#### William Boardman *versus*Jeremiah Gore and Another.

A & B being copartners in trade, B makes a promissory note, payable to C or order, subscribes it with the name of the firm, and writes the name of C as endorser, without his leave or knowledge, and with intent to defraud any future holder of the note: he delivered it, thus endorsed, to a broker, who sold it to the plaintiff. It did not appear that A was knowing to the making, or fraudulent endorsement, of the note. The plaintiff recovered the amount of the note, in an action against A & B for money had and received.

Assumpsit against the said *Gore*and *Joseph D. Grafton,*upon a promissory note purporting to be made by the said *Gore 8f Grafton,*payable to *Thomas Cushing,*or order, in four months from the date, with grace, dated the 18th of November, 1816, for the sum of 1085 dollars 78 cents, and to have been endorsed by said *Cushing*in blank. The declaration contained several counts on the note, ana also the general money counts.

It was agreed by the parties that the said *Gore fy Grafton*were the» partners in trade as shopkeepers, doing business in *Boston**301under the firm of *Gore 8f Grafton,*and that *Thomas Cushing*was a merchant in trade in said *Boston,*of good credit, who had often before endorsed negotiable paper for the firm of *Bacons 8f Grafton,*which company * was dissolved shortly before the commencement of said copartnership of *Gore fy Grafton,*and of which the said *Grafton*was, but the said *Gore*was not, a member.

The note declared on was made by the said *Grafton,*and signed by him in the name of the firm ; and he, without the leave or knowledge of *Cushing,*and with the intent to defraud any person who should become the holder of said note, by giving to the same the credit of the said *Cushing’s*name, put the name of the said *Cushing*upon the back thereof, in imitation of his signature, and handed the same to one *Sumner,*a broker, for the purpose of getting it discounted as the note of *Gore &f Grafton,*endorsed by *Cushing,*with out disclosing to *Sumner*that the note was not endorsed by *Cushing*himself.

*Sumner*sold the note to the plaintiff as the note of *Gore fy Grafton,*endorsed by *Cushing,*believing it to be such ; without stating to the plaintiff who gave .him the note, or making any particular explanation in regard to it; nor did the plaintiff know how, for what purpose, or for whose account, the note was in the hands of *Sumner;*but only that he acted as a broker in the business. And the plaintiff purchased the same, upon the credit of the names of the promisors and supposed endorser, at a discount of one per cent, per month, being the rate at which good commercial paper was then passed on the exchange. The money received therefor by the broker was by him paid over to said *Grafton.*Many notes of the said *Bacons 8f Grafton*had been in the market, some months previous to this time, with the real endorsement of *Cushing.*

Many other notes of the like description were made by said *Grafton,*about the same time, and delivered to brokers to be discounted, of which the plaintiff was wholly ignorant. The said *Grafton*absconded on the 18th of January, 1817, and has since remained out of the commonwealth, or has concealed himself.

There was no evidence, but the note itself, that the defendant *Gore*had knowledge of the making, or of the * fraudulent endorsement thereof; and he does not admit that the note is evidence to this purpose.

If in any form of declaring upon the note, or any of the money counts, the plaintiff was entitled to recover upon the foregoing facts, the defendants were to be defaulted, and judgment entered accordingly ; if not, the plaintiff was to become nonsuit.

The cause was argued at the last March term by *Gorham*and *302*Peabody*for the plaintiff, and by *Prescott*and *Gallison*for the defendant Gore, the other defendant having never entered an appearance. *309in *England,*where a survey was had, the cargo unladen *and*warehoused, and the ship taken into dock to be repaired. She was again ready for sea on the 15th of March, 1817, and on the next day sailed from *Plymouth*for *Philadelphia ;*where she arrived on the 30th of April following, and delivered her cargo in good order The net freight earned was 1028 dollars; being the same amount which would have been earned if the ship had not met with any disaster, — and the defendants do not admit that the valuation in the policy is conclusive on them, as to the amount, if any, to be recovered in this action.

*302*For the defendant*it was argued,

that the cause of action arose out of a public crime punishable by indictment; and that no one should seek to retrieve, by a civil action, a loss occurring from the commission of a crime. (1) The authorities referred to prove tho‘ no recovery can be had as upon the note; and it is absurd to say that a recovery may be had on the general money counts, which is negatived by the same principles.

But if *Grafton*might have been liable, no action lies against *Gore.*Here was certainly no joint contract, express or implied. One copartner can by no rule be made answerable for the crimes or frauds of another committed without his consent or knowledge. Although the plaintiff might waive the fraud, and rely on his con tract, this could be only against him who has committed the fraud. There is no evidence of the receipt of the money by *Gore.*To make him liable, it should be traced to his hands. And *Graftoris*criminal intent in the transaction removes any presumption of his acting on the joint account of himself and his partner. (2)

The plaintiff is chargeable with loches; and the defendant *Gore*ought not to suffer by the negligence of the plaintiff, in omitting the necessary inquiry and examination respecting the genuineness of the endorsement. As respects *Gore,*the maxim, *Caveat emptor,*applies with full force.

