by the civil law with deportation or banishment, and sometimes with may with us be defined, at common law, to be, "the frau death (6) (0) Inst. 4. 18. 7. sufficient if the instrument counterfeited be prima facie fitted to pass for the writing which it represents. I Leach, 179. As to how far the instrument should appear genuine, and the forging of fictitious names, see infra, Div. III II. WITH WHAT INTENT THE FORGERY MUST BE COMMITTED.-The very essence of forgery is an intent to defraud; and, therefore, the mere imitation of another's writing, the assumption of a name, or the alteration of a written instrument, where no person can be injured, does not come within the definition of the offence. Most of the statutes expressly make an intent to defraud a necessary ingredient in the crime; whether it existed or not, is a question for the jury to determine. But it is in no case necessary that any actual injury should resuit from the offence. 2 Stra. 747. 2 Lord Raym. 1461. The question as to the party's intent, is for a jury, and such 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 on him, and although the object was general, to defraud whoever night take the instrument, and the intention of defrauding, in particular, the person who would have to pay the instrument, genuine did not enter into the prisoner's contemplation. R. & Ry. C. C. 291, and see Id. 769. III. HOW FAR THE INSTRUMEMT FORGED MST APPEAR GENUINE.-It is of no consequence whether the counterfeited instrument be such as if real would be effectual to the purpose it intends, so long as there is a sufficient resemblance to impose on those to whom it is uttered. Whether the fraud be effected on the party to whom an instrument is addressed, or whose writing is counterfeited, or on a third person who takes it upon the credit it assumes, is immaterial. Thus, to counterfeit a conveyance with a wrong name, has been deemed within 5 Eliz. c. 14, though it would have been ineffectual if genuine. 1 Keb. 803. 3 Keb. 51. The fabrication of an order for payment of a sailor's prize-money is forgery, as we have already seen, though it be invalid as wanting the requisites required by statute. 2 Leach, 883. The offence of uttering a forged stamp will be complete, though at the time of uttering, that part which in a genuine stamp would in terms specify the amount of duty, is concealed, and in fact cut out, and though that part where the papers were entire, did not contain any thing specifying the amount of duty, provided the parts left visible are like a genuine stamp. Russ. & Ry. C. C. 229. 212. We have also seen, that the forgery of an instrument, as a last will, comes within the statutes, although the supposed testator is living. 1 Leach, 449. and it may be collected from a number of 1 caces, that forgery in the name of person who has no real existence, is as much criminal as if there was an intent to defraud an individual whose writing is counterfeited. 1 Leach, 83. Thus the making of a bill of ex. change is within the acts, though all the names to it are fictitious. 2 East P. C. 957 To counterfeit a power of attorney, as by the administratrix and daughter of a seaman who died childless, is capital. Fost. 116. Nor it necessary that any additional credit should be obtained by using the fictitious name. Leach, 172, and see R. & Ry. C. C. 75. 90. 209. 278. So to put a fictitious name on a bill indorsed in blank, in order to circulate it with secrecy, is a similar offence 1 Leach, 215. And indeed it seems that it is not necessary to constitute forgery, that there should be an intent to defraud any particular person, and a general intent to defraud will suffice. 3 T. R. 176. 1 Leach, 216, 17, in notis. to support a charge of forgery, by subscribing a fictitious name, there must be satisfactory evidence on the part of the prosecutor that it is not the party's real name, and that it was assumed for the purpose of fraud in that instance. Russ. & Ry. C. C. 260. Assuming and using a fictitious name, though for pur poses of concealment and fraud, will not amount to forgery, if it were not for that very fraud, or system of fraud, of which the forgery forms a part. Russ. & Ry. C. C. 260. I there is proof of what is the prisoner's real name, it is for him to prove that he used the assumed name, before the time he had the fraud in view, even in the absence of all proof as to what name he had used for several years, before the fraud in question. Russ. & Ry. C. C. 278, and see Russ. & Ry. C. C 405. 3 Brod. & Bing. 228. S. C. 2 Burn. J 24th edit. 510. Russ. & Ry. C. C. 463. S. C A defect in the stamp will not avail the pri soner, 1 Leach, 257, 8, in notis. 2 East P. C. 955; and it has even been decided that, it there be no stamp at all on a counterfeit pro missory note, it may still be forgery. 2 Leach, 703.-though this case seems to go too far for how can a promissory note, without the appearance of a stamp, have such a similitude to a genuine instrument as is requisite to con stitute forgery? But though the validity o the instrument if real is thus immaterial, it must not appear on its face, so that no one of common understanding would give it credit. Thus, it will not be forgery to fabricate a will for land, as attested by only two witnesses. 