Assuming that the defence of an illegal consideration for this note was fully open upon the answer filed by the defendant, the instructions given as to what facts would avoid the note were not sufficiently full.
By the provisions of the Rev. Sts. c. 128, § 21, it is enacted that “ if any person, having knowledge of the commission of any offence punishable with death, or by imprisonment in the state prison, shall take any money, or any gratuity or reward, or any engagement therefor, upon an agreement or understanding, express or implied, to compound or conceal such offence, or not to prosecute therefor, or not to give evidence thereof, he shall be punished,” &e. Under this statute, it would not be sufficient to instruct the jury that the note would not be avoided “ unless it was accompanied with a promise not to serve the warrant if the note was given,” or, as further stated, that there must have been an agreement between the parties to stop the prosecution, and the note must have been given wholly or partially in consideration of such agreement, though the agreement need not be in writing, or in any particular form of words.
*537Under this form of instruction, the jury might have under 'stood that there must have been an express agreement to stop the prosecution, whereas any understanding between the parties to that effect, either express or implied, was sufficient. We think the language of the statute was so framed for the purpose, of giving a wider scope of defence than would ordinarily be understood, had the statute been confined to the word agreement.
Giving this construction to the statute, we think it would also lead to the conclusion that the question proposed to the defendant as a witness, whether, if the warrant had not been exhibited to him, and Clark had not stated that he should have Kibbe arrested on it unless the note was given, he would have signed the note, should have been admitted as competent evidence, in connection with the other evidence, tending to show an implied understanding between the parties that if the note was given the offence was not to be prosecuted.
The further inquiry is, whether the defendant was, by reason of the form of the answer, restricted to the case of a direct agreement, and precluded from showing an implied understanding or agreement, to be inferred from the conduct of the parties.
The answer has set forth the general ground, that if any consideration ever existed for the note, said consideration was illegal and void. It then proceeds further to state in detail the facts connected with the giving of the note, and alleges that the plaintiff Clark represented to the defendant that if he would sign the note the criminal proceedings charging Kibbe, his son-in-law, with the crime of perjury, should be discontinued and suppressed, but otherwise every means should be employed to procure said Kibbe’s conviction ; and that the defendant signed said note for the purpose of having Clark cause said proceedings to be discontinued, and in consideration of the defendant’s signing it, Clark agreed to discontinue and suppress the criminal proceedings against said Kibbe, and in pursuance of such agreement Clark did cause the said proceedings to be discontinued.
In the opinion of the court, taking the whole answer, it *538sufficiently alleges that the note was given upon an illegal consideration, and entitles the defendant to the full benefit of instructions co-extensive with the provisions of the Rev. Sts. c. 128, § 21. Exceptions sustained.
Chapman, J. did not sit in this case.