Mutiny acts.

Cheats and

ticular trades.

The annual mutiny acts usually contain clauses providing for the punishment of apprentices and other persons fraudulently enlisting themselves. (s)

Cheats and frauds and false personation, for the purpose of obtaining the pay, prize-money, &c. of soldiers or sailors mentioned in subsequent Chapters. (t)

In addition to the statutes which have been thus mentioned frauds in par- there are others relating to cheats or frauds practised by servants and others, in particular trades, and punishable by pecuniary fines or summary proceedings, before magistrates, which will be found arranged under their proper titles in that very excellent work," Dr. Burn's Justice of the Peace."

tains a similar provision as to an in-
dictment, &c. against an insolvent
debtor in Ireland.

(8) As to similar offences by per-
sons enlisting into the marine forces,
see the annual acts relating to those
forces. We have seen that it was a
cheat or fraud at common law for an

apprentice to enlist as a soldier, and obtain the King's bounty. Jones's case, ante, 289. And see 3 Burn. Just., Military Law.

(1) See post Chap. xxxiii. On the Forgery of Official Papers, &c.; and Chap. xxxv. On False Personation.

CHAPTER THE THIRTY-SECOND.

OF FORGERY.

FORGERY at common law has been defined as "the fraudulent Definition of "making or alteration of a writing to the prejudice of another the offence. "man's right;" (a) or, more recently, as "a false making, a "making malo animo, of any written instrument, for the purpose "of fraud and deceit :" (b) the word "making" in this last definition being considered as including every alteration of, or addition to, a true instrument. (c) Besides the offence of forgery at common law, which is of the degree only of misdemeanor, there are a great many kinds of forgery, especially subjected to punishment by the enactments of a variety of statutes, which many years ago were spoken of as so multiplied as almost to have become general. (d)

These statutes, which, for the most part, make the forgeries, to which they relate, capital offences, will be mentioned in subsequent Chapters. At present it will be attempted briefly to review the doctrine of forgery at common law, together with such principles and decided points as (though some of them may have arisen in prosecutions upon particular statutes) appear to be of general application. And, pursuing the order of the definitions above given, we may consider, I. Of the making or alteration of a written instrument necessary to constitute forgery; II. Of the written instruments in respect of which forgery may be committed; and III. Of the fraud and deceit to the prejudice of another's right. We may then briefly treat, IV. Of principals and accessories; and V. Of the indictment, trial, evidence, and punish

ment.

In the first place, however, it should be observed that the offence of forgery may be complete, though there be no publica

(a) 4 Black. Com. 247.

(b) 2 East. P. C. c. 19. s. 1. p. 852. Rex v. Parkes and Brown, 2 Leach 785. 2 East. P. C. c. 19. s. 49. p.

965.

(c) Id. Ibid. As to the word forge, it is said in 3 Inst. 169. "To forge is metaphorically taken from the

smith, who beateth upon his 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."

(d) 4 Black. Com. 248.

A publication the forged in

or uttering of

strument, is

not necessary to complete the offence of forgery.

tion or uttering of the forged instrument. For the very making with a fraudulent intention, and without lawful authority, of any instrument which, at common law, or by statute, is the subject of forgery, is of itself a sufficient completion of the offence before publication; and though the publication of the instrument be the medium by which the intent is usually made manifest, yet it may be proved as plainly by other evidence. (e) Thus, in a case where the note, which the prisoner was charged with having forged, was never published, but was found in his possession at the time he was apprehended, no objection was taken to the conviction, on the ground of the note never having been published, there being in the case circumstances sufficient to warrant the jury in finding a fraudulent intention. (f) At the present time most of the statutes which relate to forgery make the publication of the forged instrument, with knowledge of the fact, a substantive offence.

Of the making

or alteration of a written

SECTION I.

Of the Making or Alteration of a Written Instrument necessary to Constitute Forgery.

Not only the fabrication and false making of the whole of a written instrument, but a fraudulent insertion, alteration, or erainstrument ne- sure, even of a letter, in any material part of a true instrument, cessary to con- whereby a new operation is given to it, will amount to forgery; stitute forgery. and this, although it be afterwards executed by another person

ignorant of the deceit. (g) And the fraudulent application of a true signature to a false instrument, for which it was not intended, or vice versa, will also be forgery. () Thus it is forgery in a man who is ordered to draw a will for a sick person, to insert legacies in it of his own head. (i) So if a man insert in an indictment the names of those against whom, in truth, it was not found; (k) Or, if, finding another name at the bottom of a letter, at a considerable distance from the other writing, he cause the letter to be cut off, and a general release to be written above the name, and then take off the seal, and fix it under the release. (1) And in a late case it

(e) 2 East. P. C. c. 19. s. 4. p. 855. (f) Elliott's case, 1777, 1 Leach 173. 2 East. P. C. c. 19. s. 44. p. 951. 2 New R. 93. note (a). And see also Crocker's case, Russ. & Ry. 97. 2 Leach 987. where it appears to have been holden by Le Blanc, J., that though the note there in question had been kept in the prisoner's possession, and never attempted to be uttered by him; yet it was a question for the jury under all the circumstances of

the case, whether the note had been made innocently, or with an intent to defraud.

(g) 2 East. P. C. c. 19. s. 4. p. 855. (h) Id. ibid.

(i) Noy. 101. Moor 759, 760. 3 Inst. 170. 1 Hawk. P. C. c. 70. s. 2. 3 Bac. Ab. Forg. (A).

(k) Rex v. Marsh and others, 3 Mod. 66. 1 Hawk. P. C. c. 70. s. 2.

