William Oldnall Russell.

A treatise on crimes and misdemeanors (Volume 2) online

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be sent to him, writing his direction iu the prosecutor's book, " Samuel iViiu-ling
^lihvard. No. 12, Kensington-place, Bath." la the course of three '^•"' v^^^o-

. cutur

days the goods were sent, and the prisoner came shortly afterwards and thou''h the

ordered more goods : and before all the goods were delivered, he told prLsonor's

the prosecutor to get his *bill ready by four o'clock, on Old Christmas ^^t^yjj'^lfa^yo

eve, at which time he would call for it. He called at the time appointed ; carried

and the bill, amouutiuo; to 49/. 10s. was given to him. He said the bill "'"''' "■'

_ ' _ o _ o . much credit

was very right; that it was his rule to discharge all bills on Old Christ- as tho aa-
mas eve ; and that he would return again in ten minutes ; which he did, sumed

. . . . . naino.

bringing with him the bill of exchange in question ; and saying that he *»qq
would give the prosecutor a draft on his banker in London for GO/. The
prosecutor looked at the bill of exchange, which was indorsed with the
name '' Samuel Milward," and, upon the prisoner saying it was a good
one, gave him the balance of ten guineas. The prisoner then told the
prosecutor that he should want more goods, and that he should be a very
good customer to him. The bill of exchange having been sent to the
bankers, in London, was returned to the prosecutor on the 25th Jan.,
dishonoured, and the prosecutor went immediately to the prisoner's
house, in Bath, but he found it shut up, and saw nothing more of the
prisoner till about three weeks afterwards, when he was in custody. A
clerk from the London bankers, Messrs. Stephenson & Co., proved that
they knew no such person as Samuel Milward. And it was satisfactorily
proved that the prisoner's real name was Samuel Whiley ; that he was
baptized as the son of persons of that name, was married by that name,
had gone by the same name at Bath, when he lodged there for about a
week in the July preceding this transaction ; and at Bristol in the fol-
lowing October ; as also at Bath again on the 4th of December ; and
further, that on the 20th December (which was about a week before he
first came to the prosecutor) he had taken a house in "Worcestershire,
under the same name. But on the 28th of December (the day after his
first application to the prosecutor) he ordered a brass plate to be en-
graved with the name of '< Milward," which was fixed on the door of
his house on the following day. The prisoner stated in his defence that
he had understood from his father that he was christened by the name
of Samuel Milward; and that, being under difficulties, and afraid of
arrests, he had omitted the name of Whiley. In answer to questions put
by the learned judge who tried the prisoner, the prosecutor stated that
he took the draft on the credit of the prisoner, whom he did not know ;
that he presumed the prisoner's name was that which he had written,

(n) 6 Ev. Col. Stut. Part V. 01. sii., p. 580; and Hadficld's case is cited. See ante, p. 331.


and had no reason to suspect the contrary ; but that if the prisoner had
come to him under the name of Samuel Whiley, he should have given
him equal credit for the goods, and have taken the draft from him and
paid him the balance as he had done when he came under the name of
Milward. The learned judge left it to the jury to say whether the pri-
soner had assumed the name of " Milward" in the purchase of the goods,
and given the draft, with intention to defraud the prosecutor. And the
jury saying, that they were satisfied of that fact, found the imsoner
guilty. The case was afterwards submitted to the consideration of the
twelve judges ; who were of opinion that the question of fraud being
so left to the jury, and found by them, the conviction was right. (o)
*340 In a case which occurred a few years afterwards, the prisoner was
Francis's indictcd for forging an order for the payment of money, in which, *by
tho name *^^ name of James Cooke, junior, he requested Messrs. Praed & Co.,
used by tho bankers in London, to pay Mrs. Ware, or bearer, fifteen pounds. It
prisoner be appeared in evidence that on the 15th August, 1808, the prisoner took

asgumcutor -i i , ° . ,

tho purpose lodgings at the house of Mrs. Ware, by the week, and continued there
of fraud, ^m ^j^g g^jj Qf September following, on which day he gave Mrs. Ware
avoid do- the Order in question for a bank note of fifteen pounds, which she ad-
teetion, it vanced to him upon his applying to her for change. Mrs. Ware paid
much a for- ^'^6 Order away to a neighbour, who took it to the banker's; and, upon
gory as if payment being refused, brought it back to Mrs. Ware, who immediately
ed^name^" ^^^formed the prisoner of its being returned. The prisoner, first read-
were the ing over the order, said that he saw he had made a mistake, and had
name of a forgotten to put the word " junior," which word he then added, and

