McHugh v. County of Schuylkill

67 Pa. 391, 1871 Pa. LEXIS 122

• Court: Supreme Court of Pennsylvania
• Decided: February 9, 1871
• Status: Published

Opinion

The opinion-of the court was delivered,

by Read, J.

If the story told on the- part- of the plaintiff is-believed, then his name was forged- as a surety upon a bond given to the county of Schuylkill by a collector of taxes, by the principal in the instrument.. Assuming.this to be a fact for the purposes of the case, the question is, was the court- in error either in its answers to the points, or in 'its charge. to the' jury ? A forged deed is void. The plaintiff cannot write, and there is no mark to the name of James McHugh on the bond, and the name is proved to .be in the handwriting of his-, daughter, who was directed by McKenna, the principal, to sign it, and if thé testimony is believed' without a shadow of. authority from the plaintiff McKenna, using the daughter and son as' hi's innocent instruments in committing, this, crime. - There is not a particle of evidence that the commissioners or any of. the county authorities ever'saw the plaintiff, but the.whole testimony which is relied- on to establish the plaintiff’s liability, are vague conversations and declarations from which approval, acquiescence or ratification are inferred.

. From the answers to the defendant’s point.s; and the charge of the court, the- learned judge appears to have instructed the jury that if the plaintiff subsequently approved and • acquiesced in this void act, or ratified it or subsequently approved of it, then the bond was binding upon him. No new consideration of any kind was either alleged or pretended, and the cases of Duncan v. McCullough, 4 S. & R. 483, Chamberlain v. McClurg, 8 W. & S. 31, 36, Goepp’s Appeal, 3 Harris 428, show clearly, that under the circumstances the act simply retains its original character, and. is entirely void.

Judge Rogers says, 8 W. & S. 36, “ The principle which rules this part of the case, is ruled in Duncan v. McCullough, administrator of Findley, 4 S. & R. 486. When there has been actual and positive fraud, or the adverse party has acted malá fide, there can be no such thing as a confirmation; what was once a fraud, will always be so. The reason is,- that a contract infected with fraud, is not merely voidable, but void, and confirmation without a new consideration would be nudum pactum.”

Can there be any doubt of the application of this rule to a' forged bond or - deed which involves the commission of a heinous crime, punishable with a fine not exceeding $1000, and imprisonment by separate or solitary confinement at labor not exceeding ten years ?

The case of Garrett v. Gonter, 6 Wright 143, has really no application whatever; for the alleged forged power of attorney was not ratified at all, and the only alleged ratification was of a mortgage which was “ executed in her name by a professed agent acting under a real or a pretended authority” — “ to ratify that required no new .consideration from the mortgagee.”

In two cases this term, forgeries are alleged of sureties’ names to bonds of collectors of taxes in Schuylkill county, and we believe embezzlements of the public moneys charged against the principals. The commissioners should certainly exercise more care and caution in selecting honest officials, and in taking good security.

Judgment reversed, and a venire facias de novo awarded.