(1) 3 Inst. 171. 1 Hawk. P. C. c. 70. s. 2. 3 Bac. Ab. Forg, (A).

appears to have been considered that if a party make a copy of a receipt, add to such copy material words, not in the original, and then offer it in evidence on a suggestion of the original being lost, he may be prosecuted for forgery. (m) The fraudulent alteration of a material part of a deed is forgery; as the making a lease of the manor of Dale appear to be a lease of the manor of Sale, by changing the letter D. into an S.; or the making a bond for five hundred pounds, expressed in figures, seem to have been made for five thousand (n) and though it seems to have been thought that a deed, so altered, is more properly to be called a false than a forged deed, not being forged in the name of another, nor his seal nor hand counterfeited; (o) yet, according to the better opinion, such an alteration amounts to forgery; on the ground that the fraud and villany are the same, as if there were an entire making of a new deed in another's name; and also that a man's hand and seal are falsely made use of to testify his assent to an instrument, which, after such an alteration, is no more his deed than a stranger's. (p) Altering the date of a bill of exchange after acceptance, and thereby accelerating the time of payment, would come within the same rule. (9) And, upon the principle that the false making of any part of a genuine note, which may give it a greater currency, is forgery; it was holden, in a modern case, that where a note of country bankers was made payable at their house in the country, or at their banker's in London, and the London banker had failed, it was forgery to alter the name of such London banker to the name of another London banker, with whom the country bankers had made their notes payable subsequently to the failure. The Judges held that the act done by the prisoner was a false making, in a circumstance material to the value of the note, and its facility of transfer, by making it payable at a solvent instead of an insolvent house. (r) And upon the general principle that the alteration of a true instrument makes it, when altered, a forgery of the whole instrument, it was holden that where the indictment charged the prisoner with "making, forging, and coun"terfeiting" a bill of exchange, and with uttering it, knowing it to be forged; and the evidence was of an alteration of the bill of exchange from 107. to 50%. in the part of it in which the sum is expressed in figures, and also in the part in which it is expressed in letters, the prisoner was properly convicted; though the statute, on which the indictment proceeded, 7 Geo. 2. c. 22. contains

(m) By Lord Ellenborough, C. J., in Upfold v. Leit, 5 Esp. 100. The words inserted were "in full of all demands."

(n) Moor 619. 1 Hawk. P. C. c. 70. s. 2. So in Elsworth's case, 2 East. P. C. c. 19. s. 58. p. 986., where a cypher being added after the figure 8, the bill, which was for 8., became a bill for 801.

(0) 3 Inst. 169.

(p) 1 Hawk. P. C. c. 70. s. 2. 3 Bac. Ab. Forg. (A) in the notes.

333.

(q) Master v. Miller, 4 T. R. 320. 2 East. P. C. c. 19. s. 4. p. 853. (r) Rex v. Treble, 2 Taunt. 328, 2 Leach 1040. Russ. & Ry. 164. The alteration was effected by pasting a slip of paper bearing the words Ramsbottom and Co., over the words Bloxam & Co., in the same manner as the prosecutors had themselves altered their re-issuable notes after the failure of their first London bankers, Bloxam & Co..

Expunging an indorsement on a bank

note.

Forgery and subsequent al

teration of the deed.

omission in a written instrument.

the word alter as well as the word forge; "if any person shall falsely make, alter, forge, or counterfeit, or utter, or publish, as true, any false, altered, forged, or counterfeited, &c. ;" from which it was contended that to alter a bill of exchange was made a distinct offence. (s) So altering a banker's one pound note by substituting the word ten for the word one, was held to be forgery.(†) And discharging one indorsement and inserting another, or making it thereby a general instead of a special indorsement, has been holden to be altering an indorsement. (u)

The expunging, by means of lemon juice (laid in the indictment to be a certain liquor unknown to the jury,) an indorsement on a bank note, was holden to be a rasing of the indorsement within the statute 8 & 9 W. 3. c. 29. s. 36., which relates to the altering or rasing any indorsement on any bank bill, &c. (x)

In a case where the prisoner procured a deed to be forged, as from one J. M. and his son, conveying a certain estate for life to M. K.; and after the death of one of the supposed grantors, had procured the forged deed to be altered by enlarging the grantee's estate to a fee; and was convicted of forging and uttering it in the state to which it was so altered; this was holden to be well by all the Judges; as being no less a forgery after than before such alteration. (y)

As to forgery It seems that a man cannot be guilty of forgery by a bare non by fraudulent feasance; as if in drawing a will he should omit a legacy which he was directed to insert: but it appears to have been holden that if the omission of a bequest to one cause a material alteration in the limitation of a bequest to another, as where the omission of a devise of an estate for life to one man causes a devise of the same lands to another to pass a present estate, which otherwise would have passed a remainder only, the person making such an omission is guilty of forgery. (2)

Making a false deed in a man's

own name.

A man may be guilty of forgery by making a false deed in his own name. Thus it has been holden to be forgery for a person to make a feoffment of certain lands to I. S., and afterwards make a deed of feoffment of the same lands to I. D. of a date prior to that of the feoffment to I. S.; for herein he falsifies the date in order to defraud his own feoffee, by making a second conveyance, which at the time he had no power to make. (a) And it is also said that his crime would have been the same if, by his conveyance, he had passed only an equitable interest for good consideration, and had

(8) Teague's case, cor. Le Blanc, J., Hereford Sum. Ass. 1802, Mich. T. 1802. 2 East. P. C. c. 19. s. 55. p. 979. Russ. & Ry. 33. The Judges held that the point was governed by Dawson's case, Mich. 3 Geo. 1. 1 Str. 19. 2 East. P. C. c. 19. s. 55. p. 978. where the prisoner having altered the figure of 2 in a bank note to 5 (220l. to 5207.) ten of the Judges agreed that it was forging and counterfeiting a bank note; and that 3 Inst. 171, 172, was not law in this respect; for non assumpsit might be pleaded to such a