person 01 o i. v / *

known said that Mrs. Ware would find it would be right. Shortly afterwards
credit. the prisoner left the house, saying he should return to tea ; but he
never did return. The order, with the addition, was presented at
Messrs. Praed & Co.'s the next morning, and payment refused, the
drawer not being known at that house, and no person of that name
keeping cash there. It was satisfactorily proved that the prisoner's real
name was John Francis, though he had occasionally gone by other
assumed names. The case was left by the learned judge to the jury,
with a direction that they should consider whether the prisoner had
assumed the name of James Cooke, junior, with a fraudulent purpose :
and they found a verdict of guilty : but upon some doubts occurring
whether the facts in evidence went to establish a forgery, or only a
fraud, the case was referred to the consideration of the twelve judges.
Mansfield, C. J., the Chief Baron, Grose, J., and Lawrence, J., were
absent when the case was debated; but the judges, who were present,
held the conviction right ; and were of opinion that if the name were
assumed for the purpose of the fraud, and avoiding detection, it was as
much a forgery as if the name assumed were that of any other person
of known credit; though the case would have been different if the party
had habitually used and become known by another name than his
The ficti- own.(p) But it seems that it must satisfactorily appear that the ficti-
inust be™^ *^°"^ name was assumed for the purpose of fraud, in the particular in-
assumed for stance of the forgery in question, and that it will not be sufficient to show
the purpose ^^^ ^q fictitious name had been assumed for general purposes of con-

(o) Whilcy's case, cor. Thomson, B., Somersetshire 8pr. Ass. 1805 ; and before the judges,
Trin. T. 1805, MS., and Russ. & Ry. 90. S. P. Rex v. Marshall, Russ. & Ry. T5 ; and Rex v.
Francis, id. 209, and ivfra.

( p) Francis's case, Old Bailey. July, 1811. and before the judges, December, 1811, MS.,
iind Russ. & Ry. 209.


cealment and fraud: as in a subsequent case, in which the prisoner was «»/ '"'"aud m

. , „ . . 1 -11 /• 1 • ii thopiirticu

charged with torging an acceptance upon a bill oi exchange lu tucij^ri,,.
name of Scott, the majority of the judges being of opinion that it did staucu.
not sufficiently appear upon the evidence that the prisoner had not gone
by the name of Scott before the time of accepting the bill in that name,
or that he had assumed the name for that purpose, held that a convic-
tion for such forgery was wrong. ((/)

But forging in a false name assumed for concealment, with a view to
a fraud, of which the forgery is part, is sufficient to constitute the of-
fence. And if there be proof of the prisoner's real name, it is for him
to prove that he used the assumed name before the *tinie he had the *341
fraud in view, even in the absence of proof as to what name he had
used for several years before the fraud in question. (r)

If a person put the name of another on a bill of exchange as acceptor if a party
without that person's authority, expecting to be able to meet it when '^'''"^'".^''Y'
due, or expecting that such other person will overlook it, this is forgery, uso tho
But if the prisoner cither had authority from such other person, or ":'">« "f
from the course of their dealings honci fide considered that he had such i(,„„ji,if
authority, it is not forgery. The prisoner was charged in some counts considers
with forging, and in others with uttering a forged acceptance to the fol- ^^^.j, ^^^^^^^_
lowing bill of exchange : rity, it is

not forgery
^ „„ , to use juch

"£'26. "Cheltenham, July 16th, 1834. name.

"Three months after date pay to my order twenty-five pound.s, for
value received. "John Forbes."

" William Prosser, jun., Esq., Cheltenham."
Accepted, payable at Messrs. Esdaile & Co., bankers, London.

William Prosser, jun."

