Green v. Higgin Manufacturing Co.

44 App. D.C. 186, 1915 U.S. App. LEXIS 2700

• Court: Court of Appeals for the D.C. Circuit
• Decided: November 29, 1915
• Docket: No. 2836
• Status: Published

Opinion

Mr. Chief Justice SiimARD

delivered the opinion of the Court:

The defendant assigned for error (1) the action of the court in sustaining plaintiff’s objection to tbe question addressed to Ouvier Green as to his knowledge of plaintiff’s intention to criminally prosecute him if bis father’s indorsement were not obtained;. (2) in refusing to grant tbe instruction asked by defendant for a directed verdict in favor of defendant; (3) in instructing tbe jury that if by verbal admission, or written admission, with notice that bis liability bad not been fixed, tbe defendant agreed, after maturity, to pay said notes, tbe defendant was liable under tbe common counts.

1. Tbe first assignment of error is not well taken. The court did not err in excluding tbe answer to tbe question. Tbe question was not directed to elicit any statement by tbe plaintiff’s officials as to their intention to prosecute.

Tbe intention of tbe party was to be deduced from statements made, and not by tbe belief of Cuvier Green as to any intention. Moreover, it appeared that tbe whole of tbe transaction between tbe parties was by correspondence. This correspondence was read in evidence. Cuvier Green bad already testified that be understood from tbe letters tbe intention to prosecute him. Tbe letters do not show that any such threat was made.

2. We are not concerned with tbe question whether tbe certificate of tbe notary public of presentment, nonpayment, and protest was admissible under section 1422 of tbe Code [31 Stat. at L. 1407, chap>. 854].

Waiver of notice is provided for by sections 1413 and 1415.

This evidence was admissible. under tbe allegations of tbe declaration. Manning v. Maroney, 87 Ala. 563—567, 13 Am. St. Rep. 67, 6 So. 343; Norton v. Lewis, 2 Conn. 478-480; Tobey v. Berly, 26 Ill. 426—431; Harrison v. Bailey, 99 Mass. 620, 621, 97 Am. Dec. 63; Smith v. Poillon, 87 N. Y. 590—594, 41 Am. Rep. 402.

It was also admissible under the common counts. Frazer v. Carpenter, 2 McLean, 235, 236, Fed. Cas. No. 5,069; Raborg v. Peyton, 2 Wheat. 385, 4 L. ed. 268; Page v. Bank of Alexandria, 7 Wheat. 35, 5 L. ed. 390.

3. There was no error in refusing defendant’s request for a verdict.

The motion to instruct a verdict for the defendant was founded on the proposition that a note executed with intent to stifle a prosecution for a criminal offense is against public policy and void.

It is true the welfare of society demands that individuals should not be permitted to interfere with the administration of justice by bargaining for the suspension of prosecution of a case if the offense is made punishable by law. O’Toole v. Lamson, 41 App. D. C. 276; Fosdick v. Van Arsdale, 74 Mich. 302—308, 41 N. W. 931; Baker v. Farris, 61 Mo. 389; Steuben County Bank v. Mathewson, 5 Hill, 249-252.

But there was no evidence in this case to the effect that this was the consideration of the indorsement or of the mating of the notes.

It does not clearly appear that Cuvier Green as agent for the plaintiff had committed embezzlement. It certainly does not appear from the correspondence that he was threatened with prosecution therefor, and executed the notes or procured the indorsement of his father for that reason. They appear to have been given to pay a debt, and not to suppress a criminal prosecution. Bibb v. Hitchcock, 49 Ala. 468-475, 20 Am. Rep. 288.

The judgment is affirmed, wdth costs. Affirmed.