OXFORD CIRCUIT. STAFFORD SUMMER ASSIZES. July 27, 1849. (Before Mr. Justice ERLE.) REG. v. WILLIAM ROUSE, SAMUEL BILLINGSLEY, and JOSEPH BAYES. (a) Forgery-Warrant or order for the payment of money - Unlawful societies-Indictment-False pretence. The mutual promises and engagements of any society are "authorized by law," within the 57 Geo. 3, c. 19, s. 25, unless they are clearly prohibited by law, and the party objecting to the legality of such promises or engagements must show their illegality. In order to constitute the crime of forgery of a warrant or order for the payment of money under the 11 Geo. 4 & 1 Will. 4, c. 66, s. 3, it is necessary that the instrument be such that, if genuine, it would, in the ordinary course of business between the parties, be effectual for the payment of money. By the rules of a society of Odd Fellows, having a branch called the Conqueror Lodge," the family of deceased members of the branch lodge became entitled to a sum of money on the presentation of a certificate (filled up according to a certain form) to the secretary of the head society. After the dissolution of the "Conqueror Lodge," a forged certificate purporting to relate to the death of a member of that lodge, was presented to the secretary, and a sum of money paid under it. Held, that an indictment for forging or uttering the certificate could not be sustained, there being, at the time it was forged and uttered, no such branch lodge or society in existence. Where, in an indictment for obtaining money by false pretences, under the above circumstances, it was alleged that the false pretences were made to A. B., and by means thereof the money obtained from the said A. B Held, that this averment was supported by evidence that the above mentioned false certificate was presented by the defendants to A. B., the secretary of the lodge, and that he accompanied them to C. D., the treasurer, from whose hands the money was received; he being merely the mechanical medium, and the secretary the responsible party. IN N the first count of the indictment, the prisoners were charged with forging a certain warrant for the payment of money, with intent to defraud one Richard Mills. In the second count, they were charged with uttering a warrant with intent to defraud the same party. The third and fourth counts were similar to the first and second, except that the intent was laid to defraud Henry Corser Insoll. There were four other counts describing the instrument as an order for the payment of money. It appeared in evidence that a district lodge of the society of (a) Reported by J. E. DAVIS, Esq., Barrister-at-Law. REG. v. ROUSE Forgery "Odd Fellows" existed at Wordesley in Staffordshire, having branch lodges at various places, among others, one at KidderAND OTHERS. minster in Worcestershire, nine miles from Wordesley, and called "The Conqueror Lodge." By the rules of the society, on the False pretences death of a member of any branch lodge, his family became entitled to a sum of money, varying according to the length of time he had been a member and other circumstances. Each lodge was provided with printed forms of certificate of the death of members, and by the rules of the lodge it was requisite, before any money could be paid to the family, that this certificate, or, as the rules termed it, "cheque," should be filled up with the name and dates of the death and of the admission of the deceased member, and signed by the officers of the lodge, namely, by the Noble Grand, the Vice Grand, and the Secretary. The certificate so filled up had to be transmitted to the chief secretary at Wordesley one clear day at least before the money was required. The secretary there, if it appeared to be correct, presented it to the treasurer, who handed over the amount due to the family of the deceased member. Case. On the 17th of February, 1849, a meeting of the Conqueror Branch Lodge was held at Kidderminster, at which meeting the three prisoners, who were members, were present. It was then determined that the branch lodge should be broken up, and a new society formed independent of the chief lodge at Wordesley. The Conqueror Lodge was accordingly on that day dissolved, and the funds in hand distributed among the members, including the prisoners, the sum of five shillings being retained from each member's share, in order to form a new club. On the 26th of the ensuing month of March, a meeting was held to form the new club, at which the prisoners were present, and Rouse was heard to say to a person of the name of Martin, who had been the Noble Grand of the Conqueror Lodge, and in that capacity held the cheque book containing the printed forms of certificate before mentioned, "If you will give me a cheque out of the book, I will do the trick;" and Martin thereupon handed the cheque book to him. On the 11th of April, the three prisoners and Martin (not in custody) went to Mr. Insoll, the secretary at Wordesley, and presented the following certificate to him, the words in italics and figures between brackets being written and the rest printed. "CONQUEROR LODGE. "This is to certify that Brother Jno. Higham (or wife) Labourer, resident at Kidderminster, died the [10th] day of April, 18[49]. He was initiated a member the [1st] day of May, 18[45], and was clear upon the books of the Lodge at the time of his death. Certified by us this [11th] day of April, 18[49]. "Wm. Jones, N. G. "William Pool, Secretary. "The above certificate must be signed separately by the officers of the lodge, and must be forwarded to the C. S. of the district at least one clear day before the time of the money being required, which regulation will and must be strictly abided