4 N.H. 239 | Superior Court of New Hampshire | 1827
The opinion of the court was delivered by
One ground of defence upon which counsel rely in this case is, that a forgery has been committed, and that in such a case the law will not permit the party injured to proceed against the offender in a civil suit, but for the sake of the public will compel him to seek his remedy by a criminal prosecution, and merge the civil action in the felony. But to this ground of defence there are two decisive answers.
In the first, place, it does not appear that a forgery has been committed. To constitute forgery, it is not enough that the defendant put the name of Mahurin to the note without authority, hut it must have been done with an intention to defraud. Now in this case, Whatever may be our conjectures, it certainly does not appear that there was any intention to defraud ; it was not submitted to the jury to enquire of the intention ; and it seems to us that there is nothing stated in this case, which will warrant us in saying that a felony has been committed. On this point, the case of Gibson v. Minet, 1 H. Bl. 569, is a direct authority. In that case the special verdict found that liivesay, Tlarirrave and company, drew a bill of exchange upon Gibson and Johnson, purporting to be payable to John White, and endorsed on the bill the name of
We deem this a sufficient answer to this ground of de-fence, but we shall state another which is equally decisive. The case states that the defendant has been tried for the forgery and acquitted. The true ground of the general rule, that an action shall not be sustained for an act which amounts to felony, is, to prevent the criminal justice of the country from being defeated. And it has been solemnly decided that after an acquittal of the felony, the reason of the rule ceasing, the rule itself does not apply. 12 East, 409, Crosby v. Leng.
It had been before settled that the rule did not apply where there had been a conviction. 1 Mod. 282, Lutterell v. Reynell; Latch, 144, Markham v. Cobb; 1 Lev. 247, Cooper v. Witham; Yelv. 89, Higgins v. Butcher.
It seems now to he settled, that the right of action merges in the felony, only until the party has been tried.
We are therefore of opinion, that if it distinctly appeared that the defendant, in this case, was guilty of forgery in putting the name of Mahurin to the note, this cause could not; be defended on the ground that the civil remedy was merged in the felony.
It may be further remarked on this point, that it has frequently been held that a party whose name has been forged may subsequently so adopt the forged signature as to make himself liable upon the instrument. 3 Espin. N. P. C. 60, Barber v. Gingell; 4 ditto, 226, Leach v. Buchanan. It then remains to enquire whether upon the case stated the plaintiffs are by law entitled to recover in this form of action ?
With respect to the equity and justice of the claim of the plaintiffs there can be no diversity of opinion. Upon the credit of the name of Mahurin which the defendant put upon the note without authority, he and his associates obtained from the bank £500, as a loan, and in equity and good conscience, he ought to be responsible to the bank for this money, and to repay it according to the terms of the loan. There is no honest man in the community who will not say that, under such circumstances, he ought to be compelled to refund the money. It is wholly immaterial whether he received the money or any part of it himself. If he lent to others his skill in imitating the signature of Mahurin for the purpose of enabling them to obtain money from the bank, not for his own emolument, but merely to oblige them as friends, the claim of the bank against him is founded on as strong and clear equity and justice as if lie had received every cent of the money for his own use. We therefore consid
And there is in the la w of the land what has with great propriety been called “ a sort of moral estoppel,” which declares that no man shall be heard to allege his own crime or turpitude in his defence, and which must preclude this defendant from saying in a court of justice, that by putting the name of Mahurin to the note he intended to defraud the bank. And as the bank must be defrauded, unless he is personally responsible, the principle of this estoppel seems to us to preclude him from saying, after it is fohnd by a jury that he put the name to the note, that he did not intend to bind himself. And we are of opinion that the law for the furtherance of justice will presume that he intended to bind himself, and to be responsible for the money.
Such a presumption for the purpose of sustaining an action in a particular form to enforce the payment of a just claim, is not a new thing in the law, but is sanctioned by the most respectable authorities. In the case of Gibson et a. v. Minet et a., 1. H. Bl. 569, to which we have before alluded, this species of presumption is stated and applied by several judges. The bill of exchange in that case was payable to a fictitious payee by the name of White, or his order, by whom it purported to be endorsed. It could not therefore be enforced as a bill payable to order according to the terms of it. Hotham, baron, in declaring his opinion, said, “the acceptors having given this bill a currency, when they know that it could never be paid to the order of White, the law will presume that they intended that formality should be waived. If it be waived what does it remain but a bill payable to bearer ? Knowing that it was impossible to pay it in the shape it bore, they accepted it ; but knowing at the same time that it was possible to pay it in another. The law will conclude then that such was their intent."
