Schuylkill County v. Copley

• Decision Date: 09 February 1871
• Citation: 67 Pa. 386
• Parties: The County of Schuylkill <I>versus</I> Copley.
• Court: Pennsylvania Supreme Court

Page 386

67 Pa. 386

The County of Schuylkill versus Copley.

Supreme Court of Pennsylvania.

January 20, 1871.

February 9, 1871.

January 20th 1871.

Before THOMPSON, C. J., READ, AGNEW and WILLIAMS, JJ. SHARSWOOD, J., at Nisi Prius

Error to the Court of Common Pleas of Schuylkill county: Of January Term 1870, No. 369½ A. W. Schalck (with whom was G. D. B. Keim), for plaintiff in error.—A fraud practised by a principal in obtaining the signature of the surety, does not discharge him from his obligation to the obligee, unless such fraud was with the knowledge or consent of the obligee: Graves v. Tucker, 10 S. & M. 9. Notice is necessary, or such acts as a statute characterizes as fraudulent: Dennis v. Burritt, 6 Cal. 607. Fraud is never to be presumed: Stewart v. English, 6 Ind. 176; Kellman v. Smith, 18 Texas 835. Delivery of a bond to the payee is absolute, its effect cannot be controlled by parol: Plank Road Co. v. Stephens, 10 Ind. 1; Ferguson v. Glaze, 12 La. An. 667; Sproule v. Lawrence, 33 Ala. 674. The fact that a surety is unlettered, raises no presumption against its validity: Ellis v. McCormick, 1 Hilton (N. Y. C. P.) 1313. There is no privity between the creditor and the sureties upon a constable's bond: Rutland v. Paige, 24 Vt. (1 Deane) 181. The character of the undertaking cannot be varied by parol: Bank of Albion v. Smith, 27 Barb. (N. Y.) 489; Speer v. Whitfield, 2 Stockton (N. J.) 107; Ruiz v. Morton, 4 Cal. 359; Harper v. Pounds, 10 Ind. 32. A contract which parties intended to make, but did not make, cannot be set up in the place of one which they did make, but did not intend to make: Sanford v. Howard, 29 Ala. 684; Sanborn v. Chittenden, 1 Williams (Vt.) 171; Billings v. Billings, 10 Cush. (Mass.) 178. The declarations of the maker of a note made in the absence of the surety are not admissible in evidence against him: Dexter v. Clements, 17 Pick. 175. The execution of the bond may be proved by the admissions of the obligor or otherwise: Fritz v. Commissioners, 5 Harris 131; Taylor v. Meekly, 4 Yeates 79; Conrad v. Farrow, 5 Watts 536; Garrett v. Gonter, 6 Wright 143. A bond in the hands of the obligee cannot be declared invalid, because of some alleged understanding among the obligors themselves: Keyser v. Keen, 5 Harris 327; Grim v. School Directors, 1 P. F. Smith 219. A party who seeks to relieve himself from his bond for actual fraud must establish that there was a false representation which actually misled him to his hurt: Fulton v. Hood et al., 10 Casey 365; Bredin v. Bredin, 3 Barr 81. Fraud among the debtors on a note cannot operate to the injury of the discounting bank: Irvine v. Lumbermen's Bank, 2 W. & S. 206. The declarations of an obligor are not evidence to destroy a bond given by him: Wolf v. Carothers, 3 S. & R. 240; Whiting v. Johnson, 11 Id. 328. Declarations of persons combining to defraud are not evidence against an absent party without evidence of combination: Helser v. McGrath, 8 P. F. Smith 458; Slate v. Peck, 53 Maine 284. Fogarty's offence was not infamous; his credibility was for the jury: Starkie on Ev. 117, 118, Penal Code March 31st 1860, § 65, Pamph. L. 400, Purd. 229, pl. 73; Commonwealth v. Shaver, 3 W. & S. 342; Bickel's Ex'rs v. Fasig's Adm'rs, 9 Casey 465; 1 Greenlf. Ev. § 373; 1 Phillips's Ev. 23, note 13; Wharton's Am. Crim. Law, § 760; Little v. Gibson, 39 N. H. 505; Shay v. People, 4 Parker (N. Y.) 353; Shay v. People, 22 N. Y. (8 Smith) 317; Wharton's Am. Criminal Law, § 761.

T. H. Walker (with whom was M. Strouse), for defendant in error.—Copley having been defrauded could not be bound whether the county knew it or not: Michener v. Cavender, 2 Wright 334. If there was a misrepresentation of the contents of the paper, of which Copley was not informed, and he an illiterate man, the bond would be worthless and not binding upon him: Green v. North Buffalo Tp., 6 P. F. Smith 110; Marshall v. Gougler, 10 S. & R. 164; Henning v. Werkheiser, 8 Barr 518; Fulton v. Hood et al., 10 Casey 365. Fogarty was not a competent witness. There is no distinction under the English statutes between larceny and embezzlement, which is a species of larceny: Roscoe's Criminal Evidence 414; Commonwealth v. Rogers, 7 Met. 500. They cited also Sinclair v. Healy, 4 Wright 417; Green v. Humphry, 14 Id. 212.

The opinion of the court was delivered, February 9th 1871, by AGNEW, J.

This was a feigned issue to try the question whether a certain bond, on which judgment had been entered under a warrant of attorney, was the deed of Peter Copley, as one of the sureties of Thomas Fogarty, a collector of taxes. It was proved on the trial that Fogarty obtained the signature of Copley, who was an illiterate man, by representing to him that the paper was a petition to the county commissioners for his appointment as tax collector. The county contended that the deception mattered not, unless it be shown that the county had a knowledge of the fraud before accepting the bond. The court below held that the misrepresentation of the contents of the paper avoided it as a bond. The issue, therefore, was the same as if, to a declaration on the bond, non est factum had been pleaded. The instruction of the court was right and follows the distinction stated in Green v. North Buffalo Township, 6 P. F. Smith 114, between a defence resting upon facts which are misstated in order to induce a party to enter into a bond, the contents of which he knows; and one resting on a misrepresentation of the contents of the instrument itself, to an illiterate person. In the former it was said the bond is the obligation of the party who seals it, but is avoided by the false inducement to enter into it; in the latter it is not his deed or bond at all. No authority was cited for this elementary principle, and it is argued that the second proposition is unsound. But it was the first resolution in Thoroughgood's Case, in the time of Lord Coke, 2 Reports, 9 b, in these words: "First, that although the party to whom the writing is made, or other by his procurement, doth not read the writing; but a stranger of his own head read it in other words than it in truth is; yet it shall not bind the party who delivereth it; for it is not material who readeth the writing, so as he who maketh it be a layman, and being not lettered, be (without any covin in himself) deceived, and that is proved by the usual form of pleading in such a case, that is to say, that he was a layman and not learned and that the deed was read to him in other words, &c., generally, without showing by whom it was read." The second resolution in Thoroughgood's Case was that an illiterate man need not execute a deed before it is read to him in a language he understands; but if he do, without desiring it to be read, the deed is binding. And see 2 Black's Com. ^*304-308. And says Mr. Chitty, in his Pleadings, Vol. I., ^*483, The...