Mr. Mullens was now examined on the part of the defendants, and stated the circumstances which led him to take the course he had done, and for which it was admitted the defendants were responsible. He was crossexamined as to whether he could not have found out the fraud before by the same means. COCKBURN, C. J.-There was no forgery by Brown (a), and private parties cannot justify giving a person into custody except in a case of felony. The pleas, therefore, are not sustained. Nor do I think there is any defence upon the facts. Even supposing that what Brown did amounted to a forgery (a), there was no reasonable ground to suspect IOU and a receipt), which he really did forge; so that it did not become material to determine whether there had been a forgery of the cheque in question. In a recent case before the Court for Crown Cases Reserved, the prisoner was held to have been rightly convicted of forgery in making false entries in a banker's pass-book, of monies supposed to have been paid in by him to show to his employers, to satisfy them that he had paid in such monies, and obtain credit thereby for such payments; R. v. Smith, 31 L. J., M. C. 154; and that was confirmed in R. v. Moody, Ibid. 156, on the ground that, there being a forgery, there was a sufficient intent to defraud; and no doubt that would be equally so here; but the difficulty here would be as to the forgery: the facts being that Brown —(1) altered the handwriting only, not the words themselves; (2) that he altered the handwriting of a document not to make it pass as genuine, but as not genuine; (3) that he did not get or seek to get credit for the amount of it as being genuine, but as not being so; (4) (a) As to this, no doubt an alter- 1863. BRITTAIN v. THE BANK OF 1863. BRITTAIN 0. THE BANK OF LONDON. the plaintiff of it, that is, of the forgery, if any, which had been actually committed. pretence. The test of this is, that the bank was not defrauded by the document, per se (and if they had been it would have been by believing it not what it purported to be), but by a false statement about it, as the statement itself showed. No doubt, "any the slightest alteration of a genuine instrument, in a material part, whereby a new operation is given to it, is a forgery;" Roscoe, Crim. Law, 378; but all the instances given are of alterations of the words or figures, and such as to give a greater, or, at all events, a different operation and effect. The instance most in point, assuming that here there had been any alteration of words or figures is, that in which the place at which a country note was made payable in London was altered; R. v. Treble, 2 Taunt. 328. But there, as in all the other cases, the instrument before being uttered was altered in its effect, and in order to have a new and different effect. Suppose it were drawn postdated, and the holder altered the date so as to evade that objection, that would be a forgery. Or suppose Brown, getting hold of it before its being entered by the banker in the pass-book (or that Brittain by collusion with him), altered the amount, so as to get credit for a larger amount, that again might be a forgery, for in both cases the words or figures are altered, and altered so as to affect the operation and effect of the document; and in order to produce a new effect and work a fraud by means of the document itself before it is altered, or before The real offence com the act of utterance is complete and its force as an effective document is spent. Here the contrary of all this was the case. There was no alteration of word or figure, and what was done was after the utterance, and to make it appear that the effect it had had was wrong. It is laid down in the authority already quoted: "The instrument must appear upon the face of it to have been made to resemble a true instrument of the denomination mentioned, so as to be capable (i.e., per se) of deceiving persons using ordinary observation according to their means of knowledge" (Ibid. p. 382). "But if the instrument do not appear to be such as probably might be imposed upon persons to whom it was likely to be uttered as a true instrument, the defendant must be acquitted;" Ibid. Thus the best and latest definitions of the offence make its essence to consist in making that which is false appear as that which is true, and for the purpose of being uttered as true, and thereby imposing it on the person to whom it is uttered as being genuine and true, whereas it is in fact false and forged, and of producing this imposition by the force of this instrument itself; and the counterfeit of the hand of the person whose true writing it is to be represented as being. But here the object and effect was to represent the true writing of the drawer as not being his writing, and the cheque had been uttered, and the object was to make it appear to have been forged, so as to destroy mitted by Brown, as regards the cheque, was obtaining money or credit by means of a false pretence that it was forged, whereas it was genuine, and that was a misdemeanor, not a felony, so that the defendants could not give him into custody for it (a). There is, therefore, no defence to the action; and the question is merely one of damages, as to which the jury will consider how far there was a want of reasonable care and caution. Verdict for the plaintiff, damages 301. its credit and effect, and this was done mainly by a false statement of facts and circumstances. (a) Two cases of fraud before Police Courts having been reported, in the Times, in which the magistrates were stated to have given, and acted upon, opposite opinions upon the point whether a person can legally be apprehended without a justice's warrant for fraud, i. e. obtaining property by false pretences, with intent to defraud the owner: Mr. Oke, author of the Magisterial Synopsis, wrote a letter on the subject, which it may be useful to insert, especially as it appears to refer to the case above reported. "Such cases being of daily occurrence, and the reasons for the magistrates' decisions not being given, it