In the same case Gould J. says, “ it is a rule of law that every instrument shall be construed in the most forcible
And. in Tatlock v. Harris, 3 D. & E. 174, which was as-sumpsit. for money had and received, and in which the claim of the plaintiff was founded on a bill of exchange, payable to a fictitious person, Lord Kenyon, in delivering the opinion of the court, said, “here the defendant being a. debtor to the house of Lewis and Potter, drew a bill which he delivered 1o them, and drew it in terms which, could not be proved in a formal manner, he was not only privy to the transaction, but the very negotiator of it, and by drawing it, lie put himself in a situation to pay what he was in conscience bound to pay, therefore it was an appropriation of so much money to be paid to the person who should become the holder of the bill. In making this decision we do not mean to infringe a rule of law which is very properly settled, that a chose in action cannot be transferred, but we consider it asan agreement between all the parlies to appropriate so much property , to be carried to the account of the holder of the bill ; and this will satisfy the justice of the case without infringing .
In the case of Hill v. Perrott, 3 Taunt. 274, the action was indebitatus assumpsit for goods sold ; and the evidence to support it was, that the defendant had by fraud procured the plaintiff to sell the goods to a person who was insolvent, and afterwards got. the goods into his own possession. It was held that the law would imply a contract to pay for the goods from the circumstance of their having come to the defendant’s possession, and that the defendant could not be permitted to set up a sale to another person as a defence, that sale having been procured by his own fraud.
So in Biddle et a. v. Levy, 1 Starkie’s N. P. C. 20, winch was assumpsit for goods sold and delivered, Gibbs, G. J, held that the action was supported by evidence, that the goods had been sold to the defendant’s son who was an infant, upon a fraudulent representation by the defendant, who took the goods into his own hands.
Other instances might be cited, of similar presumptions made by the law for the same purpose, but we deem these instances as sufficient to warrant us in saying that the law will presume, under the circumstances of this case, that the defendant intended to bind himself personally. Such being then his intention, the question remains to be examined whether he could so bind himself by the name of Mahurin as to make himself liable in an action against him on the note in his true name ?
If an individual assume a name for the purpose of making a written contract, and put that name to the contract with a view to bind himself ; there seems to be no reason why courts should not consider the name- thus assumed as his name, pro line vice, and hold him to fulfil the contract. And it most now be considered as settled, that he is bound by such a contract. Thus if A enter into a bond by the name of B, and a suit is brought against him
Indeed, in such a case, the defendant is estopped by the bond to say that the name he put to it is not his name. 6 Mod. 225, Linch v. Hook; Com. Dig. “Abatement” F 18.
In Williamson v. Johnson, 1 B. & C. 146, the case was this ; the managing partner in the firm of Habgood and company, was in the habit of issuing bills of exchange into the world endorsed by Habgood and Fowler. There had been a company by the name of Habgood and Fowler, but the style of the firm had been changed for several years for that of Habgood and company, in which there was no person of the name of Fowler. There was no evidence that the rest of the firm were privy to the endorsement of bills in this manner, or that they ever adopted the style and firm of Habgood and Fowler. It was held that the firm of Habgood and company might be considered as having adopted the style of Habgood and Fowler, for certain purposes of business, and that bills thus sent into the world -were well endorsed.
This case shews that a bill of exchange may be negotiated by one of a firm in an assumed name of the firm.
It is believed that the principle is indisputable that a party may bind himself by an assumed name-
But can a plaintiff bring his suit in such a ease and declare against the defendant in his true name, averring that he made the contract by the assumed name ?
It seems to be settled, that if a person enter into a bond by a wrong Christian name, and should be sued on such bond, he should be sued by such name, and a declaration against him, by his right name, stating that he by the wrong name executed the bond, is bad. 3 Taunt. 504, Gould v. Barnes. The grounds in which this principle rests are not very obvious. The earliest ease in which
These remarks may be fully illustrated by comparing the rules and principles which now govern the ancient actions of debt and covenant, with the rules and principles which have been adopted in relation to assumpsit, which is a remedy adopted and settled in more modern times. Thus if aman enter into a single bond for the
We have attentively considered this point without being able to find any reason whatever, why the plaintiffs should not, under the circumstances of this case, have judgment on the second count in the declaration. It has been shown that it was competent to the defendant to bind himself by a contract made in an assumed name, and this count alleges that the defendant thus made the contract on which this action is founded. It would be singular indeed, if a person who promises in an assumed name is liable on the promise, and yet an action cannot be maintained by an averment of the facts on which his liability rests. In Willis v. Barrett, 2 Starkie’s N. P. C. 29, the declaration alleged the promise to be made to the plaintiff by the name of Willison, and the plaintiff was permitted by Lord Ellenborough to show that Willison was inserted in the note by mistake for Willis.
And we are on the whole of opinion that the plaintiffs are justly entitled to recover of this defendant the contents of the note described in the declaration, that with
Judgment on the verdict.