1846. Lewis and others v. Lewis's Administratrix. IN BANK dated December 10, 1845, stating that they never authorized Dec. Term, this proceeding, being satisfied if any error exists therein it would be dishonest in them to take advantage of it, as the property which passed by the proceedings sought to be reversed, went to the satisfaction of the creditors of their deceased father; and having no interest in the subject matter, having released and transferred any that they might have had to John Prather, the present owner of the property, they desire that the same may be dismissed. In opposition to this, Le Grand Byington has filed a deed of quit claim to himself, for the land in dispute, executed by E. F. Lewis, one of the plaintiffs, dated Nov. 23, 1844; and the question arises, does this deed prevent the plaintiffs from dismissing this writ of certiorari? We think it does not. The right whatever, save such as deed itself purports to convey no A contract with an attorney to prosecute a suit containing a stipulation, that the party should not have the privilege to settle or discontinue it, without the assent of the attorney, would be so much against good policy, that the Court would not enforce it. Much less will a Court raise an implied contract, in order to encourage and foster litigation. This writ of certiorari will therefore be entered as dismissed by order of the plaintiffs. Had not the plaintiffs interposed this order, the error first assigned would have been disposed of in accordance with the principles settled in the case of Robb v. Irwin, decided at this term. The second and third assignments are not sustained by the record. Writ Dismissed. Barnum v. The State. DANIEL BARNUM VS. THE STATE. The fraudulent alteration of a settlement of a book account, with the intent to de- To constitute forgery, the instrument must be such, when forged, that it does or may The intent to defraud some one must be aversed and proved, as laid. Evidence which tends to prove that the forged instrument could not, under any state of circumstances, prejudice the rights of any one, is competent to go to the jury. THIS is a WRIT OF ERROR directed to the Court of Common Pleas of LAKE County, and made returnable in Bank. The statement of the case is embraced in the opinion of the Court. WOOD, C. J. The record in this case shows the indictment of the plaintiff in error, at a previous term, and his trial and conviction in the Court of Common Pleas of Lake county, at the September term, 1846, for the crime of forgery, and that sentence followed on this conviction, to hard labor in the penitentiary for the term of four years. The indictment originally contained seven counts. The first, fourth and seventh were quashed by the Court of Common Pleas, and the plaintiff in error was convicted on the second, third, fifth and sixth. In the second count it is averred, that on the 30th day of April, 1845, Barnum, the plaintiff in error, had in his possession an account against Pearly Ayer, charged on his book previous to March 1, 1841, across which, on that day, was written an acquittance and discharge of the account, and all demands, in these words: "This account is settled in full this date, and all demands, March 1st, 1841. D. Barnum, Pearly IN BANK. Dec. Term, 1846. Barnum v. The State. Dec. Term, 1846. IN BANK. Ayer;" and that, afterwards, on the 30th of April, 1845, the plaintiff in error altered the date, by changing the figure 1 at the close, into a figure 4, so as to read 1844. Ayer then "holding and having an unsettled account against the plaintiff in error, with the intent to defraud Ayer," &c. The third count avers, that on the 30th day of April, 1845, the plaintiff in error forged an acquittance of a certain account which Pearly Ayer then had against the plaintiff in error, which last acquittance is as follows: "This account is settled in full, this date, and all demands, March 1, 1844. D. Barnum, Pearly Ayer;" with the intent to defraud Ayer. The fifth count avers, that on the 1st day of March, 1844, Ayer had an account against the plaintiff in error, under the date of June, 1843, and consisting of several items of hats and 3 yards of cloth, and that the plaintiff in error, on the 30th day of April, 1845, forged a certain acquittance of said account, which is set forth in the same words as in the second and third counts, and with the intent to defraud Ayer. The sixth count charges the forgery of an acquittance, by persons unknown to the jurors, and that the plaintiff uttered and published it as true and genuine, knowing it to be false, with intent to defraud Ayer. This count, also, charges the uttering and publishing the said acquittance to have been on the 30th of April, 1845. The first assignment for error is, in substance, the supposed insufficiency of all the above counts. The second and third assignments are the same, with the exception that they refer to the several counts specifically, and aver their insufficiency. A bill of exceptions was taken, during the trial, the material parts of which are, that to maintain the issue on the part of the State, the prosecution offered in evidence a paper purporting to be an account of the witness, Pearly Ayer, against the plaintiff in error, in the words and figures following: The prosecution then called Ayer, who testified that he kept a book; that this account was not on it, but was made under the following circumstances: "That in the month of June, 1843, the witness left with Barnum twenty-one hats to be disposed of, thus: The witness owed one Bell about $8, and the witness, in company with Bell, left the hats with 'Barnum to sell, or to keep enough on hand to pay Bell said 'debt; that Bell had a right to turn out on execution said hats if the debt was not paid, and the plaintiff in error to sell such as were not turned out on execution by Bell, and to account to Ayer for the proceeds of the sale, after deducting certain commissions, or return the hats. Bell turned out seventeen ' of them on execution, which were sold for $7, and plaintiff ' in error sold four. The witness paid Bell the other dollar, to 'balance his account; and that the plaintiff in error had not 'accounted to Bell, nor Ayer, for the four hats sold by him, though requested to do so." The witness stated: "A re'ceipt was drawn up by him, containing the agreement on which the hats were left, but not signed, and that the paper 'offered in evidence was the only account ever made of the 'hats, except the receipt, which was previously made, but un'executed." This receipt was given, by the counsel for the plaintiff in error, in evidence to the jury, to show the agreement on which the hats were left, and that the account offered in evidence was not in the original. The counsel for the plaintiff in error then objected to the admission of the account IN BANK, Dec. Term, 1846. Barnum v. The State. Dec. Term, 1846. IN BANK. marked A, on the ground: 1st. That it was not Ayer's original account. 2d. That it was not on book. 3d. That it was not a subject matter of account, as the hats were left on commission. 4th. That the witness had no right to charge the hats in account, but only the moneys received on their sale, less the commission, and, therefore, had no such account as is charged in the indictment; but the objection was overruled, and exception taken. This ruling of the Court is assigned as the fourth ground of error, and it may as well be disposed of as we proceed. The charge in the first count is, when stripped of the verbiage the law has thrown around it, that Barnum had an account against Ayer, in June, 1841, which was settled in full, on his books, and signed by both the parties, and purported to be in full of all demands, and that, on the 30th of April, 1845, the plaintiff in error fraudulently altered the figure 1 into a figure 4, so that it read, settled in full of all demands, in June, 1844 -the said Ayer then holding the amount for hats and cloth, &c., against the plaintiff in error, which had accrued between 1841 and 1844, and was, therefore, designed falsely to be brought within the terms of the settlement, and to be cut off, or discharged, by it. These objections, doubtless, appeared formidable to the learned counsel, but we are not able to perceive their force! It was, in fact, of no importance whether Ayer had any book, on which there was an original entry of his claim against Barnum, or not. It might have existed in that form, or upon a separate scrap of paper, as a mere memorandum, or it might have existed without either, by virtue of the delivery of the hats, their sale, and an express promise to pay, or an implied assumption to that effect. In either case it would have been a demand in favor of Ayer, and equally affected by the forgery, and competent evidence to sustain the count. In either aspect it would have been a claim mand a right to call upon Barnum to account for the proceeds of the sale, and, in fact, an account in favor of Ayer, though not on book. Nor do we perceive that the instrument a de |