Page:Federal Reporter, 1st Series, Volume 10.djvu/394

 382 FEDERAL REPORTBR. �the 90 tons, on the validity of the con tract with Smith." The only consideration for this, as the defendants admit, was an agreement on their part not to prosecute Stokes for a crime which they had eom- mitted, or were charged with committing. This crime conaisted in clandestinely abstracting property deposited with them as warehouse- men, and applying it to their own use, — for which they were liable to prosecution under the fifth section of the Pennsylvania statute of September 24, 1866, if not also under the 108th section of that of 1860. The crime defined by the first of these statutes is a misde- meanor, while that defined by the last is a felony. It is not essential to determine whether Stokes might have been prosecuted under the latter statute, inasmuch as the misdemeanor here involved (if the offence be no more) is of such a character — so seriously affects the public interests — that an agreement not to prosecute cannot be regarded as a consideration for a promise to pay money, or deliver goods. While misdemeanors of a private character, affecting indi- viduals principally, may be compounded, and an obligation taken for restitution of property obtained, or payment of damages suliered, may be enforced, public polioy forbids that misdemeanors which seriously affect the public welfare, shall thus be disposed of. Conceding the oiience charged against Stokes to have been a misdemeanor merely, it was, we repeat, a very serions one to the community. They were engaged in an important public employment, involving and inviting trust and confidence, — an employment regulated by statute, and intimately connected with commerce. The compounding of offences committed by persons engaged in such employment would seriously tend to imperil the public interests. While strongly inclin- ing to the belief that Stokes were liable to prosecution under the aot of 1860, it is sufficient for the purposes of this case to say that the defendants' promise not to prosecute, even if the crime was limited to that prescribed by the statute of 1866, afiforded no lawful consideration for Smith's promise to deliver the sumac. Ifc follows that the defendants had acquired no interest in the sumac, unde- livered, or right to demand it, at the time of receiving information of Smith's relations to Stokes; and receiving it afterwards with knowledge that it was being furnished in payment of the former's indebtedness to the latter, the transaction must be treated as a pref. erential payment by Stokes to them (the defendants) through Smith. It is of no consequence that the defendants subsequently transf erred ��� �