sented from that dictum, aud held that a blacksmith's shop, when used as a workshop only, was within the statute (1).

Where A. had in connection with his chemical works a building commonly called the machine house in which goods sent out were weighed, and in which a book was kept by A's servant for entering the goods weighed and sent out, and it also appeared that the time of the men employed in the works was also taken and their wages paid in that same building, the books in which their time was entered being brought there for the purpose of being entered up and for paying their wages, it was held upon an indictment for breaking and entering this building that it was a counting house. (?)

Article 407 (a) includes, as part of a dwelling-house, any building occupied with and being within the same curtilage with it, provided there be, between such building and the dwelling-house, "a communication either immediate or by means of a covered or enclosed passage leading from one to the other"; and the breaking and entering of any such building is punishable as burglary or house-breaking,- according to the facts,-under articles 410, 411, and 412, ante; but articles 413 and 414 also cover and punish the breaking and entering of any building which is within the curtilage of a dwelling-house, though not so connected with it,-either immediately or by means of a covered or enclosed passage, as to form part of it. The word "curtilage" (which is derived from the Saxon word curt, signifying court), means a court, a yard, a garden, a field, or any piece of land, (with or without buildings on it), surrounding, or near and belonging to a messuage or dwelling-house; and so in olden times, the mansion or dwelling-house, in which burglary might be committed, included the out houses,-such as warehouses, barns, stables, cow-houses, dairy-houses, offices, and all other buildings and erections, which were within the curtilage, or same common fence as the mansion house itself, though not under the same roof and not joined to the dwelling-house, upon the ground that the main house protected and privileged all its out-buildings, branches and appurtenances, if within the curtilage or common homestall. (3)

Articles 413 and 414 therefore make it an indictable offence to break and enter any building occupied with, belonging to, and within the curtilage of a dwelling-house.

415. Entering or being found in a dwelling-house, at night, Every one is guilty of an indictable offence and liable to seven years' imprisonment who unlawfully enters, or is in, any dwelling-house by night with intent to commit any indictable offence therein. R.SC., c. 164, s. 39.

This article will meet cases in which the prisoner has entered (either by an open door or window or otherwise) a dwelling-house or is found therein, by night, and where, though there is no proof of any breaking or of the commission of any indictable offence, the circumstances shew an intent to commit one, and that the prisoner was there with that intent.

416. Being found armed with intent to break a dwelling house, etc. --Every one is guilty of an indictable offence and liable to seven years' imprisonment who is found

(a.) armed with any dangerous or offensive weapon or instrument by day, with intent to break or enter into any dwelling-house, and to commit any indictable offence therein; or

(1) R. v. Carter 1 C. & K. 173.

(2) R. v. Potter, 2 Den. 235; 3 C. & K. 179; 20 L. J. (M. C) 170.

(3) 3 Inst. 64; 1 Hale, 558; 4 Bl. Com. 225; 2 East, P. C. 493; 1 Hawk. P. C. c. 38, s. 21.

(b.) armed as aforesaid by night, with intent to break in any building and to commit any indictable offence therein. 8. 43.

R.S.C., c. 164,

For the definition of "offensive weapon,,' see article 3 (r), ante.

417. Having possession of burglars tools, or being disguised.— Every one is guilty of an indictable offence and liable to five years' imprisonment who is found

(a.) having in his possession by night, without lawful excuse (the proof of which shall lie upon him), any instrument of housebreaking; or

(b.) having in his possession by day any such instrument with intent to commit any indictable offence; or

(c.) having his face masked or blackened, or being otherwise disguised, by night, without lawful excuse (the proof whereof shall lie on him); or

(d) having his face masked or blackened, or being otherwise disguised, by day with intent to commit any indictable offence. R.S.C., c. 164, s. 43.

For definition of "Having in possession ", see article 3 (k.) ante.

