afterwards by such a subsequent antedated conveyance endeavoured to avoid it. (b)

If a bill of exchange, payable to A. B. or order, get into the hands of another person of the same name with the payee, and such person, knowing that he is not the real payce, in whose favour it was drawn, indorse it, for the purpose of fraudulently possessing himself of the money, he is guilty of forgery. (c) The uttering of a note, as the note of another person, has been holden to be forgery, though such note was made in the same name as that of the prisoner.

The point arose in the following case: two prisoners, named Parkes and Brown, were indicted for forging a promissory note, of which the following is a copy.

Ringhton, Salop, April 20, 1796.

No. B. 248.
I promise to pay to bearer, on demand, at Messrs. Down,
Thornton, and Co.'s, bankers, London, the sum of Five Guineas,
for value received. For Self and Co.

FIVE GUINEAS.

Entered, T. B.

THOMAS BROWN. (d)

There was a second count for uttering the same, knowing it to be forged. The following facts appeared in evidence: the prisoner, Brown, uttered the note to one Hulls, a shoemaker, in part payment for a quantity of boots and shoes which he had bought, under a pretence that he was a Captain Brown of the 17th regiment, and going immediately to the West Indies. At the time when he bargained for the articles at Hulls's shop, he told Hulls that if he would send his boy with him he would send back the money: but Hulls declined this, and went himself with the prisoner. While on their way, Brown said that his brother was agent to the 17th regiment, and would buy all the shoes Hulls had: and, upon their coming to a public-house, he invited Hulls to go in, saying, he should see his brother presently. They then sat down together, on a bench in the garden of the public-house; and Brown proceeded to speak further of his brother, who, he said, had just married a lady with a fortune of 15,000l. and had deposited it in the hands of Down and Thornton. After some time, the brother not appearing, Brown went into the house, and returned again, using expressions of disappointment at the absence of his brother, and added: "I am sorry I cannot pay you in gold: but I can give c6 you what is just as good, one of my brother's drafts, for which "I have been into the house to get cash, but the landlord has not "enough by him." He then produced the note in question, and gave it to Hulls, who asked if it was on the money lodged with

Indorsing a bill of exchange by

a person of the same name as

the payee.

Uttering a note

made in the
same name as

that of the pri-
soner.
Parkes' and

Brown's case.
Holden to be
forgery to ut-

ter a note as the note of another,

though made in the pri

soner's own name.

Down and Co.'s, Brown said that it was; and added, that his brother and he always paid in that manner on demand, for they wanted no credit. He then appointed Hulls to meet him in the afternoon, at another place, where he would pay him the balance. The note was soon discovered to be a forgery, and Hulls could hear nothing more of Brown. It further appeared, that Parkes and Brown were connected together; and that when Parkes was taken up, more than forty of these five-guinea notes, in blank, were found upon him, dated Ringhton, Salop; and a few of the same sort of notes were also found concealed under a board in a shop where the prisoner Brown was arrested, and which it was probable he had thrust there. The note in question was proved to be filled up in the hand-writing of Parkes; and the name Thomas Brown was also in the hand-writing of Parkes. In Parkes's pocket-book was found a receipt under a cover, addressed to Thomas Brown, at the Compter, (the prison to which Brown had been committed,) for 217., for four five-guinea bills. It was also proved that Down and Co. had no such customer as Thomas Brown, of Ringhton in Shropshire; and there was no evidence that the prisoner Brown had any residence or connection at that place. Upon this evidence the jury found both the prisoners guilty; and stated that they thought Parkes signed the note in question with Brown's assent, and that Brown uttered it under a representation that it was his brother's, knowing that it was not so, with intent to defraud Hulls. The following objections to the conviction were then taken by the counsel for the prisoner: first, that the name Thomas Brown was the real name of one of the prisoners; secondly, that it was no forgery in Parkes to sign the name of Thomas Brown, with his consent; thirdly, that if Parkes were not guilty of forgery, Brown could not be guilty of uttering the note knowing it to be forged; and fourthly, that the subsequent misrepresentation of Brown ought not to affect Parkes, as there was no evidence that he was aware of the fraudulent circumstances under which Brown would utter the note: the principle being, that misrepresentations do not amount to forgery, or make that a forgery which was not so at the time of the original making.