2 East P. C. 953. Nor is it felony to counter feit a bill of exchange for a sum more than twenty shillings and less than five pounds, without mentioning the abode of the payee and being attested by a subscribing witness, as such an instrument is by 17 Geo. III. c. 30 absolutely void. 1 Leach, 431. These case; will sufficiently explain the law on this sup ject dulent making or alteration of a writing to the prejudice of another man's right;" for which the offender may suffer fine, imprisonment, and pillory (66). And also by a variety of statutes, a more severe punishment is inflicted on the offender in many particular cases, which are so multiplied of late as almost to become general. I shall mention the principai instances. By statute 5 Eliz c. 14. to forge or make, or knowingly to publish or give in evidence, any forged deed, court-roll, or will, with intent to affect the right of real property, either freehold or copyhold, is punished by a forfeiture to the party grieved of double costs and damages; by standing in the pillory, and having both his ears cut off, and his nostrils slit, and seared; by forfeiture to the crown of the profits of his lands, and by perpetual imprisonment. For any forgery *relating to a term of years, or [*248) annuity, bond, obligation, acquittance, release, or discharge of any debt or demand of any personal chattels, the same forfeiture is given to the party grieved; and on the offender is inflicted the pillory, loss of one of his ears, and a year's imprisonment: the second offence in both cases being felony without benefit of clergy. Besides this general act, a multitude of others, since the revolution (when paper-credit was first established), have inflicted capital punishment on the forging, altering, or uttering as true, when forged, of any bank bills or notes, or other securities (p) (67); of bills of credit issued from the ex Stat. 8. 9 W. III. c. 20, 36. 11 Geo. I. c. 9 12 Geo. I. c. 82. 15 Geo. II. c. 18. 13 Geo. III (66) The punishment of pillory is now taken away by 56 Geo. III. c. 138. Besides this punishment, the defendant is holden incapable of being examined as a witness till restored to competence by the king's pardon. Com. Dig. Testmoigne A. 3, 4. And by 12 Geo. I. c. 29, in case persons convicted of forgery, shall afterwards practise as attornies, solicitors, or law agents, the court where they practise shall examine the matter in a summary way, and order the offender to be transported for seven years. (67) As to the further provisions relative to this description of forgery, vide 41 Geo. III. c. 39; 45 Geo. III. c. 89; 52 Geo. III. c. 138, and 1 Geo. IV. c. 92, under which last Act relating to bank notes, by § 11, persons engrav. ing, cutting, etching, scraping, or by other means marking upon any plate of copper, brass, steal, &c., any engraving, &c., for the purpose of producing a print or impression of all or any part of a bank note, or a blank bank note of the said governor and company without their authority, or having unlawfully in their possession any such plate, &c., or wilfully disposing of any such blank bank note, or part of such bank note as aforesaid, are liaDie to transportation for fourteen years. By 2 persons unlawfully cutting, etching, &c. or procuring, &c., or assisting in making upon any plate of copper, brass, steel, &c., any line work, as or for the groundwork of a promissory note or bill of exchange, which shall be intended to resemble the groundwork of a bank note of the governor and company, or any device, the impression from which shall ontain the words "Bank of England" in white letters upon a black or dark ground, VOL. II. 75 with or without white lines therein, or shal contain in any part thereof the numerical sum or amount of such note or bill in black and red register work, or shall shew the reversed contents thereof, or shall contain any words, figures, characters, or patterns intended to re. semble the ornaments on such note, or any word, figure, &c. in white on a black ground, intended to resemble the amount in the mar gin of such note, or using such plate or other instrument intended to represent the whole or part of any such note, or knowingly having in their possession any such plate, &c., or dis. posing of any such paper impressions, or know. ingly having such in their custody, are guilty of felony, and liable to transportation for fourteen years. The bank having preferred one indictment for uttering a forged note, and another for hav ing the same in possession, and having elect ed to proceed on the latter charge, it was held that although facts sufficient to support the capital charge were made out in proof, an ac quittal for the minor offence ought not to be directed, because the whole of the minor charge was proved, and did not merge in the larger. R. & R. C. C. 