In a case where the note charged to be forged set forth the attestation of the witness, and the words "Mary Wallace, her mark;" and it appeared that when the prisoner subscribed the note those parts of it were not written, it was doubted whether the prisoner had not in fact forged a note differing in the tenor of it from that set forth in the indictment. But it was holden upon consultation that the indictment was in this respect well proved. (i)

It is sufficient (except in the cases which will be presently men- of laying it to tioned) to charge that the defendant forged such an instrument, be a paper naming it, and setting forth the tenor; but the laying it to be a porting to be paper writing, &c., purporting to be such an instrument (as the such an instrustatute on which the indictment is framed describes) is good; and ment, &c. it is said that in strictness of language there may be more propriety in so laying it, considering that the purpose of the indictment is to disaffirm the reality of the instrument. (k) In a case where the prisoners had been convicted upon an indictment, charging them with publishing "as a true will a certain false, forged, "and counterfeited paper writing, purporting to be the last will "of Sir A. C., &c. ;" and setting out the tenor of the will, it was objected that it ought to have been laid that they forged a certain will, and not a paper writing, purporting to be the last will, &c., as the words of the statute are "shall forge a will." But, after a variety of precedents being produced, all the Judges held it to be good either way. And it was also holden that as the will was set forth in hæc verba, and three names appeared as witnesses, it was sufficient, without stating that it purported to be attested by three witnesses. (1)

Carter's case. Where the

a bill of ex

change was a forgery, it was indictment averring it to

holden that an

In a case where the prisoner was indicted for forging, and knowingly uttering a bill of exchange, which was described in the indictment to be "a certain bill of exchange requiring certain per"sons by the name and description of Messrs. Down, &c. twenty "days after date to pay to the order of R. Thomson, the sum of "3157. value received; and signed by Henry Hutchinson, for T.G., "T. and H. Hutchinson; which bill of exchange so falsely made "and counterfeited, is as follows, (setting out the bill), &c. with be signed by H. "intent to defraud G. Hutchinson, &c. ;" and it appeared on the evidence that the signature to the bill," Henry Hutchinson," was purported to a forgery; it was objected that the indictment averring it to have have been been signed by him, (and not merely that it purported to have signed by him, been signed by him,) which was a substantial allegation, was dis

294. And in Rex v. Beach, Cowp. 229. where it was holden that in an indictment for forgery, a variance in writing the word undertood instead of understood was not material, Lord Mansfield said, "The true distinction "seems to be taken in Reg. v. Drake, "which is this, that where the omis"sion or addition of a letter does not "change the word so as to make it "another word, the variance is not "material."

(i) Dunn's case, O. B. 1765. 2 East. P. C. c. 19. s. 53. p. 976. It appears that the Recorder at first entertained

the doubt, which was removed on
consultation with Perrott, B., and
Aston, J.

(k) 2 East. P. C. c. 19. s. 56. p. 980.
(1) Rex v. Birch and Martin, 1771.
2 Black. R. 790. 1 Leach 79. 2 East.
P. C. c. 19. s. 56. p. 980. There was
a third objection also that the indict-
ment only averred, "they knowing
"it to be forged, &c." whereas it
should have been that "they and
"each of them, knowing," &c., but
it was over-ruled. The prisoners were
executed.

stating that it

was bad.

If the instruinent do not purport on the face of it to be

the thing pro

hibited to be

forged, the pur

port must be expressly averred.

Instrument

proved. And the Judges were of that opinion, upon the case being referred to their consideration after the conviction of the prisoner. (m)

But the setting out the very subject matter which has been forged, will not, in all cases, be sufficient. For if the instrument do not purport, on the face of it, and without reference to some other subject matter, to be the thing prohibited to be forged, the purport and meaning of the forgery, with relation to such other subject matter, must be expressly averred to be the thing so prohibited. So that where the indictment charged the prisoner with forging a receipt to an assignment of a certain sum in a navy bill and the tenor of the receipt as set forth merely consisted of the signature of the party, it was holden to be defective; on the ground that the mere signing of such name, unless connected with the previous matter, did not purport on the face of it to be a receipt; and that it ought to have been averred that such navy bill, &c. together with such signature, did purport to be, and was a receipt, &c.; and that the prisoner feloniously forged the same. (n) But where a forged receipt, as set forth in the indictment, was in this form " 18th March, 1773, Received the con"tents above by me Stephen Withers," and it appeared in evidence that such receipt was forged at the bottom of a certain account; upon objection taken that the account itself should have been set forth in order to make it appear that the receipt, as stated, was a receipt for money, all the Judges held that the indictment was sufficient; and that the account was only evidence to make out the charge as stated in the indictment. (o) It is observed upon this case that by the very terms of the writing itself, it purported to be a receipt for something, though not specifically for money, as it was averred to be, in order to bring it within the statute 2 Geo. 2. c. 25. (p)

A bank post bill cannot, in an indictment for forging or uttering, be described as a bill of exchange generally, but it may be described as a bank bill of exchange. (g)

Where the prisoner had been convicted of uttering and publishimproperly de- ing as true, a forged promissory note, with intent to defraud one

scribed as a promissory

(0) Testick's case, 1774, 2 East. P. C. c. 19. s. 36. p. 925. 1 East. R. 181. note (a).

