Fraudulent or false making or alteration of any writing. Forging an or der from one to charge certain goods contained in a schedule to his account, and ant's own use, no fraud be Motion in arrest of judgment. Forgery at common law need not be of a public nature, nor of a writing under seal. Forgery at common law is also defined to be the fraudulent making or alteration of a writing to the prejudice of another man's right; 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 instrument. 2 Russ. 317. R. v. Ward, 2 Stra. 747. 2 Ld. Raym. 1461. 2 East's P. C. 861. 2 Russ. 351. An information was filed by the attorneygeneral, charging that the defendant Ward, being bound to deliver 315 tons and a quarter of alum, of the value of 1000l., to the Duke of Buckingham at a certain day then past, he, the defendant, wickedly contriving and intending the said duke of the said alum to deceive and defraud, and with a wicked and fraudulent 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 signed by one A. N. falsely forged and counterfeited and caused to be forged and counterfeited a certain writing, in the words and figures following: "Schedule { Tons. C. 660 1995 5 975 10 Mr. John Ward, I do hereby order you 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 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, &c. After conviction, it was moved in arrest of judgment that the 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 common 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 prejudiced by this, which if he had, it might have been indictable as a cheat, but not as a forgery at common law. But all the court held that this was indictable as a forgery at common law; that none of the books confine the offence to the particular kinds mentioned in 3 Inst. 169.; and that, as forging a writing not sealed, came 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 punishments; 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 (Sty. 12.), and others of a similar kind; and they distinguished Party need not this offence from cheats at common law and upon the 33 H. 8. c. 1., actually be prewhere the party received an actual prejudice, which was not neces- judiced. sary to constitute forgery; it being sufficient if the party might be prejudiced by it. a The defendant having been committed to gaol under an a attachment for contempt in civil cause, counterfeited a pretended dishis creditor to the sheriff and gaoler, under which he ob charge as from tained his disgaol; and it was charge from holden to be a misdemeanor at common law; Fawcett's case, York Sp. Ass. 1793, 2 East's P. C. 862. 2 Russ. 352. Leander Fawcett, who had been committed to the gaol at York, under an attachment sued out of the court of K. B. for a contempt in a civil suit, was indicted for forging a certain writing purporting to be signed in the name of A. Dawson (the party who had prosecuted the writ of attachment against him) and to contain the authority of Dawson to the sheriff for his discharge, in the following form :-"To the high sheriff of the county of York, his deputy, &c. and gaoler. As to any writ, attachment, or any other process or cause whatsoever, at the suit, instance, or promotion of me A. Dawson, by reason whereof Leander Fawcett is now detained a prisoner in your custody, you may forthwith discharge and set at liberty him the said Leander Fawcett, unless detained at the suit of some other person; and for so doing this shall be your warrant and indemnity. (Dated) 26th February, 1793. (Signed) A. Dawson, and witnessed by one R. W." The defendant having been convicted, several questions were submitted to the consideration of the judges; and, amongst others, whether although, as the the order were a matter of such a public nature, that the counter- not for the nonfeiting of it would be a forgery at common law; and also, whether, as the attachment was for non-payment of money, the order, if genuine, would not have been a mere nullity, and the sheriff not authorised to discharge the prisoner under it. Lord Kenyon C. J. and Eyre C. J. said, that there was an injury to a third person, and that it was an interruption to public justice: but the latter thought it was not a forgery, but a cheat. The matter was adjourned to a subsequent term, when Eyre C. J. was still not satisfied as to the forgery; though he thought the indictment good as for a cheat. But all the judges concurred in holding that the offence was indictable as for a misdemeanor at common law; and a great majority also thought it was forgery at common law. Prisoner was indicted for forgery at common law, for that being in gaol for want of sureties, he forged a letter from a magistrate to the gaoler, stating that sureties were entered, and authorising his discharge. The indictment set out the letter, and charged the intent to be to effect his escape.—It appeared that the prisoner, being in Oxford gaol for the cause stated, sent the letter forged in the name of a magistrate to a friend at Chipping Norton, who transmitted it by the post to the gaoler. The gaoler stated, that when a person was in custody for want of sureties, it was the course to discharge him on its being certified by a magistrate that sureties had been entered, the prisoner also entering into his own recognizance; but he added, that in this instance he should not have discharged the prisoner, as he did not believe the letter to be the hand-writing of the magistrate. On a doubt of Tindal C. J., who tried the prisoner, whether the counterfeiting this letter amounted to a forgery at common law judgment was respited, and a case reserved. Fawcett's case, 2 Russ. 352. was referred to. The judges (13) held unanimously that the conviction was right. M. T. 1833. R. v. Robt. Harris, Sum. Ass. for Oxford, 1833, cor. Tindal C. J. attachment