
    The State vs. S. Martin.
    1. It seems that the endorsement of a partial payment upon a note or bill single, may have the force and effect of a formal receipt or acquittance, if made by the agreement of the parties, for the purpose of making it evidence of payment, and in such case the alteration or obliteration of such endorsement, with intent to prejudice the right of the obligor is forgery.
    2. An indictment charged that the obligor paid five dollars on a bill single to ■ the obligee, and that the obligee endorsed on the bill single a credit in the following words: “Received, 23d October, 1841, five dollars,” and that defendant obliterated the same, with intent to prejudice the rights of the obligor. It is held that this indictment did not make out a valid charge of forgery.
    An indictment was filed against S. Martin in the Circuit Court of Knox county,, which was in the following words: “The Grand Jurors for the State of Tennessee being duly summoned, elected, empannelled, sworn and charged, to enquire for the body of the county of Knox, in the State of Tennessee aforesaid, upon their oath, present that Samuel Martin, late of said county, yeoman, on the twenty-third day of October, eighteen hundred and forty-one. having in his custody and possession a certain writing obligatory on Jeremiah S. Evans and John S. Smith, which is in substance as follows, to wit, “Twelve months after date we, or either of us, promise to pay Samuel Martin, of Campbell’s Station, thirty three dollars and fifty cents, in current money, for value received, this 23d December, 1839.
    “JEREMIAH S. EVANS, [seal.]
    “J. G. SMITH, [seal.”]
    And which said writing obligatory, was signed, sealed, and delivered to the said Samuel Martin, by the said Jeremiah S. Evans, in his own proper name, and by the said John G. Smith, by the description J. G. Smith, and sealed with their seals; and on the back of the said writing obligatory the following endorsements were entered, in the words and figures following, to wit, “Received of John G. Smith eleven dollars, 23d January, 1841, ten of it in Tennessee bank notes and one in silver, S. Martin” — “Received 23d October, 1841, five dollars” — which said endorsements, were made and entered in the proper handwriting of him, the said Samuel Martin, and were truly and properly made, giving credit for the said sums of money in each specified, which were paid to the said Samuel Martin: and that the said Samuel Martin, on the said twenty third day of October, eighteen hundred and forty-one, and after the said credits, above mentioned, were duly entered on the said writing obligatory, to wit, in the county aforesaid, with force and arms, unlawfully, fraudulently, falsely, and feloniously, did alter the said last-mentioned credit, which was credited on the back of the said writing obligatory, which was a credit of five dollars paid by the said Jeremiah S. Evans to the said Samuel Martin, by drawing a black line with ink through the said credit for five dollors on the writing obligatory aforesaid, and by obliterating the said credit of five dollars, so as aforesaid entered upon the said writing obligatory, on the day and year last aforesaid, with intent to prejudice the rights of the said Jeremiah S. Evans and John G. Smith, by defrauding them of five dollars, for which they were entitled to a credit on the said writing obligatory, so as aforesaid given by them, the said Jeremiah S. Evans and John G. Smith, to the said Samuel Martin, contrary to the form of the statute in such case made and provided to the evil example of all like offenders, and against the peace and dignity of the State.”
    The presiding Judge (Scott) sustained the demurrer to this indictment and judgment was rendered for the defendant. From this judgment the State appealed.
    
      Attorney General, for the State:
    This indictment alleges the execution and delivery of a bill single to Martin by Smith and Evans, the payment by them of five dollars to Martin, and the execution of an endorsement on the note of five dollars as written evidence on the instrument itself of the payment of that amount, and the extinction of so much debt and the reduction of the amount due on the note. This endorsement is averred to be in the handwriting of Martin, This endorsement becomes a part of the bill single. It becomes so by the conjoint force of the payment and the entry by the holder of the note. The object of an entry on the back of the note by the owner is to show the extent of indebtedness between the parties, and to show it on the bill itself, so that if passed, it shows the state of indebtedness in the hands of third persons, and it is entered in the handwriting of the obligee to bind him by his written acknowledgment or receipt to a given amount of credit and a given balance as due on the note.
    
