County of Schuylkill v. Copley

The opinion of the court was delivered,

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 riot Ms 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 defendant may give evidence under the plea non est factum that the deed was void at common law db initio; or that it was obtained by fraud; or whilst the party was drunk, a married woman or. a lunatic; or that it became void after it was made and before the commencement of the action, by erasure, alteration, addition, &c. See also 1 Saunders on Pl. & Ev. *407. The-very point in this case was decided in Stoever v. Weir, 10 S. & R. 25. That was an action on a single bill to which a defence was set up that the writing had been obtained by falsely reading’it as a receipt, apd requesting the defendant to sign it as a witness. The plea setting forth the facts specially was treated as a special non est factum. See also Bauer v. Roth, 4 Rawle 93, 94, per Kennedy, J. These authorities show that the learned judge committed no error in his charge.

But we think the court erred in the rejection of Thomas Fogarty .as a witness on the ground of infamy: Fogarty had been convicted and'senteneed for embezzlement of the county’s money, as a tax'collector, under the 65th section of the Act of 31st March 1860, Brightly’s Dig. 229, pl. 73; and was in prison- under his sentence. The punishment of the offence of embezzlement under this section is imprisonment by separate or solitary confinement at labor not exceeding five years, and a fine equal to the amount of the money embezzled. . The punishment is the same kind as that inflicted for infamous offences in Pennsylvania; but it is’now settled that it M not the nature of the punishment, but of -the of-fence, which determines its infamous, character: 2 Russell on Crimes 974; 1 Greenleaf’s Ev., § 372, in note 3; 3 Casey 465. Infamous crimes are treason, felony, and every species of the crimen falsi, such as forgery, perjury, subornation of perjury, and offences, affecting the public administration of justice; such as bribing a witness to absent, himself, and not to give evidence, and conspiracies • to obstruct the administration of justice, or falsely to accuse one of an indictable crime: 2 Russell- on Crimes 973; 1 Greenleaf’s Ev., § 373. This is clearly the limitation of the infamous crimes as understood in this state; as may be seen in the following cases: Commonwealth v. Shaver, 3 W. & S. 342-3; Bickel’s Ex’r. v. Fasig’s Adm’r, 9 Casey 464-5. And see argument of counsel in Commonwealth for use v. The Ohio and Pennsylvania Railroad Co., 1 Grant 331, 2, 3, 4.

There are many offences,- involving both falsehood and fraud; which' are punished as infamous crimes are usually punished in this state, and yet are not infamous crimes, and .will not exclude the offenders as witnesses : Commonwealth v. Shaver, and Commonwealth v. Ohio and Penna. Railroad Co., supra; 1 Greenleaf's Ev., § 373. In Massachusetts it is held that the offences of receiving stolen goods knowingly, and cheating by false pretences, will not render the offenders infamous : Commonwealth v. Rogers, 7 Metcalf 500; Utley v. Menich, 11 Id. 302; and see 1 Whart. C. L. § 761. As remarked by Woodward, J., in 9 Casey 465, the tendency of the judicial mind is against objections to competency. -Such also is the direction of legislation, to be seen in § 181 of the Act of 31st March 1860, Brightly’s Dig. 247, pl. 190, which gives to a convict who endures his punishment, for a felony or any misdemeanor punishable with imprisonment at labor, the advantage of a full pardon, except as to wilful and corrupt perjury. Fulfilling his' sentence, therefore; restores the offender to competency as a witness. The Act of 15th April.1869, declaring that no interest or policy of law shall exclude a party or person from being a witness in any civil proceeding, runs in the same direction. In all these cases the objection goes to the credibility of the witness rather-.than to his. competency. Fot the error in rejecting the witness, the judgment is reversed, and.a venire de novo awarded.