was payment of money, the order was in itself a mere nullity, me to the sheriff for the discharge. A majority of the judges also thought that it was a forgery at common law. Forged letter from a magisising the discharge of a person in prison for want of sureties is a forgery at com trate author mon law. 2 Haw. c. 8. a direct tend- of peace. &c. But as to the power of justices of the peace in this matter, Mr. Hawkins says it hath been settled of late that they have no jurisdiction over forgery at the common law; the principal reason of which resolution, he says, as he apprehended, was, that inasmuch as the chief end of the institution of the office of these justices was for the preservation of the peace against personal wrongs and open violence, and the word trespass in its most proper and natural sense is taken for such kind of injuries, it shall be understood in that sense only in the commission, or at the most to extend to such other offences only as have a direct and immediate tendency to cause such breaches of the peace, as libels, and such like, which on this account have been adjudged indictable before justices of the peace. And this was confirmed in the case of Micah Gibbs, 1 East, 173., where it was determined that the sessions have no jurisdiction over the offence of forgery at common law, nor can they take cognizance of it as a cheat. But may ex- But Mr. Barlow says nevertheless, that it seemeth clear amine, commit, that a justice of the peace may take an information thereof, bind over the informers, examine the offender, certify his examination to the proper judges, and commit him to prison, in order to abide his trial. Barl. 244. Law of forgery modelled or II. Df Forgery by Statute. By 11 G. 4 & 1 W. 4. c. 66. the law respecting the crime of forgery has been new-modelled and consolidated, and many of consolidated by the previous statutes inflicting punishment for that offence have been repealed, either in the whole or in part. 1 W. 4. c. 66. No forgeries, or other kindred offences, which are now capital, shall continue so, unless expressly made capital by this act. By the 1st section it is enacted, "That where by any acts now in force any person falsely making, forging, counterfeiting, erasing, or altering any matter whatsoever, or uttering, publishing, offering, disposing of, putting away, or making use of any matter whatsoever, knowing the same to be falsely made, forged, counterfeited, erased, or altered, or any person demanding or endeavouring to receive or have any thing, or to do or cause to be done any act, upon or by virtue of any matter whatsoever, knowing such matter to be falsely made, forged, counterfeited, erased, or altered, would, according to the provisions contained in any of the said acts, be guilty of felony, and liable to suffer death as a felon; or where by any acts now in force any person falsely personating another, or falsely acknowledging any thing in the name of another, or falsely representing any other person than the real party to be such real party, or wilfully making a false entry in any book, account, or document, or in any manner wilfully falsifying any part of any book, account, or document, or wilfully making a transfer of any stock, annuity, or fund, in the name of any person not being the owner thereof, or knowingly taking a false oath, or knowingly making a false affidavit or false affirmation, or demanding or receiving any money or other thing by virtue of any probate or letters of administration, knowing the will on which such probate shall have been obtained to have been false or forged, or knowing such probate or letters of administration to have been obtained by means of any false oath or false affirmation, would, according to the provisions contained in any of the said acts, be guilty of felony, and liable to suffer death as a felon; or where by any acts now in force any person making or using, or knowingly having in his cus- 1 W. 4. c. 66. tody or possession any frame, mould, or instrument for the making of paper, with certain words visible in the substance thereof, or any person making such paper, or causing certain words to appear visible in the substance of any paper, would, according to the provisions contained in any of the said acts, be guilty of felony, and liable to suffer death as a felon; then, and in each of the several cases aforesaid, if any person shall, after the commencement of this act, be convicted of any such felony as is herein-before mentioned, or of aiding, abetting, counselling, or procuring the commission thereof, such person shall not suffer death for the same, unless the same shall be made punishable with death by this act; All forgeries and if the same shall not be made punishable with death by this heretofore caact, in such case every person who shall, after the commencement pital, and not declared so by of this act, be convicted of any such felony, or of aiding, abetting, this act, shall counselling, or procuring the commission thereof, shall be liable, be punished at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years nor less than two years: Provided always, that nothing herein contained shall affect Saving of acts or alter any acts relating to the coin of this realm, or to any coin relating to coin. of any other realm lawfully current within this realm." §2. "If any person shall forge or counterfeit, or shall utter, knowing the same to be forged or counterfeited, the great seal of the United Kingdom, his majesty's privy seal, any privy signet of his majesty, his majesty's royal sign manual, any of his majesty's seals appointed by the twenty-fourth article of the Union to be kept, used, and continued in Scotland, the great seal of Ireland, or the privy seal of Ireland, every such offender shall be guilty of high treason, and shall suffer death accordingly: Provided always, that nothing contained in an act passed in the seventh year of the reign of king William the third, intituled An act for regulating of trials in cases of treason and misprision of treason,' or in an act passed in the seventh year of the reign of queen Anne, intituled An act for improving the union of the two kingdoms,' shall extend to any indictment, or to any proceedings thereupon, for any of the treasons herein-before mentioned." 