Commonwealth v. Thyng

• Decision Date: 03 January 1883
• Citation: 134 Mass. 191
• Parties: Commonwealth v. Joseph D. Thyng and others
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

134 Mass. 191

Commonwealth v. Joseph D. Thyng and others

Supreme Court of Massachusetts

January 3, 1883

Argued November 27, 1882

Suffolk. Indictment against Joseph D. Thyng, James P. Thyng Luther Davis and William W. Campbell, for fraudulently concealing leased personal property. Trial in the Superior Court, before Brigham, C. J., who allowed a bill of exceptions, in substance as follows:

It appeared in evidence, that the defendant, Joseph D. Thyng took a mortgage upon the property of one Richards, a portion of which was leased by one Ferdinand to Richards; and that Ferdinand had not parted with his title to the same. The mortgage was taken in the name of one Mason, as mortgagee; and there was evidence tending to show that Thyng was engaged in lending money, his own in part, and in part money furnished by others for him to lend in their names; that he had money in his hands to lend for Mason; and that he had used his own discretion in taking, holding, collecting, and, in some cases, selling, such mortgages.

It further appeared that the mortgage was taken on April 19, 1881; that, on April 21, Thyng wrote what purported to be a transfer of the note on the mortgage, upon the back of the same, to the defendant Davis, signing the name of Mason, affixing a seal, and adding under the signature the words, "By Atty., Joseph D. Thyng;" and that he then passed both note and mortgage into Davis's possession. Davis subsequently, claiming to be the owner of the note and mortgage, took actual possession of the property and removed it, and it was never afterwards found by the lessor.

It was contended by the government, that the transaction between Thyng and Davis, in assigning and delivering the mortgage and note, was merely colorable; that the parties were acting in concert in the removal of the property; that Thyng made use of Davis as a collector, and especially for the reason that he was not pecuniarily responsible.

Mason was called by the government as a witness. Among other things, he testified that Thyng was his agent, and had money belonging to him to lend, and had had for some time; that he had no knowledge of this particular mortgage, had never known Richards, the mortgagor, had never assigned the mortgage, and had never given Thyng any written authority whatever as to lending money, or taking or assigning mortgages. On cross-examination, he testified that Thyng had authority to do these acts, but that the authority was verbal; that he ratified his act in this case, and should have signed his own name if he had been asked to do so. On reexamination, he was asked whether he had not made statements to Ferdinand in regard to this particular mortgage, that he knew nothing about it, that Thyng had no authority of any kind, either written or verbal, to transfer it or do what he had done regarding it; and he denied that he had made such statements....