*The plaintiff cannot recover as on a loan of money; for on this ground the defence of usury would meet him. Besides, it is contrary to the evidence, which is of a sale of the note at market, without a declaration for whose account the sale was.

Had *Grafton*used his own name only as promisor, no action could be maintained against him, as upon a note payable to *Cushing,*or order; for in such case the plaintiff must claim through a forgery *Cushing*alone could give a title, by his endorsement. No one can derive a title to an assignable instrument through a fraudulent assignment ; nor, in such a case, could a recovery be had against *Grafton,*as on a note payable to bearer; for this would be to change the whole nature of the contract. This is different from the cases of a fictitious payee; for in those cases there was no fraudulent act or intent.

*303It is against public policy that a recovery should be had in cases like the present, as it lessens or destroys the motive for prosecuting the crime, and bringing the criminal to justice. In no case can an express promise be waived, and a recovery had as upon an implied one ; where crime is the cause, that prevents the recovery upon the express contract.

*For the plaintiff*it was said,

that the meaning of the rule of the *Fnglish*law, that a contract is merged in a felony, is no more than this, — that, for an injury which amounts to a felony, the party injured shall not have a civil action. And the reason of the rule is, that the common law has provided another remedy by appeal, which at the same time procures the punishment of the offender, and satisfaction to the party injured. (3) But here the reason does not exist, and of course the rule has no force ; and in the case of *Master*vs. *Miller,*Buller, J., says that the rule applies only *to*actions of trespass or tort.

In the case of *Gibson & Al.*vs. *Minet & Al.,*and in the cases which led to that decision, the point presented in the case at bar was not decided. In *Mead*vs. *Young,*the reason * that the plaintiff failed of recovering was, that the property of the note was still in the real payee.

In this country it is equally the duty of every citizen to prosecute a felon. The sufferer is no more bound to do it than any other, nor can he derive a personal benefit from it. The plaintiff, in this case, is not seeking to convert a crime into a benefit. He has part ed with his money upon collateral security, which has failed. Suppose the defendants had borrowed this money of the plaintiff, and had pledged to him, to assure the payment, goods which they had stolen ; would this be a valid objection to his recovering the money lent ? If one pay money on a forged bill of exchange, both payer and payee being innocent, he shall recover it back. (4) It were strange that the guilt of the defendant should furnish him a better defence. (5)

It is true that partners are not liable for the crimes of each other; but they are often liable for the consequences of such crimes. The attainder of one works a forfeiture of the whole partnership effects; and if one of them gives the joint security of the firm for his own private benefit, both are bound, unless the person receiving it knew that the benefit was not to accrue to the company. (6)

*304The-plaintiff may recover on the note within the authority of the cases of a fictitious payee. (7) But if not on the note, he is well entitled, as for money had and received. The making of a negotiable promissory note, and the acceptance of a bill of exchange, is an acknowledgment that the maker or acceptor has money of the holder in his hands, be he who he may. (8)

If the plaintiff is chargeable with loches, it is not for the defendant to make the charge. It is true he has not the security of *Cushing,*as endorser, as he had reason to believe; but shall the defendants therefore avoid their own engagements ?

The action was continued for advisement; and now the opinion of the Court was delivered by

(1)

 4 *D. & E.*30, *Mead*vs. *Young. —Ibid.*332, *Master*vs. Miller.—3 *D. & E.*178, *Tatlock*vs. *Harris.*— 1 *H. Black.*569, *Gibson & Al.*vs. *Minet & Al.*in Error. — *Styles,*346.

(2)

*Vóet, Comm, ad Band.*750. — *Watson on Partnership,*248.

(3)

*Rol. Mr. Trespass,*20, *&c.*— *Bac. Abr., Actions on the Case,*K.

(4)

*Doug.*637, *Ancher*vs. *Bank of England.*

(5)

*Bull.*N. *P.*130.—4 *D. & E.*485 *Irving*vs. *Wilson. —*4 *Esp. R.*201.