378. On an indict ment for forging a bank note, the cashier whe signed "for the governor and company of the bank of England," is a competent witness to prove the forgery; for he is not by such a sig nature personally responsible for the payment of the note; 1 Leach, C. C. 311, R. and R. C C. 378; but he is not an essential witness, ar his handwriting may be disproved by other wit nesses. Rex v. Hughes, and Rex ". M'Guire 2 East P. C. 1002; 1 Leach, C. C. 311. What circumstances are sufficient to com chequer (q) (68); of South-sea bonds, &c. (r); of lottery tickets or o der (s) (69); of army or navy debentures (t); of East India bonds (u); of writings under the seal of the London, or royal exchange assurance (v) (70) of the hand of the receiver of the pre-fines (x) (71); or of the accountant-general and certain other officers of the court of chancery (y) (72); of a letter of attorney or other power to receive or transfer stock or annuities; and on the personating a proprietor thereof, to receive or transfer such annuities, stock, or dividends (2) (73); also on the personating, or procuring to be personated, any seaman or other person, entitled to wages or other naval emoluments, or any of his personal representatives; and the taking, or procuring to be taken, any false oath in order to obtain a probate, or (g) See the several acts for issuing them. (r) Stat. 9 Ann. c. 21. 6 Geo. I. c. 4 & 11. 12 Geo. I. c. 32. (s) See the several acts for the lotteries stitute the offence of uttering, which must be attended with a guilty knowledge, and what proofs required to substantiate it, may be deduced from the following abstract of decided cases, which have been selected from among many others. Where a prisoner, charged with uttering a forged note to A. B., knowing it to be forged, gave forged notes to a boy who was not aware of their being forgeries, and directed the boy to pay away the note described in the indictment at A. B.'s, for the purchase of goods, and the boy did so, and brought back the goods and the change to the prisoner; it was held by the twelve judges, an uttering by the prisoner to A. B. Rex v. Giles, Car. C. L. 191. So the delivering a box, containing, among other things, forged stamps to the party's own servant, that he might carry them to an inn to be forwarded by a carrier to a customer in the country, is an uttering. And if the delivery be in one county, and the inn to which they are carried by the servant in another, the prisoner may be indicted in the former. The offence of uttering a forged stamp will be complete, although at the time of uttering, certain parts of the stamp are concealed; all the parts that are visible being like those of a genuine stamp. Rex v. Collicott, R. and R. C. C. 212. It is not necessary that a promissory note should be negotiable, in order to be a promissory note within the 2 Geo. II. c. 25, so as to be the subject of an indictment for forging or uttering it. Rex v. Box, id. 300. An indictment on 45 Geo. III. c. 89, for uttering forged notes, need not state to whom they were disposed, it is sufficient to state that the prisoner disposed of the notes with intent to defraud the bank, he knowing them at the time to be forged, and although the person to whom they were disposed purchased them, as and for forged notes, and purchased them on his own solicitation, and as agent for the bank, for the purpose of bringing the prisoner to punishment. Rex v. Holden, id. 154. Uttering a forged order for the payment of money under a false representation, is evidence of knowing it to be forged. Id. 169. To prove the guilty knowledge of an utterer. Bi a forged bank note, evidence may be given of the crisoner's having previously uttered (w) Stat. 6 Geo. I. c. 18. (z) Stat. 8 Geo. I. c. 22. 9 Geo. L c. 12. 31 Geo II. c. 22, ◊ 77. other forged notes, knowing them to be forged. 195. So, if a second uttering be made the sub ject of a distinct indictment, it cannot be given in evidence to shew a guilty knowledge in a former uttering. Rex v. Smith, 2 C. and ". 633. The person whose name is forged was formerly held to be not a competent witness to prove the forgery. Rex v. Russell, 1 Leach, C. C. 8. But he has recently been made competent by the 9 G. IV. c. 32, s. 2. (68) See also the 48 Geo. III. c. 1. 58 Gea III. c. 23. s. 38. & R. & R. C. C. 67. (69) This is now a clergyable felony, 4 Geo IV. c. 60. s. 11. (70) See 6 Geo. I. c. 4. 39 Geo. III. c. 83. s. 22. (71) See the 52 Geo. III. c. 143. 2 East P. C. 911. 42 Geo. III. c. 54. (72) Forging a writing purporting to be an office copy of a report or certificate of the ac countant-general that money has been paid into the bank, or forging an office copy of a certifi cate or receipt of one of the cashiers of the bank, is within this act. 1 Leach, 61. 