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

ERROR TO MADISON.

It is not an indictable fraud to separate 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, or 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. *103The 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, corrupt, 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.