The prisoner had paid away this bill, with the acceptance upon it, to
a butcher to whom he owed about 41., and taken the difference. Mr.
Prosser proved that the acceptance was not in his handwriting, and that
he had never given the prisoner authority to put his name on any bill
or security of any kind. The prisoner was an architect at Cheltenham,
and was engaged in building houses for Mr. Prosser, who had recom-
mended the prisoner to raise money, which, when raised, the prisoner
was to draw upon, under the superintendence of Mr. Prosser, and it
was sought on the part of the prisoner to raise an inference that he con-
sidered he had a right to use Mr. Pressor's name. Coleridge, J., "If
the prisoner drew the bill mentioned in the indictment, and which he-
knew could not become due for some months after he did so, and then
put Mr. Pressor's name on it without his authority, cither intending to
meet it, or trusting that he should have money to do so, or trusting that
Mr. Prosser would overlook it, the prisoner is guilty of forgery; but if
you think that the state of affairs between the prisoner and Mr. Prosser
was such that he had Mr. Pressor's authority to accept this bill, then it
is not a forgery. If a person gives another leave to use his name on
bills, and the person thus permitted writes the name of such person en
a bill, this is as it were a signing by the person who gave the authority,
although he had given on authority for the putting his name on that
particular bill. The question which I shall leave to you is this, whether
the name of Mr. Prosser was put on the bill mentioned in the indict-

{q) Rc-x V. Bonticu, 1813, Rus3. & Ry. 2C0. (r) Rex v. Peacock, Russ. & Rj. 213.


ment without the authority of Mr. Prosser ; or was it written on the bill
by the prisoner, under such circumstances that he might bond fide con-
sider that he had Mr. Prosser's authority for so doing, as in the latter
case you ought to acquit him."(6^
*342 So where upon an indictment for forging and uttering an acceptance
But noth- on a bill of exchange in the name of John Woodman, Woodman wag
such bdiot' Called, and proved that the acceptance was not in his handwriting, and
ana a fair that he did not authorize any person to accept *the bill, but he admitted
ground for ^|j.^j. j^^ Y\^^ known the prisoner eight years, and had had money trans-
that belief, . . , , . ^ i • -fmr; i i i i • i i • •

from the actions With the prisoner, and in lb2"J had been connected with him in

acts of the trade, as a partner in a hat manufactory, and had many bill trans-
whose actions with him, and they had trusted each other largely ; mutual
name is accommodation existed between them ; none of those bills were accepted
dent.^ ^^ ^J procuration; the prosecutor had accepted for his accommodation since
1836, to take up former acceptances ; the prosecutor did not always
know what the acceptances were for, as he depended on the prisoner's
honour; and he might have drawn on the prosecutor five or six years
before without apprising him of it ; but the prosecutor had never before
paid any bill on which the prisoner had used his name, and he always
signed J. Woodman, which the prisoner must have known. Coleridge,
J., in the course of summing up the case to the jury said, " We now
come to the statement Mr. Woodman makes, and upon which it is sup-
posed that the prisoner may rely for an acquittal, because he says that
he has been for the last eight years in habits of great intimacy and in
partnership with him. Now I put the question whether, though he had
not authorized the signing of his name on that particular bill, he had
ever given the prisoner a general authority. If he had said to the pri-
soner, 'You may vise my name whenever you like,' it would be idle to
say that the acceptance was a forgery. It is not merely writing another
man's name, but writing it without authority and with intent to defraud.
But I go further, because I think that if a person had reasonable ground
for believing, from the acts of the party, that he had authority to ac-
cept, and did in point of fact act upon that, it would not be forgery.
But the case that upon a former occasion the prisoner had done what he
is supposed to have done here, and on the bill being presented, Mr.
Woodman had paid it without remark or remonstrance. If he had done
that on three or four occasions, he might fairly say, I infer that he
authorized me to do it, and after that he could not be said to come
within the description of a person who forged. But I cannot go the
length which has been suggested. Let me suppose one or two cases : —
Suppose the prisoner to have meant to raise 200^. for two or three
months, and trusted that at the end of the time he should receive 1000?.,
and would be able to repay it if he used another person's name without
authority, and not believing that he had authority, that would be a dis-
tinct forgery. No man has a right to use another's name, trusting that
he may be able to take up the bill. So, if a person having no authority
were to say, I want to raise a sum of money, and I am sure my father
is so fond of me that he will not proceed against me criminally, and
were to write his father's name to an acceptance, that would be for-
gery. No man has a right to trust to the kindness of another man. If
you are of opinion that the prisoner acted in either of those ways,

(s) Rex V. Forbes,* 7 C. & P. 224.
* Eng. Com. Law Reps, xxxii. 224.