(p) 2 East. P. C. c. 19. s. 53. p. 977. And the learned writer refers to Taylor's case, 1 Leach 215. 2 East. P. C. c. 19. s. 47. p. 960. ante, 330: where the prisoner was indicted for forging a receipt for 207. due upon a bill of exchange in these words, "Received, W. Wilson;" and the indictment set forth the bill for 207., and averred the forging of a receipt for the said

sum of 201., but contained no averment that the writing forged, together with the bill, purported to be or was a receipt: and he observes that here also the forged writing in itself purported to be a receipt for something.

(q) Rex v. Birkett and Brady, Russ. & Ry. 251. The form of the instrument was, "At seven days sight I promise to pay this my sola bill of exchange," which is properly only a promissory note; but the 15 Geo. 2. c. 13. mentioning “bank notes, bank "bills of exchange," &c. seems to give these bank post bills that denomination of bank bills of exchange as there are no other bank bills answering that description.

B. H., knowing, &c. against the statute, the indictment stated the instrument as follows, without any innuendo explanation or allegation respecting it or its contents, further than denominating and describing it as "a promissory note for the payment of money, "which is as follows :"

£28. 15s. Od.

Newport, Nov. 20, 1821.

Two months after date pay Mr. B". Hobday, or order, the sum of twenty-eight pounds fifteen shillings

At Messrs. Spoon & Co.
Bankers, London.

Value reed.

JOHN JONES.

And an objection having been taken that the instrument so described, was not in law, a promissory note, the case was submitted to the Judges, who held that the instrument was a bill of exchange, and not a promissory note. (7)

But with respect to the word " purport" it should be well observed that it imports what appears on the face of the instrument; as a want of attention to this meaning of the word has been fatal to many indictments.

But the word purport imports what ap

pears on the face of the in

In a case where the instrument was laid in some counts of the strument. indictment to be a paper writing purporting to be a bank note, it Jones's case. was holden that as it did not purport on the face of it to be a bank note, the counts could not be supported. (s)

In another case the bill of exchange upon which the indictment Reading's case. proceeded was in the following form:

Bristol, Feb. 21st, 1792.

Where the indictment charged that the defendant being possess

Forty days after date pay to Mr. Jeremiah Reading, or order, of a bill of the sum of £80. for value received, and place it to the account

of

JOHN WHITE.

exchange purporting to be directed to one

John King, by the name

and descrip

tion of one forged the acceptance of the said John

John Ring,

King, it was

ground that

And the indictment charged that the prisoner, having such bill in his possession, purporting to be signed by one John White, and to be directed to one John King, by the name and description of one John Ring, Berkley-street, &c., forged an acceptance in writing purporting to be the acceptance of the said John King. The holden to be bill, when produced, appeared to be accepted on the back of it by bad, on the John King; and it was proved that when the prisoner negociated Ring does not the bill he stated that Mr. King was a gentleman living in Berk- purport to be ley-street, Portman-square, and a man of opulence; but in fact King. there was no person of that name living there. The prisoner having been found guilty, the case was submitted to the consideration of the twelve Judges, who determined that judgment ought to be arrested on the ground that the bill did not in fact purport to be directed to one John King, as stated in the indictment. Buller, J., in delivering the opinion of the Judges, said, "It is clear that

(r) Rex v. Hunter, Russ. & Ry. 511.

(s) Jones's case, ante, 345, 316.

Gilchrist's

case.

An indictment

for forging a bill of ex

change direct ed to Ransom, Moreland, and Hammersley, which stated that such bill purported to be directed to George Lord Kinnaird, William Moreland, and Thomas Hammersley, by the name and description of Ran

som, Moreland, ley, was holden to be bad on the principle that the word purport signifies that

and Hammers

appears

on the face of the instrument.

