« PreviousContinue »
R. v. Rusby. Conviction for regrating. Court divided. Defendant not brought up for judgment. Indictment must state the quantity.
sumer; see Smith's Wealth of Nations, book 4. c. 5. and Index, tit. Labour ; and many cases may occur in which a most laudable motive
may exist for buying large quantities of the same commodity. See the arguments, &c. in 14 East, 406. 15 East, 511. Indeed, in the case of the King v. Rusby, H. T. 40 G. 3., the court were equally divided on the question, whether regrating is an indictable offence at common law, and though the defendant was convicted, no judgment was ever passed upon him. 2 Crim. Law, 528. (n), 537. (n).
An indictment for ingrossing “ a great quantity" of fish, geese, and ducks, was holden bad; for the quantity of each ought to be specified. R. v. Gilbert, 1 East, 583.
Forests. See Game.
forfeiture. The forfeitures for particular offences may be found under
their respective titles: here it is treated of forfeitures in
I. Of Forfeiture of Lands and Goods.
- 4 & 5 W.4. c. 23.]
[1 Ed. 6. c. 12. — 5 & 6 Ed. 6. c. 11.) III. Of Corruption of Blood.
I. DE Forfeiture of Lands and Goods. THERE is a remarkable general difference in principle between
the forfeiture of lands, and the forfeiture of goods and personal estate ; lands are forfeited upon attainder by judgment of death or outlawry, and not before ; but goods and personal estate are for
feited by conviction. 4 Bl. Comm., 386, 387. Forfeiture of It seems agreed that by the common law all lands of inheritance, lands.
whereof the offender was seised in his own right, and also all rights of entry to lands in the hands of a wrong-doer, are forfeited to the king, by an attainder of high treason, and to the lord of whom they are immediately holden, by an attainder of petit treason or felony. 2 Haw. C. 49. § 1.
But it seems clear that the lord cannot enter into the lands holden of him, upon an escheat for petit treason or felony, without a special grant, till it appear by due process that the king hath
had his prerogative of the year, day, and waste. Id. § 3. 4 & 5 W. 4. By 4 & 5 W. 4. c. 23. § 3. no land chattels or stock vested in
any person upon any trust or by way of mortgage, or any profits No forfeiture
thereof, shall escheat or be forfeited to his majesty, bis heirs and on account of
successors, or to any corporation, lord of a manor, or other person, conviction or attainder of
by reason of the attainder or conviction for any offence of such trustee or mort- trustee or mortgagee, but shall remain in such trustee or mortgagee.
gagee, or survive to his co-trustee, or descend or vest in his re
presentative, as if no such attainder or conviction had taken place. 17 Ed. 2. c. 16. Concerning which year, day, and waste, it is enacted by the
17 Ed. 2. c. 16. that the king shall have the goods of all felons attainted, and fugitives, wheresoever they be found. And if they have freehold, it shall be forth with taken into the king's hands, and the king shall have all profits of the same by one year and one day: and the land shall be wasted and destroyed in the houses, woods, and gardens, and in all manner of things belonging to the same land. And after the king hath had the year, day, and waste, the land shall be restored to the chief lord of the fee, unless that he fine before with the king for the year, day, and waste.
It seems also that a copyhold of inheritance will be forfeited to the lord by attainder of treason or felony, but not upon conviction only, except by special custom. 2 Hawk. P. C. c. 49. $ 7. acc. R. v. Willes, 3 B. 8: A. 510.
By stat. 54 G. 3. c. 145. no attainder, except for high treason, 54 G. 3. c. 145. petit treason, or murder, or for abetting the same, shall extend to the disinheriting of any heir, &c. Vide tit. attainder.
As to forfeiture of goods, it seems agreed that all things what. Forfeiture of soever which are comprehended under the notion of a personal goods. estate, whether they be in action or possession, which the party hath or is entitled to in his own right, and not as executor or administrator to another, are liable to such forfeiture, in the following cases :
(1) Upon a conviction of treason or felony. 2 Haw. c. 49. Conviction of $ 13. (a)
treason or fe(2) Upon a presentment by the oaths of 12 men that a person
lony. arrested for treason or felony fled from or resisted those who had Person arrested him in custody, and was killed by them in the pursuit or scuffle. killed in pursuit
or scuffle. Id. $ 16.
But where the killing a man in his own defence is in the law no Forfeiture by felony, there is no forfeiture unless he fled; for that is a distinct flight though forfeiture, although the party be not guilty of the fact. 1 Hale, 493.
be innocent. By 7 & 8 G. 4. c. 28. 9 5., where any party shall be indicted for
7 & 8 G, 4. treason or felony, the jury empannelled to try such person shall not be charged to inquire concerning his lands, tenements, or Jury who try goods, nor whether he fled for such treason or felony.
not to inquire This enactment does not, however, apply to the case of a pre
of fight; sentment, made by a coroner's inquest on view of a dead body, that does not estend A. killed B., and fled for it, which, by a strange anomaly, is held to a coroner's
inquest. not traversable, but conclusive for the forfeiture of goods, although a petty jury afterwards acquit A. on his trial, and find that he did not fly. 2 Hale, 63. 154. But see 1 Saund. R. 362. n. (1.)
