past, 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. Ñ., falsely forged and counterfeited, and caused to be forged and counterfeited, a certain writing in the words and figures following: 66 975 10 and to appropriate part of the proceeds to the defend ant's own use, with intent to defraud, &c. No fraud was effected; but it was holden that this was "Mr. John Ward. I do hereby or- 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 "hands pay to Mr. W. Ward and yourself 10. 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. And it charged in a second count, that he published the same forged writing, knowing it to be forged, &c. The defendant having been convicted, it was moved in arrest of judgment, that the instrument set forth was not the subject of forgery at common law, and that the offence was not, therefore, punishable in this form, but at most punishable only as a cheat; being merely a thing of a private nature, and in effect nothing more than a letter. And it was argued that if the counterfeiting of a letter had been punishable as a forgery at common law, then the making of the statute 33 Hen. 8. c. 1. to punish those who got the money or goods of others under colour of false tokens, or counterfeit letters was nugatory. It was also urged, that it no where appeared that the duke of Buckingham had been prejudiced by this; which might have been indictable as a cheat, if he had been so prejudiced; though not as for 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 scaled 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 stat. 33 Hen. 8. c. 1. did not create new offences, but only enhanced the penalty where the fraud was executed. (ƒ) In the argument upon this case, the following instances of indictments at common law, for forging instruments not under seal, were referred to by the counsel for the crown, and relied upon by the court; an indictment for forging letters of credit to raise money, (g) for forging a bill of exchange or a promissory note, (h) a (f) Ward's case, Hil. 13 Geo. 1. 2 Str. 747. 2 Lord Raym. 1461. 2 East. P. C. c. 19. s. 7. p. 861. (g) Savage's case, Str. 12. (h) Sheldon's case, Hil. 34 Car. 2. Rot. 35. Rex v. Ward, (a brother of the present defendant) Mich. 6 Geo. 1. Fawcett's case. The defendant having ted to gaol under an attach been commit ment for a contempt in a civil cause, counterfeited a pretended discharge as from his creditor to the sheriff and gaoler under which he ob charge from gaol; and it bill of lading, (i) an acquittance, (k) a warrant of attorney, (7) a marriage register, (m) a protection from a member of parliament, (n) with several other cases. (o) And the offence of forgery was distinguished from cheats at common law and upon the statute 33 Hen. 8. c. 1. where the party received an actual prejudice, which was considered not to be necessary to constitute forgery, in which it was sufficient if the party might be thereby prejudiced. (p) In a subsequent case, Leander Fawcett, who had been committed to the gaol at York, under an attachment, sued out of the Court of King's Bench, 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 pertained his dis-son; and for so doing this shall be your warrant and indemnity. "(Dated) 26th Feby. 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 the order were a matter of such a public nature, that the counterfeiting of it would be a forgery at common law; and also, whether, as the attachment was not 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. (q) was holden to be a misdemeanor at common law; although as the attachment was not for the non-payment of money, the order was in itself a mere nullity, and no warrant to the sheriff for the discharge. A majority of the Judges also thought that it was a forgery at common law. v. Gibson, 1 Sess. Cas. 428. and ibid. 432. are referred to, as relating to promissory notes, and indorsements; and a reference is made upon the subject in general to 13 Vin. Ab. 460. Trem. P. C. 100. 2 Show. 20. Obrian's case, 7 Mod. 378. 2 Sess. Cas. 366. 