the package to New York, either by itself or its agent, the Adams Express Company, and then deliver it according to its superscription. You are not, however, to confine your consideration upon this point to the terms of this receipt exclusively. You may examine the way-bills and other blank forms of the defendant to ascertain what its contract was, and you may take into consideration any statements you may find to have been made to plaintiff by the superintendent or other agent of the defendant in reference to the transmission of these or other packages, or any special contract or understanding made by defendant's agent with plaintiff.

If you shall find under these instructions that the defendant only contracted to carry the packages of the plaintiff over its own routes, and then to deliver them to another company for transmission to its destination, and that it has performed this contract, then that is an end of the case against the defendant, so far as its liability as a common carrier is concerned. If, however, you find that the defendant undertook to convey the packages to New York and then deliver them to the persons to whom they were addressed, you will then proceed to consider another branch of the defendant's defence. This is, that the rule of the defendant was that packages containing money should be sealed in a certain way, that the amount of the contents should be endorsed upon the package, and a certain rate of compensation for carriage in proportion to the amount of money conveyed should be paid. That the plaintiff, well knowing this rule, placed the money which he alleges was lost in an envelope not sealed according to the rules, nor containing a statement endorsed upon the envelope of the amount of the contents, and that he only paid the rate charged by the defendant for the transmission of an ordinary letter containing no enclosure of value; and that by reason of this default on the part of the plaintiff the packages were intrusted to an agent of the Adams Express Company in New York, who was only employed to deliver ordinary letters, and not valuable packages, and was thereby lost.

Upon this branch of the defence I instruct you, that the rules of the company, in order to have any influence upon the decision. of the case, must have been known to the plaintiff, and these rules must have been settled and uniform. If these rules were not by the proof brought home to the notice of the plaintiff, or if the

defendant was in the habit of departing from them, and allowing exceptions to be made to them, and these facts were known to plaintiff, or if there was any understanding or agreement between the plaintiff and the agent or superintendent, that the rule was not to be enforced against the plaintiff, in either of these cases the existence of the rules can have no effect upon the decision of this case. In short, the rule must be settled, uniform, and known to plaintiff. If you find they were thus settled, uniform, and known to the plaintiff, and no exception was made by the agent of defendant in his favor exonerating him from a compliance therewith, and you find that the contents and value of the packages sent by plaintiff were improperly concealed by him from the defendant for the purpose of depriving the defendant of a part of the compensation it would otherwise have claimed for the transportation and risk, the defendant would not be liable if using the ordinary vigilance which a prudent man would exercise over his own property of the same apparent value. I instruct you further, that if by reason of the failure of the plaintiff to comply with the rules of the defendant known to him, the defendant was ignorant of the value of the package, and, in consequence thereof, was induced to intrust the package to a messenger who was employed only to deliver packages of no intrinsic value, and failed to place it in the hands of its messenger known to be honest and trustworthy, who was uniformly employed to deliver valuable packages, and by the dishonesty of the messenger to whom the package was intrusted, it was lost, in that case the defendant would not be liable.

If you should find for the defendant upon these issues, it would nevertheless be your duty to consider that branch of the plaintiff's case which arises upon what are called the common counts. Under them the plaintiff claims that the Adams Express Company is the agent of the defendant, that the Adams Company, as such agent, has not lost the money of plaintiff, or all of it, but has it or a large part of it in its possession, or has converted it to its own use. If you find, under the instructions already given you, that the Adams Express Company is the agent of the defendant, and that it has retained the money of the plaintiff in its possession, or has recovered it from any person who stole it, then you should find a verdict for the plaintiff for the amount which you may decide has come to the possession of the Adams Express

Company and is retained by it, or has been converted by it to its own use, with interest from the date of demand if you should find that a demand has been made, if not, from the commencement of this suit. For although the plaintiff may have knowingly violated the rules of the defendant in the manner of transmitting this money, still that does not divest the plaintiff of his property in the money, nor authorize the defendant, either by itself or its agent, to confiscate it. The defendant is bound to pay it over on demand with interest from the date of demand.

Supreme Court of Pennsylvania.

SCHUYLKILL COUNTY v. PETER COPLEY.

Where a bond is signed by an illiterate person upon misrepresentations as to its contents it is not his deed, but is void ab initio. In such case it is not material whether the obligee had knowledge of the misrepresentation or not. But where the contents are correctly stated, but the obligor is induced to sign it by misrepresentations of facts, it is his bond, though he may avoid it for the fraud. It is not the nature of the punishment but of the offence which determines its infamous character so as to disqualify a witness convicted of it, and embezzlement is not in Pennsylvania such a crime.

ERROR to the Court of Common Pleas of Schuylkill county.

This was a feigned issue to try the question whether a certain bond, on which judgment had been entered under a warrant of attorney, was the deed of Peter Copley, as one of the sureties of Thomas Fogarty, a collector of taxes. It was proved on the trial that Fogarty obtained the signature of Copley, who was an illiterate man, by representing to him that the paper was a petition to the county commissioners for his appointment as tax-collector.

