371 CHAPTER XVI. OF THE FORGERY OF BILLS AND NOTES. Enactments. Nature of the instrument. By assuming a fictitious name. Enactments.] The following are the principal enactments against the forging of bills and notes. By 2 Geo. 2. c. 25. s. 1. (made perpetual by 9 Geo. 2. c. 18.) if any person after 29th June 1729, shall falsely make, forge, or counterfeit, or cause or procure to be falsely made, forged or counterfeited; or willingly act or assist in the false making, forging or counterfeiting, amongst other things, any bill of exchange or promissory note for payment of money, or any indorsement or assignment of any bill of exchange or promissory note for payment of money, with intention to defraud any person whatsoever, or shall utter or publish as true any false, forged or counterfeit bill of exchange or promissory note for payment of money, or any indorsement or assignment of any bill of exchange or promissory note for payment of money, with intention to defraud any person, knowing the same to be false, forged or counterfeited, then every such person shall be deemed guilty of felony without benefit of clergy. By 31 G. 2. c. 22. s. 78. the 2 G. 2. is extended to cases of forgery, &c. with intent to defraud any corporation whatsoever. By 7 Geo. 2. c. 22. which recites, that by 2 Geo. 2. c. 25. no punishment is inflicted upon any person who shall falsely make, alter, forge or counterfeit, or cause or procure to be falsely made, altered, forged or counterfeited, or willingly act or assist in the false making, altering, forging, or counterfeiting any acceptance of any bill of exchange, or who shall knowingly utter or publish the same as true: it is therefore enacted, that if any person, after the 24th day of June, 1734, shall falsely make, alter, forge, or counterfeit, or cause or procure to be falsely made, altered, or counterfeited, or willingly act or assist in the false making, altering, forging, or counterfeiting any acceptance of any bill of exchange with intention to defraud any person whatsoever; or shall utter or publish as true, any false, altered, forged, or counterfeited acceptance of any bill of exchange, with intention to defraud any person, knowing the same to be false, altered, forged, or counterfeited; then every person shall be deemed guilty of felony, without benefit of clergy. By 18 Geo. 3. c. 18. the stat. 7 Geo. 2. c. 22. is extended to cases of forgery, &c. with intent to defraud any corporation whatsoever. By 45 Geo. 3. c. 89. s. 1. which recites 2 Geo. 2. c. 25. and certain other acts, and states that certain provisions had been made and enacted for the preventing and punishing the forgery of bank notes, and other notes, bills and instruments, in those acts respectively mentioned; and that it was expedient that such provisions should extend and be in force in every part of Great Britain, with such alterations and amendments therein as were thereby made it is enacted that if any person or persons shall, from and after the passing, of this act, falsely make, forge, counterfeit or alter, or cause or procure to be falsely made, forged, counterfeited or altered, or willingly act or assist in the false making, forging, counterfeiting or altering (among other instruments) any bill of exchange, promissory note for payment of money, indorsement or assignment of any bill of exchange or promissory note for payment of money, or acceptance of any bill of exchange, with intention to defraud any person or persons, body or bodies politic or corporate whatsoever; or shall offer, dispose of, or put away, any false, forged, counterfeited, or altered bill of exchange, promissory note for payment of money, indorsement or assignment of any bill of exchange, promissory note for payment of money, or acceptance of any bill of exchange, with intention to defraud any person or persons, body or bodies politic or corporate, knowing the same to be false, forged, counterfeited, or altered, then every person or persons so offending shall be deemed guilty of felony, without benefit of clergy. Nature of the instrument.] Forgery has been defined the making a false instrument with intent to deceive; Per Buller J. Coogan's case, O. B. 1787, 1 Leach, 449. 2 East P.C. 948; but it is not necessary that the forged instrument should exactly resemble the real one. See Collicot's case, 2 Leach, 1048. Therefore, where a forged bank note was in this form, "I promise to pay to Mr. J. C. or bearer on demand, the sum of Fifty," omitting the word "pounds;" but in the margin was the word " £Fifty;" the prisoner being convicted of this forgery, a majority of the twelve judges held the conviction right, and that it was a matter to be left to the jury whether the instrument purported to be a note for fifty pounds or any other sum. Ibid. But where the false instrument does not carry on the face of it the semblance of that for which it is counterfeited, or where it is illegal in its very frame, the offence will not be forgery. 2 Russell, 345. 2d. ed. Thus, where a man was indicted for forging an instrument which in one count was treated as a bank note, and in another as a promissory note, in the following form: "I promise to pay to J. W. Esq. or bearer, ten pounds-London, March 4th, 1776. For self and company of my bank in England, 10l. Entered, John Jones-Lord Mansfield held that this offence was not forgery. R. v. Jones, 1 Dougl. 390, 4th ed. R. v. Pateman, Russ. & Ry. 455. So, where the prisoner was convicted of a misdemeanor as for an offence at common law, for disposing of a forged promissory note, which appeared in evidence to be as follows: "Blackburn bank-I promise to take this as thirty shillings on demand, in part of a two pound note, value received for C. B. & Co. R. C." It was objected that this instrument could not, in any legal sense, be denominated a promissory note, and the judges held the conviction wrong. R. v. Burke, Russ. & Ry. 496. Again, where the prisoner was convicted of knowingly uttering as true, a forged acceptance of a bill of exchange of the following tenor: "Seven days after date, please to pay to Mr. J. M. or his order, the sum of 31. 3s. and place the same to account of W. S. To C. P. Esq. Accepted, C. P. ;" the judges were of opinion that the conviction was wrong, on the ground that if the bill in question had been a genuine instrument, it would have been absolutely void, and nothing would have made it good; and that by the statute 17 G. 3. c. 30, ante, p. 5; such an instrument was no bill, and had not the appearance or semblance of one. Moffat's case, 1 Leach, 431. 