Ford v. Cratty

• Decision Date: 30 September 1869
• Citation: 1869 WL 5434,52 Ill. 313
• Parties: GEORGE E. FORD et al.v.THOMAS CRATTY, Administrator, etc.
• Court: Illinois Supreme Court

52 Ill. 313

1869 WL 5434 (Ill.)

GEORGE E. FORD et al.

v.THOMAS CRATTY, Administrator, etc.

Supreme Court of Illinois.

September Term, 1869.

APPEAL from the Circuit Court of Peoria county; the Hon. S. D. PUTERBAUGH, Judge, presiding.

This was an action of assumpsit, brought in the court below by Thomas Cratty, as administrator of Frederick Furch, deceased, against George E. Ford, and others, his securities, upon a promissory note given by the defendants to the intestate in his lifetime. The circumstances under which the note was given, and the questions arising in respect thereto, are set forth in the opinion of the court.

A trial resulted in a judgment for the plaintiff, from which the defendants appealed. Mr. H. GROVE, for the appellants.

Messrs. INGERSOLL & MCCUNE, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

It appears from the record in this case, that appellant Ford, as an attorney at law, was employed by Frederick Furch to sell certain lands, to collect debts, etc. while Furch was absent in the army. It appears that Ford had sold the land, and collected debts, and in May, 1866, had in his possession about the sum of $1374. That Furch, on his return from the service, called on Ford for the money, but failed to get it. That he thereupon employed O'Brien and Cratty to collect it for him. After ascertaining that he had collected the money, and failing to obtain it, they had Furch make an affidavit of the facts, and sued out a warrant for his apprehension on the criminal charge of larceny for embezzling the money.

O'Brien took with him the affidavit and warrant, and showed them to Ford, and informed him that he must settle or secure the claim, or the prosecution would be pushed to a conclusion. Ford then saw the other appellants, and they became his sureties on the note.

It is first insisted that the court erred in refusing to permit O'Brien to testify that Ford would not have given the note had he not been threatened with the criminal prosecution. The defense was, that the note was given to compound a criminal offense.

The 23d section of division 9 of our criminal code (Gross' Comp.) defines such an offense to be, the taking of money, goods, chattels, lands or other reward, or promise thereof, in consideration of an agreement not to prosecute a criminal offense, and fixes a fine in double the sum or value of the thing received; but expressly declares that no person shall be debarred from taking his goods or property from the thief or felon, or receiving compensation for the private injury received by the commission of any such criminal offense.

The 23d section of the 7th division of the criminal...