by." REO. v. ROUSE The secretary did not doubt the genuineness of the "cheque," AND OTHERS. not having been informed of the dissolution of the Conqueror ForgeryLodge in the previous February. This was accounted for by the False pretences. fact that no meeting of the chief lodge had been held in the mean time, the quarterly meeting being fixed for the 24th of April. The secretary was also ignorant of the names of the officers of the Conqueror Lodge, no money having been drawn out of the treasurer's hands during the short time the lodge was in existence. The prisoners represented to Mr. Insoll that they were members of the Conqueror Lodge; that John Higham had died of fever, and the money was wanted to provide for his funeral immediately; and in consequence of this representation, the secretary waived the rule expressed at the foot of the certificate, and accompanied the prisoners to the residence of Mr. Mills, the treasurer, who, upon the facts stated, and being equally ignorant with the secretary of the dissolution of the branch lodge, paid 167., the amount to which the family of a member was entitled under the circumstances mentioned in the certificate. Martin signed the receipt book and took up the money, and left the room accompanied by the prisoners. It was proved that there had not been any such persons, either members or officers of the Conqueror Lodge, as those purporting to Case. sign the "cheque" or certificate, and that the name of the alleged deceased member, and, consequently, his death, also, were equally fictitious; and evidence was given showing that the names of Baxter and Pool in the cheque were in the handwriting of the prisoner Rouse. The rules of the Wordesley District Lodge, which were identical with those of the Conqueror Lodge, were put in. From them it appeared, that the members entered into an engagement to abide by the rules, and one of the rules was to keep the secrets of the society. The secretary of the lodge, however, stated, on crossexamination, that there were not now any secrets to keep, as all secrets were abolished. It appeared that the Conqueror Lodge had not been enrolled. On the close of the case for the prosecution, Skinner (for the prisoners), objected that this was an illegal society, and was within the prohibitory statutes, 37 Geo. 3, c. 123, s. 1, and 57 Geo. 3, c. 19, s. 25. The 37 Geo. 3, c. 123, s. 1,(a) prohibited oaths and engagements (a)" Whereas divers wicked and evil disposed persons have of late attempted to seduce persons serving in His Majesty's Forces by sea and land, and others of His Majesty's subjects, from their duty and allegiance to His Majesty, and to incite them to acts of mutiny and sedition, and have endeavoured to give effect to their wicked and traitorous proceedings, by imposing upon the persons whom they have attempted to seduce the pretended obligation of oaths unlawfully administered, be it enacted, &c., that any person or persons, who shall in any manner or form whatsoever administer. or cause to be administered, or be aiding or assisting at, or present and consenting to, the administering or taking of any oath or engagement purporting or intending to bind the person taking the same to engage in any mutinous or seditious purpose: or to disturb the public peace; or to be of any association, society, or confederacy formed for any such purpose; or to obey the orders or commands of any committee or body of men not lawfully constituted, or of any leader or commander or other person not having authority by law for that REG. v. ROUSE to bind parties to engage in any mutinous or seditious purpose, &c., or to obey the orders or commands of any committee or body AND OTHERS. of men not lawfully constituted, &c., or not to reveal or discover any illegal act done or to be done, or not to reveal or discover any ForgeryFalse pretences, illegal oath or engagement which may have been administered or tendered to or taken by such person, &c. By the 57 Geo. 3, c. 19, s. 25, (a) all societies, the members whereof are required to take any oath or engagement within the 37 Geo. 3, c. 123, or the 52 Geo. 3, c. 104 (which latter statute made it a capital felony to administer an oath or engagement to commit treason or murder, &c.) or to take any oath not required or authorized by law, are deemed guilty of an unlawful combination, within the statute 39 Geo. 3, c. 79. It had been held that the statute 37 Geo. 3, c. 123, was not confined to oaths administered with either a mutinous or seditious object: (Rex v. Ball, 6 C. & P. 563; Rex v. Lovelass, 1 M. & Rob. 349; 6 C. & P. 596.) In the present case the parties bound themselves together to abide by certain rules and engagements which could not be said to be "required" or "authorized" by law. ERLE, J.-The societies contemplated by the 37 Geo. 3, c. 123, are very different from the one in question. That act recites that "whereas divers wicked and evil disposed persons have of late attempted to seduce persons serving in His Majesty's forces by sea and land, and others of His Majesty's subjects, from their duty and allegiance to His Majesty, and to incite them to acts of mutiny and sedition, and have endeavoured to give effect to their wicked and traitorous proceedings by imposing upon the parties whom they have attempted to seduce, the pretended obligation of oaths unlawfully administered, be it enacted," and so forth. Then came the purpose; or not to inform or give evidence against any associate, confederate, or other person; or not to reveal or discover any unlawful combination or confederacy; or not to reveal or discover any illegal act done or to be done; or not to reveal or discover any illegal oath or engagement which may