In reference to article 417, the English Commissioners say: "These are extensions of the existing law. It is thought that being disguised by night affords sufficient prima facie evidence of a criminal intent."

418. Every one who, after a previous conviction for any indictable offence, is convicted of an indictable offence specified in this part for which the punishment on a first conviction is less than fourteen years' imprisonment is liable to fourteen years' imprisonment. R.S.C., c. 164, s. 44.

See articles 628 and 676, post, as to the indictment and procedure when a previous conviction is charged.

PART XXXI

FORGERY.

"It is not possible to say precisely what are the documents the false making of which is forgery, at common law. But, by a great many different enactments, passed at different times, a great many forgeries have been made felonies, and as such, punishable with great severity.

The statute law was, for the most part, consolidated by the 2425 Vict. c. 98.

Like the other consolidation Acts, the Forgery Act assumes that the common law definition of forgery is known. This definition however, a somewhat intricate matter involving various questions as to the extent of falsification implied in forgery; the character of the intent to defraud essential to it, and the circumstances essential to the completion of the crime. These matters are dealt with in sections 313 to 317 both inclusive (1)

The part relating to Forgery, contains an enumeration of the various classes of documents, the forgery of which is punishable. They include all those which are mentioned in 24 & 25 Vict. c. 98, though not always in the same order or under the same names. They also include a considerable number of documents, (contracts, for instance, documents intended to be produced in evidence, and false telegrams). which are not included in that Act.

This part makes provision for the forgery of some documents as to which it is doubtful whether to forge them is or is not a common law offence.

Finally, it contains a general clause, (section 336), (2) punishing the forgery of any document, whatever, with intent to defraud the public or any person, or to pervert the course of justice, or to injure any person, or to deprive any person of or prevent his obtaining any office, &c.

We believe that few, if any, cases would be punishable under this section which would not be forgeries at common law. There is a considerable difference between this part and the corresponding chapter of the Bill. The general section (section 336), (3) corres ponds very nearly to a similar provision in the Bill, which proposed to subject offenders against its provisions to a maximum punishment of seven years penal servitude instead of two years imprisonment with hard labor. Such an enactment would have rendered unnecessary a considerable part of the enumeration of documents contained in the Draft Code. The provision was regarded as objectionable on the ground that it authorised a sentence of penal servitude for the forgery of various documents which were not defined, and the forgery of which could be at present punished by fine and imprisonment only. The difference in length between the Draft Code and the Bill is to a great extent due to the manner in which, perhaps ex _abundanti cautelâ the former deals with each particular forgery. In the result, there will, we believe, be but little practical difference. The Draft Code adheres more closely than the Bill to the existing law, and is in these matters more explicit and detailed.

The provisions as to preparations for forgery are chiefly re-enactments of existing statutes.

In section 356, (4) we have re-enacted 25-26 Vict., c. 88, as

(1) Sections 313 to 317 of the English Draft Code correspond with articles 419 to 422 of the present Code.

(2) See clause C (n) of article 423, post.

(3) See clause C. (n) of article 423 post.

(4) Section 356 English Draft Code corresponds with Article 443 et seq of the present code.

to Trade Marks, omitting some clauses which seem not practical." Eng. Commrs'. Rep.

419. Meanings of “Document, ” "Bank note, " “Exchequer bill,” “False document."-A document means, in this part, any paper, parchment, or other material used for writing or printing, marked with matter capable of being read, but does not include trade marks on articles of commerce, or inscriptions on stone or metal or other like material.

420. “Bank note" includes all negotiable instruments issued by or on behalf of any person, body corporate, or company carrying on the business of banking in any part of the world, or issued by the authority of the Parliament of Canada or of any foreign prince, or government, or any governor or other authority lawfully authorised thereto in any of Her Majesty's dominions, and intended to be used as equivalent to money, either immediately upon their issue at or some time subsequent thereto, and all bank bills and bank post bills;

(a.) " Exchequer bill "includes exchequer bonds, notes, debentures and other securities issued under the authority of the Parliament of Canada, or under the authority of any legislature of any province forming part of Canada, whether before or after such province so became a part of Canada.

