Forfeiture of dower in felony. In treason. Corruption of blood. But there is this advantage by the viewing and appraising, that thereby the king is ascertained what the goods are, and may pursue them that take or embezzle them by information, (if the party happen to be convict) and try the property with them, whether they are really sold, or sold only fraudulently without valuable consideration, to prevent the forfeiture. 1 Hale 363, 4, 5, 6, 7. II. Of loss of dower. Albeit a person shall be attainted of felony, yet his wife shall not forfeit her dower. 1 Ed. 6. c. 12. § 17. But on his attainder of treason, she shall forfeit her dower. 5 & 6 Ed. 6 c. 11. § 13. But in some kinds of treason (particularly with regard to the Coin,) there is a special saving of the wife's dower by statute. III. Of corruption of blood. It is agreed that by an attainder of treason or felony, the blood is so far stained or corrupted, that the party loses all the nobility or gentility he might have had before, and becomes ignoble. 2 Haw. c. 49. § 47. Also, that he can neither inherit as heir to an ancestor, nor have an heir. Id. § 48. But the king's pardon, though it doth not restore the blood, yet as to issue born after, hath the effect of a restitution. 1 Hale. 358. But restitution of blood, in its true nature and extent, can only be by act of parliament. 1 Hale 358. 2 Haw. c. 49. §51. Forgery. I Haw. c. 70. 41 G. 3. U. K. c. 57. 45 G. 3. c. 89.52 G. 3. c. 138. — 53 G. 3. c. 139., and for the other statutes, see post. p. 454.] III. Of the indictment and evidence. FORGERY is an offence at common law, and an offence also by statute. Forgery at the common law is an offence in falsely and fraudu lently making or altering any manner of record, or any other au thentic matter of a public nature; as a parish register, or any deed, will, privy seal, certificate of holy orders, protection of a parliament man, and the like. Mr. J. Blackstone says, that forgery is the fraudulent making or 4 Blac. Com. alteration of a writing to the prejudice of another's right. 247. Mr. J. Grose in delivering the opinion of the judges in Reculist's O. B. May 1796. case says, "the crime of forgery is a false making of any instrument 2 Leach, 707. with intention to defraud." 861. The counterfeiting of any writing with a fraudulent intent, 2 East's P. C. whereby another may be prejudiced, (it is immaterial whether the party be actually injured or not,) is also a forgery at common law. 2 East's P. C. 861. An information was filed by the attorney-general charging that Ward's case. the defendant Ward being bound to deliver 315 tons and a quarter 2 Str. 747. of allum of the value of 1,000l. to the Duke of Buckingham at a 2 Ld. Raym. certain day then past, he, the defendant, wickedly contriving and in- 1461. tending the said duke of the said allum to deceive and defraud, and with a wicked and fraudulent intent to avoid the delivery of the said 2 Russ. 1467. allum, on, &c. at, &c. with force and arms, upon the back of a cer- Forging an order tain certificate in writing signed by one A. N. falsely forged and from one to counterfeited, and caused to be forged and counterfeited a certain writing in the words and figures following: "Schedule Tons. C. charge certain goods contained in a schedule to his account, and to appropriate part of the proceeds to defendant's own use, &c. with intent to defraud, is forgery, though Mr. John Ward, I do hereby order you to charge the quantity of 660 tons and 1 quarter of allum to my acccount, part of the quantity here mentioned in this 975 10 certificate, and out of the money arising by the sale of the allum in your hand to pay to Mr. W. Ward and yourself 101. for every ton according to agreement; and for your so doing this shall be your discharge. Buckingham, April 30th, no fraud be 1706." To the evil example, &c. to the great damage of the said effected. duke, and against the peace, &c. A second count charged him. with publishing the same forged writing knowing it to be forged, Motion in arrest &c. After conviction, it was moved in arrest of judgment that the of judgment. instrument set forth was not the subject of forgery at common law; but at most the offence was only punishable as a cheat, and not in this form, being merely a thing of a private nature, and in effect nothing more than a letter; and if the counterfeiting a letter had been punishable as a forgery at common law, then the making the stat. 33 H. 8. c. 1. to punish those who got money or goods of others under colour of false tokens or counterfeit letters was nugatory; that it no where appeared that the Duke had been prejudiced by this, which if he had, it might have been indictable as a cheat, but not as a forgery at common law. But all the Court held that this was indictable as a forgery at common law; that none of the books confine the offence to the particular kinds mentioned in 3 Inst. 169; and that as forging a writing not sealed came within all the mischief of forging a deed, the