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any statute in which he is not expressly named. Hawk. P. C. b. 1, c. 64, s. 35. A feme-covert may be guilty of a forcible entry, by entering with violence into her husband's house. Eliza Sinyth's case, 5 C. and P. 201 (a).
Award of restitution. The court in which the indictinent is found, or the Court of King's Bench upon the removal thither of the indictment by certiorari, has power on the conviction of the defendant, to award restitution to the party upon whose possession the entry has been made. Hawk. P. C. b. 1, c. 64, s. 49, 50, 51. Though by the provisoes in the statutes of Hen. 6, and James 1, the defendants may set up a possession for three years to stay the award of restitution. Id. s. 53. persedeas of the award of restitution may be granted by the same Court that made the award. ld. s. 61. And a re-restitution may be awarded by the King's Bench. Id. s. 66. See Wilson's case, ante, p. 435.
Before conviction it is in the discretion of the judge of assize to award a restitution or not, although a true bill has been found by the grand jury for a forcible entry. Harland's cirse, 2 Lew. C. C. 170.
Witnesses.] The tenant of the prenuises is not a competent witness. Williams's case, 9 B. and C. 549 (b); Beavan's case, Ry. and Moo. 342 (c), ante, p. 130.
[ *437] The offence of forestalling, with which may likewise be considered those of engrossing and regrating, is defined to be every practice or device, by act, conspiracy, words, or news, to enhance the price of victuals, or other merchandize. 3 Inst. 196; 3 Bac. Ab. 261; 1 Russ. 169. All endeavors whatever to enhance the common price of any merchandize, and all kinds of practice which have an apparent tendency thereto, whether by spreading false rumors, or by buying things in a market before the accustomed hour, are offences at cominon law, and come under the general notion of forestalling, which includes all kind of offences of this nature. Hawk. P. C. b. 1, c. 80, s. 1. These offences were prohibited by several old statutes, but those acts were repealed by the 12 Geo. 3, c. 71; leaving the offences as they stood at common law, and punishable by fine or imprisonment, or both.
In modern times prosecutions have seldom been instituted for any of these offences; but in the following case an information for enhancing the price of hops was sustained. The defendant was charged in the first count with spreading false rumors, with intent to enhance the price of hops, in the hearing of hop-planters, dealers, and others, that the stock of hops was nearly exhausted, and that there would be a scarcity of hops, &c., with intent to induce them not to bring their hops to market for sale, and thereby greatly to enhance the price. It appeared that the defendant having a stock of hops on hand, declared to the sellers that they were too cheap, and to the planters that they had not a fair price for their hops,
(a) Eng. Com. L. Rep. xxiv. 279. (b) Id. xvii. 440. (e) Id. xxi. 428.
and contracted for one-fifth of the produce of Worcestershire and Hertfordshire, where he had a stock in hand, and admitted that he did not want to purchase. The defendant being convicted, moved in arrest of judgment, but the Court refused the motion. Waddington's case, 1 East, 143.
Upon a prosecution for an offence of this nature, the prosecutor must prove, Ist, the act of forestalling, regrating, &c.; and 2dly, the object " with which that act was done. It must appear that he has made his purchases, not in the fair course of dealing, with a view of alterwards dispersing the goods in proportion to the wants and conveniences of the public, but with a view to enhance the price of the commodity, and to deprive the people of their ordinary subsistence, or compel them to purchase it at an exorbitant price. Per Lord Kenyon, Waddington's case, 1 East, 143.
473 Forgery at common law Proof of the false making
rants, &c. In the name of the party-assuming
Forging receipts the name of a person in existence 440
486 Forgeries relating to the public funds Party forging having the same
False entries in books of bank
and transfer in false names 486 Assumed and borne by the party
Proof of forging transfer of stock, forging
and power of attorney to trans-
487 Proof of the false making-with regard to the apparent validity of the matter
Proof of personaling owner, and forged
endeavoring to transfer stock - 488 Substantial resemblance to true in
Proof of forging attestation to strument
power of attorney, or transfer Cases of non-resemblance
of stock Proof of the act of forging
- 453[*439 ] *Proof of clerks in the Bank' Proof of the uttering
making out false dividend war
East India bonds, &c.
457 Forgery and similar offences with regard
to bank notes is forged
Proof of uttering and forging
bank notes 462
489 Proof of the forged instrument Proof with regard to principals and acces
Proof of purchasing, receiving,
&c., forged bank notes Proof of guilty knowledge
Proof of making or having
. 467 Witnesses
of exchange, &c. -
Proof of engraving any bank
469 Interpretation clause
Proof of engraving any word,
- 460 Punishment
Proof of engraving bill of ex
Proof of engraving foreign bills
493 for payment of money, or delivery
or notes, &c.
