Thompson v. Whitman.

demnified as to the Scarborough note; accordingly, but still before the investigation above mentioned, the bond in question was given, payable to Lemuel H. Taylor by Wright and William, who are the brothers of Gabriel Whitman, to secure and indemnify the said Taylor against the said note. The note made to Scarborough was delivered to them; at the same time it was expressly understood, that Taylor had no power to stop the prosecution, or in any manner to control it; but it was agreed and promised, on the part of Taylor, that he would not appear against Whitman, unless he was summoned so to do.

On the investigation before the magistrates, Taylor was notified to appear and give evidence, which he refused to do until he was summoned formally. Upon this being done, he did appear and testify as above stated.

The result of the investigation before the magistrates, as to the filling up of the note to Scarborough, was to commit Gabriel Whitman for trial.

Upon the trial of the case below, a verdict was taken for the plaintiff, subject to the opinion of the Court, with the understanding that if the Court should be of opinion in favor of the plaintiff, judgment should be entered on the verdict; if otherwise, a judgment of nonsuit should be entered. The Court, being of opinion with the plaintiff, gave judgment according to the verdict; from which the defendants appealed.

Dortch, for the plaintiff.

Bryan, for the defendants.

PEARSON, J. The evidence left it doubtful whether Taylor had "lent his name" to Gabriel Whitman by signing it on the piece of paper, with the intention that said Gabriel might write a note above it, for the purpose of raising money, or whether Taylor had simply written his name on the paper, with the intention that the said Gabriel should keep the autograph as a token or memento of friendship. From the manner in which the verdict was entered, this fact was not passed

Thompson v. Whitman.

on, or fixed one way or the other. His Honor calls it a fraudulent note; and from the testimony of Micajah Martin, which is set out in the examination before the magistrate, and sent as a part of the case, and the circumstances attending the execution of the bond sued on, there was evidence tending to show that the name of Taylor was procured as a token of friendship merely, without an intention to authorise Gabriel Whitman to write a note above it; at all events, as the case is now before us, the defendants have a right to assume that state of facts.

If one writes a note above the signature of another, which happens to be at the foot of a letter, it is clearly forgery; so if he obtains the signature as an autograph, to be used as a keep-sake, and writes above it, it is a forgery; for forgery may be committed as well by the fraudulent application of a false instrument to a true signature, as by a fraudulent application of a false signature to a true instrument. Chitty's Crim. Law, 1038. So we have this case: Taylor, upon whom the forgery has been committed, agrees that upon his being "secured and indemnified against the payment of the money purporting to be due on the fraudulent promissory note," by execution of the bond now sued on, "he would have nothing to do with the matter, further than the law required." Upon receiving the bond sued on, he handed up the false note to Gabriel Whitman, or his agent, telling him that he could not stop the prosecution, as that was a matter in which the State was concerned, and not under his control, but that he would not appear in the prosecution unless he was summoned to do

So.

We think this was compounding an indictable offence, and consequently, that a bond given in consideration thereof, cannot be made the ground of an action in a Court of justice. How else can an individual compound a felony or other criminal offence, except by agreeing not to prosecute, and not to tell what he knows unless he is summoned as a witness, and by giving up the false instrument, which will be most material evidence on the part of the State?

Thompson v. Whitman.

The efficacy of punishment depends more upon its certainty than its severity. Hence, it is a matter of public concern, that all violations of the criminal law should be detected and punished. So that any individual who knows that an indictable offence has been committed, and conceals it, thereby fails to discharge the duty of a good citizen. Upon this principle, the bare concealment of treason or felony is an indictable of fence, and the offence is aggravated by compounding the felony—that is, by an agreement not to prosecute or make known what has come to the knowledge of the party; for, although he is the person directly injured, the law does not allow him to take care of his private interest by accepting compensation at the expense of the public justice. In offences less than felony, this concealment or compounding is not indictable, but it is, nevertheless, against the policy of the law, and the due course of justice; and the Courts would not be true to themselves if they enforced a contract founded on such a consideration. If he secures himself by an executed agreement, well; but if he relies on an executory agreement, having "cut loose" from the public, the Courts will not give aid in furtherance of his selfish attempt. This is familiar doctrine. The difficulty in the case is in making the application.