2 East, P. C. 954. So, where the prisoner drew a bill upon the treasurer of the navy, payable to or order, and signed it in the name of a navy surgeon, it was held that to constitute an order for payment of money, there must be a payee, and that a direction to pay to or order was not sufficient. R. v. Richards, Russ. & Ry. 193. R. v. Randall, Russ. & Ry. 195, unte, p. 22. So a note promising to pay "in cash or bank of England notes," is not a promissory note within the statutes against forgery. R. v. Wilcox, Bayley, 6. 2 Russ. 456, 2d ed. But in order to constitute forgery of a promissory note, it is not necessary that it should contain the words " or order," rendering it negotiable. R. v. Box, Russ. & Ry. 300. 6 Taunt. 2 Russ. 460. 2d ed. The forging a bill, payable to the prisoner's own order, and uttering it without indorsement, is a complete offence. R. v. Birkett, Russ. & Ry. C. C. R. 86. Bayley, 430. 2 Russ. 460. 325. In order to constitute forgery, it is not necessary that the instrument should be stamped. The stamp acts have no relation to the question of forgery, and supposing the instrument forged to be such on the face of it as would be valid, provided it had a proper stamp, the offence is complete. Teague's case, 2 East, P. C. 979. Hawkeswood's case, Id. 955. Lee's case, 1 Leach, 258. (n.) Merton's case, 2 East, P. C. 955. Alteration, forgery.] Not only the falsification and false making of the whole of a written instrument, but a fraudulent insertion, alteration, or erasure, even of a letter in any material part of a true instrument, whereby a new operation is given to it, will amount to forgery, and this, although it be afterwards executed by another person ignorant of the deceit. 2 East, P. C. 855. 2 Russell, 318. 2d ed. Thus, where the prisoner was charged with, and convicted of, making, forging, and counterfeiting a bill of exchange, and it appeared that he had altered a true bill, by changing the figures 10l. to 50l. and also the letters in the body of the bill, it was held by the judges that the prisoner was properly convicted, though the statute 7 Geo. 2. c. 22. on which the indictment was framed, contains the word alter as well as forge. Teague's case, 2 East, P. C. 979. Russ. & Ry. 33. R. v. Post, Russ. & Ry. 101. So discharging one indorsement and inserting another, is altering an indorsement. R. v. Birkett, Russ & Ry. 251. Bayley, 430. An indictment stated that a bill was drawn for 81., that persons unknown feloniously did alter it, by falsely forging and adding a cipher to the 81. and a y to the eight; that the prisoner had in his possession the said false, forged, altered, and counterfeited bill, and that he feloniously did utter as a true bill the said false, forged, altered, and counterfeited bill, with intent, &c. It was moved in arrest of judgment, on the ground that the forgery was stated to be by persons unknown, and that the statement should have been that they feloniously forged, not that they feloniously altered, the statute 2 Geo. 2. making it capital to forge, but saying nothing as to altering; but it was answered that altering was forging, and the judges were unanimous that the conviction was right. R. v. Elsworth, Bayley, 430. So where a note payable at a London banker's, who failed, was altered by pasting a slip of paper containing the name of another London banker, over the name of the former, it was held by the judges that this was a false making. R. v. Treble, 2 Taunt, 328. 2 Leach, 1040. Russ. & Ry. 164. By assuming a fictitious name.] A signature in a fictitious name will be a forgery, if the name was assumed with a view to the fraud. Thus, where the prisoner was convicted of uttering a forged order for the payment of money, signed "Rt. Vennest," there being no such person as Rt. Vennest, it was held by the judges that this was an order within the statute, and that it was forgery. Lockett's case, 1 Leach, 94. East, P. C. 940. So where the prisoner, Edward Taft, was convicted of forging an indorsement on a lost bill of exchange, and it appeared that he had indorsed it in the name of John Williams, he was held rightly convicted, for although the fictitious signature was not necessary for the prisoner's obtaining the money, and his intent in writing a false name was, probably, only to conceal the hands through which the bill had passed, yet it was a fraud, both on the owner of the bill, and on the person who discounted it, as the one lost the chance of tracing his property, and the other lost the benefit of a real indorser, if by accident the prior indorser should have failed. Taft's case, 1 Leach, 172. East, P. C. 959. So where the prisoner was convicted of forging an order for payment of money, and it appeared that he had bought goods from the prosecutor, and paid for them with a draft signed in the fictitious name of "H. Turner," although the prosecutor had sworn that he gave credit to the prisoner, and not to the draft, it was held that the prisoner was rightly convicted. The judges said that it was a false instrument, not drawn by any such person as it purported to be, and that the using a fictitious name was only for the purpose of deceiving. Sheppard's case, 1 Leach, 226. 2 East, P. C. 967. The prisoner, Samuel Whiley, was convicted of forging a bill of exchange, drawn in the name of Samuel Milward, payable to the drawer's order. It appeared that the prosecutor received the bill from the prisoner in payment for goods on old Christmas eve; that the prisoner on the 20th December previous, had taken a house in his own name, but that on the 28th of that month, he had ordered a brass plate to be engraved with the name of Milward; the jury found that the prisoner had assumed the name of Milward in the purchase of goods, and giving the bill, in order to defraud the prosecutor. The judges held the conviction right. Whiley's case, Russ. & Ry. 90. ley, 434. The prisoner, John Francis, was convicted of forging an order for the payment of money, signed Jas. Cooke, jun. On the 15th of August the prisoner had taken lodgings under the name of Cooke, and on the 9th of September following he wrote the forged draft; the judges held the conviction right, and were of opinion, that if the name was assumed for the pur Bay |