appears to be important that the public should be well informed of the law upon the point, which may arise in respect to numerous other offences. "Mr. Arnold, in the first case, after inquiring how the prisoner got into custody, observed that the policeman had no authority to take a person into custody for misdemeanor without a warrant, and the accused, being wrongly in custody, must be discharged;' and he was accordingly discharged, the report stating that Mr. Arnold's proceeding is based upon a decision upon the above point recently given by the Lord Chief Justice.' "In the second case, Mr. Selfe committed the prisoner for trial. "Now, each of the magistrates was, in my opinion, to some extent correct in his view of the law; but one acted incorrectly upon his opinion, if the reasons assigned were as reported. Mr. Arnold was right in saying there was no power to apprehend, but, having the accused before him, he should have heard the case, and committed or discharged him; while Mr. Selfe very properly disposed of the case upon the merits in the ordinary way. "The disputed point arises, I believe, upon the wording of section 103 of the Larceny Consolidation Act of 1861, which provides that 'any person found committing' this offence (among others) may be immediately apprehended without a warrant by any person and taken before a justice; and, further, that any person to whom any property is offered to be sold, pawned or delivered, who suspects that an 1863. BRITTAIN 11. THE BANK OF 1863. BRITTAIN บ. THE BANK OF LONDON. offence has been committed with respect to it, may in like manner apprehend the person offering it. Unless, therefore, the offender is either found committing the offence of obtaining property by false pretences-i. e., seen in the act of committing it, according to the dictum of the Lord Chief Justice in Horley v. Rogers, April, 1860 (reported 29 Law Journal, N. S., Mag. Cas. 140; 2 Law Times, N. S. 171, upon similar language in another Act, or is found offering the property for sale or pawn, he cannot be apprehended without a justice's warrant. That view is also the one taken in the recent edition of an established magisterial work, wherein, under the head of false pretences,' after referring to the above enactment and case, it is said that this apprehension clause is defective, and does not authorize the apprehension of the person committing the offence after its commission, although the offender may have the property in his possession, unless he offer to sell or pawn it.' "With regard to the second branch of the question-whether a magistrate should hear a charge against an accused who has not been brought before him in a legal manner-I believe there has been no direct decision one way or the other; but I doubt not, as it is the almost universal practice to do so, that magistrates will act with perfect legality and safety if they hear any charge of an indictable offence without inquiring into the mode of the apprehension of the offender, which is properly the subject for after inquiry in another Court should the accused be acquitted. The terms of the Act regulating preliminary examinations before justices in such cases, the 11 & 12 Vict. c. 42, s. 17, will, I apprehend, fully justify that course. It enacts, 'That in all cases where any person shall appear or be brought before any justice of the peace, charged with an indictable offence, whether committed in England or Wales, or upon the high seas, or on land beyond the sea, or whether such person appears voluntarily upon summons, or have been apprehended with or without warrant, or shall be in custody for the same or any other offence,' such justice shall, before committing or holding him to bail, take the depositions of the witnesses, &c. "And, I may add, that by the peculiar ingredients of the offence of obtaining property by false pretences, the offender cannot be said to be found committing' the offence (the words of the section authorizing his apprehension without warrant), for the simple reason that the falsity of the statement alleged as the pretence is not detected (except in rare instances) till some time after the deception is made and the property obtained; for if the party was aware at the time that the statement is false then it has not been committed." Hawkins in E. T. moved, but took nothing. Coram Crompton, J. FISENDEN v. LEVY. ACTION for goods bargained and sold, and goods sold and delivered, and on accounts stated. Plea: never indebted. Hayes, Serjt., and Barnard for the plaintiff. The action was to recover 581. 7s. 4d., the price of a parcel of French plums, alleged to have been purchased of the plaintiff for the defendant on the 11th February last by Whitmore & Griffiths, colonial brokers, who were said to have acted as agents for both parties. of varied as to he On the 10th February Whitmore & Co., who had acted as fruit brokers for the defendant, sent him a bottle French plums from Houstoun & Gray, and he said would give 40s. per cwt. for them and would like more than they had. A separate sold note was drawn up of this transaction (thirty-three cases) but no separate bought note. Immediately afterwards Whitmore agreed with the plaintiff for the purchase of forty-two cases of plums which he had and which were part of the same cargo at the same price. The broker entered this transaction in his contract book, but unsigned, and on the 11th prepared and signed the contract notes of both transactions, and sent the bought note to defendant. The entry in the book, not signed, stated the defendant's name "A. Levy of J. Fisenden." The sold note, which was signed by the brokers, did not mention buyer's name, and ran thus:"Fisenden & Co.-We have this day sold for your account forty-two cases bottle plums, &c. (Signed) "WHITMORE & GRIFFITHS, Colonial brokers." There were, it is to be observed, two separate sold notes of the two parcels of plums, one to Houstoun & Gray, the other to the plaintiff; but there was only one the quantity, there was no binding con tract in writing to satisfy the statute. |