11 Gratt. 822 | Va. | 1854
Waiving the question whether the provision in the Code, ch. 181, § 5, p. 681, authorizing amendments in judgments or decrees of a court in certain cases by the judge in vacation after the adjournment of the term, can apply to a case of felony, in which all the proceedings should regularly be had in presence of the accused, or to any criminal case, I am yet of opinion, that no such amendment of the record as that attempted to be made in this case, by
The construction given by the English courts to the statutes of amendment, required that there should be ■something to amend by. Tidd’s Prac. 246, 247; Commonwealth v. Winstons, 5 Rand. 546, opinion of Judge Green. And such is, I think, the plain meaning of the provision in question in our statute. And if no amendment can be made in the record of a judgment after the term, except under the statute, or in the few cases allowed by the common law, of which this is not one, the amendment attempted to be •made in this case must be disregarded'; and no objection to the indictment can now be considered, if the 'offence be charged therein with sufficient certainty for .judgment to be given thereon according to the very right of the case. Code, p. 770, § 12.
But it is urged that the omission of the averment “ to the prejudice of another’s right,” is a defect so material that it may be taken advantage of after verdict; and that <it -cannot be aided by what is found charged in the indictment. It is said that these terms import a part of the description of the offence de
But although the employment of these terms is not indispensable in an indictment under the fifth section, it must sufficiently appear, from the description given of the writing alleged to have been forged, that it was writing to the prejudice of another’s right. If it be not such, it is not within the statute, and the forgery
If this proposition be correct as stated, it might perhaps be a sufficient answer to it to say that where a third party puts his name on the back of a negotiable note made by a first to a second party as payee, while still in the hands of the maker, it may be inferred from the fact of his so doing, that he intended to give the maker credit; and this inference is not to be repelled, because his liability as endorser cannot be made operative in favor -of a subsequent holder, without first obtaining the name of the payee to the paper: and if the payee, aftei’ taking the note, were to endorse his name upon it and put it in circulation, a subsequent holder for value, who should take it on faith of the genuineness of the names so endorsed, would then be defrauded. And the general intent to defraud charged in the indictment, would' apply to a subsequent holder who might thus be defrauded, as well as to Eoach & McGuire; for a party who under such circumstances forges the name of an endorser upon a note made by himself, payable to another, and passes it to the payee for value, may pro
But Í do not concur in the proposition as stated by the counsel. It does not follow because a party stands in the position of first endorser upon a note, that he can never hold a second or subsequent endorser responsible to him. The circumstances may be such that he may well recover against a subsequent endorser. This is conceded by Judge Spencer in Herrick v. Carman, 12 John. R. 159, cited by the counsel, and impliedly admitted by Lord Kenyon in Bishop v. Hayward, 4 T. R. 470.