3. "If any person shall forge or alter, or shall offer, utter, dispose of, or put off, knowing the same to be forged or altered, any exchequer bill or exchequer debenture, or any indorsement on or assignment of any exchequer bill or exchequer debenture, or any bond under the common seal of the united company of merchants of England trading to the East Indies, commonly called an East India bond, or any indorsement on or assignment of any East India bond, or any note or bill of exchange of the governor and company of the bank of England, commonly called a bank note, a bank bill of exchange, or a bank post bill, or any indorsement on or assignment of any bank note, bank bill of exchange, or bank post bill, or any will, testament, codicil, or testamentary writing, or any bill of exchange, or any promissory note for the payment of money, or any indorsement on or assignment of any bill of exchange or promissory note for the payment of money, or any acceptance of any bill of exchange, or any undertaking, warrant, or order for the payment of money, with intent, in any (a) But see post, p. 255. with trans portation. Forging the great seal, privy seal, privy sigmanual, &c. treason, and capital. (a) net, royal sign Forging an exchequer bill, exchequer debenture, East India bond, bank note, will, bill of exchange, promissory note, or warrant or order for payment of money, capital. (a) 1 W. 4. c. 66. change, &c. the forger of such instrument may be indicted un der this act. of the cases aforesaid, to defraud any person whatsoever, every such offender shall be guilty of felony, and, being convicted thereof, shall suffer death as a felon." If any instru- § 4. "Where by any act now in force any person is made ment, however liable to the punishment of death for forging or altering, or for designated, is in offering, uttering, disposing of, or putting off, knowing the same to law a bill of ex-be forged or altered, any instrument or writing designated in such act by any special name or description, and such instrument or writing, however designated, is in law a will, testament, codicil, or testamentary writing, or a bill of exchange or a promissory note for the payment of money, or an indorsement on or assignment of a bill of exchange or promissory note for the payment of money, or an acceptance of a bill of exchange, or an undertaking, warrant, or order for the payment of money, within the true intent and meaning of this act, in every such case the person forging or altering such instrument or writing, or offering, uttering, disposing of, or putting off such instrument or writing, knowing the same to be forged or altered, may be indicted as an offender against this act, and punished with death accordingly." Making false entries in the books in which the accounts of Forging a transfer of any public stock or of certain other stock; power of attorney to transfer the same, or to receive divi dends thereon; 5. "If any person shall wilfully make any false entry in, or wilfully alter any word or figure in, any of the books of account kept by the governor and company of the bank of England, or by the governor and company of merchants of Great Britain trading to the South Seas and other parts of America, and for encouraging the fishery, commonly called the South Sea company, in which books the accounts of the owners of any stock, annuities, or other public funds which now are or hereafter may be transferable at the bank of England or at the South Sea house shall be entered and kept, or shall in any manner wilfully falsify the accounts of such owners in any of the said books, with intent in any of the cases aforesaid to defraud any person whatsoever; or if any person shall wilfully make any transfer of any share or interest of or in any stock, annuity, or other public fund which now is or hereafter may be transferable at the bank of England or at the South Sea house, in the name of any person not being the true and lawful owner of such share or interest, with intent to defraud any person whatsoever; every such offender shall be guilty of felony, and, being convicted thereof, shall suffer death as a felon." § 6. "If any person shall forge or alter, or shall utter, knowing the same to be forged or altered, any transfer of any share or interest of or in any stock, annuity, or other public fund which now is or hereafter may be transferable at the bank of England or at the South Sea house, or of or in the capital stock of any body corporate, company, or society which now is or hereafter may be established by charter or act of parliament, or shall forge or alter, or shall utter, knowing the same to be forged or altered, transfer of stock any power of attorney or other authority to transfer any share or interest of or in any such stock, annuity, public fund, or capital stock as is herein-before mentioned, or to receive any dividend payable in respect of any such share or interest, or shall demand or endeavour to have any such share or interest transferred, or to receive any dividend payable in respect thereof, by virtue of any such forged or altered power of attorney or other authority, knowing the same to be forged or altered, with intent in any of the several cases aforesaid to defraud any person whatsoever; or if any or receipt of dividends by false personation, capital. |