delivered the opinion of the Court:

It is immaterial to consider whether William H. Chambers was in fact guilty of embezzlement of the money or property of the plaintiff, and also whether the offense, if any, was committed in the state of Pennsylvania or the District of Columbia.

The evidence shows, and the court so finds, that there was a pending prosecution of said Chambers at the time the plaintiff entered into the agreement; that the agreement was that prosecution should be dismissed upon her executing a confession of judgment.

This was sufficient to invalidate the confession.

A‘promise to dismiss a pending prosecution is against public policy, and void. Steuben County Bank v. Mathewson, 5 Hill, 249—252; International Harvester Co. v. Voboril, 110 C. C. A. 311, 187 Fed. 973; Schultz v. Catlin, 78 Wis. 611, 47 N. W. 946; Sharon v. Gager, 46 Conn. 189; Fountain v. Bighorn, 235 *174Pa. 35, 84 Atl. 131, Ann. Cas. 1913D, 1185; Foley v. Greene, 14 R. I. 618, 51 Am. Rep. 419.

It appears that by the law of Pennsylvania any person who shall convert to his own nse goods or property intrusted to him for safe custody, with intent to defraud, shall be guilty of a misdemeanor.

Appellee relies on a section of the Pennsylvania statutes which provides that when a person shall, on complaint of another, be bound by recognizance to appear, or shall be indicted for an assault and battery or other misdemeanor, to the injury and damage of the party complaining, and not charged to have been done with intent to' commit a felony, or not béing an infamous crime, and for which there shall also be a remedy, by action, if the party complaining shall appear before the magistrate, or before the court in which the indictment shall be, and acknowledge to have received satisfaction for such injury and damage, it shall be lawful for the magistrate, in his discretion, to discharge the recognizance, which may have been taken for the appearance of the defendant, or, in case of committal, to discharge the prisoner and to order a nolle prosequi to be entered on the indictment, as the case may require.

The courts of Pennsylvania have sustained settlements of petty misdemeanors made under the aforesaid section of the law, and those authorities are relied on by appellee to sustain the transaction in this case.

It is true that it is provided that the offense of embezzlement under such circumstances as are shown in this case is made a misdemeanor, but no punishment is provided in that section of the Code.

Another provision of the Pennsylvania law, Purdon’s Digest, page 1048, sec. 15, provides that when the punishment of a misdemeanor is not provided in the statute it may be by imprisonment for two years and a fine.

Passing by the question whether the contract is to be governed by Pennsylvania or District of Columbia law, and assuming that an offense had been committed, and that it was punishable in *175Pennsylvania, it is clear, we think, that this contract to compound the offense does not come within the section 1024, Purdon’s Digest, quoted before. It is apparent that it is limited to minor offenses as for assaults and batteries, and that any offense, the punishment for which constitutes it an infamous crime, is not provided for therein.

The old distinction between felonies and misdemeanors at the common law is practically impossible of definition. What is denounced as an infamous crime is practically a felony in its consequence, though it may be called a misdemeanor in the statute.

Confinement in the penitentiary is the test of an infamous crime. Mackín v. United States, 117 U. S. 348, 29 L. ed. 909, 6 Sup. Ct. Rep. 777.

WTe are of the opinion that a misdemeanor punishable by confinement in the state prison is not within the comprehension of section 1024, Purdon’s Digest, before quoted.

Moreover, it is made a crime to compound certain offenses, including larceny. Purdon’s Dig. p. 917, sec. 86.

This settlement was, therefore, in violation of the laws of Pennsylvania.

The court was in error in holding that the plaintiff was in pari delicto with the defendants, and, therefore, not entitled to relief.

In the first place, this was an executory agreement; therefore, not within the maxim.

In the second place, public policy makes it an exception.

It is to the interest of the public that any agreement tending to obstruct justice shall be declared void.

The decree is reversed, with costs, and the cause remanded with direction to enter a decree for the plaintiff in conformity with this opinion. Reversed.

The Supreme Court of the United States denied an application by the appellees for the writ of certiorari, January 13,1916.