have been administered or tendered to or taken by such person or persons, or to or by any other person or persons, or the import of any such oath or engagement; shall, on conviction thereof by due course of law, be adjudged guilty of felony, and may be transported for any term of years not exceeding seven years, and every person who shall take any such oath or engagement, not being compelled thereto, shall, on conviction thereof by due course of law, be adjudged guilty of felony, and may be transported for any term of years not exceeding seven years." (a)" And be it further enacted, that from and after the passing of this act, all and every the said societies or clubs, and also all and every other society or club now established or hereafter to be established, the members whereof shall be required or admitted to take any oath or engagement which shall be an unlawful engagement within the meaning of [37 Geo. 3, c. 123, or 52 Geo. 3, c. 104] or to take any oath not required or authorized by law; and every society or club, the members whereof or any of them shall take or in any manner bind themselves by any such oath or engagement on becoming, or in order to become, or in consequence of being a member or members of such society or club; and every society or club the members or any member whereof shall be required or admitted to take, subscribe, or assent to, or shall take, subscribe, or assent to any test or declaration not required or authorized by law, in whatever manner or form such taking or assenting shall be performed, whether by words, signs, or otherwise; either on becoming or in order to become, or in consequence of being a member or members of any such society or club; and every society or club that shall elect, appoint, nominate, or employ any committee, delegate or delegates, representative or representatives, missionary or missionaries, to meet, confer, or communicate with any other society, &c., shall be deemed and taken to be unlawful combinations and confederacies, within the meaning of an act passed in the 39th year of the reign of His present Majesty, intituled, An Act for the more effectual Suppression of Societies established for Seditious and Treasonable Purposes, and for better preventing Treasonable and Seditious Practices, and shall and may be prosecuted, proceeded against, and punished, according to the provisions of the said act," &c. REG. ROUSE Forgery 57 Geo. 3, c. 19, s. 25, which makes societies within the former statute unlawful combinations, as well as all other societies the v. members whereof are required to take any oath not required or AND OTHERS. authorized by law. Now I know no limits to engagements, unless there is a positive law to the contrary. Any mutual promise or False pretences. engagement is authorized that is not prohibited. The subjects of this realm may make any engagement they please, unless clearly prohibited by law, and the party objecting to the legality of an engagement must show that it is illegal. That has not been done in this case, and therefore the objection cannot prevail. a warrant or Skinner then submitted that the document alleged to have been forged was not a warrant or order for the payment of money within the 11 Geo. 4 & 1 Will. 4, c. 66, s. 3. There was nothing on Whether the face of the instrument showing an obligation or duty on the instrument was parties to whom it was uttered to pay money thereupon. More-order for over, in this case there was not any such lodge as the Conqueror payment of Lodge, neither any officers of it, of the names alleged, in existence. money. Whitmore and Cope (for the prosecution), cited Reg. v. Rogers: (9 C. & P. 41.) There the forged paper was as follows:-"This is to certify that R. R. has swept the flues and cleaned the bilges and repaired four bridges of the Princess Victoria. J. N. 41. Os. 10d.," and evidence was given to show that by the course of dealing between the parties, this voucher, if genuine, would have authorized L. and Co. to pay the 41. Os. 10d.; and it was held that this was a warrant for the payment of money within the statute. Bosanquet J., in giving judgment, said, "It has been proved that this was the mode of transacting business that had been usual with the parties, and this, provided it had been a genuine voucher, would have properly authorized the payment of the money. I think that enough has been shown to sustain this indictment. [ERLE, J.-That case appears to be in point as far as the question whether an instrument in this form might be a warrant within the statute, but there, there was in fact such a course of business as would make the document effectual, if genuine; but here there was no Conqueror Lodge in existence, and the order, if genuine, was of no force.] That objection would apply to cheques where the name of a fictitious person was used. "If the order purport to be one which the party has a right to make, although in truth he had no such right, and although no such person as the order purports to be made by, existed in fact, it falls within the penalty of the statute:" (Russell on Crimes by Greaves, vol. 2, p. 520.) Whether the name forged be that of a merely fictitious person who never existed, or of a person actually existing, is wholly immaterial. It is as much a forgery in the one case as in the other, provided the fictitious name be assumed for the purpose of fraud in the particular instance in question: (Archbold's Pleading and Evidence in Criminal Cases, 10th edit., p. 359.) [ERLE, J. -No doubt an instrument in this form, "The bearer has laid three courses of masonry," might be shown to be a warrant for the payment of money as between the parties. So in the present case, |