2 Str. 1144. (p) 2 East. P. C. c. 19. s. 7. p. 862. And see Wilcox's case, Russ. & Ry. 50., where a doubt was entertained whether the offence came under the denomination of a forgery at common law. (q) Fawcett's case, York Spr. Ass. SECTION III. Of the fraud and deceit to the prejudice Intent to de Of the Fraud and Deceit to the Prejudice of Another's Right. With respect to the fraud and deceit, to the prejudice of another's right, it should always be kept in mind, that though in cases of forgery, properly so called, it is, as we have seen, (r) immaterial of another's whether any person be actually injured or not, provided he may be right. thereby prejudiced, yet the fraud and intention to deceive constitute the chief ingredients of this offence. Thus Buller, J. speaks of it as the making a false instrument "with intent to deceive;" (s) and Eyre, B., as a false signature made, "with intent to de"ceive." (1) And it is observed, that in the word "deceive" must doubtless be intended to be included an intent to defraud; (u) fraud. and that the offence was accordingly defined by Grose, J., as the false making a note or other instrument "with intent to defraud."(x) Eyre, B., also in another case defined the offence to be the false making an instrument which purports on the face of it to be good and valid, for the purposes for which it was created "with a design to defraud." (y) And it has been argued, that it is no answer to a charge of forgery to say that there was no special intent to defraud any particular person, because a general intent to defraud is sufficient to constitute the crime; for if a person do an act the probable consequence of which is to defraud, it will, in contemplation of law, constitute a fraudulent intent. (2) And it has been holden, that in an indictment for forgery, it is sufficient to aver a general intent to defraud a certain person, which intention may be made out by the facts in evidence at the trial. (a) Forging a bill of exchange payable to the prisoner's own order, and uttering it without indorsement as a security for a debt was holden to be a complete offence. (b) The offence of disposing of and putting away forged bank notes was holden to be complete, though the person to whom they were 1793, and East. T. 1793. 2 East. P. C. c. 19. s. 7. p. 862. And see the note (a), in which the learned writer says, that Mr. Justice Buller's MS. only made a quære as to the opinion of Eyre, C. J.; but that it appeared from other MSS. as well as Mr. Justice Buller's, that the Judges all concurred to sustain the conviction on the general ground only before mentioned. (r) Ward's case, ante, 350. (s) Coogan's case, 1787. 2 East. P. C. c. 19. s. 1. p. 853. and s. 43. p. 948. Ante, 339. (t) Taylor's case, 1779. 2 East. P. C. c. 19. s. 1. p. 853. and s. 47. p. 960. (u) 2 East. P. C. c. 19. s. 1. p. 853. (x) Rex v. Parkes and Brown, 1797. 2 East. P. C. c. 19. s. 1. p. 853. VOL. II. and s. 49. p. 963. 2 Leach 775. (y) Rex v. Jones and Palmer, 1785. 2 Leach 367. (z) By Shepherd arguend. in Tatlock v. Harris, 3 T. R. 176. and it is observed in 1 Leach 216, note (a), that this doctrine was seemingly adopted by the court. (a) Powell's case, 1 Leach 77. It is observed, however, that in Rex v. Bigg, 3 P. Wms. 419, it was holden not to be an objection to a special verdict that the forgery was not found to have been committed for the sake of lucre, or to defraud the party. 2 East. P. C. c. 19. s. 3. p. 854. (b) Rex v. Birkett, Russ. & Ry. 86. post. 2 A Forgery consists in the endeavouring to give an appearance of truth to a mere deceit and falsity. disposed of was an agent for the bank to detect utterers, and applied to the prisoner to purchase forged notes, and had them delivered to him as forged notes for the purpose of disposing of them. The Judges held that if the prisoner put the notes off with intent to defraud, the intent existing in the mind was the essence of the crime, although, from circumstances of which he was not apprised, he could not in fact defraud the prosecutor. (c) Uttering a forged stock receipt to a person who employed the prisoner to buy stock to the amount therein specified, and had advanced the money, was held to be sufficient evidence of an intent to defraud that person; and it was also holden that the oath of the person to whom the receipt was uttered, that he believed the prisoner had no such intent, did not repel the presumption of an intent to defraud. (d) It has been holden that the jury ought to infer an intent to defraud the person who would have to pay the instrument if it were genuine, although from the manner of executing the forgery or from that person's ordinary caution it would not be likely to impose upon him, and although the object was general to defraud whoever might take the instrument, and the intention of defrauding, in particular, the person who would have to pay the instru ment, if genuine, did not enter into the prisoner's contemplation. (e) It is said by Hawkins that the notion of forgery does not seem so much to consist in the counterfeiting of a man's hand and seal, which may often be done innocently; but in the endeavouring to give an