494 473 Forgery of entries in public registers of gooris, &c.
496 Forgery of stamps Proof of forging bills of ex.
499 Forgery of other public documents change, notes, undertakings,
Under the present head will first be stated, the law of forgery, as it regards all forged instruments, with the general proofs necessary to establish the act of forging, uttering, &c. The evidence required to prove the forgery of particular documents, both private and public, will then be given.
Forgery at common law. At common law the offence of forgery was punishable as a misdemeanor. It is defined by Sir W. Blackstone as
the fraudulent making or alteration of a writing to the prejudice of another man's right;" 4 Com. 247; and by Mr. East, as “a false making, a making malo animo, of any written instrument for the purpose of fraud and deceit.” 2 East, P. C. 852.
With regard to the nature of the instruments or writings, the forging of which is punishable at common law, it has been held that the falsification of records and other matters of a public nature is a misdemeanor, as a privy seal; 1 Roll. Ab. 68; a license from the Barons of the Exchequer to compound debts; Id. 65; Gregory v. Wilks, 2 Bulst. 137; a parish register; Hawk. P. C. b. 1, c. 70; or a certificate of holy orders, or any matter of record. Hawk. P. C. b. 1, c. 70, s. 9, 10. So a forged letter, in the name of a magistrate, to the governor of a gaol, directing the discharge of a prisoner, has been held to be a forgery. Harris's case, 6 C. and P. 129(a); 1 Moody, C. C. 393 (6), S.C. And see Fawcett’s case, 2 East, P. C. 862, post, p. 440.
So with regard to private writings, it is an offence at common law to forge a deed or will. Hawk. P. C. b. 1, c. 70, s. 10. And though doubts were formerly entertained on the subject, it is now clear that forging any private document, with a fraudulent intent, and whereby another person may be prejudiced, is within the rule (1). "Thus, after [ *440 much debate, it was held that forging an order for the delivery of goods was a misdemeanor at common law. Ward's case, Str. 747; 2 Ld. Raym. 1461. And the same was held by a majority of the judges, with regard to a document purporting to be a discharge from a creditor to a gaoler, directing him to discharge a prisoner in his custody. Fawceu's case, 2 East, P. C. 862. Ward's case is considered by Mr. East to have settled the rule, that the counterfeiting of any writing, with a fraudulent intent, whereby another may be prejudiced, is forgery at common law. 2 East, P. C. 861.
Upon an indictment for forgery at common law, it must appear in the indictment what the instrument is, in respect of which the prisoner is charged. The prisoner was indicted for forging a certain paper instrument in the words and figures following :
“Fol. 44, 4, Sarum public weighing engine, July 27, 1802. One load of coals from Mr. Wilcox to Mr. Webb.
(1) Ames' case, 2 Greenl. 365. Pennsylvania o. M'Kee, Addis. 33.
With intent to defraud John Webb. It appeared that the prisoner had altered this instrument, so as to render the prosecutor liable to pay more than it originally expressed. The prisoner being convicted, the judges, on a case reserved, were of opinion that the indictment was bad, as it did not state what the instrument was, in respect of which the forgery was alleged to have been committed, nor how the party signing it had authority to sign it. Wilcox's case, Russ. and Ry. 50.
It is not necessary to the sustaining an indictment for forgery at common law, that any prejudice should in fact have happened by reason of the fraud (1). Ward's case, Str. 747; 2 Ld. Raym. 1461. Nor is it necessary that there should be any publication of the forged instrument. 2 East, P. C. 855, 951, 1 Russell, 318.
Proof of the false making in the name of the party-assuming the name of a person in existence.) The most usual kind of forgery is, where the party assumes the name and character of a person actually in existence, and by means of the credit attached thereto, carries his fraud into effect; as in the following case. The prisoner, whose name was Hadfield, appeared in the neighborhood of the lakes of Cumberland, calling himself the Hon. Alexander Augustus Hope, brother of the Earl of Hopetown, and in that name imposed upon several persons in the neighborhood. During his residence near the lakes, he drew a bill upon A gentleman in the neighborhood, which would have been paid, had not ( *441 ] the prisoner *been detected. For this forgery he was indicted, convicted, and executed. Hadfield's case, 6 Ev. Stat. 580; 2 Russell, 327.
