Wildey v. Collier

Tuck, J., delivered the opinion of this court. We suppose that the money claimed in this case was due to the appellant, and that his object in taking the mortgage was to secure his debt, without any design to obtain a nolle prosequi by improper means. It is quite apparent, that Mrs. Collier, not being indebted to the appellant, became a party to the mortgage for the sole purpose of inducing him to use his efforts in obtaining the nolle prosequi, making her property responsible for a debt not her own. This, it is true, a feme sole may do, but the question here is, whether this deed is not avoided by the law for the reasons assigned in the record?

Courts of justice are generally open to suitors for the recovery of just claims, but considerations of public policy are often ²⁷⁹ deemed paramount to private rights, and where they are opposed, the latter must yield. There is no doctrine better settled than that agreements to obtain executive clemency, by means of pardons or writs of nolle prosequi, cannot be enforced. The reasons are obvious. They are designed to protect the exercise of this power from abuse through the intervention of designing persons, and although in the particular instance no improper influences may have been resorted to, the public interest in such questions requires that the principle should be enforced in all cases.

It may, sometimes, as between the parties, be unjust to a claimant who has rendered valuable services for another in his distress, but rules of law, founded on public policy and the safety of society, will not be set aside to sustain such individual demand. Without going into these doctrines at length, it may suffice to refer to the following authorities, where the subject is fully discussed: Collins vs. Blantern, 2 Wilson, 341. Smith’s Lead. Cases, 154. 1 Chitty’s Crim.

Law, 4. 1 Camp., 45, Wallace vs. Hard-acre. Chitty on Contracts, 571, 582, (Ed. 1851.) Story on Cont., sec. 202. Parsons on Cont., 365, 380. Keir vs. Leeman, 51 Eng.

C. L. Rep., 308, and 58 Eng. C. L. Rep., 371. Marshall vs. Baltimore & Ohio Rail Road Co., 16 Howard, 334 . It is true, as argued by the appellant’s counsel, that the party here only undertook to apply to the governor for what the executive had authority to grant, and that there was nothing illegal in his making efforts to obtain ihe nolle prosequi.

Bait it does not follow that the case is relieved thereby from the objection taken on the part of the appellee. The executive is still, liable to be misled, and induced to act upon considerations suggested by a party having an interest to produce false impressions on his mind; and to shield that department of the government and protect the community against the improvident exercise of its prerogatives, the law has declared that a recovery cannot be had on such undertakings. The same reason, applies with equal force in support of claims for obtaining the passage of laws by the legislature. We do not say that services of that kind may not be compensated when publicly rendered ²⁸⁰ by advocates disclosing f.heir true relation to the subject, bu^ certainly not when the character in which they solicit is unknown.

And yet in all such instances, the legislature, most probably, would be asked to do only what there was ample power to grant. There is much danger of abuse in the exercise of the pardoning power and in granting writs of nolle prosequi, arising from the manner in which such applications are generally presented. They were, before the adoption of the present constitution, preferred and acted on ex-parte, the