These points were submitted to the consideration of the twelve Judges, who held the conviction wrong as to Parkes, on a ground irrelevant to the subject now under consideration; but all of them held the conviction right as to Brown: and Grose. J., afterwards delivered their opinion. "He observed, as to the first objection, "that the definition of forgery was, the false making a note, or "other instrument, with intent to defraud;' (e) which might be "done either by using the name of one who did not exist, or of one who did exist, without his consent. That this was of the "former description; being uttered by the prisoner as the note "of his brother, no such person as his brother of that name appearing to exist: and that the circumstance of its being made "in the same name as his own could not make any difference;

66

(e) Ante, 317.

The

"being uttered as the note of another, and not his own.
"same answer applied to the second objection. As no such person
"existed to whom the name of Thomas Brown, as the signer of
"the note, applied, there could be no consent given to sign the
"name.
It was signed by the authority of a Thomas Brown, but
"not of the Thomas Brown for whose note it purported to be given.
"For the person in whose name the note was made was, according
"to the description of him in the note, then a resident at Ringhton,
"in Salop; and it imported that he was a correspondent of Down,
"Thornton, and Co., and had money in their hands; and he was
"also represented to be the brother of the prisoner; but no such
person of that name and description appeared to exist. And
"all this was proved and found to be done for the purpose of fraud.
"Thirdly, that the indictment did not charge that Brown uttered
"the note knowing it to have been forged by Parkes, but only
"knowing it to have been forged; and, therefore, let it have
"been forged by whomsoever it might, it was equally an offence
"in Brown to utter it." (f)

case.

The foregoing case has been observed upon by a learned writer, Doubt sugwho says that, though supported by the highest authority, it has gested upon always appeared to him to rest upon very questionable prin- the preceding ciples. (g) And he cites a case, where upon the facts that a bill made by the prisoner D. Walker, (who was a pauper at Manchester) was dated Liverpool, signed D. Walker and Co., and drawn on Devaynes and Co. London; and that similar bills had been before drawn in the same manner, and, being provided for before due, had been regularly paid, although the drawer was unknown to the house; the case in question was cited as an authority but the learned Judge ruled, that the evidence was not sufficient to go to the jury. (h) And, in discussing the effect of a false representation, he refers to the following case, where the prisoner assumed to be the real indorser of a bill; yet, as there was no false making, it was holden not to be forgery; though the act was done in concert with the real indorser, and for the purpose of fraud. (i)

:

assumed to be

The prisoner, John Hevey, was indicted for forging an in- Hevey's case. dorsement on the back of a bill of exchange, in the name of The prisoner Barnard M'Carty, with intent to defraud Wm. Masters and the real inEdward Beauchamp, &c; and the indictment contained a second dorser of a count, for uttering and publishing a forged indorsement in the there was no name of Barnard M'Carty, with the like intention. The bill of false making, exchange in question was in the following form:it was holden

(f) Rex v. Parkes and Brown, 1796, 1797. 2 Leach 775. 2 East. P. C. c. 19. s. 49. p. 963. Brown accordingly received sentence of death, but was not executed. 2 Leach 788.

(g) 6 Ev. Col. Stat. Pt. V. Cl. XII. p. 580.

(h) Walker's case, cor. Chambre, J., Lancaster, about the year 1807. Id. Ibid.

(i) This appears to have been a false pretence within the statute 30 Geo. 2. c. 24. And see now 7 & 8 G. 4. c. 29. Ante, 298.

bill: but as

not to be forgery, though

the act was done in concert with the real indorser and for the purpose of fraud.

Webb's case. False description of the ac

ceptor, but not

a false name, held not to be forgery.

"Bath Bank, Nov. 19th, 1781.
"Thirty-one days after sight, pay Mr. Barnard M'Carty, or
"order, thirty pounds value received, for Smith, Moore, and Co.
"Jer. Connell."

"To Rich. Beatty, and Co.
"No. 19, Great St. Helen's, London."