The adoption of a false description and addition, where a false name is not assumed, and there is no person answering the description, has been held not to be forgery. Webb's case, Russ. and Ry. 405 (a).
Of the false making—in the name of the party-party forging having the same name.) A man may be guilty of forgery by the fraudulent making of an instrument, though in his own name; as if he makes a feoffment of lands to J. S., and afterwards a deed of feoffment of the same lands to J. D., of a date prior to that of the feoffment to J. S. Hawk. P. C. b. 1, č. 70, s. 2. And the offence, it is said, would have been the same, if he had passed only an equitable interest for a good consideration, and had afterwards by such a subsequently antedated conveyance endeavored 10 avoid it. Id. So if a bill of exchange, payable to A. B. or order, come to the hands of a person named A. B. (not the payee) who fraudulently indorses it for the purpose of obtaining the money, this is a forgery (2). Mead v. Young, 4 T. R. 28. The prisoner, whose name was Thomas Browne, was charged together with Matthias Parkes, with forging a promissory note, purporting to be made by Thomas Browne. It appeared that the prisoner Browne had passed the note in question to a tradesman, representing it to him as the note of his brother. The note was dated at Roughton, Salop, and was made payable at Thornton and Co., bankers, London. It was proved that there was no person of
(1) Arnold p. Cost, 8 Gill & Johns. 220. (2) People o. Peacock, 6 Cowen, 72.
(a) 1 Eng C. C. 405.
that name and description residing at Roughton, and that no such person kept an account at Thornton and Co.'s. It was objected for the prisoner Browne, that the note being made in his own name, could not be a forgery ; but the judges on a case reserved, held that he had been properly convicted. · Grose, J., in delivering their opinion, said, “ The prisoner, at the time he uttered the note, did not utter it as his own note, but as the note of his brother, of the same name ; but there is no brother of the prisoner of the name of Thomas Browne existing, and, therefore, this is the false making of a note in the name of a non-existing person, for it is equally a forgery, whether the non-existing person be described as bearing the name of the person uttering the note, or another name. The prisoner, therefore, although his name is Thomas Browne, having uttered the note, describing the signature as the name of another person, is as guilty of having uttered a forged note, as if he had uttered a note on which any name whatever had been forged." Parkes' and Browne's case, 2 Leach, 775 ; 2 East, P. C., 963. The authority of this case has been doubted by Mr. Evans, who has observed, that it appears to rest on very questionable principles, and in opposition to it, he cites the following case. A bill of exchange was made by the prisoner, D. Walker, (a pauper at Manchester). It was dated Liverpool, signed D. Walker and Co., and drawn on Devayne's and Co., London. Similar bills had been before drawn *in the same manner, and regularly paid, though the drawer was [ *442 ] unknown to that house. Parkes' and Brown's case, ante, p. 441, was cited; but the learned judge ruled, that there was not evidence sufficient to go to the jury. Walker’s case, coram Chambre, J., Lanc. 6 Evan's Stat. 580. In support of his opinion, Mr. Evans refers to Hevey's case, 1 Leach, 229, (vide post, p. 462,) where a prisoner, who had assumed to be the real indorser of the bill, was held not to be guilty of forgery, there being no false making; but upon this, it may be observed, that the fact of there being no false making in the latter case, seems to distinguish it entirely from Brown's case, and to prevent its being considered an authority against that decision. An eminent writer has made the following comments upon Brown's case. “In the abstract it amounts to this, that a man who signs his own name to a note, dated at a place where he does not reside, and payable at a banker's where he has no money, is guilty of forgery. It is remarkable that the jury did not expressly find an intention on the part of the prisoner, at the time of the making, to utler it as the note of a third person. If the note contained a mere promise to pay (without place of date or payment) signed by the prisoner, and was afterwards uttered by him as the note of another, the case would be more doubtful. See also R. v. Webb, 3 B. and B. 228 (a);" 2 Stark. Ev. 333, (n.) 2d ed. A point similar to that upon which Brown's case turned, occurred in the following case, but was not decided. The prisoner, George Maddocks, was charged with forging the following indorsement upon a bill :
“ Per pro. for Rob. Falcon, George Maddocks.”
It appeared that he was clerk to an attorney, and had authority to open letters, receive money, and to do what was necessary in case a writ was wanted; but he had no authority to indorse a bill. The bill in question was sent in a letter to the prosecutor's chambers, where the letter was
(a) Eng. Com. L. Rep. vii. 423.