maxim applied ubi eadem est ratio eadem est lex; that this was recognized in the preamble of the stat. 5, Eliz. c.14. which recites that the forging of writings" as well as of deeds" was punishable by law before that statute, but that offenders had been encouraged by the too great mildness of the punishments; and that the 33 H. 8. c. 1. did not create new offences, but only enhanced the penalty where the fraud was executed. They also referred to several instances of indictments at But there is this advantage by the viewing and appraising, that thereby the king is ascertained what the goods are, and may pursue them that take or embezzle them by information, (if the party happen to be convict) and try the property with them, whether they are really sold, or sold only fraudulently without valuable consideration, to prevent the forfeiture. 1 Hale 363, 4, 5, 6, 7. II. Of loss of dower. Albeit a person shall be attainted of felony, yet his wife shall not forfeit her dower. 1 Ed. 6. c. 12. § 17. But on his attainder of treason, she shall forfeit her dower. 5 & 6 Ed. 6 c. 11. § 13. But in some kinds of treason (particularly with regard to the Coin,) there is a special saving of the wife's dower by statute. III. Of corruption of blood. It is agreed that by an attainder of treason or felony, the blood is so far stained or corrupted, that the party loses all the nobility or gentility he might have had before, and becomes ignoble. 2 Hat. c. 49. § 47. Also, that he can neither inherit as heir to an ancestor, nor have an heir. Id. § 48. But the king's pardon, though it doth not restore the blood, yet as to issue born after, hath the effect of a restitution. 1 Hale. 358. But restitution of blood, in its true nature and extent, can only be by act of parliament. 1 Hale 358. 2 Haw. c. 49. § 51. See title Attainder, vol. 1. p. 189. Stat. 54 G. 3. c. 145. I Haw. c. 70. FORGERY is an offence at common law, and an offence also by statute. Forgery at the common law is an offence in falsely and fraudolently making or altering any manner of record, or any other au thentic matter of a public nature; as a parish register, or any deed, will, privy seal, certificate of holy orders, protection of a parliament man, and the like. Mr. J. Blackstone says, that forgery is the fraudulent making or 4 Blac. Com. alteration of a writing to the prejudice of another's right. 247. Mr. J. Grose in delivering the opinion of the judges in Reculist's O. B. May 1796. case says, "the crime of forgery is a false making of any instrument 2 Leach, 707. with intention to defraud." 861. The counterfeiting of any writing with a fraudulent intent, 2 East's P. C. whereby another may be prejudiced, (it is immaterial whether the party be actually injured or not,) is also a forgery at common law. 2 East's P. C. 861. An information was filed by the attorney-general charging that Ward's case. the defendant Ward being bound to deliver 315 tons and a quarter 2 Str. 747. of allum of the value of 1,000l. to the Duke of Buckingham at a 2 Ld. Raym. certain day then past, he, the defendant, wickedly contriving and in- 1461. tending the said duke of the said allum to deceive and defraud, and with a wicked and fraudulent intent to avoid the delivery of the said 2 Russ. 1467. allum, on, &c. at, &c. with force and arms, upon the back of a cer- Forging an order tain certificate in writing signed by one A. N. falsely forged and from one to counterfeited, and caused to be forged and counterfeited a certain charge certain writing in the words and figures following: "Schedule Tons. C. 660 5 315 5 975 you goods contained in a schedule to his account, and to appropriate part of the proceeds to defendant's own use, &c. with intent to defraud, is forgery, though Mr. John Ward, I do hereby order to charge the quantity of 660 tons and 1 quarter of allum to my acccount, part of the quantity here mentioned in this 10 certificate, and out of the money arising by the sale of the allum in your hand to pay to Mr. W. Ward and yourself 101. for every ton according to agreement; and for your so doing this shall be your discharge. Buckingham, April 30th, no fraud be 1706." To the evil example, &c. to the great damage of the said effected. duke, and against the peace, &c. A second count charged him with publishing the same forged writing knowing it to be forged, Motion in arrest &c. After conviction, it was moved in arrest of judgment that the of judgment. instrument set forth was not the subject of forgery at common law; but at most the offence was only punishable as a cheat, and not in this form, being merely a thing of a private nature, and in effect nothing more than a letter; and if the counterfeiting a letter had been punishable as a forgery at common law, then the making the stat. 33 H. 8. c. 1. to punish those who got money or goods of others under colour of false tokens or counterfeit letters was nugatory; that it no where appeared that the Duke had been prejudiced by this, which if he had, it might