1. This action was not for a tort but for the breach of an express contract. The duty of prosecuting for the homicide of Camp had nothing to do with it, though the alleged stipulation not to prosecute had much to do with it. The duty of prosecuting is enjoined where the action is for the injury — the tort embraced in the felony. Code §2970. But after the felon has liquidated the damages and given his promissory note for them, his liability rests upon the law of contract; and surely there is no rule which requires anybody to prosecute anybody in order to recover on a contract. The legality of the contract, if controverted, is essential to a recovery; and in this case the true controversy is on that question, and not on the duty to prosecute for the homicide of Camp. The notes given to Mrs. Camp and her counsel, were not illegal if the wrong-doer in a case of homicide may lawfully contract to pay a given amount by way of compensation of the private injury to the wife of the deceased. AndS\vhy may not this be done — -this, pure and simple ? By statute, the wrongful homicide of the husband gives the widow a right of action for damages. To enforce this right coercively, a prosecution as well as an action is necessary, *134unless a good excuse is shown for not prosecuting. But when the wrong-doer does not stand upon an action, and instead of risking a jury to assess the damages, computes them for himself, and procures astipulation that there shall be no action for the tort, giving his notes for the agreed compensation by way of compromise or settlement of the civil injury alone, what illegality is there in the transaction ? The Code, section 3054, expressly sanctions it in these terms: “If the tort complained of does not amount to a crime, the person injured may consent to a. satisfaction and settlement thereof; and if it does amount to a crime, the person injured may agree upon and receive compensation for the personal injury. Any attempt, however, to satisfy the public offense, or to suppress a prosecution therefor, is illegal, and vitiates the entire agreement, except in those cases whore the law expressly allows of such a settlement.” Courts adjudicating upon the common law have enunciated substantially the same rule. 1 Camp., 45; 1 Starkie, 467; 5 Hill, 249; 9 Wis., 476; 6 Adolph. & Ellis, 308. In the case last cited, Lord Denman says : “ We shall probably be safe in laying it down that the law will permit a compromise of all offenses, though made the subject of a criminal proseecution, for which the party might sue and recover damages in an action. It is often the only manner in which he can obtain redress. But, if the offense is of a public nature, no agreement can be valid that is founded on the consideration of stifling a prosecution for it.”- The exchequer chamber afterwards reviewed the case, (9 Adolph. & El., N. S. 371) and in the opinion delivered by Tindal, C. L, the following passage occurs: “We have no doubt that in all offenses which involve damages to an injured party for which he may maintain an action, it is competent for him, notwithstanding they are also of a public nature, to compromise or settle his private damage in any way he may think fit.” Chit, on Con., 582; 6 Man. & Gr., 785; 21 Conn., 421.
2. If the evidence for the plaintiffs below contained the true version of the contract, (and the jury so found) the *135compromise was confined to tbe intended action for the civil injury, and there was both a pure consideration and a valuable consideration for the notes which were given when, the compromise was effected ; one of which notes was the subject-matter of the present controversy. Whether Mc-Cauley actually committed the homicide or was concerned in it, is not an open question; nor has it been since the notes were given. He closed it voluntarily by the terms of compromise. It is enough that an action was, in good faith, intended, and that the bringing of it was prevented by the settlement. The jury must have found that there was no fraud, or at least, that the plea which set up fraud was unsupported.
3. The exclusion of the testimony concerning threats was obviously proper, as there was nothing to connect Mrs. Camp or her counsel with them, or with any knowledge of them. If threats influenced Mr. McCauley, he should have made it known at the time.
The court committed no error for which a new trial should be granted, and the verdict of the jury was in conformity to both law and evidence.
' Judgment reversed.