"where an instrument is to be set forth, the description, that it 66 purports a particular fact, necessarily means that what is stated "as the purport of the instrument appears on the face of the in"strument itself. On the face of the bill of exchange in the pre66 sent case (and the face of the bill is the only thing to be con"sidered) nothing more appears, when we examine the averment, "than that it is a bill of exchange drawn by John White on John "Ring; therefore, when the indictment says that it was drawn "on John King, by the name and description of John Ring, it is "absurd and repugnant to itself; for the name and description of "one thing cannot purport to be another thing. The drawer of "the indictment was led into this blunder by not considering "what was the original state of the bill, and what was the ap66 pearance of it after the acceptance was put on it; it seems as "if he did not recollect under what terms, or by whom, a bill of "exchange may be accepted. Though the bill was drawn on John "Ring, it might have been accepted by John King, for a bill 66 may be accepted by other persons than those to whom it is di"rected, as when it is accepted for the honor of the drawer, or of any of the indorsers." (t)

In a case which occurred shortly afterwards, the prisoner was indicted for forging" a paper writing, purporting to be an order for payment of money, dated 11th September, 1794, with the "name Thomas Exon thereunto subscribed; purporting to have been signed by Thos. Exon, clerk, and to be directed to George Lord Kinnaird, Wm. Moreland, and Thos. Hammersley, of, &c. "bankers and partners, by the name and description of Messrs. "Ransom, Moreland, and Hammersley, for the payment of "the sum of 107., &c. :" the tenor of which said false writing, &c. is as follows, viz.

"Messrs. Ransom, Moreland, and Hammersley, please to pay to Mr. Brooks, or bearer, the sum of Ten Pounds, for

"Sept. 11th. 1794."

THOS. EXON.

with intent to defraud the said Geo. Ld. K., &c. There was a second count, for uttering it; and other counts, charging an intent to defraud other persons. An objection was made in arrest of judgment, that the direction of the bill was improperly described in the indictment; and ten of the Judges, who met to consider the case, were unanimously of opinion that the judgment should be arrested, on the ground that the word purport imports what appears on the face of the instrument, the apparent and not the legal import; and that the bill in question could not purport to be directed to Lord Kinnaird, because his name did

(1) Reading's case, O. B. 1793, Hil. T. 1794. 2 Leach 590. 2 East. P. C. c. 19. s. 56. p. 981. Buller, J., also said that as the opinion of the Judges proceeded merely on the informality of the record, the prisoner might be

again indicted for this offence. But no other indictment was preferred; and after remaining in custody till March, 1794, he received a free pardon, and was discharged, 2 Leach 593.

66

not appear upon the face of it. Buller, J., in delivering their opinion, said, “Old cases have given rise to much learning and argument on the words 'purport and tenor,' and the books "are full of distinctions as to the meaning of these words, and "the necessity of using the one or the other of them in indict"ments where written instruments are to be stated; but among "the many cases upon this subject, I can find no judicial deter“mination that the purport and the tenor should both be stated "in any case whatever. Purport means the substance of an in"strument, as it appears on the face of it to every eye that reads "it: tenor means an exact copy of it; and, therefore, where an "instrument is stated according to its tenor, the purport of it "must necessarily appear. The forms of indictments for forgery "have varied, and been different from each other at different pe"riods of time; and of late years they have been much more complicated than they were formerly; and, in my opinion, they "have been, for that reason, much worse. I have seen the pre"cedent of an indictment of forgery stating, the prisoner to "have forged a certain false paper-writing, in the name of J. S. "and others, bearing the form of a warrant of attorney, which "said writing follows in these words; that is to say, &c.' setting "it out verbatim; and if indictments for forgery were now "merely to state that the prisoner forged a paper-writing to the "tenor and effect following, &c.;' and the instrument set out "appeared on the face of it to be a bond, or bill of exchange,

66

6

or any other of the instruments described in the statute, I "should, as at present advised, see no objection to such a form. "If, in the present case, the indictment had stated that the pri"soner had forged a certain paper-writing, in the name of "T. Exon, (u) purporting to be a bill of exchange, and then "set out the bill to the tenor and effect following, it would I “think, have been quite enough; for the words 'purporting to "be a bill of exchange,' are only necessary to shew that the in"strument supposed to be forged is one of the instruments men"tioned in the statute; and, in order to shew that it is one of "those instruments, it cannot be necessary, under the word 'pur66 porting,' to recite all the contents of the instrument; for an "exact copy of the instrument itself being set forth, all its con"tents thereby appear; and the law requires an exact copy of "the instrument to be inserted in the indictment, in order that "the court may see that the instrument is the subject of for(6 gery within the meaning of the statute. The blunder in the present indictment seems to have arisen from the circumstance "of Lord Kinnaird, and Messrs. Moreland and Hammersley car"rying on the banking business under the firm of Messrs. Ran"som, Moreland, and Hammersley. The pleader who drew it, forgetting that it was wholly immaterial whether such a firm "as Ransom, Moreland, and Hammersley, ever existed, or who "were the persons who constituted that firm, and, conceiving it "to be material that the names of the real partners interested

(u) But it would not have been good to have averred that the paper writing was signed by T. Exon; such sig

nature being a forgery, and the paper, therefore, not in fact so signed. See Carter's case, ante, 361.