      In all cases of payment of a note or obligation, the payee or obligee is entitled to the possession of such note as a matter of right, as evidence of the payment, and it would seem, from the current of decisions, to a receipt also» as the most satisfactory safeguard against demands and suits for repayment thereof, and if a party refuses to deliver the note, the payee or obligee may refuse to pay, and this would be a successful plea to an action on the note. Story on promissory notes p. 544, sec. 445, 450, Chi tty on bills, 261, chapter 6.
    Story says, sec. 452: “It has been considered doubtful whether the maker of a note, or other party paying a note is entitled to insist upon a receipt from the holder. It would now seem, upon general principles, that he is entitled to claim it as a matter of right. In cases of bills of exchange it is usual to give a receipt upon the back of the bill, and by parity of reason, it would seem that the same course should be adopted in cases of promissory notes. In cases of part payment, it would seem proper'to endorse the amount paid on the back of the note, otherwise the maker may be liable to pay the amount again to a bona fide endorsee.” Chitty on bills, ch, 9, p. 456, 8th ed.
    The importance of a receipt on the back of a note vvhere there has been a part payment is so manifest that all can perceive it. It is important if the note should get into the hands of a third person, in order to protect the maker against a second payment of what has already been paid: if payment of any part should have been made before due, it is important to prevent the obligee or payee from imposing on, or defrauding third persons and involving such third persons with the maker in litigation. It is important to therrepose of the community and to the circulation of such instruments as commercial currency that they should exhibit the true relation of indebtedness between the parties; and in effect it sustains the credit and currency of over due paper, by the evidence of the fact endorsed, that a part of the sum is paid, thus acknowledging the validity of the paper. It is right that it should be there placed by the obligee, because it is intended to reduce the amount of his claim, and to bind him to it by written evidence. These are some of the reasons which have established by immemorial commercial usage, the endorsement of amounts paid on such instruments on the back of them, and when reasons of convenience and safety have established the commercial rule, the obligee or payee has the right to demand the endorsement on the back of the paper, or refuse to pay it. This course of decision generally tends to the security a.nd accuracy of business, and the defeat of loose habits of dealing, which always result in litigation, and should, therefore, be sustained by this court.
    It having been established that the obligor has a right to demand a receipt on the back of the note for his own protection, and to bind the obligee, it follows that when a payment has been made and the endorsement as evidence thereof binding the obligee, has been duly entered on the back of the instrument, that he has no right to alter that endorsement because the legal effect of an obliteration of the endorsement is to raise the amount of indebtedness to the original amount of the note. It creates an increased liability against the obligor as fully and as completely as the addition of figures could do. It destroys the evidence of defendant’s payment and leaves an increased claim against the obligor in the' hands of the obligee or holder, to whom he may have assigned it.
    But if it be regarded by the court that the obligee on payment of part has no right to demand an endorsement of such part payment on the back of such instrument in conformity with commercial usage, still it having been endorsed in conformity with immemorial commercial usage the obligee would have no right to obliterate it and change the relations of indebtedness between the parties as made manifest by writing.
    I do not think this argument can be satisfactorily answered; and if not, this case is embraced in the following language from Russell, vol. 2, p. 294: “not only the obliteration and false making of a written instrument, but a fraudulent insertion, alteration or erasure even of a letter in any material part of a true instrument, whereby a new operation is given to it, will amount to forgery.”
    That the operation of this obligation is changed by the erasure of the endorsement is plain and cannot be controverted.
    The indictment charges that the obliteration was made with a fraudulent intent. The truth of this allegation is a matter for the jury to determine, if submitted; which, however, is admitted by the demurrer. The obliteration was made with a view and purpose to charge the obligor with the full amount of the note, contrary to the justice of the case. In the earlier ages of the common law, forgery seems to have been confined, in some measure, to the fraudulent obliteration of records, and writings of public moment — deeds, wills, &c. — and did not embrace the counterfeiting writings of an inferior nature, which would exclude nearly all the instruments in use in the commercial world at the present day. This idea has been exploded as the paper securities of modern times have been developed and gradually unfolded, and it is mow established in English common law as well as by the penal code of 1829, that the penalties of forgery extend to the counterfeiting of writings of any sort, whereby any person may receive a prejudice, if done causa lucri or malo animo. 2 Russell, 330.
    It is of deep importance that all instruments of use in the commercial world should be protected against fraudulent and felonious alterations.
    It may be urged that Martin, in this case, had not passed or offered to pass or published the instrumeht in question, with the endorsement stricken out, and as exhibiting the amount of indebtedness between himself and obligor. This only makes it more difficult to prove the fraudulent intent with which the erasure was ,made. It does not effect the completeness of the crime. Russell says, p. 295: “The offence of forgery may be complete though there be no publication of the forged instrument, for the. very making, with a fraudulent intention and without lawful authority, of any instrument which at common law or by statute, is the subject of forgery, is of itself, a sufficient completion of the offence, before publication, and though the publication be the medium by which the intent to defraud is usually made manifest, yet it may be proved as plainly by other evidence.”
    
