1. Statutes

repealed and general provisions. All forgeries heretofore capital, and not declared so by that act, to be punished with transportation.

Saving of acts relating to coin.

The punishments of 5 Eliz. c. 14, so far as they have been adopted by other acts, repealed, and other punishments substituted.

Hard labour, or solitary confinement.

2 & 3 Will. 4, c. 123. Commutation of punishment for forgery.

cases aforesaid, if any person shall, after the commencement of this act, be convicted of any such felony as is hereinbefore mentioned, or of aiding, abetting, counselling, or procuring the commission thereof, such person shall not suffer death for the same, unless the same shall be made punishable with death by this act; and if the same shall not be made punishable with death by this act, in such case every person who shall, after the commencement of this act, be convicted of any such felony, or of aiding, abetting, counselling, or procuring the commission thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years nor less than two years: provided always, that nothing herein contained shall affect or alter any acts relating to the coin of this realm, or to any coin of any other realm lawfully current within this realm."

The statute then proceeds to state which offences were thenceforth to be deemed capital and punishable by death.

The 5th Eliz. c. 14, having been for obvious reasons repealed, the 23rd section of this stat. of 1 Will. IV. c. 66, provides that the punishments imposed by that act, so far as they have been adopted by other acts, should also be repealed.

6

Sect. 23. And whereas, by an act passed in the fifth year of the reign of Queen Elizabeth, intituled, An act against forgers of false deeds and writings,' it is, amongst other things, provided, that every person convicted of any of the offences first enumerated in that act shall pay to the party grieved his double costs and damages, and shall forfeit to the crown the whole issues of his lands and tenements during his life, and shall also suffer imprisonment during his life: and whereas there are certain acts by which persons convicted of certain offences, mentioned in those acts, are subject to the same pains and penalties as are imposed by the said act of Queen Elizabeth for the offences first enumerated in that act: and whereas the said act of Elizabeth is hereinafter repealed; and it is expedient to substitute other punishments in lieu of the punishments of that act, so far as the same have been adopted by any other acts;" it is therefore enacted, "That every person who shall after the commencement of this act be convicted of any offence which is now subjected, by any act or acts, to the same pains and penalties as are imposed by the said act of Queen Elizabeth for any of the offences first enumerated in that act, shall be guilty of felony, and shall, in lieu of such pains and penalties, be liable, at the discretion of the court, to be transported beyond the seas for any term not exceeding fourteen years, nor less than seven years, or to be imprisoned for any term not exceed ing three years nor less than one year" (a).

By sect. 26, "Where any person shall be convicted of any offence punishable under this act, for which imprisonment may be awarded, it shall be lawful for the court to sentence the offender to be imprisoned, with or without hard labour, in the common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for the whole or any portion or portions of such imprisonment, as to the court in its discretion shall seem meet." See 7 Will. IV. & 1 Vict. c. 84, s. 3, post, 118.

By the 2 & 3 Will. IV. c. 123, s. 1, reciting, "Whereas, by an act passed in the first year of his present Majesty's reign, intituled, An act for reducing into one act all such forgeries as shall hereafter be punished with death, and for otherwise amending the laws relating to forgery,' it was provided, that if any person should after the commencement of that act be convicted of any forgery, or other offence therein

(a) The acts to which this section refers are those for the registration of wills and conveyances in Yorkshire and Middlesex, which award the punish

ment of death by reference to the stat. of Eliz. See 2 & 3 Anne, c. 4; 5 Anne, c. 18; 7 Anne, c. 20; 8 Geo. II. c. 6.

Forgery.

117

1. Statutes

repealed and general provisions.

2 & 3 Will. 4, c. 123.

§ L named or described, for which he would at the time of the passing of that act have been liable to the punishment of death, he should not suffer death for the same, unless the same should be made punishable with death by that act. And whereas, by the law and practice now prevailing in Scotland and Ireland, the penalty of death may be awarded in certain cases for forgery, for uttering counterfeit instruments, and for false personation; and whereas it is expedient to abolish the punishment of death for offences of that nature, except so far as relates to wills and certain powers of attorney, as hereinafter mentioned;" it is enacted, “That where any person shall, after the passing of this act, be convicted of any offence whatsoever, for which the said act enjoins or authorizes the infliction of the punishment of death, or where any person shall, after the passing of this act, be convicted in Scotland or Ireland of any offence now punishable with death, which offence shall consist wholly or in part of forging or altering any writing, instrument, matter, or thing whatsoever, or of offering, uttering, or disposing of any writing, instrument, matter or thing whatsoever, knowing the same to be forged or altered, or of falsely personating another, then, and in each aforesaid, or of procuring, of the cases aforesaid, the person so convicted of any such offence as thereof, shall not suffer death, or have sentence of death awarded against or aiding, or assisting in the commission him, but shall be transported beyond the seas for the term of such

offender's life."

