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XXI.

it lies on the prisoner to show that he has before assumed CHAPTER the false name on other occasions, and for other purposes unconnected with forgery ().

name.

It is a forgery, also, to sign a man's own name with By signing a intention that the signature should pass for the signature of man's own another person of the same name (m). And where a person, whose name was Thomas Brown, was indicted for forging a promissory note signed Thomas Brown, and it appeared that he had uttered the note as a note of Captain Brown, a fictitious person, and the prisoner was convicted, the Judges held the conviction right (n). But the adoption of a false description and addition, where a false name is not assumed, is not forgery. Thus, where the prisoner drew a bill, and directed it to "Mr. Thomas Bowden, baize manufacturer, Romford, Essex;" and it was accepted by one Thomas Bowden, but there was no Thomas Bowden, of Romford, it was held by a majority of the Judges, that the giving a false description of Bowden on the bill, with intent to defraud, was not forgery (0).

Where the signature on the bill is genuine, an uttering by another person, with a representation that he is the person whose signature is on the bill, is not forgery, or a felonious uttering. The prisoner uttered a bill purporting to be payable to Bernard M'Carthy, or order, and having the indorsement B. M'Carthy thereon: he was indicted for forging that indorsement, and uttering it knowing it to be forged; the jury found that there was such a man as B. M'Carthy, and that the indorsement was his handwriting, but that the prisoner passed himself off as that B. M'Carthy when he uttered the bill. The Judges were unanimous, that as the indorsement was not forged the prisoner was not liable to be convicted (p).

Uttering a genuine signature, and personating the

party signing.

tation of authority.

Writing a principal's name "per procuration," but with- Misrepresenout authority, was not until the statute (q) forgery (r); nor, as it should seem, writing merely another man's name under a false pretence of authority (s), without any intention of imitating his handwriting.

(1) Peacock's case, R. & R. 278. (m) Mead v. Young, 4 T. R. 28; 2 R. R. 314.

(n) Rex v. Parkes, 2 Leach, 773; 2 East, P. C. 963.

(0) Webb's case, R. & R. 405; 3 B. & B. 229; Rex v. Watts, R. & R. 436; 6 Moore, 442; 3

B. & B. 197.

(p) Rer v. Herey,1 Leach,229 :
2 East. P. C. 556: Bayley, 577.
() Vide ante, p. 344.
(Reg. v. White, 1 Den. C. C.
208; 2 C. & K. 404.

(*) Ibid, but see Awde v.
Diron, 6 Exch. 869.

CHAPTER XXI. Alteration.

Uttering.

Procuring to

utter.

Statement of the instrument in the indictment.

Every fraudulent alteration, whether by subtraction, addition or substitution, is forgery, and would be so within the statutes, even did they not contain the word alter, as was decided on 2 Geo. 2, c. 15, which did not contain that word (t). The statute 11 Geo. 4 & 1 Will. 4, c. 66, contained the word "alter" as well as "forge." Nevertheless, an alteration may be described in the indictment as forgery(u). So, e converso, the discharging one indorsement and the insertion of another may be described as the alteration of an indorsement (r).

Procuring a man to forge is an offence within the statute (y).

It has been decided that, in order to constitute an uttering, the instrument must be parted with, or tendered, or offered, or used in some way to get money or credit upon it (2). Therefore, where the defendant, in order to persuade an innkeeper that he was a man of substance, pulled out of his pocket-book a 500l. and 507. note, and saying that he did not like to carry so much property about him, delivered them to the innkeeper to take charge of them for him, it was held that this did not amount to an uttering (a).

Procuring to utter has been held a common law felony only (b).

But procuring to utter, if the person procured were innocent of the felony, is a statutable felony in the procurer ().

Before certain recent Acts of Parliament it was necessary to set out the forged instrument in the indictment in words and figures correctly: the slightest variance would have entitled the defendant to an acquittal. But the 14 & 15 Vict. c. 100, s. 5, in order to prevent justice from being defeated by clerical or verbal inaccuracies, enacted that, in all indictments for forging, or uttering any instrument, it

(t) Rex v. Elsworth, Bayley, 6th ed. 574; 2 East, P. C. 986; Reg. v. Blenkinsop, 1 Den. C. C.

276.

(u) Rex v. Teague, R. & R. 33; 2 East, P. C. 979; Rex v. Post, R. & R. 101; Rex v. Treble, 2 Taunt. 328; 2 Leach, 1040; R. & R. 164.

(r) Rex v. Birkett, R. & R. 251.

(y) Rex v. Morris, Bayley, 6th ed. 580; R. & R. 270.

() Rex v. Shukard, R. & R.

200; and see Reg. v. Radford. 1 Den. C. C. 59; Reg. v. Ion, 2 Den. C. C. 475.