      J. M. Welcker, for the defendant:
    The indictment sets forth a bill single, or writing obligatory, that purports to have been executed to the defendant by Jeremiah S. Evans and John G. Smith, on the 23d December, 1839, for thirty-three dollars and fifty cents, in current money — due twelve months after date. It also alleges that there were two endorsements on said bill single, the last of which, in the words and figures following, “Received, 23d October 1841, five dollars,” is the one the indictment charges the defendant with having altered 'and obliterated by drawing through it a black line of ink.
    
      1st. This endorsement is not such an instrument, for the erasure or obliteration of which a forgery can, in law, be assigned. It does not in words, or in legal contemplation purport to be a receipt or acquittance, to any named individual. There is no name signed to the endorsement; there is nothing in it showing by whom, or from whom, monies were received, nor upon what account. See Rex. vs. Harvey, Russ, and Ry., 227; Russ, on crimes, mar. 467.
    2d. The indictment should aver that the said endorsement purports to be, and was intended to operate as a receipt for the sum of five dollars, paid to the defendant, by one of the obligors in said note, and which was also paid to the defendant on account of the said note or bill single. See Hunter’s case, Russ, on crimes, 465-6; mar. page — See Thompson’s case, Russ, on crimes, 401, top page.
    3d. The indictment charges the alteration to have been made by drawing a black ink line through the said credit, so as to obliterate it. But there is no averment that the credit was so obliterated or altered as to render it illegible. Indeed, the contrary, in effect, is averred, for the endorsement is set out according to its tenor, which means an exact and literal copy; and this could not have done, if the endorsement was wholly illegible. See Arch, criminal pleading, 48.
    4th. If, notwithstanding the black line of ink through the credit, it can still be seen and read, the obligors in said bill single could yet avail themselves of the benefit of it in a suit against them; and consequently their rights have in no way been prejudiced by the obliteration, &c. Pothier on obligations, mar. page 276.
   Green, J.

delivered the opinion of the court.

This is an indictment for forgery. It charges in substance, that the defendant had in his possession a bill single for $43 50, executed and delivered to him by Jeremiah S. Evans and John G. Smith; upon the back of which were two endorsements, in the proper handwriting of the defendant, giving credit for the sums of money therein specified. The latter endorsement, which forms the subject matter of the supposed forgery, is in the following words and figures, viz., ‘’Received, 23d October, 1841, five dollars.” The indictment further charges, that the defendant “falsely, fraudulently, and feloniously, did alter the said last-mentioned credit, on the back of said writing obligatory, which was a credit of five dollars paid by the said Jeremiah S. Evans to the said Samuel Martin, by drawing a black line, with ink, through the said credit for five dollars, on the writing obligatory aforesaid, and by obliterating the said credit of five dollars, so as aforesaid entered upon the said writing obligatory,” with intent to prejudice the rights of the said Jeremiah S. Evans and John G. Smith, &c.

