CHAPTER signature of one Thomas Gibson, wrote over it a promissory XXI. note for 6,4007., he was indicted and convicted of having forged the note (2). And where the same prisoner, having the genuine signature of Samuel Edwards, wrote on the other side of the paper a promissory note, payable to Samuel Edwards, and so turned the genuine signature into an indorsement, he was convicted of forging the indorsement (a). So if a clerk be intrusted to fill up a blank cheque signed by his master with a particular sum, and he fraudulently inserts a larger sum, it is a forgery of the cheque (6). Misapplication of his signing. There may be an innocent misapplication of his own genuine signature by the party himself. Thus, where a own signature man was induced to sign his name to a bill by a fraudulent by the party misrepresentation of the nature of the instrument, it was held that, if not guilty of negligence, he was not liable even to an innocent holder, any more than if he had been blind or illiterate, and the instrument had been falsely and fraudulently read over to him (c). By signature of fictitious name. To sign the name of a fictitious or non-existing person is forgery (d). Where the prisoner was convicted of forging an order for payment of money, and it appeared that he had bought goods from the prosecutor, and paid for them. with a draft signed in the fictitious name of H. Turner, although the prosecutor had sworn that he gave credit to the prisoner and not to the draft, it was held that the prisoner was rightly convicted. The Judges said that it was a false instrument, not drawn by any such person as it purported to be, and that the using a fictitious name was only for the purpose of deceiving (e). But the signing a fictitious name will not amount to forgery, if it were used on other occasions as well as for that very fraud, or system of fraud, of which the forgery forms a part (ƒ). Where proof is given of the prisoner's real name, and no (z) Rex v. Hales, 17 St. Tr. 161. (a) Ibid. 209, 229. (b) Reg. v. Wilson, 17 L. J., M. C. 82; 1 Den. C. C. 284; Rex v. Hart, 1 Moo. C. C. 486; 7 C. & P. 652. But a holder in due course may recover under Code, s. 20. (c) Foster v. Mackinnon, L. R., 4 C. P. 704; and the English and American authorities there cited. (d) Rex v. Francis, Bayley, 6th ed. 572; Russ. & Ry. 209; Lockett's case, 1 Leach, 94; East, P. C. 940; Taft's case, 1 Leach, 172; East, P. C. 959; or in the prisoner's own name to represent a fictitious firm; Reg. v. Rogers, 8 C. & P. 629. (e) Sheppard's case, 1 Leach, 226; 2 East, P. C. 967; Whiley's case, R. & R. 90. (f) Rex v. Bontien, R. & R. 260. XXI. proof of any change of name until the time of the fraud CHAPTER committed, it lies on the prisoner to show that he has before assumed the false name on other occasions, and for other purposes unconnected with forgery (g). name. It is a forgery, also, to sign a man's own name with in- By signing a tention that the signature should pass for the signature of man's own another person of the same name (h). And where a person, whose name was Thomas Brown, was indicted for forging a promissory note signed Thomas Brown, and it appeared that he had uttered the note as a note of Captain Brown, a fictitious person, and the prisoner was convicted, the Judges held the conviction right (i). But the adoption of a false description and addition, where a false name is not assumed, is not forgery. Thus, where the prisoner drew a bill, and directed it to "Mr. Thomas Bowden, baize manufacturer, Romford, Essex; and it was accepted by one Thomas Bowden, but there was no Thomas Bowden of Romford, it was held by a majority of the Judges, that the giving a false description of Bowden on the bill, with intent to defraud, was not forgery (j). Where the signature on the bill is genuine, an uttering Uttering a by another person, with a representation that he is the genuine signature, and perperson whose signature is on the bill, is not forgery, or a sonating the felonious uttering. The prisoner uttered a bill purporting party signing. to be payable to Bernard M'Carthy, or order, and having the indorsement B. M'Carthy thereon: he was indicted for forging that indorsement, and uttering