His Honor was of opinion that the consideration of the bond sued on was not against public justice. In this there is error. According to the view we take of the case, Taylor was not at liberty to take care of his private interest by accepting an indemnity, and thereby depriving the State of an active prosecutor; which is one of the means relied on for the conviction of offenders. The testimony of Taylor, when contrasted with that of Martin before the committing magistrates, in reference to the same transaction, suggests the fear that this douceur had taken effect. When the person directly interested is appeased before the trial, he is under strong temptations to favor the offender.

If, upon the next trial, it should turn out that, in point of fact, Taylor did sign his name with the intention that Gabriel Whitman should write a note above it, and afterwards took

Runyon v. Clark.

advantage of Whitman's alarm by reason of the proceedings instituted by the magistrates, and induced his brothers to execute their bond for his indemnity, by giving up the note, and agreeing not to prosecute, or give evidence, unless he was summoned or required to do so, an interesting question will be presented. Venire de novo.

PER CURIAM.

Judgment reversed.

BENJAMIN RUNYON TO THE USE OF WM. T. BRYAN vs. WILLIAM CLARK, et. al.

Where a third person pays the sum called for in a note, and takes it into his possession, it is a question of fact to be decided by a jury whether he intended to pay it off for the accommodation of the maker, or to purchase it.

ACTION of ASSUMPSIT, tried before MANLY, Judge, at the Fall Term, 1856, of Beaufort Superior Court.

The plaintiff declared on a promissory note, payable to him as Cashier, and negotiable at the Washington Branch of the Bank of Cape Fear. On the back of this note was endorsed, "I assign the within note to without recourse BEN. RUNYON, Cashier."

to me.

The defense was under the plea of payment. Thomas H. Hardenburg proved that the note in question had been discounted by the bank above named; that after it became due, it was delivered to the attorney of the bank for collection; that on a certain day afterwards, the said attorney and Wm. T. Bryan came together into the banking-house, the former bringing with him the note in question; he said that Dr. Bryan wished to take the note up, and that he had paid him his fee. This witness was then the teller of the bank, and received the amount of the note and the interest due thereon; he said he then delivered it to Dr. Bryan, with the endorsement on it, but his understanding at the time was that Dr.

Runyon v. Clark.

Bryan intended to pay the note; that it was then the custom of the bank, whenever a note was discounted, to sign the endorsement which was printed on the blank form used by it. This was a practice not understood by the witness. The note was delivered to Dr. Bryan without any alteration and without any reference to the endorsement, and without any intention of passing the title to any one, and simply because it was considered as paid and extinguished. The witness said he had no authority to make such a sale or transfer of this or any other paper belonging to the bank.

Burton A. Shipp, the principal in the note, was examined for the plaintiff. He stated that, after the note fell due, being short of money, he requested Dr. Bryan to take it up and hold it over for awhile against him and his sureties; that he did not expect or intend that any of the parties were to be discharged; that he never paid any part of it to Dr. Bryan or any one else.

The blank endorsement had been filled up with the name of Dr. Bryan, but the name was immediately struck out.— This was after the suit was brought, but before the trial.

The Court was called on by the plaintiff's counsel to charge the jury that the legal effect of the endorsement was to pass the interest in the note to Bryan, and that it could not be contradicted by parol; but his Honor refused so to charge, and told the jury that it was a question of fact for them to decide whether Bryan intended to pay off the note for the accommodation of Shipp, or whether he intended to purchase it; and that, in deciding this question, the parol evidence given should be considered by them. Plaintiff excepted. Verdict for defendant. Judgment and appeal.

Rodman, for plaintiff.

Donnell, for defendant.

BATTLE, J. The alleged error of which the plaintiff complains is that his Honor refused to instruct the jury, as reques