The cases which have been decided in the courts of this country, involving the liability of an endorser in blank of a note to which he is no party, are numerous, and perhaps not without serious conflict. Where the note is not negotiable, they would seem to maintain, with little diversity, that such an endorsement in blank, made at the time of the note, will make the endorser liable as an original promiser or maker of the note; and the payee may write a promise to pay the amount of the note, expressing it to be for value received, over the blank signature. Josselyn v. Ames, 3 Mass. R. 274; Moies v. Bird, 11 Mass. R. 436; Doan v. Hall, 17 Wend. R. 214; Nelson v. Dubois, 13 John. R. 175; Herrick v. Carman, 12 John. R. 159; Campbell v. Butler, 14 John. R. 349; Hall v. Newcomb, 3 Hill’s N. Y. R. 233; Sylvester v. Downer, 20 Verm. R. 355. Where the note is a negotiable instrument, however, a distinction has been taken in some of the cases; and it has been held that a party endorsing a note in blank to which he is no party, cannot be treated either as an original maker or as a guarantor, but in the absence of controlling proofs to the contrary, must be regarded as having intended to bind himself only as a second endorser. Herrick v. Car
j think, however, the authority of the cases maintaining this distinction, is overweighed by that of those in which it has been disregarded, and which treat the liability of an endorser in blank of a negotiable note to which he is no party, as the same as that of an endorser under similar circumstances, of a note not negotiable. Baker v. Briggs, 8 Pick. R. 122; Ulen v. Kittredge, 7 Mass. R. 233; Moies v. Bird, 11 Mass. R. 436; Austin v. Boyd, 24 Pick. R. 64; Tenney v. Prince, 4 Pick. R. 385; Sylvester v. Downer, 20 Verm. R. 355; Martin v. Boyd, 11 N. Hamp. R. 385; Beckwith v. Angell, 6 Conn. R. 315; McGuire v. Bosworth, 1 Louisian. R. 248. Prom these and other cases to the same effect, I deduce that if a third party put his name in blank upon the back of a negotiable promissory note made payable to another party, and to which he is a stranger, while the same remains in the hands of the maker, he will be presumed, in the absence of controlling proof to the contrary, to have intended to give the note credit and currency; and if the endorsement was at the time of the making of the note, he may be treated by the payee as an original promiser or joint maker of the note. If the endorsement were after the date of the note, however long, the payee may treat him as a guarantor, and may write over the signature a guaranty consistent with the nature of the case. And the fair and reasonable, if not necessary inference from cases which have occurred in this court, will- bring us to the same result. See Douglass v. Scott, 8 Leigh 43; Watson v. Hurt, 6 Gratt. 633; Orrick v. Colston, 7 Gratt. 189.
Thus then, when the plaintiff produced the note to Eoach & McGuire, with the names of John & George
Nor is the view which I have taken unsupported by authority in criminal jurisprudence. Wicks’ Case, Russ. & Ry. Cr. Cas. Res. p. 149, is strongly in point. There the prisoner having in his possession what purported to be a bill of exchange for fifty pounds, drawn by Rimmington & Co. payable to their own order, but not endorsed in their name, offered the same for discount at the banking house of Stephens, and the same was discounted, and the proceeds, less the discount, paid over to him. At the time of the discount of the bill he endorsed it, but not in his own name. It was urged that as there was no endorsement by the payees, the instrument was not valid as a negotiable bill of exchange, and could not be available in the hands of the party to whom it was uttered, even if it were a genuine bill. The argument, however, did not prevail, and the prisoner was convicted. And the case having been reserved, at a meeting of the judges, all who were present, being nine in number, agreed that the conviction was right. In Winterhottom’s Case, 1 Denison 41, 5 British Cr. Cas. Res. 42, the prisoner was indicted on stat. 11 Geo. iv, and 1 Wm. iv, for the forgery of an endorsement on a bill of exchange. The bill was pavable to four persons named, who were
The only plausible objection to the views above presented,’ is one suggested by the language of the indictment. The writing is described as purporting to be the “ endorsement” of John & George Gibson; and it may be said, that as the simulated liability of the Gibsons was thus that of “ endorsers,” we are not at liberty to give effect to the allegation, by resorting to a liability of a different character, which would result from their names being found upon the note if the signatures were genuine. I think, however, the objection would be more specious than sound. There is no reason for restricting the term “ endorsement” to the technical sense applied to it in the lex mercatoria. The primitive and popular sense of something written on the outside or back of a paper on the opposite side of which something else had been previously written, should be given to the word whenever the context shows it to be proper, or it is necessary to give effect to the pleading or other instrument in which it may occur. And such is the sense in which it should bo understood in this indictment; for the technical sense would not give effect to the simulated liability on the part of the Gibsons which it must be intended, was designed to be averred. Upon this point also, Winter-bottom’s Case, above referred to, may be cited as strongly favoring this mode of construction.
The motion for a new trial upon the facts proved in
I am of opinion to affirm the judgment.
The other judges concurred in the opinion of Lee , J.
Judgment affirmed.