(a) Ibid.; and see Holden's case, R. & R. 154; 2 Leach, 1019; Palmer's case, R. & R. 72; 2 Leach, 978; Rex v. Morris, R. & R. 270; Reg. v. Hill, 2 M. C. C. 30.

(b) Rex v. Morris, Bayley, 6th ed. 580; R. & R. 270; 2 Leach, 1096. But see now 24 & 25 Viet. c. 94, ss. 1, 2. 49.

(c) Bayley, 6th ed. 581.

shall not be necessary to set forth any copy or fac-simile thereof, but it shall be sufficient to describe it by any name by which it would be usually known (d).

An indictment for the larceny, and therefore now for the forgery, of a bill or note, may describe it, generally, as a bill of exchange or promissory note for the payment of the sum therein mentioned, without setting out the instrument (e). But if it be alleged in the indictment to have been signed or made by any person, the signature must be proved (f).

If several make distinct parts of the instrument, they are each chargeable with the forgery of the entire instrument (g). Those who knowingly prepare the paper or plates for the purpose are forgers ().

Before the 9 Geo. 4, c. 32, s. 2, a rule of evidence existed equally anomalous and inconvenient, that in a criminal prosecution for forgery, the party whose name was forged was incompetent as a witness; but since that statute he is competent as a witness in all indictments or informations for forgery or uttering, either against principals or accessories, by common law or statute.

CHAPTER

XXI.

Where several make of the instru distinct parts

ment.

The party whose name

is forged a

competent witness.

A doubt also formerly existed, whether the making or Forgery of uttering of an instrument, payable abroad, was an offence foreign bills. within some of the repealed statutes (i). But the statute 11 Geo. 4 & 1 Will. 4, c. 66, s. 30, brought within the operation of the acts against forgery, instruments made, or purporting to be made, or payable, or purporting to be so, out of England (k). The statute now in force is 24 & 25 Vict. c. 98, s. 40.

(d) And see now 24 & 25 Vict. c. 98, ss. 42, 43.

Worcester

(e) Milne's case. Summer Assizes, 1800, decided by all the Judges; East's P. C. 602. Before this act it was held that, in an indictment for forgery, a bank post bill could not be described as a bill of exchange, but might be described as a bank bill of exchange. Rex v. Birkett, R. & R. 251.

(f) Rex v. Craven, R. & R. 14 ; 2 East, P. C. 601. The statute 14 & 15 Vict. c. 100, gave most extensive powers of amendment; and as to the form of the indictment, see 24 & 25 Vict. c. 98,

ss. 42, 43, 44. See also 16 & 17
Vict. c. 2.

(g) Rex v. Bingley, R. & R.
446 Rex v. Kirkwood, 1 Mood.
C. C. 304; vide Reg. v. Cook, 8
C. & P. 582.

(h) Rex v. Dade, 1 Mood. C. C. 307.

(i) Rex v. Dick, 16 Leach, 8; Rex v. M'Kay, R. & R. 71.

(k) The 18th section of 11 Geo. 4 & 1 Will. 4, c. 66, applies to plates of promissory notes of persons carrying on the business of bankers in the province of Upper Canada. This act is repealed now, 24 & 25 Vict. c. 98. s. 16.

CHAPTER
XXI.

Evidence in criminal cases.

CIVIL CONSE-
QUENCES OF
FORGERY.

When the payment is good.

Where the prisoner is indicted for using a fictitious name, some evidence must be given by the prosecutor that it is not his real name (7). But where the prisoner's real name is proved, it lies on him to show that he has before assumed the false name for other purposes (m).

Upon an indictment for uttering forged notes, evidence that the prisoner has uttered other forged notes is admissible as evidence of his knowledge of the forgery (n). But such notes must be produced, and proved to be forgeries (@). The admissibility of evidence, as to uttering forged bills of a different kind, has been doubted (p).

Where the title to a bill or note is necessarily made through a forgery, even a bona fide holder for value has in general no right to sue upon it (q), or even retain it (¿`) ; and, therefore, as a general rule, if the acceptor or maker pay one who derives his title through a forgery, that will not discharge him (s). So, if a bill or cheque be altered and made payable for a larger sum than that originally inserted, should the drawee, banker, or acceptor pay it, he cannot charge the drawer for the difference (†).

But, in case any act of the drawer facilitated or gave occasion to the forgery, he may have to bear the loss himself (u).

(1) Rer v. Peacock, Bayley,
6th ed. 579; R. & R. 278;
Bontien's case, R. & R. 263.
(m) Rex v. Peacock, R. & R.
278.

(n) Wylie's case, 1 New R. 92;
Hough's case, R. & R. 120; Reg.
v. Green, 3 C. & K. 209.

(0) Rer v. Millard, R. & R. 245. (P) Ibid. 247. As to the prisoner's admission relating to other bills, see Reg. v. Cook, 8 C. & P. 586; Reg. v. Oddy, 2 Den. C. C. 264; Reg. v. Green, 3 C. & K. 209.