The defendant appeared and demurred to the indictment; the court sustained the demurrer, and the Attorney General, in behalf of the State, prayed and obtained an appeal in error to this court. The question for our consideration is: Do the allegations and averments of the indictment make out a case of forgery, within the intent and meaning of the act of 1839, ch. 23 sec. 31?

In the case of The King vs. Mason, 1 Leach, 487, it is laid down, “that the offence of forgery must be plainly stated on the face of the indictment, that the court may see that the charge is of that species which the law has denominated an offence:” we need not, in this case, stop to enquire whether or not the forgery of a receipt, or acquittance in the proper sense of these terms, would amount to forgery under the statute referred to. For, conceding that it would, it is very clear that the endorsement, or credit, as it is alternately styled in the indictment, does not upon its face purport to be'either a receipt or an acquittance; nor, as set forth is it such a writing as can be the subject of forgery. We do not mean to be understood as holding that the endorsement of a part payment upon a note, or bill single may not have, in all respects, the force and effect of a formal receipt or acquittance, if designed so to operate: on the contrary, if made with the knowledge of the parties, and by their mutual concurrence and agreement, and for the express purpose of making it evidence of the payment or extinguishment of so much of the debt due by such note or bill single, it is difficult to perceive why it should not have such effect and operation given to it. Nor is it even necessary, in deciding this case, to hold, that a mere memorandum of payment placed upon a note or bill single, in less technical and solemn form, may not, under certain circumstances, have such effect and operation. It is sufficient that the writing in question, as described and set forth in this indictment, is not of a character to make the alteration or obliteration thereof forgery. In the case of The King vs. Hunter, 2 Leach. 624, which was an indictment for forging a receipt, it is laid down, “that the instrument intended to have been used as a receipt must appear upon the face of the instrument, so set out, that it is a receipt; and ’ supposing the words, letters, or figures, charged to have been forged, do not, of themselves, purport to be a receipt, there must be an averment of some facts> stating that the words, letters or figures, import and signify a receipt. It is not enough, in an indictment for forgery merely to call the paper writing, charged to have been forged, a .receipt, but it must show that the writing either purports to be a receipt on tbe face of it, or aver that it was intended to be used as a receipt.”

The endorsement upon the bill single in this case, charged to have been obliterated, does not, upon its face, purport to be a receipt or acquittance; it is not so styled, nor is it averred that it was intended so to operate. It is not signed by any one, nor does it show by whom, or from whom, or on what account, the money was received. There is nothing averred in the indictment to show that the endorsement was placed upon the bill single with the knowledge of, or at the request of the obligors; or that it was intended as a receipt or acquittance; or that their rights could be effected either by the making, or the obliteration thereof. For any thing appearing in the record, it was a mere memorandum voluntarily made by the defendant, perhaps through inadvertence or mistake, in which the obligors had no interest, and the obliteration of which could not, in legal contemplation, prejudice their rights. It might as well have been made by the defendant, if made at all, upon his day-book, or on a separate piece of paper, in which case no one would have questioned his right to deface or destroy, it at pleasure; and its mere juxtaposition in reference to the bill single, which alone gives color to the mistaken idea of an infringement of the law, or the rights of the obligors, cannot in the least degree change the complexion of the case. In obliterating the memorandum, from all that we can see of the case, the defendant was guilty of neither legal or moral wrong.

The idea of a fraudulent purpose would seem to be repelled by the simple fact, that the first and larger credit endorsed on said bill single, remains untouched.

We think there is no error in the judgment of the Circuit Court, sustaining the demurrer.  