The whole doctrine of forfeiture for flight may perhaps be now well considered as altogether obsolete.
(3) By being waived or left by a felon in his fight, whereby he Goods waived. forfeits the goods so waived, whether they be his own, or the goods of others stolen by him, which shall not be restored to the right owners but upon a proper prosecution. Id. Ø 17.
(4) If a person be found felo de se, he shall forfeit his goods and Felo de se. chattels, but not his lands. 3 Inst. 54. 5 Rep. 109.
Upon outlawry in treason or felony, the offender shall lose and Forfeiture upon forfeit as much as if he had appeared, and judgment had been outlawry. given against him, as long as the outlawry is in force. Wood's Inst. b. 4. c. 5.
(a) It has been decided, that a chose in action accruing to a party after his being attainted for felony vests in the king. Bullock v. Dodds, 2 B. & A. 258.
And those that tarry till the exigent in treason, felony, or petit larceny, forfeit their goods, though they render themselves to jus.
tice, and are acquitted ; for it was a fight in law. Id. To what time It seems agreed that the forfeiture, upon an attainder, either the forfeiture of treason or felony, shall have relation to the time of the offence, shall relate. for the avoiding of all subsequent alienations of the land, but to
the time of the conviction or flight found only, as to chattels ; unless the party were killed in flying or resisting, in which case it is said that the forfeiture of the chattels shall relate to the time of
the offence. 2 Haw. c. 49. $ 30. What is to be But though the goods of an offender be not forfeited till the condone with the
viction or flight found by inquest, yet whether they may be felon's goods before for
seized upon the offence committed, hath been controverted ; confeiture.
cerning which Lord Hale saith thus :
It seemeth clear that at the common law, if a man had committed felony or treason, or though possibly he had committed none, yet if he had been indicted, the sheriff, coroner, or other officer could not seize and carry away the goods of the offender or party accused.
Again, he could not in that case have removed the goods out of the custody of the offender or party accused, and deliver them
over to the constables, or to the villata, to answer for them. Party being in- But if the party were indicted, the sheriff or other officer might dicted, inven
make a simple seizure of them, only to inventory and appraise them, tory and ap
and leave them to the custody of the servants or bailiff of the party be made of his indicted, in case he would give security against their being emgoods;
bezzled, or in default thereof he might deliver them to the constable or vill to be answerable for them, but yet so that the party accused and his family have sufficient out of them for their live
Jihood and maintenance. or possibly, if And possibly the same law was, though he were not indicted, not indicted;
but de facto had committed a felony, but with this difference, if he had been indicted, this kind of seizure might have been made,
whether he committed the felony or not. but at peril But in case there were no indictment, then it is at the peril of of him who him that seizeth, if he committed not the felony. seizes.
There is this advantage by the viewing and appraising, that thereby the king is ascertained what the goods are, and may pursue them that take or embezzle them by information (if the party happen to be convict), and try the property with them, whether they are really sold, or sold only fraudulently, without valuable consideration, to prevent the forfeiture. 1 Hale, 363, 4, 5, 6, 7.
II. DE Logo of Dower. Forfeiture of Albeit a person shall be attainted of felony, yet his wife shall not dower in felony. forfeit her dower. 1 Ed.6. c. 12. s 17. In treason. But on his attainder of treason she shall forfeit her dower.
5 & 6 Ed. 6. c. 11. § 13.
But in some kinds of treason, (particularly with regard to the coin,) there is a special saving of the wife's dower by statute.
Corruption of blood.
III. Df Corruption of Blood. It is agreed that by an attainder of treason or felony, the blood is so far stained or corrupted, that the party loses all the nobility
or gentility he might have had before, and becomes ignoble. 2 Hau. c. 49. \ 47.
Also, that he can neither inherit as heir to an ancestor, nor have an heir. Id. $ 48. But see 54 G. 3. c. 145. antè, tit. Attainder.
But the king's pardon, though it doth not restore the blood, yet as to issue born after, hath the effect of a restitution. i Hale, 358.
But restitution of blood, in its true nature and extent, can only be by act of parliament. i Hale, 358. 2 Haw. c. 49. g 51.
See tit. attainder.
46 G. 3. c. 45. 54 G. 3. c. 151. c. 169. - 55 G. 3.
- 1 W. 4. c. 66. 2 & 3 W. 4. c. 106. c. 123.
