LINDSAY v. SMITH.

In Garner's case, the obligor believed an offence had been committed, and the consideration of the note was to suppress inquiry about it. It is a matter of the gravest public concern, that all infractions of the criminal law should be detected and punished. A party cannot take care of his private interest by depriving the State of a witness or an active prosecutor, which is the means relied on 'for the conviction of offenders; much less can he pollute the very fountains of criminal justice, by suppressing an indictment already instituted against him. Thompson v. Whitman, 4 Jones 47; Ingram v. Ingram, 4 Jones 188; Blythe v. Lovinggood, 2 Ire. 20.

So in civil cases, all contracts prohibiting parties from bringing an action and all agreements purporting to oust the Courts of their jurisdiction; all agreements to pay money to stifle or suppress evidence or to give evidence in favor of one side only, or not to appear as a witness in a civil suit; all contracts, bonds, indemnities and undertakings, tending to induce Sheriffs, Clerks, Jailors and other public officers to violate or neglect their duty or made to protect them. from the consequences of their misconduct, are absolutely null and void, as contracts obstructing or interfering with the administration of public justice, and as being contrary to the public policy of the law. 1 Add. on Contracts, § 258.

But the defendants' counsel contends with great ingenuity that there are two covenants in this sealed instrument, and that they are divisible, part being good, and part bad; that the contract of the defendants is to do two things; first, to dismiss the indictment, which is illegal and void, but second, to cut and keep up the ditch, which is legal and valid, and is the contract for the breach of which the action. is brought. In regard to this proposition the general rule is that if there are several considerations for separate and distinct contracts, and one is good and the other ad, the one may stand and be enforced, although the other fails,

LINDSAY v. SMITH.

under the maxim “utile per inutile non vitiatur." But where there is but one entire consideration for two several contracts, and one of these contracts is for the performance of an illegal act, the whole is void, as where one sum is to be paid for the doing of a legal and illegal act. Thus, where upon a contract for the hiring and service of a house-keeper at certain agreed wages it appears to have been a part of the contract that the house-keeper should co-habit with her master, the whole will be void and the wages irrecoverable by her. Rex v. Northingfield, 1 B. & Ad. 912; Willyams v. Bullmore, 32 Beav. 574; 1 Addison on Contracts § 300. In Alexander v. Owen, 1 T. R. 227, the case was this: Upon a contract of sale of tobacco, it was agreed that counterfeit money should be taken in payment, and the tobacco having been delivered and the counterfeit money sent, the vendor refused to receive it and brought an action to recover the price of the tobacco, but the Court said that the sale could not be held to be good and the payment bad; if it was an illegal contract, it was equally bad for the whole, and the parties being in pari delicto, melior est con ditio defendentis. Apply these principles to our case. There was but one indivisible consideration moving from the plaintiff, to-wit, the sum of fifty dollars, and for that consideration, the defendants covenant to do two things, the one legal and the other illegal. The consideration cannot be divided and enough of it assigned to support the contract to cut and maintain the ditch, but it, as it were, per my et per tout, enters into and supports both promises.

But there is another view equally fatal to this action. A part of the covenant is in these words: "And it is further agreed and understood by all the parties hereto, that this agreement is to be of no binding force on any of said parties whose names are signed hereto, until and unless the indictment herein before spoken of, shall be discontinued without cost to the said Lindsay." So the validity of the contract

LINDSAY V. SMITH.

is expressly made to depend upon the performance of the very act which makes it invalid, to-wit, the dismissal of the indictment. The covenants were not to be binding until the prosecution had been discontinued, and the contract to dismiss it, was immoral and void. In such cases, the law will leave the parties where it finds them. Kimbrough v. Lane, 11 Bush. 556; Setter v. Alveg, 15 Kan. 157; 1 Smith Lead. Cases, Marg. pages 153-165 and notes; King v. Winants, 71 N. C. 469, and 73 N. C. 563.

No error.

PER CURIAM.

Judgment affirmed.

DOBSON v. CHAMBERS.

JOSEPH W. DOBSON v. JOHN G. CHAMBERS, Administrator of John Brigman.

Partnership-Evidence-Contract-Practic-Amendment.

1. On the trial of an action against B, upon an issue as to whether one W and B were partners, there was evidence that W and B were together, and had certain stock together; that B carried a note to bank to be discounted with a written request from W that it should be done; that B said that the money was for himself and W; that they were buying stock together and that the money was to be used in buying stock ; that B afterwards referred to the debt he and W owed in bank, &c. ; Held, that the jury were warranted in finding that a partnership existed between W and B.

2. In such action, where it appeared that the partners requested the plaintiff to pay their debt in bank and promised to repay him, and afterwards their note was taken up by certain accommodation acceptances, which the plaintiff took up with his note which was thereafter paid by him; It was held, that the plaintiff was entitled to recover; and the plaintiff's right to recover is not affected by the fact that he did not expressly contract to take up the defendant's note, or that a considerable period of time elapsed before he did so. 3. The exercise of the discretionary power of the Court below, in allowing an amendment to the complaint during the progress of the trial, cannot be reviewed by this Court.

(Penny v. Smith, Phil. 35; Lippard v. Roseman, 72 N. C. 427 ; Dunn v. Barnes, 73 N. C. 273; Brandon v. Phelps, 77 N. C. 44, cited and approved.)

CIVIL ACTION, tried at Fall Term, 1877, of BUNCOMBE SUperior Court, before Schenck, J.

The case is sufficiently stated by THE CHIEF JUSTICE in delivering the opinion of this Court. There was a verdict. and judgment in favor of the plaintiff, and the defendant appealed.

M ssrs. A. T. & T. F. Davidson and Busbee & Bisbee, for plaintiff.

Mr. J. II. Merrimon, for defendant.

DOBSON . CHAMBERS.

SMITH, C. J. This action was instituted to recover money alleged to have been paid by the plaintiff for the use of the defendant's intestate and John W. Woodfin at their special instance and request, and is prosecuted against the defendant alone. John Brigman, the intestate, in June, 1860, was indebted to the Planter's and Miner's Bank at Murphy by note, to which the said John W. Woodfin and John E. Patton were sureties, in the sum of $6000 and due at ninety days. On the 4th day of June following, the note was taken up and a new note executed by the same parties, and substituted in its place. The last note was not paid at its maturity, and went to protest, but was afterwards taken up by two drafts cach in the sum of $3000 dated March the 5th, 1861, one payable at 90, the other at 120 days from the 20th day of March, 1861, drawn by R. B. Vance in favor of J. E. Patton on said J. W. Woodfin, which drafts were accepted and endorsed to the Bank. At the same time the protested note was transmitted to said R. B. Vance.

On the 3rd day of September following, the plaintiff executed his note, with J. W. Woodfin and C. D. Smith as sureties, to the Bank in the sum of $6238.66 the amount then due on the acceptances payable at six months in place of the drafts.

This note was replaced by another note executed to the Bank by the same parties on the 4th day of March, 1862. John Brigman died on the 6th of March, 1861. The plaintiff alleges that he executed his own note for the debt due the Bank, upon the agreement of Brigman and Woodfin to reimburse him any money he might have to pay by reason of his said obligation.

This agreement, as also the existence of any co-partnership between the defendant's intestate and Woodfin, is denied in the answer.

Issues were thereupon framed without objection, and submitted to the jury who find; (1.) That Brigman and Woodfin did in the year 1860 request the plaintiff to pay off their