The opinion of the court was delivered by

AGNEW, J.-The county contended that the deception mattered not, unless it be shown that the county had a knowledge of the fraud before accepting the bond. The court below held that the misrepresentation of the contents of the paper avoided it as a bond. The issue, therefore, was the same as if, to a declaration on the bond, non est factum had been pleaded. The instruction of the court was right and follows the distinction stated in Green v. North Buffalo Tp., 6 P. F. Smith 114, between a defence

resting upon facts which are misstated in order to induce a party to enter into a bond, the contents of which he knows; and one resting on a misrepresentation of the contents of the instrument itself, to an illiterate person. In the former it was said the bond is the obligation of the party who seals it, but is avoided by the false inducement to enter into it; in the latter it is not his deed or bond at all. No authority was cited for this elementary principle, and it is argued that the second proposition is unsound. But it was the first resolution in Thoroughgood's Case, in the time of Lord COKE, 2 Reports 9 b, in these words: "First, that although the party to whom the writing is made, or other by his procurement, doth not read the writing; but a stranger of his own head read it in other words than it in truth is; yet it shall not bind the party who delivereth it; for it is not material who readeth the writing, so as he who maketh it be a layman, and being not lettered, be (without any covin in himself) deceived, and that is proved by the usual form of pleading in such a case, that is to say, that he was a layman and not learned and that the deed was read to him in other words, &c., generally, without showing by whom it was read." The second resolution in Thoroughgood's Case was that an illiterate man need not execute a deed before it is read to him in a language he understands; but if he do, without desiring it to be read, the deed is binding. And see 2 Blackst. Com. *304-308. And says Mr. Chitty, in his Pleadings, vol. 1, *483. The defendant may give evidence under the plea of non est factum that the deed was void at common law ab initio ; or that it was obtained by fraud; or whilst the party was drunk, a married woman, or a lunatic; or that it became void after it was made and before the commencement of the action, by erasure, alteration, addition, &c. See also 1 Saunders on Pl. & Ev. *407. The very point in this case was decided in Stover v. Weir, 10 S. & R. 25. That was an action on a single bill to which a defence was set up that the writing had been obtained by falsely reading it as a receipt, and requesting the defendant to sign it as a witness. The plea setting forth the facts specially was treated as a special non est factum. See also Bauer v. Roth, 4 Rawle 93, 94, per KENNEDY, J. These authorities show that the learned judge committed no error in his charge.

But we think the court erred in the rejection of Thomas

Fogarty as a witness on the ground of infamy. Fogarty had been convicted and sentenced for embezzlement of the county's money, as a tax-collector, under the 65th section of the Act of 31st March 1860, Brightly's Dig. 229, pl. 73; and was in prison under his sentence. The punishment of the offence of embezzlement under this section is imprisonment by separate or solitary confinement at labor not exceeding five years, and a fine equal to the amount of the money embezzled. The punishment is the same in kind as that inflicted for infamous offences in Pennsylvania; but it is now settled that it is not the nature of the punishment, but of the offence, which determines its infamous character: 2 Russell on Crimes 974; 1 Greenleaf Ev. § 372, in note 3; 3 Casey 465. Infamous crimes are treason, felony, and every species of the crimen falsi, such as forgery, perjury, subornation of perjury, and offences affecting the public administration of justice; such as bribing a witness to absent himself and not to give evidence, and conspiracies to obstruct the administration of justice, or falsely to accuse one of an indictable crime: 2 Russell on Crimes 973; 1 Greenleaf's Ev. § 373. This is clearly the limitation of the infamous crimes as understood in this state; as may be seen in the following cases: Commonwealth v. Shaver, 3 W. & S. 342-3; Bickel's Exr. v. Fasig's Admr., 9 Casey 464-5. And see argument of counsel in Commonwealth for use v. Ohio & Pennsylvania R. R. Company, 1 Grant 331, 2, 3, 4. There are many offences, involving both falsehood and fraud, which are punished as infamous crimes are usually punished in this state, and yet are not infamous crimes, and will not exclude the offenders as witnesses: Commonwealth v. Shaver, and Commonwealth v. Ohio Pennsylvania R. R. Co., supra, 1 Greenleaf's Ev. § 373. In Massachusetts it is held that the offences of receiving stolen goods knowingly, and cheating by false pretences, will not render the offenders infamous: Commonwealth v. Rogers, 7 Metcalf 500; Utley v. Menich, 11 Metcalf 302; and see 1 Whart. C. L. § 761. As remarked by WOODWARD, J., in Bickel's Exr. v. Fasig's Admr., 9 Casey 465, the tendency of the judicial mind is against objections to competency. Such also is the direction of legislation, to be seen in § 181 of the Act of 31st March 1860, Brightly's Dig. 247, pl. 190, which gives to a convict who endures his punishment, for a felony or any misdemeanor punishable with imprisonment at labor, the advantage of a full pardon, except as to wilful

VOL. XIX.-50