appearance of truth to a mere deceit and falsity, and either to impose that upon the world as the solemn act of another, which he is no way privy to, or at least to make a man's own act appear to have been done at a time when it was not done, and by force of such a falsity to give it an operation which in truth and justice it ought not to have. (ƒ) But as the fraud and intention to deceive, by imposing upon the world that as the act of another which he never consented to, are the chief ingredients which constitute this offence, so it hath been holden, that he who writes a deed in another's name, and seals it in his presence, and by his command, is not guilty of forgery, because the law looks upon this as the other's hand and sealing, being done by his approbation and command. (g) So, if a man writes a will for another without any directions from him, and he for whom it is written becomes non compos before it is brought to him, it is not forgery; for it is not the bare writing of an instrument in another's name without his privity, but the giving it a false appearance of having been executed by him, which makes a man guilty of forgery. (4) Also he cannot be (c) Rex v. Holden, Russ. & Ry. 154. and it was holden that the indictment need not state to whom the note was disposed of, it being sufficient to state that the prisoner disposed of the note with intent to defraud the bank, he knowing it at the time to be forged. (d) Rex v. Sheppard, Russ. & Ry. 169. (e) Rex v. Mazagora, Russ. & Ry. 291. (f) 1 Hawk. P. C. c. 70. s. 2. (g) Hawk. P. C. c. 70. s. 3. and 3 Bac. Ab. Forg. (A). (h) Moor 760. 1 Hawk. P. C. c. 70. s. 5. 3 Bac. Ab. Forg. (A). punished as guilty of forgery who rases the word libris out of a bond made to himself, and substitutes marcis, because here is no appearance of a fraudulent design to cheat another, and the alteration is prejudicial to none but to him who makes it, whose security for his money is wholly avoided by it; yet this it seems would be forgery if by the circumstances of the case it should in any way appear to have been done with any view of gaining an advantage to the party himself, or of prejudicing a third person: and it is holden, that such an alteration, even without these circumstances, is a misdemeanor; though it do not amount to forgery.(i) So that it is well observed, that at any rate it is very dangerous to tamper in these matters. (k) SECTION IV. Of Principals and Accessories. ries. It has been stated in a former part of this work, that it is laid Of principals down generally in the books, that all are principals in forgery; and accessoand that whatever would make a man accessary before the fact in felony, would make him a principal in forgery: but that it is conceived, this must be understood of forgery at common law, and where it is considered only as a misdemeanor. (1) And with respect to a case (m) upon the statute 5 Eliz. c. 14. which would seem to lead to a contrary conclusion, it is elsewhere observed that, from its circumstances, there seems no reason for taking that case out of the general rule, that when a statute makes a new felony, it incidentally and necessarily draws after it all the concomitants of felony, namely, accessories before and after. (n) And this doctrine is confirmed by several cases. Brighton's case. Where prisoners were Three prisoners, Samuel Soares, William Atkinson, and John Soares, AtBrighton, were charged by the indictment with feloniously utter- kinson, and ing and publishing as true a certain false, forged, and counterfeit bank note for 57. knowing it to be forged, &c. with intent to defraud the governor and company of the Bank of England. And the indictment also contained the other usual counts, for forging, and for disposing of and putting away the note, with the like intent; together with counts stating the intent to be, to defraud the person to whom it was offered in payment. It was proved that the prisoner, Brighton, offered the note in question in payment for a pair of gaiters at a shop in Gosport, and that the other two prisoners, Soares and Atkinson, were not with Brighton at the time he so offered the note, but were waiting at Portsmouth (i) Hawk. P. C. c. 70. s. 4. 3 Bac. Ab. Forg. (A). (k) 2 East. P. C. c. 19. s. 3. p 854. (1) Ante, Vol, I. p. 31, 32. (m) Bothe's case, Moor 666. Ante, Vol. I. p. 32, note (d). (n) 2 East. P. C. c. 19. s. 52. p. 973, 974. And see ante, Vol. I. p. 32, el sequ. it appeared that two of the privy to the uttering of a forged note by cert with the other prisoner who actually uttered it; but previous con that they were not present at |