2 Eas. P. C. 898. (73) See also the 33 Geo. III. c. 30. furthe providing against forgeries and frauds in the transfer of stock. letters of administration, in order to receive such payments (74); and the forging or procuring to be forged, and likewise the uttering, or publishing, as true, of any counterfeited seaman's will or pow- [*249] er (a) (75): to which may be added, though not strictly reducible to this head, the counterfeiting of Mediterranean passes, under the hands of the lords of the admiralty, to protect one from the piratical states of Barbary (b); the forging or imitating of any stamps to defraud the public revenue (c) (76,) and the forging of any marriage-register or licence (d) (77); all which are by distinct acts of parliament made felonies without benefit of clergy. By statute 13 Geo. III. c. 52. and 59, forging or counterfeiting any stamp or mark to denote the standard of gold and silver plate, and certain other offences of the like tendency, are punished with transportation for fourteen years (78). By statute 12 Geo. III. c. 48. certain frauds on the stamp-duties, therein described, principally by using the same stamps more than once, are made single felony, and liable to transportation for seven years. And the same punishment is inflicted by statute 13 Geo. III. c. 38. (79) on such as counterfeit the common seal (c) See the several stamp acts. (a) Stat. 31 Geo. Il. c. 10. 9 Geo. III. c. 30. (b) Stat. 4 Geo. II. c. 18. (74) Vide also 3 G. III. c. 16; 26 G. III. c. 23. 32 G. III. c. 33; 55 G. III. c. 60; 57 G. III. c. 127; 4 G. IV. c. 46: and 5 G. IV. c. 107; by 5 of which latter statute, the punishment previously due to these offences is changed to transportation for life or otherwise. Personating a seaman who is dead is within the Act, as where a prisoner applied at the Greenwich hospital for prize money in the name of J. B., and J. B. was dead, and supposed to be so at the hospital, though the prisoner did not obtain the money, he was convicted of the offence. Rex v. Martin, R. and R. C. C. 324. So where a prisoner personated one "S. Cuff," who was dead, and whose prize money had been paid to his mother, it was held, that it did not vary the prisoner's guilt, and that he might be convicted on the 54 G. III. c. 93, 89. Rex v. Cramp, id. 327. To constitute the offence of personating the name of a seaman under the 57 Geo. III. c. 127, 4, the person entitled, or really supposed to be so, to prize money, must be personated; personating a man who never had any connexion with the ship, is not an offence within the Act. Rex v. Tannet, id. 351. And by 59 G. III. c. 56, ◊ 3, persons falsely representing themselves as the next of kin of any seaman, &c., or any agent whose authority is revoked, offering to receive wages, pay, prize money, or other allowance, are guilty of a misdemeanor; by 12, inserting a false date in any order for the payment of prize money is made a misdemeanor; and by 17, persons really entitled to prize money, &c., using false orders or certificates to procure the same, are guilty of a misdemeanor. (75) See also 55 G. III. c. 60, s. 31, and 59 G. III. c. 56, by the 18th 3. of which, the false!y personating officers, seamen, marines, suDernumeraries, &., entitled to wages, or their epresentatives, or forging or uttering any etter of attorney, order, bill, ticket, or other certificate, assignment, last will, or other Dower whatsoever, in order to obtain any prize money, &c.; or uttering any such letver of attorney, order, bill, &c., knowing (d) Stat. 26 Geo. II. c. 33. the same to be forged, in order to receiv any prize money, &c. ; or taking a false oath to obtain a probate or letters of administra. tion in order to receive prize money, &c.; or demanding, or receiving wages, &c., know ing the will to be forged, or the probate or administration to have been obtained by a false oath with intent to defraud, is made a capital felony. By 1 and 2 G. IV. c. 49, s. 3. procuring persons to sign a false petition un der this Act, or procuring others to demand money due, or supposed to be due, to seamen, &c., under a certificate from the inspector of seamen's wills, is punishable with transporta tion for seven years; and, by s. 4, procuring others to utter any forged letter of attorney, or other document, to obtain seamen's wages, &c., or procuring others to demand or receive such wages, &c., is punishable with death. By 7 G. VI. c. 16, s. 38, the personating any Chelsea pensioner, &c., or forging any documents, or knowingly uttering such forgeries to obtain any pension, &c., is punishable with transportation for life or otherwise. A bill, drawn on the commissioners of the navy for pay, may be a bill of exchange, and a person may be indicted for the forgery of it as such, although it is not in the form prescribed by 35 G. III. c. 94. Rex v. Chisholm, R. and R. C C. 297. (76) By 6 G. IV. c. 106, forging or uttering the drafts or other instrument of the receiver general or controller general of the customs, is a capital felony. Vide also as to stamps, 37 G. III. c. 90; 44 G. III. c. 98; 48 G. III. c. 149; 52 G. III. c. 143; 55 G. IV. c. 184, and c. 185; and 6 G. IV. c. 119, which makes it a capital felony to forge or utter forged stamps to newspapers; see also, 9 G. IV. c. 18, which