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9. Rights of parties giving and receiving forged bills and notes, and paying money upon them.
10. Money paid under mistake of fact may be recovered back.
1. Forgery is the counterfeit making or altering of any writing with intent to defraud, and the forgery of bills or notes is a felony, the maximum punishment for which is penal servitude for life.
2. By 24 and 25 Vict. c. 98, s. 22, "whoever shall forge or alter, or shall offer, utter, dispose of or put off, knowing the same to be forged or altered, any bill of exchange or any acceptance, indorsement, or assignment of any bill of exchange, or any promissory note for the payment of money, or any indorsement or assignment of any such promissory note with intent to defraud, shall be guilty of felony," punishable as above mentioned.
The next section forbids, under a like penalty, the like acts with regard to a "warrant, authority, or request for the payment of money;" and these terms include a cheque.
3. By the 24th section, whoever with intent to defraud, shall draw, make, sign, accept or indorse any bill of exchange, or promissory note or any undertaking, warrant, order, or authority for the payment of money [this includes a cheque], or an order for the delivery of any bill, note, or security for money, by procuration_or otherwise, is guilty of felony and incurs the like penalty as also he does by uttering, &c. Until this enactment, the acting under a fraudulent pretence of procuration did not amount to a forgery.
4. The 25th section makes it a felony to fraudulently obliterate or alter the crossing of a cheque.
5. By the 24 and 25 Vict. c. 96, s. 48, whoever with intent to defraud or injure any other person, shall, by violence or restraint, or threat of violence or restraint, or by accusation or threat of accusation of any treason, felony or infamous crime, compel or induce any person to execute, make, accept, indorse, alter or destroy the whole or any part of any valuable security or to put the name of himself or any society, partnership, or corporate body on any paper or document for the purpose of
turning it into a valuable security, incurs a punishment, of which penal servitude for life is the maximum.
6. By section 90, whoever, with intent to defraud or injure any other person, shall by any false pretence, cause or induce any other person to do the like acts as are in the last preceding paragraph is punishable with three years' penal servitude.
6. By sections 88 and 89 of the last-mentioned Act whoever shall, by any false pretence, obtain from any person a valuable security with intent to defraud or shall with the like means and object, cause a valuable security to be delivered to another person may be punished by three years' penal servitude.
It will be seen that the law makes a great distinction in respect of punishment between the cases of obtaining a signature, &c., by fraud and getting the same thing by violence. As to what is a false pretence, it would be improper here to give any definition or adequate description. It is as well, however, to note that a false pretence may be by acts and gestures as well as by words; that the false pretence must have been believed by the person to whom it was made and must have conduced to the injury, and that the popular idea of a false pretence is much broader than the legal definition.
7. The following acts have been decided to amount to forgery-if done with fraudulent intent.
The writing by one man the name of another.
Writing a man's own name with intent that it should pass for another's.
Filling up a blank cheque with an unauthorised sum. Obliterating, adding to, or altering the crossing of any cheque with intent to defraud.
Altering a bill, note, or cheque, whether by addition, subtraction, or substitution.
Writing a bill or note over a genuine signature not given for that purpose, and though on unstamped paper, is a forgery of the signature.
Where several join in a forgery each forges the whole instrument.
8. The following acts do not amount to forgery.
signature of another purposely given, whether on stamped paper or not.
Drawing a bill upon a person with false addition or description to that person's name.
Uttering a bill, &c., by a man who represents that a signature on the bill is his when in truth it is another's. Writing another's name with or without the words per procuration," under a mistaken belief of having authority.
Drawing or making in another's name a bill or note for less than 20s., or drawing or making one for less than £5, without complying with the statutory requisites, (see chap. xx, sec. 6,) for then the instrument would be simply void.
But informalities, or the absence of a stamp, do not prevent an offence amounting to a forgery.
9. With regard to the rights of parties giving, receiving, and paying upon forged bills, notes, and cheques, space will only allow of following general rules.
A bona fide holder for value cannot sue upon a forged bill or note, or even keep it against the man whose name is forged.