(4) Burchfield v. Moore, 23
L. J., Q. B. 261; 3 E. & B. 683 ;
Code, s. 24.

(r) Esdaile v. Lanauze, 1
You. & Col. 394; Johnson v.
Windle, 3 Bing. N. C. 225; 3
Scott, 608.

($) But a banker who pays a
draft on himself, payable to order
on demand, need not prove the
genuineness of the first or any

subsequent indorsement. 16 & 17 Viet. c. 59, s. 19: Code, s. 60. But these sections do not protect other parties, so that a transferee of a cheque that had been stolen and indorsed by a forger, has no title to the proceeds as against the loser, unless the loser have been guilty of negligence in the transaction itself; Arnold v. Cheque Bank, L. R., 1 C. P. Div. 578; Bobbett v. Pinkett, L. R., 1 Ex. Div. 368; Barendale v. Bennett, L. R., 3 Q. B. Div. 525; in which case he would be estopped from setting up the true facts.

(t) Hall v. Fuller, 5 B. & C. 750; 8 D. & Ry. 465; 29 R. R. 383; Smith v. Mercer, 6 Taunt. 76: 1 Marsh. 453; 16 R. R. 576.

(u) Young v. Grote, 4 Bing, 253; 12 Moore, 484; 29 R. R. 552. See Ingham v. Primrose, 28 L. J., C. P. 294; 7 C. B., N. S. 82; Ex parte Swan, 30 L. J., C. P. 113 : 7 C. B.,

V.

·Barela No 9563444 (Kennedy when I'lt

XXI.

So, if the acceptor of a bill tear the bill in two animo CHAPTER
cancellandi, and the pieces are picked up in his presence
and afterwards joined together so as to convey no notice of
the cancellation to a stranger, a bona fide indorsee for value
may acquire a title (r).

It is a general rule of law, that money paid under a
mistake, as to facts, may be recovered back. On this
principle, if a forged note be discounted, the transferee, on
discovery of the forgery within a reasonable time, may recover
back the money paid, the imagined consideration totally
failing (y). But any fault or negligence on the part of him
who pays the money on the note will disable him from
recovering. Thus, where two bills of exchange falling due
at different times were drawn on a man, and he paid the
first without acceptance, and accepted and paid the second,
and the signature of the drawer was sometime afterwards
discovered to be a forgery, Lord Mansfield held, that an
acceptor is bound to know the handwriting of the drawer,
and that it is rather by his fault or negligence than by
mistake, if he pays on a forged signature (z). So, where a
forged acceptance of the drawee was made payable at the
plaintiffs, the drawee's bankers, and they paid the amount
to the defendant, as a bona fide holder, but seven days.
afterwards, upon discovering the acceptance to be a forgery,
informed the defendant of it, and demanded the money;
it was held that they could not recover, for that a banker
ought to know his customer's handwriting. Part of the
Court held the defendant discharged, on the ground that,
by the plaintiff's delay in giving notice of the forgery, he

N. S. 400; Orr v. Union Bank of
Scotland, 1 Macq. H. of L. Cases,
513; British Linen Company v.
Caledonian Insurance Company,
4 Macq. H. of L. Cases, 107:
Foster v. Green, 6 H. & N. 793.
And it has been held that a prin-
cipal who, through his own agent,
sends money to his creditor, which
is misapplied by his agent, is not
responsible any further to the
creditor, if the creditor's conduct
facilitated the agent's fraud.
Horsfall v. Fauntleroy, 10 B. & C.
755. Lewe Sanitry Steam Laundry

(r) Ingham v. Primrose, supra.
This doctrine of estoppel has
never been extended to instru-
ments under seal; such an exten-

Co played sion was attempted in Ex parte
forfee an
Sccictay.

Swan, 30 L. J., C. P. 113; 7 C. B.,
N. S. 400. But the Court of
Common Pleas being equally
divided, the rule dropped. The
Court of Exchequer Chamber
held that there was no estoppel.
Ibid., 32 L. J., Exch. 273.

(y) Jones v. Ryde, 5 Taunt.
488; 1 Marsh. 157; 15 R. R.
561; Bruce v. Bruce, 6 Taunt.
495; 1 Marsh. 165; 15 R. R.
566, n.; Gurney v. Womersley, 4
E. & B. 133 In London and
River Plate Bank v. Bank of
Liverpool, [1896] 1 Q. B. 7; 6.5
L. J. 80, the holder's position
having been altered it was held
that the payment must stand.

(2) Pricev: Neal, 3 Burr. 1354; 1 W. Bl. 390.

When money
paid in dis-
forged bill
may or may
not be re-
covered back.

charge of a

Imperial Bank of Canada. Bank of Hanulton (1903)] A. C. 49

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