421. The expression "false document" means

(a.) a document the whole or some material part of which purports to be made by or on behalf of any person who did not make or authorize the making thereof, or which, though made by, or by the authority of, the person who purports to make it is falsely dated as to time or place of making, where either is material; or

(b.) a document the whole or some material part of which purports to be made by or on behalf of some person who did not in fact exist; or

(c.) a document which is made in the name of an existing person either by that person or by his authority, with the fraudulent intention that the document should pass as being made by some person, real or fictitious, other than the person who makes or authorizes it.

2. It is not necessary that the fraudulent intention should appear on the face of the document. but it may be proved by external evidence.

It will be readily seen that the expression "false document" as used in connection with forgery has a meaning entirely different from what is meant by a document which is false in the sense of being simply an untrue statement of facts. Where a letter purports to be signed by A. B., but is, as a matter of fact, signed by C. D., in A. B's name, without A. B's authority, a third party to whom it is shewn is deceived and led to believe that it is A. B's letter, which, in fact, it is not; and, in that sense, it is a false document, whether its contents are true or false. It may be a true document as to the facts set forth in it;

but whether true or false as a statement of facts, it is a false document in regard to the signature. If the letter, instead of being signed by C. D., in A. B's name, were really signed by A. B. himself, or by his authority, and if its contents were false, then, although a false document in the sense of being an untrue statement of facts, it would be a true and genuine document in regard to the signature, and no forgery. A document whose contents are true may thus be a forged false document; and a document which contains false statements of fact may, nevertheless, be a genuine document, in the sense of being no forgery; although it may amount to and be punishable as a false pretence. For instance, if in a letter, written and signed in his own name, A. make a false statement, whereby B. is induced to part with his money or goods, the letter would not be a false document in the sense of being a forgery, but it would be a written false pretence.

422. Forgery defined.-Forgery is the making of a false document knowing it to be false, with the intention that it shall in any way be used or acted upon as genuine, to the prejudice of any one whether within Canada or not, or that some person should be induced, by the belief that it is genuine, to do or refrain from doing anything, whether within Canada or not.

2 Making a false document includes altering a genuine document in any material part, and making any material addition to it or adding to it any false date, attestation, seal or other thing which is material, or by making any material alteration in it, either by erasure, obliteration, removal or otherwise.

3. Forgery is complete as soon as the document is made with such knowledge and intent as aforesaid, though the offender may not have intended that any particular person should use or act upon it as genuine, or be induced, by the belief that it is genuine, to do or refrain from doing anything.

4. Forgery is complete although the false document may be incomplete, or may not purport to be such a document as would be binding in law, if it be so made as, and is such as to indicate that it was intended, to be acted on as genuine.

Forgery at common law is defined, by Blackstone, as "the fraudulent making or alteration of a writing to the prejudice of another man's right." (1) It has also been defined as "a false making, a making malo animo, of any written instrument, for the purpose of fraud or deceit"; (2) the word " making," in the latter definition, being considered as including every alteration, or addition to a true instrument,

As to the word forge, Lord Coke says, "To forge is metaphorically taken from the smith who beateth upon the anvil and forgeth what fashion or shape he will. The offence is called crimen falsi, and the offender falsarius; and the Latin word to forge is falsare or fabricare." (3)

Besides the offence of forgery at common law, which was of the degree only of misdemeanor, a great many kinds of forgery were specially subjected to severe punishments by various statutes, which, as stated by the English commissioners, (4) were, for the most part, consolidated by the Imperial Act, 24-25 Vict. c. 98.

(1) 4 Bl. Com. 247.

(2) 2 East, P. C. 852, 965.

(3) Inst. 169; 2 Russ. Cr. 3 Ed. 318.

(4) See p. 377, ante.