knowing that he had no authority, but meaning to repay the bill or
trusting that Mr. Woodman would not prosecute, in either of those
cases this would be forgery. There can be nothing short of the person
believing that he had authority, and having a fair ground for that belief
from the other party. The authority need not be express, it may be
implied from acts. I put the question to sec whether tlie prisoner had
any reason for thinking that he had authority to use Mr. Woodman's
name. Now you are to judge whether you have any reason to believe,
looking at the circumstances fiiirly between the crown and *thc prisoner, *343
not stretching on one side or on the other, that the prisoner believed
that he had authority, and from circumstances had reasonable grounds
for so believing. There was great intimacy between these parties :
there had been great dealings between them. All which is to be taken
into account. You certainly find that the moment Mr. Woodman is
called upon he does not pay the bill, and he does not in the least adopt
the act that was done by the prisoner : that is really the only point in
the case."(Q

So where upon a similar indictment for forging and uttering an ac- if from tbe
ceptance of a bill of exchange in the name of John Tyler, Tyler proved ^^"''"g^jj^.j^
that the acceptance was not his, and that he never authorized any one parties the
to accept any bill for him, but on cross-examination said, "The prisoner r""''^'"^'"
on the same day accepted a bill for 17?. 4s. for me. I had accepted a ground to
bill for ni. 4.S. and got this bill as a renewal of the former bill, which I bdicvo he
had accepted for the prisoner's accommodation. I have many times had ^.jl ^^^^gQ'
money transactions with the prisoner for his accommodation, but never tiitiKimo, it
for my own. I had accepted more than one bill for him, as what 110'''"°''*^°''"
could not pay on the first advance I accepted another bill for. The first
bill I accepted was for 50/. The prisoner had taken the liberty to use
^y name for 15/., and I paid it. lie then used my name without
authority. It was an acceptance ; I paid it, and the prisoner repaid me
in the course of a week. I had no difi"crence with the prisoner about
it, and we have been on friendly terms ever since ; the prisoner was a
prirtieular friend of mine, and I never had any quarrel with him." Lord
Abiiiger, C 13., '< If the prisoner had the authority of Mr. Tyler for
writing the acceptance, it is no forgery; neither is it if he had no such
authority, provided that from the facts that have been proved, it is
made out that he had fair ground for considering that he had such au-
thority. These two parties were on very intimate terms; Mr. Tyler
had more than once accepted bills for the prisoner's accommodation,
and on a former occasion, when the prisoner had used his name, he paid
the amount and found no fault, and the prisoner repaid him in the
course of a week. You will consider whether the prisoner having to
deal with the name of a person with whom he was so very intimate,
fairly considered, from what had before occurred, that he had authority
to do as he did, and make use of the name of I\Ir. Tyler upon the face
of this bill. If you think so, and that the prisoner acted bona fide,
and did not mean to defraud or injure any one, you ought to acquit
him. "(h)

If a person having authority in conjunction with two others to drawifonoof
out money from a bank, draws out such money by means of a check in ^^^°° 1'°''"

(t) Reg. V. Beard,* 8 C. & P. 14.3.
(m) Reg. V. Parish,** 8 C. & P. 94.

• Eng. Com. Law Reps, xxxiv. 329. i" lb. 307.

Vol. II.— 23


sons having the ijresciicu of two other persons, who personate the two persons, iu

jointly'to conjunction with whom he had authority to draw out the money, this is

dr.iw out a forgery of the check, and the intent may be laid to defraud the bank-

ft-om^^ ers. The prisoner was indicted for forging a check on the prosecutors,

blink, draw Jones, Lloyd & Co., with intent to defraud them. The prisoner and

out tho Dawson and Davis were members of the Hydraulic Packers' Society,

ruoDGv bv Bj

check which was established for maintaining the members of the society, who

signed by should by depression in trade or other circumstances, be thrown out of

two stran- employ. The funds of the society were provided by weekly contribu-

gers, who tions, and a sum of 400/. was deposited in the bank of Jones, *Lloyd &

theTwo ^ ^'^■' ^^ ^-^^ names of the prisoner and Dawson and Davis, and it was

having au- not to be paid out unless all three attended to receive it. The bankers

t onty, it ^g].g jiQt acquainted with the signatures of any of the three. The pri-
is lorgery. ' ° •' ^ .

