COMPETENCY OF WITNESS IN TRIAL FOR FORGERY.-The person whose instrument is alleged to have been forged is not a competent witness to prove the forgery, unless the instrument said to have been forged is produced at the trial.

INDICTMENT for forgery containing two counts. The first charged the defendant with the forgery of a promissory note purporting to be made by one Samuel Castle, and payable to the defendant or his order; the second charged him with uttering and publishing the same. The defendant pleaded not guilty.

The attorney-general, Sullivan, being unable to produce the note on behalf of the prosecution, offered to prove by the testimony of three witnesses, that the defendant had shown them an instrument as described in the indictment, purporting to be the promissory note of Samuel Castle; that the witnesses read the same, and that the defendant offered to sell it as and for the genuine note of Castle; and that Castle was present and ready to testify that he had never made any promissory note whatever to the defendant; and he asked that Castle and the other persons might be sworn to testify on behalf of the prose

cution.

Ives, for the defendant, objected to the evidence, unless the note was produced; he also objected to Castle as a witness, on the ground that the person whose note is said to have been forged is in no case competent to prove the forgery, unless he has a release or has paid the contents of the note.

AM. DEO. VOL. II-1

The Court, STRONG, SEDGWICK, SEWALL, and THACHER, JJ.,* did not decide whether there might not be cases in which a forgery might be proved without producing the instrument alleged to be forged, but they were clearly and unanimously of opinion that the person whose instrument is alleged to have been forged is not a competent witness unless the instrument is produced at the trial.

And that although they believed it to be now settled in England that the person whose instrument is said to have been forged is not a competent witness to prove the forgery, yet the practice had for a long time been otherwise in this state, and from a supposed necessity; that is, from the impossibility ordinarily of proving the forgery without his testimony; but they had never known this done, unless the instrument was produced; that in thus departing from the decisions of the courts of law in England, which appear to have been grounded on pretty strong and substantial reasons, we have gone far enough, perhaps too far; that although they considered themselves bound by the decisions of our own courts, which were contrary to or different from those of the English courts, yet they thought to extend the principle beyond what had been already decided, to the length now contended for, would be very dangerous in its consequences; and that no reasons from necessity, convenience, or public policy required it.

The testimony of Castle being rejected, without which it was, in the present case, impossible to prove the forgery, the jury were directed to find the defendant not guilty, which they did instanter.

In Commonwealth v. Snell, 3 Mass. 82, it was held that upon the trial of an indictment for passing a forged instrument, when the instrument alleged to have been forged had been secreted to protect the offender, the person whose name was charged to have been forged, and who had seen and copied the instrument, was a competent witness to prove the instrument forged, and the production of the instrument itself was dispensed with.

The court in this case say: "The defendant's counsel cited the case of Commonwealth v. Hutchinson, where Castle, whose note was alleged to have been forged, was rejected as an incompetent witness, because the note was not produced. But in that case the witness had never seen the note, and the present court was informed by one of the judges present at that trial, that the ground of the decision was on the incompetence of the evidence under all the circumstances of that case, as it was admitted by the attorneygeneral that he had no other evidence."

The court was composed of five members, Francis Dana, Chief Justice, Simeon Strong, Theodore Sedgwick, Samuel Sewall, and George Thacher.

COMMONWEALTH V. BAILEY.

[1 MASS. 62.]

DESCRIPTION OF FORGED INSTRUMENT.-In an indictment for forgery, alleging an instrument to be "in the words and figures following," a strict recital is necessary; but the number of a bank bill and the marginal figures indicating its amount, not being parts of the bill, need not be set out in the indictment.

INDICTMENT of the defendant for uttering a forged and counterfeit bill of the Maine bank of five dollars. In this case it was alleged in the indictment that the forged bill was in the words and figures following, viz.:

"B. No. 237. Five dollars. The president, directors, and company of the Maine bank promise to pay N. Shaw, or bearer, five dollars, on demand. Portland, the seventh day of February, 1803. D. Hale, cashier, Sam. Freeman, president."

The bill produced and offered in evidence had on it, between the words "five" and "dollars," at the top, the representation of an eagle, with the figure five in it; on the left, just over the signature of the cashier, was the likeness of a fish with the figure five inscribed; and on the right margin of the bill was another figure five.

Ashmun, for the defendant, objected to the bill being given in evidence to the jury, on account of the variance, contending that as this indictment is drawn, a strict recital was necessary. The indictment undertakes to set out the words and figures of the bill; but the figure five, which is in three different places on the bill produced, and is used and intended to designate ita denomination and amount, is wholly omitted in the indictment.

