra-bonos mores, or against the principles of sound policy ; as where the consideration was the suppression of evidence in a criminal prosecution, Badger v. Williams, 1 D. Chip. 137; stifling a criminal prosecution, Bailey v. Buck, 11 Vt. 252; compounding of felonies or suppressing a criminal prosecution, Hinesburgh v. Sumner, 9 Vt. 23; Bowen v. Buck, 28 Vt. 308; sale of office, Ferris v. Adams, 23 Vt. 136; hired electioneering, Nichols v. Mudgett, 32 Vt. 546; “ lobbying in the legislature,” Powers v. Skinner, 34 Vt. 274. The law gives no countenance to an illegal contract. Did the services of the plaintiff in this case come within the above rule ? The defendant had been bound up for adultery; and the plaintiff’s purpose was, first, to prevent an indictment; not because he believed the defendant was innocent, because the [341] plaintiff had not much doubt of his guilt at any time, and he was confirmed in his belief of guilt after talking with the State witnesses. Neither is there anything in the report to show that the plaintiff thought there were, or that there were in fact, any mitigating circumstances in the defendant’s behalf, or any reasons existing why the law should not be enforced against him ; nothing to show that the State’s attorney, or the State witnesses, or the public generally had any erroneous or extravagant views about the prosecution, or were disposed to be vindictive or oppressive therein, or had any ill-will towards the defendant. The sole purpose of the plaintiff’s employment seems to have been to obstruct the administration of justice, either by inducing the State’s attorney to hold back in the discharge of his duty, or the State witnesses to so tone down their testimony as to defeat the finding of an indictment. There is nothing in the report to indicate that the plaintiff or anybody else in that community felt called upon to interpose in the defendant’s behalf in a friendly or neighborly way in the interests of justice or fair dealing. The report impresses us with the idea that the defendant sought the plaintiff’s assistance, not as that of an attorney or neighbor or friend, but because he wanted a sort of “ fugler ” to circumvent or obstruct the due administration of justice; and that both parties were indifferent as to the methods. After having done what he could with the State’s attorney and the State witnesses before the indictment, the plaintiff, after the indictment was found, was “ very persistent in his effort to induce ” the State’s attorney to enter a nolle prosequi. “ He tried him on the score of friendly relations existing between them; tried him by attempting to make him believe that the evidence was not sufficient to convict; tried him, to use the State’s attorney’s own words; ‘ by using all kinds of arguments.’ ” In State v. Keyes, 8 Vt. 57, it was held to be an indictable offence to attempt to induce a witness, on the part of the State, not to attend a public prosecution, even where such witness had not been served with a subpoena, but was known to be a material witness that was relied on. Ohitty in his work on Contracts, vol. II., p. 998, 11th Am. Ed. says; u An agreement, the [342] natural effect of which is, to induce a public officer to neglect his duty, is invalid ” ; and cites numerous cases. The plaintiff’s services in this case were unavailing to obstruct the administration of justice ; but such was their purpose and natural tendency. They, therefore, do not constitute a legal consideration of a contract. Although this case comes, as we think, under familiar principles of law, it is yet somewhat peculiar and novel in its facts : and in this decision we do not intend to trench upon the rights of respondents, or of their friends and counsel in their behalf, in the use of all legitimate means of defence. The evident purpose of the plaintiff, and the necessary tendency of his services to obstruct justice, especially indicated by his persistently besetting the prosecuting officer, after the latter had become familiar with the facts, and the grand jury had found an indictment, distinguish the plaintiff’s claim, and taint it with illegality. Judgment affirmed.