powers of

Sect. 2 provides, “That notwithstanding anything hereinbefore con- Proviso as to tained, this act shall not cited forging wills and rize the punishment of death to be inflicted upon any person convicted, act, or any other act or law now in force, so far as the same may autho- attorney.

either in England, Scotland,

offering, uttering, or disposing of, knowing the same to be forged or altered, any will, testament, codicil, or testamentary writing, with intent to defraud any body corporate, or person whatsoever, or of forging rest of or in any stock, annuity, or other public fund, which now is or any power of attorney or other authority to transfer any share or intein respect of any such share or interest, with intent to defraud any body House, or at the Bank of Ireland, or to receive any dividend payable hereafter may be transferable at the Bank of England, or South Sea the commission of any of the said offences, but that the punishment for each and every of the said offences, and for procuring, aiding, or assisting in the commission thereof, shall continue to be the same as if this The 7 Will. 4 & 1 Vict. c. 84, s. 1, passed first October, 1837, after re- Punishment of Will. IV. c. 123, which retained the punishment of death for forging citing the enactments of the 11 Geo. IV. & 1 Will. IV. c. 66, and 2 & 3 death abolished.

or Ireland, of forging or altering, or of

corporate or person

whatsoever,

act had not been passed."

wills and

powers of

attorney;

59, 8. 19, 2 & 3 Will. IV.

and 5&6 Will. 1V. punishable, enacts, "

or of procuring, aiding, or assisting in

and also reciting the 2 & 3 Will. IV. c.

c. 125, s. 64, 5 & 6 Will. IV. c. 45, s. 12, s. 5, making certain forgeries capitally That if any person shall, after the commence

C.

51,

ment of this act, be convicted of any of the offences hereinbefore menawarded against him for the same, but shall be liable at the discretion of tioned, such person shall not suffer death, or have sentence of death Jess than seven years, or to be imprisoned for any term not exceeding Sert. 2, after reciting the 2 & 3 Will. IV. c. 123, s. 1, 3 & 4 Will. Commutation of tion for life, and also 3 & 4 Will. IV. c. 51, s. 27, enacts, "That so for life.

four years, nor less than two years."

IV. c. 44, s. 3, subjecting

much of the three lastly

transportation

offenders to imprisonment before transporta- punishment of

ble, under the said act of 2 & 3 Will. IV., or 3 & 4 Will. IV., to be the punishment of persons convicted of offences for which they are lia

herein before in part recited acts as relates to

1. Statutes repealed and general provisions.

Hard labour and solitary confine

ment.

Form of indictment.

Venue.

All forgers and
utterers may be
tried in the county
where they are
apprchended or
are in custody.

Scotland or
Ireland.

Offences com

mitted at sea,

To apply to the forging or uttering in England documents purporting to be

transported for life, shall, from and after the commencement of this act, be and the same is hereby repealed; and that, from and after the passing of this act, every person convicted of any of such offences, shall be liable, at the discretion of the court, to be transported beyond the seas for the term of the natural life of such person, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years, nor less than two years."

Sect. 3. "That when any person shall be convicted of any offence punishable under this act for which imprisonment may be awarded, it shall be lawful for the court to sentence the offender to be imprisoned, with or without hard labour, in the common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for any portion or portions of such imprisonment, not exceeding one month at any one time, and not exceeding three months in any one year, as to the court in its discretion shall seem meet." See 11 Geo. 4 & 1 Will. 4, c. 66, s. 26, ante, 116.

Form of Indictment.]—The 2 & 3 Will. IV. c. 123, s. 3, “In order to prevent justice from being defeated by clerical or verbal inaccuracies," enacts, "That in all informations or indictments for forging or in any manner uttering any instrument or writing, it shall not be necessary to set forth any copy or fac-simile thereof, but it shall be sufficient to describe the same in such manner as would sustain an indictment for stealing the same; any law or custom to the contrary notwithstanding."