Therefore, if the acceptor or maker pay to a person who derives his title through a forgery, the payment is no discharge; that is, the acceptor or maker may bẹ obliged to give up the instrument to the true owner, and may be sued either upon it or upon the consideration.
Where a forged addition has been made to the sum for which a bill, note, or cheque was really made payable, a banker paying the whole cannot charge his customer for more than the original sum.
Nor would the acceptor or maker, if he had paid it, be able to take credit for it in his account with the drawer or payee.
But if the banker's customer gave occasion to the forgery by his own negligence, as by drawing a cheque for fifty pounds, and leaving room for the words "three hundred" to be placed before the fifty, then the banker on paying the cheque bond fide may take credit for the payment.
In the same way an acceptor of a bill is not to be the loser, if he accept and afterwards pay a bill, so rendered capable of alteration by the negligence of the drawer.
It has already been seen (see chap. iv, sec. 11) that
even when a bill or note is sold (as when it is given on the purchase of goods at the time of such purchase) there is an implied warranty that all the signatures are genuine.
10. There is also an important principle of law that money paid under mistake of fact may be recovered back, though it is otherwise as to money paid under a mistake of law. This principle regulates the dealings with forged instruments.
Suppose money to be paid in consideration of a bill of exchange being indorsed to the person paying the money; i. e. suppose the bill to be discounted, the transferee may recover back the money on discovering the forgery, if, as would usually be the case, he were guilty of no negligence, and believed the signatures to be genuine.
So also if, though there be some negligence on the part of the person paying, yet he be thrown off his guard by an assertion or implied assertion on the part of the person who requests him to pay, the money may be recovered back, at all events if notice of the forgery were given to the holder in time for him to give notice of dishonor to the other parties.
OF THE STATUTE OF LIMITATIONS.
1. Actions must be brought within six years.
2. Exceptions in favour of persons under disability. 3. The Statute must be pleaded.-Form of Notice in the County Court.
4. From when, under various circumstances, the six years is counted.
5. To when it is counted.
6. How to prevent the operation of the Statute.
7. Acknowledgments and payments may give another six years in which to sue.
8. Effect and requisites of such acknowledgments. 9. Effect and requisites of such payments.
10. Acknowledgments may be made to a stranger.
11. Hints for securing proof of the payments above mentioned.
12. Note twenty years old.
1. By a statute passed in the 21st year of King James the First, and the modifications introduced by an act of the 19th and 20th year of the present reign, all actions on simple contracts (i. e. not founded on instruments under seal), which, of course, include those on bills, notes, cheques, &c., must be commenced within six years after the right to bring the action accrued.
2. To this there are exceptions in favour of plaintiffs who, at the time of the accrual of the cause of action (i. e. the right to sue), are under disabilities, as infants, married women, or persons of unsound mind, who have six years, after the cessation of these disabilities, within which they may bring their action.
There is no longer an exception in favour of persons absent abroad.
Thus, an infant has six years after coming of age; a married woman, six years after the termination of the marriage by death or divorce; and a lunatic, six years. after becoming of sound mind.
3. The Statute must be pleaded by the defendant, if he wishes to take advantage of it, and he will then allege in his plea that the cause of action on which the plaintiff is suing did not accrue within six years, and if this is made to appear from the evidence adduced by either party, the plaintiff's remedy is barred.
In the County Court, where a defendant intends to rely on the Statute of Limitations for his defence, he must give notice thereof, in writing, to the Registrar of the Court, at least five clear days before the day when the defendant is ordered by the summons to attend in court.
The notice may be in the following form:
In the County Court of Warwickshire, holden at Between A. B., Plaintiff, and C. D., Defendant. Take Notice that at the hearing, I shall rely on the following ground of defence:
That the claim for which I am summoned is barred by a Statute of Limitations.
day of (Signed)
To the Registrar of the Court.
1858. C. D., Defendant.
4. The time is counted, or, in legal language, the Statute begins to run on bills or notes from the first day that an action could be brought upon them.