It appeared in evidence, that the prisoner came to the shop of Beauchamp and Masters, who were pawnbrokers, to buy a watch, and offered them the bill in question, with the indorsement then written on it; that they hesitated about taking it, upon which he told them it was a good bill, that his name was Barnard M'Carty, that he had indorsed it, and that Beatty and Co., by whom the bill purported to be accepted, were agents to the Bath bank. The pawnbrokers were not satisfied, and sent their servant to St. Helen's, to inquire about the acceptance; but upon his returning and saying that he had seen a person at St. Helen's, who said the acceptance was good, they let the prisoner have the watch, and gave him the difference of the bill. It was then proved, that the prisoner had procured the plate to be engraved some time before, containing the form of the bill in question, and had printed several hundred copies; that he had always been known by the name of John Hevey; and that no such person as Smith, Moore, and Co. could be found in Bath; though there were such names put on the door of a house, from whence the person who had been there had run away. It was proved also, that the names of Beatty and Co. were on a counting-house door in Great St. Helen's, where a man of the name of Beatty, who said he was a clerk, had lived; but was since taken up and lodged in prison. And it further appeared, that there was such a man as Barnard M Carty, and that the indorsement was in fact of his hand-writing. Upon this evidence the jury, under the direction of the learned Judge, who tried the prisoner, found a verdict of guilty, and found specially that there was such a person existing as Barnard M'Carty, and that the indorsement was of his handwriting; that the prisoner was not that person, but had passed himself upon the prosecutors as such at the time he tendered the bill in payment. The case was afterwards submitted to the consideration of the twelve Judges, who were all of opinion, that it did not amount to forgery; for there was no false indorsement; the jury having found that the indorsement was truly made by a real person whose name it purported to be. (k)

And in a more recent case it was holden, by a majority of the Judges, upon a case reserved, that the adopting a false description and addition, where a false name was not assumed, and where there was no person answering the description or addition, was not a forgery. The bill of exchange upon which the indictment proceeded, was addressed to Mr. Thomas Bowden, Baize Manufacturer, Romford, Essex; and drawn by the prisoner in his own

(k) Hevey's case, cor. Ashhurst, J. O. B. 1782, and considered by the

Judges in Hil. T. 17. 1 Leach 229. 2 East. P. C. c. 19. s. 5. p. 856.

:

name. It was proved that the prisoner uttered this bill, with an acceptance thereon in the hand-writing of Thomas Bowden, whom the prisoner had known for many years, but who never had carried on the business of a baize-manufacturer at Romford, nor ever resided there. The bill was accepted by Bowden, payable at No. 40, Castle-street, Holborn; and the person who lived at that house, and who knew Bowden, and was well acquainted with his hand-writing, stated that he was surprised at Bowden's accepting the bill, payable at his house, as he did not reside there, and had no authority from the witness to make any bills payable at that house. The learned Judge left it to the jury in the first place to consider, whether there was any such person as Thomas Bowden; and, if there was, whether the acceptance was his and that if there was no such person, or the acceptance was not his, and the prisoner at the time he offered the bill to the prosecutors knew either that there was no such person, or if there was, that he had not accepted it, they should find him guilty. He also gave them other directions; but the jury found that there was no such person as Thomas Bowden, and the prisoner was convicted. The learned Judge, however, being of opinion, from the evidence, that there was such a person, and that the acceptance was his hand-writing, reserved the case for the opinion of the Judges, on the point whether, assuming that the acceptance was the hand-writing of Bowden, the prisoner, by the giving on the face of the bill a false description of Bowden, and uttering the bill after it was accepted by Bowden, with this false description, with intent to defraud, brought himself within any of the counts of the indictment which charged a forgery of the bill, and an uttering and publishing the forged bill; and also a forging of the acceptance, and the uttering and publishing such forged acceptance. And a majority of the Judges held the conviction wrong.(1)

A bill was addressed to Messrs. Williams and Co., bankers, Watts's case. Birchin-lane, London; and it appeared that possibly the figure 3, on the lower left-hand corner of the bill, might have been inserted originally as part of the address, but the evidence left that matter in doubt. The prisoner was asked at the time when he was drawing the bill, whether the acceptors were Williams, Birch, and Co., and his answers imported that they were. Williams, Birch, and Co. lived at No. 20, Birchin-lane; and it was proved not to have been their acceptance. There were no known bankers in London using the style of Williams and Co. except Williams, Birch, and Co.; but at No. 3, Birchin- lane, the name "Williams "and Co." was on the door; and some bills addressed to Messrs. Williams and Co., bankers, Swansea, had been accepted payable at No. 3, and had been paid there. There was no evidence as to the person who lived at No. 3; but another bill, of the same tenor as that in question, drawn by the prisoner, had been accepted there. It was holden, upon these facts, that the prisoner was improperly convicted of uttering a forged acceptance, knowing it to be forged. (m)

The cases in which a party committing forgery has used a Cases in which

a party com

(1) Rex v. Webb, Russ. & Ry. 405.

(m) Rex v. Watts, Russ. & Ry. 436.