Venue.]--The difficulty and trouble which was often occasioned by the necessity which formerly existed of laying the venue in the county where the forgery was actually committed, has been remedied by the 1 Will. IV. c. 66, s. 24, which enacts, "That if any person shall commit any offence against this act, or shall commit any offence of forging or altering any matter whatsoever, or of offering, uttering, disposing of, or putting off, any matter whatsoever, knowing the same to be forged or altered, whether the offence in any such case shall be indictable at common law or by virtue of any statute or statutes made or to be made, the offence of every such offender may be dealt with, indicted, tried, and punished, and laid and charged to have been committed, in any county or place in which he shall be apprehended or be in custody, as if his offence had been actually committed in that county or place; and every accessory before or after the fact to any such offence, if the same be a felony, and every person aiding, abetting, or counselling the commission of such offence, if the same be a misdemeanor, may be dealt with, indicted, tried, and punished, and his offence laid and charged to have been committed in any county or place in which the principal offender may be tried."

By sect. 29, This act shall not extend to any offence committed in Scotland or Ireland. But the 3 & 4 Will. IV. c. 123 extended it to Scotland.

Offences at Sea.]-By 11 Geo. IV. & 1 Will. IV. c. 66, s. 27, "where any offence punishable under this act shall be committed within the jurisdiction of the admiralty, the same shall be dealt with, inquired of, tried, and determined in the same manner as any other offence committed within that jurisdiction."

Forging and uttering_in_England instruments made payable out of England, and vice versa.]-It was at one time doubted whether the forgery of an instrument in this country, payable abroad, or the uttering made, or actually offence within some of the repealed statutes, (see R. v. Dick, 1 Leach, of an instrument in this country forged and payable abroad, was an 68; R. v. M'Kay, R. & R. 71); although it was afterwards decided that it was. (R. v. Kirkwood, R. & M. C. C. 311. See Jervis, Arch.

made, out of England;

C. L. 9 ed. 368). But these doubts are removed by the statute 11 Geo. IV. & 1 Will. IV. c. 66, s. 30, which enacts that, "where the forging or altering any writing or matter whatsoever, or the offering, uttering, disposing of, or putting off any writing or matter whatsoever, knowing the same to be forged or altered, is in this act expressed to be an offence, if any person shall, in that part of the United Kingdom called England, forge or alter, or offer, utter, dispose of, or put off, knowing the same to be forged or altered, any such writing or matter, in whatsoever place or country out of England, whether under the dominion of his Majesty or not, such writing or matter may purport to be made or may have been made, and in whatever language or languages the same or any part thereof may be expressed, every such person, and every person aiding, abetting, or counselling such person, shall be deemed to be an offender within the meaning of this act, and shall be punishable thereby in the same manner as if the writing or matter had purported to be made or had been made in England; and if any person shall in England forge or alter, or offer, utter, dispose of, or put off, knowing the same to be forged or altered, any bill of exchange or any promissory note for the payment of money, or any indorsement on or assignment of any bill of exchange or promissory note for the payment of money, or any acceptance of any bill of exchange, or any undertaking, warrant, or order for the payment of money, or any deed, bond, or writing, obligatory for the payment of money, (whether such deed, bond, or writing obligatory shall be made only for the payment of money, or for the payment of money together with some other purpose), in whatever place or country out of England, whether under the dominion of his Majesty or not, the money payable or secured by such bill, note, undertaking, warrant, order, deed, bond or writing obligatory may be or may purport to be payable, and in whatever language or languages the same respectively or any part thereof may be expressed, and whether such bill, note, undertaking, warrant, or order be or be not under seal, every such person, and every person aiding, abetting, or counselling such person, shall be deemed to be an offender within the meaning of this act, and shall be punishable thereby in the same manner as if the money had been payable or had purported to be payable in England."

Principals in second degree, and Accessories.]-By 11 Geo. IV. & 1 Will. IV. c. 66, s. 25, "in the case of every felony punishable under this act, every principal in the second degree, and every accessory before the fact, shall be punishable with death, or otherwise, in the same manner as the principal in the first degree is by this act punishable; and every accessory after the fact to any felony punishable under this act shall, on conviction, be liable to be imprisoned for any term not exceeding two years."