*^44 soner having procured two persons to personate Dawson and Davis
went with them to the bank, and drew out the money. The clerk who
paid the money asked their names, and the names of the three members
were given ; and the clerk after referring to the ledger and to the pass-
book, which was brought by the prisoner, and finding the names to
accord, paid the money. It was objected that the bankers would not
be liable over to the society, the money having been drawn out by fraud
by one of the depositors. Patteson, J., << The bankers being authorized
to pay the money to three persons in particular, and to them only, pays
it to one of those persons, and to two who are strangers to the transac-
tion, and that without any authority, genuine or colourable, from the
real parties. I am therefore of opinion that this was a forgery with
intent to defraud Jones, Lloyd & Co."(v)

Having thus treated of the name in which a forgery may be commit-
ted, we may proceed to consider how far the validity in law of the thing
forged, supposing it were true, is essential to forgery.'f'
As to the Though it is said to be in no way material, whether a forged instru-
the^thinff i^ent be made in such a manner as that, if it were in truth such as it is
forged if counterfeited for, it would be of validity or not;(io) yet it seems to be
genuine, material, that the false instrument should carry on the face of it the

semblance of that for which it is counterfeited, and should not be ille-^\
gal in its very frame. (^■) One of the definitions of forgery is given, a.^-^-^
" 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)

Upon the ground that it is not material whether a forged instrument
be so made that, if it were in truth such as it is counterfeited for, it

{y) Dixon's case, 2 Lew. 178. Wright's case, 1 Lew. 135, ante, p. 322, was cited to show
that the bankers were not liable over to the society.

iw) 1 Hawk. P. C. c. 70, s. 7. 2 East, P. C. c. 19, s. 43, p. 948.

[x) 2 East, P. C. c. 19, s. 43, p. 948.

[y] By Eyre, B., in Jones and Palmer's case, 1 Leach, 367.

■}• [To constitute the offence of forgery, in counterfeiting the notes of a bank, it is not
necessary that such bank, as the notes purport to have been issued by, should have a legal
existence ; it is enough that the notes purport to have been issued by a corporation or com-
pany, duly authorized to issue notes. The People v. Peabody, 25 Wend. 472. Where, how-
ever, the intent is charged to have been to defraud the bank purporting to have issued the
notes, the bank must be shown to be a real body, capable of being defrauded. Ibid.

To constitute forgery the instrument must be such when forged that it does or may tend to
prejudice the right of another. The intent to defraud some one must be averred, and it must
be proved as laid. Evidence which tends to prove that the forged instrument could not.
under any state of circumstances, prejudice the rights of any one, is competent to go to the
jury. Barnum v. The State, 15 Ohio, 717.]


would be of validity or not, it Las becu adjudged that the forgery of a
protection in the name of A. 13., as being a member of parliament, who
in truth at the time was not a member, is as much an olleuce at com-
mon law, as if he were so.{z)

In a case where the defendant was convicted upon an indictment on
the 5 Eliz. c. 14, (now repealed) which stated that one CJarbut and his
wife were seized in fee of certain messuages, laud?, and tenements,
called Jawick, in the parish of Clacton, in Essex, and that the defend-
ant intending to molest them, and their interest in the premises, forged
a lease and release as from Garbut and his wife, whereby they were
supposed for a valuable consideration to convey to him " all that park
called Jawick, in the parish of Clacton, in Essex, containing eight acres
in circumference, with all the deer, wood, &c., thereto belonging," it
was moved in arrest of judgment, that the premises supposed to be con-
veyed were so materially different from those which wore really the
estate of Garbut and his wife, that it was impossible this conveyance
could ever molest or disturb them. But the court held that it was not
necessary, there *should be a charge, or a possibility of a charge, and *345
that it was sufficient if it were done with such intent, and that the jury
had found that it was done with intent to molest Garbut and his wife in
the possession of their land. (a)

So where an indictment was for forgery at common law of a surren-
der of the lands of J. S., and it was not shown in the indictment that
J. S. had any lands, it was hulden upon motion in arrest of judgment
that the indictment was good, upon the principle that it was not neces-
sary to show that the party was prejudiced. (6)

Upon the same principle, the doctrine is established by several cases, Forgery
that forgery may be committed by the false making of an instrument, |."n'^,ni^|ted
purporting to be the will of a person who is still living; notwithstand- by the false
iug the objection, that during the life of a party his will is ambulatory, ".'"''""n *^|.

Online LibraryWilliam Oldnall RussellA treatise on crimes and misdemeanors (Volume 2) → online text (page 57 of 178)