makes it a capital felony to forge the stamps of any cards or dice. (77) The forgery of documents relating to marriage registers and licences, is punishable now only with transportation for life, 4 Geo IV. c. 76, s. 29. (78) This is now a capital fe ony. of the corporation for manufacturing plate-glass (thereby erected) or know ingly demand money of the company by virtue of any writing under such counterfeit seal. There are also certain other general laws, with regard to forgery; of which the first is 2 Geo. II. c. 25. whereby the first offence in forging or procuring to be forged, acting or assisting therein, or uttering or publishing as true any forged deed, will, bond, writing obligatory, bill of exchange, promissory note, indorsement, or assignment thereof, or any acquittance or receipt for money or goods, with intention to defraud any person (or cor. poration) (e), is made felony without benefit of clergy. And by statute 7 Geo. II. c. 22. and 18 Geo. III. c. 18. it is equally penal to forge or cause to be forged, or utter as true, a counterfeit acceptance of a bill of exchange, or the number or principal sum of any accountable [*250] receipt for any note, bill, or any other security for money; or any warrant or order for the payment of money, or delivery of goods (80). So that, I believe, through the number of these general and special provisions, there is now hardly a case possible to be conceived wherein forgery, that tends to defraud, whether in the name of real or fictitious person (f), is not made a capital crime (81). These are the principal infringements of the rights of property: which were the last species of offences against individuals or private subjects which the method of distribution has led us to consider. We have before examined the nature of all offences against the public, or commonwealth (e) Stat 31 Geo. II. c. 22, ◊ 78. (80) See 45 G. III. c. 89; 49 G. III. c. 35; and 8 G. IV. c. 8, respecting widows' pensions, remittance bills, the forging of which, or procuring others to forge them, is made a felony punishable with transportation. (81) It has frequently been determined, that drawing, indorsing, or accepting a bill of exchange in a fictitious name is a forgery. Bolland's case, &c., Leach, 78, 159, 192; 1 Hen. Black. 588; Fost. 116. It is also forgery to fabricate a will by counterfeiting the name of a pretended testator, who is still living. Cogan's case, ibid. 355. If a person puts his own name to an instrument, representing himself to be a different person of that name with an intent to defraud, he is guilty of forgery. 4 T. R. 28. But where a bill of exchange is indorsed by a person in his own name, and another represents himself to be that person, he is not guilty of forgery, but it is a misdemeanor. Hevey's case, Leach, 268. A bill or note may be produced in evidence against a prisoner prosecuted for the forgery of it; and he may be convicted upon the usual evidence of the forgery, though it has never been stamped pursuant to the Stamp Acts. Hawkeswood's and Reculist's cases, Leach, 292, and 811. For the forgery in such a case is Committed with an intent to defraud; and the legislature meant only to prevent their being given in evidence, when they were proceeded upon to recover the value of the money thereby secured. But Lord Kenyon has declared that Le did not approve of the decision of the maority of the judges in these cases. Peake, 168. It has been declared that the forgery of (f) Fost 116, &c. a bill of exchange in a form which rendeses it void under the 17 Geo. III. c. 30, (see 2 book, 467,) was not a capital offence, because if real, it was not valid or negotiable. Moffat'ı case, Leach. 483. Every indictment for forgery must set out the forged instrument in words and figures. Mason's case, 1 East, 182. But it is sufficient to set for the receipt a the bottom of an account, without setting ou the account itself. Testick's case, ibid. 181. The word purport, in an indictment for forge ry signifies the substance of an instrument as it appears on the face of it; tenor means ar exact copy of it. Ibid. 180. Leach, 753. The most effectual statute for the preven tion of the forgery of bank notes, is the 41 Geo. III. c. 41. which enacts that if any one shall knowingly have in his possession, or in his house any forged bank notes, knowing the same to be forged, without lawful excuse, the proof whereof shall lie upon the person accused, be shall be guilty of felony, and shall be transported for fourteen years. And if any person shall make any plate or instrument for forging bank notes, or any pat of a bank note, or shall knowinly have them in his possession without authority in writing from the governor and company of the bank of England, he shall be guilty of felony, and stall be transported for seven years. But before this statute this must have been an indictable offence as a misdemeanor. Se ante, 99, note (7). By the 45 Geo. JII. c. 89, the statutes for the punishment of forgery are extended to every part of Great Britain |