Criminal possession and intent-Rule of interpretation of terms used.] By the 11 Geo. IV. & 1 Will. IV. c. 66, s. 28," where the having any matter in the custody or possession of any person in this act expressed to be an offence, if any person shall have any such matter in his personal custody or possession, or shall knowingly and wilfully have any such matter in any dwelling-house or other building, lodging, apartment, field, or other place, open or inclosed, whether belonging to or occupied by himself or not, and whether such matter shall be so had for his own use or for the use or benefit of another, every such person shall be deemed and taken to have such matter in his custody or possession within the meaning of this act; and where the committing any offence with intent to defraud any person whatsoever is made punishable by this act, in every such case the word 'person' shall throughout this act be deemed to include his Majesty, or any foreign prince or state, or any body corporate, or any company or society of persons not incorporated, or any person or number of persons whatsoever who may be intended to be defrauded by such offence, whether such body corporate, company, society,

1. Statutes repealed and general provisions.

and to the forging or uttering in exchange, promissory notes, bonds, &c. purporting to te payable out of England.

England bills of

As to principals in the second sories.

degree, and acces

Rule of interpre nal possession, and as to parties indefrauded.

tation as to crimi

tended to be

2. What

amounts to.

Evidence and indictment for, in general.

Competency of witness.

Not triable at sessions.

What amounts to.

Alteration,

Addition.

Fictitious name.

person, or number of persons shall reside or carry on business in England or elsewhere, in any place or country, whether under the dominion o his Majesty or not; and it shall be sufficient in any indictment to name one person only of such company, society, or number of persons, and t allege the offence to have been committed with intent to defraud the person so named, and another or others, as the case may be."

Competency of Witnesses.]-By 9 Geo. IV. c. 32, s. 2, on any prose cution by indictment or information, either at common law, or by virtu of any statute, against any person, for forging any deed, writing, instru ment, or other matter whatsoever; or for uttering or disposing of any deed, writing, instrument, or other matter whatsoever, knowing the same to be forged; or for being accessory before or after the fact to any such offence, if the same be a felony; or for aiding, abetting, or coun selling the commission of any such offence, if the same be a misdemea nor; no person shall be deemed to be an incompetent witness in support of any such prosecution, by reason of any interest which such person may have or be supposed to have in respect of such deed, writing, instrument, or other matter."

Not triable at sessions.]-By 5 & 6 Vict. c. 38, s. 1, the offence is not triable at any quarter sessions, or before any recorder.

II. What amounts to a Forgery, and Evidence and
Endictment for, in General.

What amounts to a Forgery.]-Any alteration of a genuine instrument, in a material part, whereby a new operation is given to it, is a forgery of the whole; thus, making a lease of the manor of Dale appear to be a lease of the manor of Sale, by changing the D. to S., (1 Hawk. c. 70, s. 2); making a bill of exchange for eight pounds appear to be for eighty pounds, by adding a cipher to the 8, (R. v. Elsworth, 2 East, P. C. 986, 988; Bayley on Bills, 430; and see R. v. Teague, 2 East, P.C.979, R. & R. 33, S. Č.; R. v. Post, R. & R. 101; R. v. Átkinson, 3 C. & P. 669); erasing a genuine indorsement and inserting another, is a forgery. (R. v. Birkett, Bayley, B. 63, 430).

The counterfeit making of any part of a genuine note, to give it greater currency, is forgery. Ex. gr. to alter the name of one banker to that of another, with whom the maker makes his other notes payable, after failure of the first. (R. v. Treble, 2 Taunt. 328, R. & R. 164). Adding to a copy of a receipt other words, as for example, "in full of all demands," which were not in the original, is a forgery, if the copy be offered in evidence on the supposed loss of the original. (Upfold v. Leit, 5 Esp. 100, Ellenborough).

But the forgery of a mere addition to the instrument, and which has not the effect of altering it, but is merely collateral to it, as, for instance, a forged acceptance or indorsement to a genuine bill of exchange; such forgery of the addition will not support an indictment charging the forgery of the entire instrument; the forgery of such addition must be specially alleged, and must be proved as laid. (See R. v. Birkett, R. & R. 251). Forging the signature of the drawer to a bill of exchange, however, is the same precisely as forging the entire bill, and may be laid as such. (See Jervis, Arch. C. L. 9 ed. 365; R. v. Dunn, 1 Leach, 57).

And whether the name forged be that of a merely fictitious person, who never existed, or of a person actually existing, is wholly immaterial; it is as much a forgery in the one case as in the other; (2 Russ. 328; R. v. Lewis, Fost. 116; R. v. Wilks, 2 East, P. C. 957; R. V. Bolland, Ibid.; R. v. Lockett, 1 Leach, 94; R. v. Parkes & al. 2 Leach, 775; 2 East, P. C. 963; R. v. Froud, 1 B. & B. 300; R. & R. 389; R. v. Sheppard, 1 Leach, 226; R. v. Whiley, 2 Id. 983; R. & R. 90; R.