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Mr. Mullens was now examined on the part of the de- 1863. fendants, and stated the circumstances which led him to

" BRITTAIN take the course he had done, and for which it was ad

THE BANK OF mitted the defendants were responsible. He was cross- LONDON. examined 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 genuine, but as not being so ; (4) did forge; so that it did not become that therefore he did not utter it, as material to determine whether there he neither exhibited it as genuine had been a forgery of the cheque nor sought to get credit on the docuin question. In a recent case be- ment itself, i. e., on its being what fore the Court for Crown Cases Re- it purported to be, but as not being served, the prisoner was held to what it purported to be, i.e, on the have been rightly convicted of for- faith of a statement of his own congery in making false entries in a cerning it ; no doubt aided by the banker's pass-book, of monies sup altered or obscured handwriting, posed to have been paid in by him but still, mainly, on his own stateto show to his employers, to satisfy ment that it was not his. them that he had paid in such (a) As to this, no doubt an altermovies, and obtain credit thereby ation of words or figures may be a for such payments; R. v. Smith, forgery; R. v. Teague, 2 East, 31 L. J., M. C. 154; and that was P. C. 479; and the forgery alone, confirmed in R. v. Moody, Ibid. without uttering, will be the offence 156, on the ground that, there being of felony; R. v. Elliott, 1 Leach, a forgery, there was a sufficient in- 173; so that the difficulty would tent to defraud; and no doubt that not be that the document was not would be equally so here; but the “uttered " but that it was not difficulty here would be as to the forged-(1) because no word or forgery: the facts being that Brown figure was altered, so that, assum-(1) altered the handwriting only, ing it to be genuine, its effect was not the words themselves; (2) that not altered; (2) it was not altered he altered the handwriting of a with a view to its being taken to document not to make it pass as have any effect, but only to countegenuine, but as not genuine ; (3) nance and support a certain false that he did not get or seek to get statement that it was forged, so that credit for the amount of it as being the essence of the offence was false

1863.

BRITTAIN

2.

THE BANK OF

LONDON.

the plaintiff of it, that is, of the forgery, if any, which had been actually committed. The real offence compretence. The test of this is, that the act of utterance is complete and the bank was not defrauded by the its force as an effective document document, per se (and if they had is spent. Here the contrary of all been it would have been by believ- this was the case. There was no ing it nol what it purported to be), alteration of word or figure, and but by a false statement about it, what was done was after the utteras the statement itself showed. ance, and to make it appear that

No doubt, “any the slightest al- the effect it had had was wrong. teration of a genuine instrument, in It is laid down in the authority a material part, whereby a new already quoted : “The instrument operation is given to it, is a forgery;" must appear upon the face of it to Roscoe, Crim. Law,378; but all the have been made to resemble a true instances given are of alterations of instrument of the denomination the words or figures, and such as to mentioned, so as to be capable (i.e., give a greater, or, at all events, a dif- per se) of deceiving persons using ferent operation and effect. The ordinary observation according to instance most in point, assuming their means of knowledge" (Ibid. p. that here there had been any alter- 382). “But if the instrument do ation of words or figures is, that in not appear to be such as probably which the place at which a country might be imposed upon persons to note was made payable in London whom it was likely to be uttered as was altered; R. v. Treble, 2 Taunt. a true instrument, the defendant 328. But there, as in all the other must be acquitted;" Ibid. Thus cases, the instrument before being the best and latest definitions of the uttered was altered in its effect, and offence make its essence to consist in order to have a new and different in making that which is false apeffect. Suppose it were drawn post- pear as that which is true, and for dated, and the holder altered the the purpose of being uttered as date so as to evade that objection, true, and thereby imposing it on that would be a forgery. Or sup- the person to whom it is uttered as pose Brown, getting hold of it be- being genuine and true, whereas it fore its being entered by the banker is in fact false and forged, and of in the pass-book (or that Brittain producing this imposition by the by collusion with him), altered the force of this instrument itself; and amount, so as to get credit for a the counterfeit of the band of the larger amount, that again might be a person whose true writing it is to be forgery, for in both cases the words represented as being. But here the or figures are altered, and altered object and effect was to represent so as to affect the operation and the true writing of the drawer as effect of the document; and in order not being his writing, and the to produce a new effect and work a cheque had been uttered, and the fraud by means of the document object was to make it appear to itself before it is altered, or before bave been forged, so as to destroy

mitted by Brown, as regards the cheque, was obtaining 1863. money or credit by means of a false pretence that it was

BRITTAIN forged, whereas it was genuine, and that was a misde

THE BANK OF meanor, not a felony, so that the defendants could not give "London. 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 custody, must be discharged ;' and done mainly by a false statement he was accordingly discharged, the of facts and circumstances.

report stating that .Mr. Arnold's (a) Two cases of fraud before Por proceeding is based upon a decision lice Courts having been reported, in upon the above point recently given the Times, in which the magistrates by the Lord Chief Justice.' were stated to have given, and acted "In the second case, Mr. Selfe upon, opposite opinions upon the committed the prisoner for trial. point whether a person can legally “Now, each of the magistrates be apprehended without a justice's was, in my opinion, to some extent warrant for fraud, i. e. obtaining correct in his view of the law; but property by false pretences, with one acted incorrectly upon his opiintent to defraud the owner : Mr. nion, if the reasons assigned were Oke, author of the Magisterial sy- as reported. Mr. Arnold was right nopsis, wrote a letter on the subject, in saying there was no power to which it may be useful to insert, apprehend, but, having the accused especially as it appears to refer to before him, he should have heard the case above reported.

the case, and committed or dis“Such cases being of daily occur charged him; while Mr. Selfe very rence, and the reasons for the ma- properly disposed of the case upon gistrates' decisions not being given, the merits in the ordinary way. it appears to be important that the “The disputed point arises, I bepublic should be well informed of lieve, upon the wording of section the law upon the point, which may 103 of the Larceny Consolidation arise in respect to numerous other Act of 1861, which provides that offences.

'any person found committing' this " Mr. Arnold, in the first case, offence (among others) may be imafter inquiring how the prisoner mediately apprebended without a got into custody, observed that warrant by any person and taken the policeman had no authority before a justice; and, further, that to take a person into custody for any person to whom any promisdemeanor without a warrant, perty is offered to be sold, pawned and the accased, being wrongly in or delivered, who suspects that an

1863.

Brittain 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 of fering 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 apprebend, 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 bim 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.

Term.

separate sold

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Coram Crompton, J.

1862. FISENDEN ». LEVY.

London Sittings.

Michaelmas ACTION for goods bargained and sold, and goods sold

A broker hav. and delivered, and on accounts stated.

ing bought Plea : never indebted.

goods of the same descrip

tion from difHayes, Serjt., and Barnard for the plaintiff.

ferent sellers

for the same Pigott, Serjt., for the defendant.

buyer, and sent The action was to recover 581. 7s. 4d., the price of a notes, but one parcel of French plums, alleged to have been purchased of the plaintiff for the defendant on the 11th February last dence that in

such a case by Whitmore & Griffiths, colonial brokers, who were said this was ac

cording to to have acted as agents for both parties.

custom, adOn the 10th February Whitmore & Co., who had acted

held, that as as fruit brokers for the defendant, sent him a bottle of the notes French plums from Houstoun & Gray, and he said he the quantity,

me there was no would give 40s. per cwt. for them and would like more bir than they had. A separate sold note was drawn up of tract in writing

to satisfy the this transaction (thirty-three cases) but no separate bought statute. 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

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