Madison County IL Archives Court.....Wright, Vs. People 1819-31
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 4, 2008, 11:37 pm

Source: Reports Of Cases Illinois
Written: 1819-31

December Term 1825, VANDALIA.

James C. Wright, Plaintiff in Error, v. The People, Defendants in Error.

ERROR TO MADISON.

It is not an indictable fraud to generate the condition from the penalty of 
the bond—it is not such an act as common prudence can not guard against. 

The act of 1819, respecting crimes and punishments, has fully provided for 
cases of this description.

Opinion of the Court by Justice Smith.* The early adjudication in England on 
indictments for frauds, appear, from the reports of the cases, to have been 
unsettled and contradictory. The leading case, which seems to have settled the 
doctrine, and to have established a channel through which the difficulties and 
perplexities arising from those decisions might be avoided, is the case of The 
King v. Wheatley, decided in February, 1761, and reported in 2d Burrow, 1125.

The distinction laid down in that case, between public and private frauds, 
has, it is believed, been the great criterion which courts of justice have 
adopted, by which to judge of the criminality of the act, and whether the 
perpetrator was liable to indictment and punishment, under the common law. The 
very lucid opinion of Lord Mansfield in that case, and unanimously concurred 
in by all the judges present, although not obligatory on this court, will yet 
certainly be respected, when the elevated characters and great legal 
attainments of the persons who composed that tribunal are considered. The 
opinion of Lord Kenyon was, that that case established the true boundary 
between frauds that were, and those that were not, indictable at common law. 
That case required that the fraud should be of such a nature as would affect 
the public, of that it should be a deception that common prudence and care 
could not guard against, or that false tokens should have been used, or a 
conspiracy entered into to cheat. The offense, in the language of Lord 
Mansfield, to be indictable, must be such an one as affects the public; as, if 
a man uses false weights and measures, and sells by them, to all or to many of 
his customers, or uses them in the general course of his dealing. So if a man 
defrauds another under false tokens—for these are deceptions that common 
prudence and care are not sufficient to guard against. So if there be a 
conspiracy to cheat—for ordinary care and caution is no guard against this.

The cases here put are certainly more than mere private injuries, they are 
public offenses. This doctrine has been fully recognized by the supreme court 
of New York, in the case of The People v. Babcock, 7th Johns., 201.

In the present case it is a mere private injury—the public could in no way be 
affected by the act; nor is it a case of false tokens, which is necessary to 
be shown in a fraud on a private individual. The act of separating the 
condition written underneath the obligation, which was to determine the time-
of payment and liability of the parties to it, can not be considered as an act 
which common prudence might not have guarded against. It might have been 
avoided in various ways. By taking from Wright an instrument expressive of the 
condition upon which the obligation was given, instead of having it 
underwritten, or by having the condition inserted in the body of the 
obligation, according to the most common and usual method in practice.

The form of the obligation and defeasance, serves only to show with reference 
to the present case, that the obligors reposed great confidence in the person 
to whom they gave it. I feel more confirmed in the general view taken of the 
case, upon an examination of the sixth section of the acts of the legislature 
of this state of the 23d March, 1819, respecting crimes and punishments, which 
has fully provided for the defacing of instruments, obligations, &c, to which 
class of cases the present one might safely be arranged. The judgment of the 
circuit court must therefore be reversed. (a)

Judgment reversed.

----------------------
* Lockwood, justice, having prosecuted the defendant in the court below while 
attorney general, gave no opinion.

(a) The sixth section of the act respecting crimes and punishments, approved 
March 23d 1819, p. 215, provides, "That whoever shall forge, deface, oorrupt 
or embezzle any charters, gifts, grants, bonds," &c, shall be deemed guilty of 
forgery, and shall be fined, put in the pillory, and rendered infamous.

Additional Comments:
Reports of Cases at Common Law and in Chancery, Argued and Determined in the 
Supreme Court of the State of Illinois, From its First Organization in 1819, 
to the End of December Term, 1831. By Sidney Breese, Counsellor at Law. Second 
Edition, with Additional Notes, By Edwin Beecher. Chicago: Callaghan & 
Company, 1877.

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