have been indictable as a cheat, but not as a forgery at common law. But all the Court held that this was indictable as a forgery at common law; that none of the books confine the offence to the particular kinds mentioned in 3 Inst. 169; and that as forging a writing not sealed came within all the mischief of forging a deed, the maxim applied ubi eadem est ratio eadem est ler; that this was recognized in the preamble of the stat. 5, Eliz. c.14. which recites that the forging of writings well as of deeds" was punishable by law before that statute, but that offenders had been encouraged by the too great mildness of the punishments; and that the 33 H. 8. c. 1. did not create new offences, but only enhanced the penalty where the fraud was executed. They also referred to several instances of indictments at 66 as (a) 5 Mod. 137. (b) 1 Sid. 278. (c) T. Ray. 81. (4) 2 Sid. 71. (e) Roll. 35. (f) Sty. 12. Fawcett's case, York Sp. Ass. 1793. 2 East's P. C. 862. 2 Russ. 1470. The defendant having been committed to gaol under an attach ment for a contempt in a civil cause, counter feited a pretend ed discharge as from his creditor lading (a), and acquittance (b), a warrant of attorney (c), a marriage register (d), a bill of exchange (e), letters of credit to gather money (f), and others of a similar kind; and they distinguished this offence from cheats at common law and upon the 33 H. 8. c. 1. where the party received an actual prejudice, which was not necessary to constitute forgery; it being sufficient if the party might be prejudiced by it. Leander Fawcett, who had been committed to the gaol at York, under an attachment sued out of the court of king's bench, for a contempt in a civil suit, was indicted for forging a certain writing purporting to be signed in the name of A. Dawson, (the party who had prosecuted the writ of attachment against him) and to contain the authority of Dawson to the sheriff for his discharge, in the following form: "To the high sheriff of the county of York, his deputy, &c. and gaoler. As to any writ, attachment, or any other process or cause whatsoever, at the suit, instance, or promotion of me A. Dawson, by reason whereof Leander Fawcett is now detained a prisoner in your custody, you may forthwith discharge and set at liberty him the said Leander Fawcett, unless detained at the suit of some other person; and for so doing this shall be your warrant and indemnity. (Dated) 26th February 1793. (Signed) A. Dawson, and witnessed by one R. W." The defendant having been convicted, several questions were submitted to the consideration of the judges; and, amongst others, whether the order were a matter of such a public nature, that the counterfeiting of it would be a forgery at common law; and also, whether, as the attachment was for non-payment of money, the order, if genuine, would not have been a mere nullity, and the sheriff not authorized to discharge the prisoner under it. Lord Kenyon, C. J. and Eyre, C. J. said, that there was an injury to a third person, and that it was an interruption to public justice: but the latter thought it was not a forgery, but a cheat. The matter was admere nullity, and journedto a subsequent term, when Eyre, C. J. was still not satisfied as to the forgery; though he thought the indictment good as for a cheat. But all the judges concurred in holding that the offence was indictable as for a misdemeanor at common law; and a great majority also thought it was forgery at common law. to the sheriff and gaoler, under which he obtain ed his discharge from gaol; and it was holden to be a misdemeanor at common law; although, as the attachment was not for the nonpayment of money, the order was in itself a no warrant to the sheriff for the discharge. A majority of the judges also thought that it was a forgery at common law. 2 Haw. c. 8. § 38. I Salk. 406. Barl. 244. But as to the power of justices of the peace in this matter, Mr. Hawkins says it hath been settled of late that they have no jurisdiction over forgery at the common law; the principal reason of which resolution, (he says) as he apprehended, was, that inasmuch as the chief end of the institution of the office of these justices was for the preservation of the peace against personal wrongs and open violence, and the word trespass in its most proper and natural sense is taken for such kind of injuries, it shall be understood in that sense only in the commission, or at the most to extend to such other offences only as have a direct and immediate tendency to cause such breaches of the peace, as libels, and such like, which on this account have been adjudged indictable before justices of the peace. And this was confirmed in the case of Micah Gibbs, 1 East. 173. where it was determined that the sessions have no jurisdiction over the offence of forgery at common law, nor can they take cognizance of it as a cheat. But Mr. Barlow says, nevertheless, that it seemeth clear that a justice of the peace may take an information thereof, bind |