it knowing it to be forged; the jury found that there was such a man as B. M'Carthy, and that the indorsement was his handwriting, but that the prisoner passed himself off as that B. M'Carthy when he uttered the bill. The Judges were unanimous, that as the indorsement was not forged the prisoner was not liable to be convicted (k). Writing a principal's name "per procuration," but Misrepresenwithout authority, was not until the statute (1) forgery (m); tation of authority. nor, as it should seem, writing merely another man's name under a false pretence of authority (»), without any intention of imitating his handwriting. (g) Peacock's case, R. & R. 278. (h) Mead v. Young, 4 T. R. 28. (i) Rex v. Parkes, 2 Leach, 773; 2 East, P. C. 963. (j) Webb's case, R. & R. 405; 3 B. & B. 229; Rex v. Watts, R. & R. 436; 6 Moore, 442; 3 B. & B. 197. (k) Rex v. Hevey, 1 Leach, 229; (m) Reg. v. White, 1 Den. C. C. (n) Ibid. ; but see Awde v. Dixon, 6 Exch. 869. CHAPTER Alteration. Uttering. Procuring to utter. Statement of the instrument in the indictment. Every fraudulent alteration, whether by subtraction, addition or substitution, is forgery, and would be so within the statutes, even did they not contain the word alter, as was decided on 2 Geo. 2, c. 15, which did not contain that word (). The statute 11 Geo. 4 & 1 Will. 4, c. 66, contains the word "alter" as well as 66 forge." Nevertheless, an alteration may be described in the indictment as forgery (p). So, e converso, the discharging one indorsement and the insertion of another may be described as the alteration of an indorsement (q). Procuring a man to forge is an offence within the statute (r). It has been decided that, in order to constitute an uttering, the instrument must be parted with, or tendered, or offered, or used in some way to get money or credit upon it (s). Therefore, where the defendant, in order to persuade an innkeeper that he was a man of substance, pulled out of his pocket-book a 500l. and 50l. note, and saying that he did not like to carry so much property about him, delivered them to the innkeeper to take charge of them for him, it was held that this did not amount to an uttering (t). Procuring to utter has been held a common law felony only (u). But procuring to utter, if the person procured were innocent of the felony, is a statutable felony in the procurer (v). Before certain recent Acts of Parliament it was necessary to set out the forged instrument in the indictment in words and figures correctly: the slightest variance would have entitled the defendant to an acquittal. But the 14 & 15 (0) Rex v. Elsworth, Bayley, 6th ed. 574; 2 East, P. C. 986; Reg. v. Blenkinsop, 1 Den. C. C. 276. (p) Rex v. Teague, R. & R. 33; 2 East, P. C. 979; Rex v. Post, R. & R. 101; Rex v. Treble, 2 Taunt. 328; 2 Leach, 1040; R. & R. 164. (q) Rex v. Birkett, R. & R. 251. (†) Rex v. Morris, Bayley, 6th ed. 580; R. & R. 270. (8) Rev. Shukard, R. & R. 200; and see Rey. v. Radford, 1 Den. C. C. 59; Reg. v. Ion, 2 Den. C. C. 475. (t) Ibid.; and see Holden's case, R. & R. 154; 2 Leach, 1019; Palmer's case, R. & R. 72; 2 Leach, 978; Rex v. Morris, R. & R. 270; Reg. v. Hill, 2 M. C. C. 30. (u) Rex v. Morris, Bayley, 6th ed. 580; R. & R. 270; 2 Leach, 1096. But see now 24 & 25 Vict. c. 94, ss. 1, 2, 49. (v) Bayley, 6th ed. 581. Vict. c. 100, s. 5, in order to prevent justice from being CHAPTER XXI. defeated by clerical or verbal inaccuracies, enacted that, in all indictments for forging, or uttering any instrument, it shall not be necessary to set forth any copy or fac-simile thereof, but it shall be sufficient to describe it by any name by which it would be usually known (w). An indictment for the larceny, and therefore now for the forgery, of a bill or note, may describe it, generally, as a bill of exchange or promissory note for the payment of the sum therein mentioned, without setting out the instrument (x). But if it be alleged in the indictment to have been signed or made by any person, the signature must be proved (y). If several make distinct parts of the instrument, they Where are each chargeable with the forgery of the entire instru- several make distinct parts ment (2). Those who knowingly prepare the paper