The Court, DANA, C. J., STRONG, SEDGWICK and THACHER, JJ., agreed to the principle contended for by the defendant's counsel, but held that it did not apply to his case. They said that the number of the bill, and the words and figures in the margin, were not parts of the bill, but merely marks superadded for the convenience of the bank, or of the holder of the bill, and, therefore, not necessary to be set out in an indictment in any The whole bill, all that is evidence of a contract, is set out; and set out truly and precisely.

case.

In the case of Commonwealth v. Stow, 1 Mass. 54, a strict recital was held necessary in an indictment for forgery alleging an instrument to be in the words and figures following. As confirming the principal case, see United States v. Fisler, 4 Bis. 59; State v. Callendine, 8 Iowa, 288; State v. Briggs,

V.

34 Vt. 501; Hampton v. State, 8 Ind. 336; State v. Carr, 5 N. H. 367; People v. Franklin, 3 Johns. Cas. 299; Griffin v. State, 14 Ohio St. 55; Commonwealth v. Taylor, 5 Cush. 605. In the case of Commonwealth v. Stevens, 1 Mass. 203, the court again held that the number of a bank-bill, and the words at the top of it expressing its amount, need not be set out in the indictment for forgery, and cited the principal case as authority.

FORD V. KEITH.

[1 MASS. 139.]

RECOVERY BY SURETY AGAINST PRINCIPAL.-A surety is entitled to recover from his principal for money paid by the surety on behalf of the principal, on a usurious contract made by the principal, and although the latter might have avoided such contract.

ACTION of indebitatus assumpsit for money had and received, to which the defendant pleaded the general issue.

Whitman, for the plaintiff, stated the case as follows: That 'the defendant, David Keith, desiring to borrow money, authorized one George Keith, Jr., to procure it upon such terms as he thought proper, and to sign notes for said David Keith, for the payment of any moneys so procured; that George Keith accordingly borrowed of one Winslow a sum of money for the defendant, and executed a negotiable promissory note for the payment thereof, signed by the said George for the defendant, and also by the plaintiff and one Samuel Jones and the said George Keith; that Winslow indorsed the note to one Palmer, who demanded the contents of the present plaintiff, which he paid to Palmer, and brought this action against the defendant to recover the amount. The counsel conceded that the money was loaned upon a usurious contract, but contended that, as plaintiff had no knowledge of that fact at the time he signed the note, or when he paid its contents to the indorsee, it could be no objection to his recovery against the defendant.

Parsons, for the defendant, said that, according to the statement made by plaintiff's counsel, he was not entitled to recover in the present form of action; that the declaration should have been for money laid out and expended. The court being clearly of the same opinion, the plaintiff had leave to amend; whereupon counsel for plaintiff immediately added to the declaration a count for money laid out and expended. Defendant's counsel then objected to the plaintiff's proving any part of his case, because it appeared from his own statement that the money

was paid upon a void contract; but the court admitted the evidence.

It appeared in evidence that George Keith had general authority to make contracts for the defendant; that, at the time the money was borrowed from Winslow, defendant's necessity was so great that he told his agent to hire money at any rate; that defendant's agent had hired the money for which the note was given, upon a usurious contract made by him with Winslow. There was no evidence that the plaintiff knew of the corrupt agreement at the time of making the note; but it was testified that prior to paying the note to Palmer, George Keith had informed plaintiff that the contract was usurious.

Defendant's counsel made two points: 1. That the agent had no authority to bind his principal to an illegal contract; 2. That the contract being utterly void, and neither the principal nor sureties being bound to pay the note, the plaintiff, by voluntarily paying money upon a void contract, of which he had notice, could not compel the principal to refund.

Whitman, in reply, urged that the defendant did in fact authorize his agent to hire money at any rate, and although defendant might have disputed the note, yet he was not obliged to, and did not do so till this action was brought; that even if plaintiff knew the contract was usurious, still he ought to recover from defendant the sum paid upon a note executed for him, and at his request.

STRONG, J., who charged the jury, after stating the case and the points in defense, said that as to the authority of George Keith to make a usurious or illegal contract, it was in evidence that he had a general authority to make contracts for his principal; and he thought it ought to be presumed that the agent made the contract which the principal intended; but whether it be so or not, shall the defendant say, as a defense to the present action, that he did not authorize his agent to make such a contract? He thought not. Then as to the notice to the plaintiff subsequent to the contract, and before he paid the contents of the note, what is the defense? The defendant says: "It is true the money was borrowed for me. I received it and had the benefit of it. I requested you to become my surety and sign the note, and you have paid the contents; yet, as I had a legal right to avoid the note, you shall not recover of me." Will the law permit the defendant to get rid of the present action on such grounds? He presumed it