(6)

 1 *Watson on Partnership,*195, 377. —2 *Esp. R.*524, *Arden*vs. *Sharpe & Gilson — Ibid.*731, *Wells*vs. *Masterman & Al.*— 7 *East,*210, *Swan & Al.*vs. *Steel & Al.*— *304*Cowp.*814, *Willet*vs. *Chambers.*— *Doug.*228, *Robson*vs. Calze.—5 *D. & E.*601, *Smith & Al.*vs. *Jameson.*

(7)

*Chitty on Bills,*58,77. — 1 *H. Black.*313, *Collis & Al.*vs. *Emett.*— 1 *Camp,*130, 380. — 3 *Burr.*1516, *Grant*vs. *Vaughan.*

(8)

 3 *D. & E.*174, *Tatlock*vs. *Harris.*— 3 *Burr,*ubi supra.—12 *Mass. Rep.*172, *State Bank*vs. *Hurd.*— 6 *Johns.*110, *Willson*vs. *Foree.*— 3 *Camp.*101.

* Parker, C. J.

The first objection to a recovery by the plaintiff, and the one upon which the principal reliance seemed to be placed at the argument, is that the act of *Grafton,*in endorsing *Cushing’s*name upon the note, was a forgery by him; and that no civil action can arise out of a forgery, or be founded on a criminal transaction, in which the party sued was the agent.

The authorities cited to show that such is the common law of *England*are not very decisive on the subject. It is said, *arguendo,*by several of the judges, in delivering their opinions before the House of Lords in the famous case of *Gibson & Al.*vs. *Minet & Al.,*that it is against the policy of the law to permit a party, who has suffered by the crime of another, to seek a remedy by a civil action ; because he would be the less ready to prosecute, and bring to justice, the offender. And in the case of *Tatlock*vs. *Harris,*similar expressions are dropped; and in some other cases it is observed that the civil remedy is merged in a felony.

*(a)***To what extent the doctrine is now admitted in *England,*is matter of doubt. If it is limited to the principle that a man shall not derive his title to an action through a felony,, perhaps this may be universally true. But if it would prohibit one from a remedy, by a civil action, for an injury occasioned by the crime of another, it is by no means clear that it is in force in *England.*Certainly it is not in this country. In the case of the lamb driven to market, stated in *Buller’s Nisi Prius,*131, an action for money had and *305received may be brought by the owner for the price; and it is there said that, if the lamb were stolen, trover would be the proper action. And in the case of the nurse who ran off with the dead man’s money, also mentioned in *Butter,*130, the administrator had a like action.

These cases show that the doctrine of merger, by felony, of a civil action, is not always to be set up in defence, against an action for compensation of an injury, the commission of which may have been criminal.

* The common actions of trespass for assault and battery, and of slander in case of libel, also prove that the general position, that where the injury sustained is occasioned by crime there is no civil action, is not universally true. T apprehend that the doctrine, if true at all, is limited to the case of robberies and larcenies, which by the common law are felonies; and that the civil action was prohibited, lest it should be, in effect, like a composition with a felon — the injured party being willing to reimburse himself, and careless of the general interest, which requires the public punishment of the offender. And that this is the foundation of the doctrine may be inferred from the fact, that the party robbed was, by the *St at.*21 *TI.*8, to have reparation from the estate of the offender, upon conviction; and from the further fact, that trespass would lie on a felony of which the party had been con victed, as appears in *Roll. Abr.*55, *Trespass, pl.*20.

It is possible, also, that another circumstance may have given rise to the doctrine. By the common law, the lands and goods of a felon were forfeited to the crown, and death also was the punishment. Now, to give an action, where the body could not be taken in execution, and where all the lands and effects belonged to the king, would be entirely fruitless. No remedy whatever could be had; and the provision, by statute, for a recompense out of the estate, was the only relief which the injured party could have.

These reasons do not exist with us. There is no forfeiture of lands or goods on conviction of crimes; nor is there any recompense provided by the public; nor is the criminal party punished with death; —so that, in many cases, the injured party may have a remedy against the person, and in all cases against the estate of the person, who did the wrong; and this is surely better than to suffer his estate to go to his heirs, perhaps swelled by the very depredations for which, it is said, he is not answerable *civiliter.*

It is laid down, in *Bac. Air.*tit. *Actions on the Case, K.,*that a person guilty of felony, and pardoned or burnt in the * hand, may be proceeded against in a civil action at the suit of the party injured; although it is said that no action can be brought whilst the party is under indictment for the *306same crime. And the reason given is, that it might hinder all exemplary punishment; and *Style,*346, is cited for this latter position. Perhaps the true reason is that, until the party is pardoned, or has received the benefit of clergy, it is to be supposed that he will forfeit his life, and all his estate to the king.

But whatever may have been the reason on which the common-law doctrine was founded, it is plain that the reason has ceased with us; and *cessante ratione, cessat et ipse lex.*In the few cases of felony which are punished with death here, it may be that the principle is still in force s.o far as that the felon may not be sued in a civil action until after acquittal or pardon. For, if convicted, he will be executed ; and as all felonies include a trespass, the action dies with him. But there seems to be no reason why the injured party may not have an action for his damages, where the wrongdoer is living, and has estate sufficient to compensate the wrong.