or plates of the instrufor the purpose are forgers (a). ment. Before the 9 Geo. 4, c. 32, s. 2, a rule of evidence existed The party equally anomalous and inconvenient, that in a criminal whose name is forged a prosecution for forgery, the party whose name was forged competent was incompetent as a witness; but since that statute he is witness. competent as a witness in all indictments or informations for forgery or uttering, either against principals or accessories, by common law or statute. A doubt also formerly existed, whether the making or Forgery of uttering of an instrument, payable abroad, was an offence foreign bills. within some of the repealed statutes (b). But the statute 11 Geo. 4 & 1 Will. 4, c. 66, s. 30, brought within the operation of the acts against forgery, instruments made, or purporting to be made, or payable, or purporting to be (a) And see now 24 & 25 Vict. c. 98, ss. 42, 43. (x) Milne's case. Worcester Summer Assizes, 1800, decided by all the Judges; East's P. C. 602. Before this act it was held that, in an indictment for forgery, a bank post bill could not be described as a bill of exchange, but might be described as a bank bill of exchange. Rex v. Birkett, R. & R. 251. (y) Rex v. Craven, R. & R. 14; 2 East, P. C. 601. The statute 14 & 15 Vict. c. 100, gave most (2) Rex v. Bingley, R. & R. (a) Rex v. Dade, 1 Mood. C. C. 307. (b) Rex v. Dick, 16 Leach, 8; Rex v. M'Kay, R. & R. 71. CHAPTER Evidence in criminal cases. CIVIL CONSE- so, out of England (c). The statute now in force is 24 & 25 Vict. c. 98, s. 40. Where the prisoner is indicted for using a fictitious name, some evidence must be given by the prosecutor that it is not his real name (d). But where the prisoner's real name is proved, it lies on him to show that he has before assumed the false name for other purposes (e). Upon an indictment for uttering forged notes, evidence that the prisoner has uttered other forged notes is admissible as evidence of his knowledge of the forgery (f). But such notes must be produced, and proved to be forgeries (g). The admissibility of evidence, as to uttering forged bills of a different kind, has been doubted (h). Where the title to a bill or note is necessarily made through a forgery, even a bona fide holder for value has in general no right to sue upon it (i), or even retain it (j); and, therefore, as a general rule, if the acceptor or maker pay one who derives his title through a forgery, that will not discharge him (k). So, if a bill or cheque be altered and made payable for a larger sum than that originally inserted, should the drawee, banker or acceptor pay it, he cannot charge the drawer for the difference (1). (c) The 18th section of 11 Geo. 4 & 1 Will. 4, c. 66, applies to plates of promissory notes of persons carrying on the business of bankers in the province of Upper Canada. This act is repealed now, 24 & 25 Vict. c. 98, s. 16. (d) Rex v. Peacock, Bayley, 6th ed. 579; R. & R. 278; Bontien's case, R. & R. 263. (e) Rex v. Peacock, R. & R. 278. (f) Wylie's case, 1 New R. 92; Hough's case, R. & R. 120; Reg. v. Green, 3 C. & K. 209. (g) Rex v. Millard, R. & R. 245. (h) Ibid. 247. As to the prisoner's admission relating to other bills, see Reg. v. Cook, 8 C. & P. 586; Reg. v. Oddy, 2 Den. C. C. 264; Reg. v. Green, 3 C. & K. 209. (i) Burchfield v. Moore, 23 L.J., Q. B. 261; 3 E. & B. 683; Code, s. 24. (j) Esdaile v. Lanauze, 1 You. & Col. 394; Johnson v. Windle, 3 Bing. N. C. 225; 3 Scott, 608. (k) But a banker who pays a draft on himself, payable to order on demand, need not prove the genuineness of the first or any subsequent indorsement. 16 & 17 Vict. c. 59, s. 19; Code, s. 60. But these sections do not protect other parties, so that a transferee of a cheque that had been stolen and indorsed by a forger, has no title to the proceeds as against the loser, unless the loser have been guilty of negligence in the transaction itself; Arnold v. Cheque Bank, L. R., 1 C. P. Div. 578; Bobbett v. Pinkett, L. R., 1 Ex. Div. 368; Baxendale v. Bennett, L. R., 3 Q. B. Div. 525; in which case he would be estopped from setting up the true facts. (1) Hall v. Fuller, 5 B. & C. 750; 8 D. & Ry. 465; Smith v. Mercer, 6 Taunt. 76; 1 Marsh. 453. |