3 & 4 W. 4. c. 44.]
[9 G.4. c. 32. — 2 & 3 W. 4. c. 123.]
I. DE Forgery at Common Law. THE crime of forgery is not of the class of offences which fall Forgery cannot
within the jurisdiction of justices for trial at their sessions ; but be tried at magistrates may still be called upon to act in cases of forgery, in sessions. examining and committing the offender, taking depositions, &c. See post, p. 254.
Forgery is an offence at common law, and an offence also by Definition of statute.
offence. Forgery at the common law is an offence in falsely and fraudulently making or altering any manner of record, or any other authentic matter of a public nature; as a parish register, or any deed, will, privy seal, certificate of holy orders, protection of a parliament man, and the like. 1 Haw. c. 70. g 1.
Mr.J. Blackstone says, that forgery is the fraudulent making or alteration of a writing, to the prejudice of another's right. 4 Black. Com. 247.
Mr. J. Grose, in delivering the opinion of the judges in Reculist's case, says, “ The crime of forgery is a false making of any instrument, with intention to defraud." 0. B. May, 1796, 2 Leach, 707.
The counterfeiting of any writing with a fraudulent intent, whereby another may be prejudiced, (it is immaterial whether the party be actually injured or not,) is also a forgery at common law. 2 East's P.C. 861.
(a) See the Report from a Select Committee of the House of Commons on the Criminal Law of England, dated 2d April, 1824, which contains a most able and accurate statement of the then existing law upon this subject.
ant's own use,
Forgery at common law is also defined to be the fraudulent making false making
or alteration of a writing to the prejudice of another man's right; or alteration of any writing.
and a false making, a making malo animo, of any written instrument for the purpose of fraud and deceit, within which word “ making must be included every alteration of, or addition to, a true instru
ment. 2 Russ. 317. Forging an or- R. v. Ward, 2 Stra. 747. 2 Ld. Raym. 1461. 2 East's P. C. der from one to 861. 2 Russ. 351. An information was filed by the attorneycharge certain
general, charging that the defendant Ward, being bound to deliver in a schedule to
315 tons and a quarter of alum, of the value of 10001., to the his account, and Duke of Buckingham at a certain day then past, he, the defendto appropriate ant, wickedly contriving and intending the said duke of the said part of the pro- alum to deceive and defraud, and with a wicked and fraudulent ceeds to defend- intent to avoid the delivery of the said alum, on, &c. at, &c. with
force and arms upon the back of a certain certificate in writing &c. with intent to defraud, is
signed by one A. N. falsely forged and counterfeited and caused forgery at com- to be forged and counterfeited a certain writing, in the words and mon law,though figures following: no fraud be
“ Schedule (Tons. C. Mr.John Ward, I do hereby order you effected.
660 5 to charge the quantity of 660 tons and 315 5 1 quarter of alum to my account, part
of the quantity here mentioned in this
975 10 certificate, and out of the money arising by the sale of the alum in your hand to pay to Mr. W.Ward and yourself 101. for every ton according to agreement; and for your so doing this shall be your discharge. Buckingham, April 30th, 1706." To the evil example, &c. to the great damage of the said duke, and against the peace, &c. A second count charged him
with publishing the same forged writing knowing it to be forged, Motion in arrest &c. After conviction, it was moved in arresi of judgment that the of judgment. instrument set forth was not the subject of forgery at common law;
but at most the offence was only punishable as a cheat, and not in this form, being merely a thing of a private nature, and in effect nothing more than a letter; and if the counterfeiting a letter had been punishable as a forgery at comnion law, then the making the stat. 33 H. 8. c. 1., to punish those who got money or goods of others under colour of false tokens or counterfeit letters, was nugatory; that it nowhere appeared that the duke had been pre
judiced by this, which if he had, it might have been indictable as Forgery at com- a cheat, but not as a forgery at common law. – But all the court mon law need held that this was indictable as a forgery at common law; that not be of a none of the books confine the offence to the particular kinds menpublic nature, tioned in 3 Inst. 169.; and that, as forging a writing not sealed, nor of a writing under seal.
within all the mischief of forging a deed, the maxim applied, ubi eadem est ratio eadem est lex ; that this was recognised in the preamble of the stat. 5 Eliz. c. 14., which recites, that the forging of writings “ as well as of deeds was punishable by law before that statute, but that offenders had been encouraged by the too great mildness of the punislıments; and that the 33 H. 8. c. 1. did not create new offences, but only enhanced the penalty where the fraud was executed. They also referred to several instances of indictments at common law for forging instruments not under seal, as a bill of lading (5 Mod. 137.), and acquittance (1 Sid. 278.), a warrant of attorney (T. Ray. 81.), a marriage register (2 Sid. 71.), a bill of exchange (Roll. 35.), letters of credit to gather money