In the action before us, the objection is that the plaintiff cannot maintain the action, because the money sued for was obtained from him through the instrumentality of a forgery by one of the defendants. As far forth as the objection goes against the recovery by the plaintiff, as endorsee of the note, it is well founded. For, to maintain the action in that shape, he must prove the hand-writing of *Cushing,*the supposed endorser; which he cannot do, as *Cushing’s*name was forged.

But we see no objection to his recovering upon the money counts. *Grafton*received the money of the plaintiff upon a false pretence, having offered the note as endorsed by *Cushing;*and the money so received was instantly, in the eye of the law, received to the use of the plaintiff. He does not claim it through or under a forgery; but merely on the ground that money was advanced by him on the ***faith of a security which turns out, by the fraud of *Grafton,*to be wholly worthless; and so far the case is, in all respects, like the case, decided before by us, of *The Manufacturers’ and Mechanics’ Bank*vs. *the present defendants.*(9)

The only difference between the two cases is that, in the case referred to, there was direct evidence that the money went to the use of the house of *Gore Ef Grafton;*so that there was no doubt but both the partners were liable. In the present case there is no such evidence; and we are now to consider whether, under the circumstances, *Gore*is equally liable with *Grafton*to the plaintiff's demand.

It seems to be a well-settled principle, that general copartners are bound by the acts of each other, when the name of the firm or house is pledged, to any extent; unless the person, who takes a security *307of that sort, has knowledge of some limitation of the authority of the partner who undertakes to bind the firm. This principle is essential to commercial security, and ought not to be shaken. The cases of *Swan & Al.*vs. *Steel & Al,*and *Wells*vs. *Masterman*& *A.,*cited at the bar, establish this principle—which is also laid down in *Watson’s*Law of Partnership, 105, 2:29.

*Grafton,*therefore, by his note, to which he put the signature of *Gore Sf Grafton,*bound *Gore*as well as himself, unless the circumstance of the forgery of *Cushing’s*name makes a difference; and we think it does not.

When the note was signed, payable to *Cushvng,*no crime was committed. The crime was in the subsequent act, the endorsement of *Cushing’s*name. Had *Cushing*taken the note for a debt due to him, it would have been good against the house. When it was offered to the plaintiff by the broker, it was still the note of *Gore Sf Grafton,*notwithstanding the forgery of *Cushing’s*name. The plaintiff probably relied on it, as a good note of *Gore Sf Grafton.*He had no reason to suspect it; for the broker, who delivered it to him, received it from one of the house. He advanced his money upon the faith of both names; for both were then in good credit. Had it been endorsed by * *Cushing,*and afterwards the name of another been forged as second endorser, the plaintiff might have maintained his action upon the note itself, as endorsee of *Cushing.*It is merely because he cannot derive a title through *Cushing,*that he cannot support the count upon the note. Shall he, for this cause, be deprived of his money ?

It has been argued that, as the plaintiff is obliged to resort to his money counts, to recover against *Gore,*he ought to show that he is entitled on grounds of equity, as in the case of the bank before mentioned, where there was proof that the money went to the use of the house. But we think that not necessary. The liability of the defendant *Gore*is derived from the confidence he reposed in *Grafton,*and from the authority given him to raise money upon the credit of the bouse. It is impossible to ascertain whether the money was applied by *Grafton*to the use of the copartnership or not. It may have gone to pay some pressing debt against the firm But whether it did or not, it being obtained upon a note made pay able by the company, *Gore*must be considered answerable, *(a)*

Suppose one partner borrows money on pretence that it is for the use of the company, the person advancing it having no knowledge that it is not to be so appropriated; but in fact it is applied to the private use of the partner to whom it is advanced; shall not the *308lender recover against both ? The truth is, there seems to be no limitation of the authority of any one of a copartnership over the credit of the whole, when dealing with persons as one of a house — such persons having no grounds to apprehend that the one with whom they deal is abusing the confidence of the others. (b)

*Defendants defaulted.*

(a)

 Vide *Stone*vs. *Marsh,*6 *B. & Cr*551. — *Davis*vs. *The Bank of England,*2 *Bingh.*393. — *Crosby*vs. *Long,*12 *East,*409.

(a)

*Etheridge*vs. *Winship & Al.*9 *Mass.*Rep. 272

(b)

 Vide *Stone*vs. Marsh, 6 *B. & Cr.*551. — *Ry. & M.*364. — *Rapp*vs. *Lapham, 9*S. *g/ A.*795. — *Hume*vs. *Bolland,*1 *R. Sf M.*371.