"Birmingham, 9th August, 1837.

£20. Two months after date, pay to my order the sum of twenty pounds for value received.

General Provision Warehouse, Baker, &c.,

Unett Street, Well Street, Hockley."

On which was written a forged acceptance as follows:-
:-

66

EDWARD HAWKES,

Accepted. Payable at Messrs. Gillett and Tawney, Bankers, Banbury.

"WILLIAM SELLERS."

Did utter the same knowing the said acceptance to be forged, with intent to defraud John Evans. And in another count with intent to defraud William Sellers.

The prisoner brought the instrument described in the indictment with the acceptance upon it to the house of John Evans, and uttered it to his servant in payment of a debt, the servant seeing that it was not addressed to any one asked who the acceptor was. The prisoner said it was his brother-in-law, named Sellers, a paper-maker near Banbury. The servant observed that it was not indorsed, and desired the prisoner to indorse it, which he did. The prisoner carried on business. as a baker in Unett Street, but had removed from thence when the bill became due. William Sellers was his brother-in-law and lived near Banbury; he had given no authority to the prisoner to accept the bill.

Bury, 6 B.

The case of Gray v. Milner, 8 Taunt. 739, was cited. See also Edis v. & C. 433; The King v. Ravenscroft, Russ. & Ry. 161; The King v. Hunter, Russ. & Ry. 511.

The learned Judge thought that the writing upon [62] the instrument purported to be an acceptance by Sellers as drawee of the bill, and if not, that it was an acceptance for the honour of the drawer; and the learned Judge sentenced the prisoner to imprisonment and hard labour for two years.

The only question for consideration was, whether the instrument upon which the forged acceptance was written was properly described as a bill of exchange not being addressed to any person as drawee.

This case was considered by all the Judges except Park J., Littledale J., and Bolland B., in Michaelmas term, 1838, and they were of opinion that the conviction was right, except Parke B., Patteson J., and Coleridge J., who thought otherwise.

1838.

REGINA v. JOHN REED.

(A written promise to pay a sum specified, or such other sum not exceeding the same, as A. B. may incur by reason of a suretyship, is an undertaking to pay money within 11 Geo. IV. and 1 W. IV. c. 66.)

[S. C. 8 C. & P. 623; 2 Lew. C. C. 185. Distinguished, R. v. Joyce, 1865, 10 Cox C. C. 100. Referred to, R. v. Stone, 1846, 2 Car. & Kir. 364.] The prisoner was tried before Mr. Baron Alderson at the Summer Assizes 1838, for Yorkshire, on an indictment charging him with the forgery of an undertaking for the payment of money. He was found guilty, and sentenced to transportation. The instrument was in the following terms:

“York, 13th February 1837.

"£100. I promise to pay to Mr. William Bellerby on order the sum of one hundred pounds, or such other sum of money not exceeding the same as he may incur or be put unto, for, or by reason or means of, his becoming one of the sureties to Mark Millbank, Esquire, sheriff-elect for the county of York for the year ensuing, for John Reed of this city, sheriff's officer. VAL. WILSON."

[63] The learned Judge reserved the question, whether this was an undertaking for the payment of money within the statute 11 Geo. IV. and 1 W. IV. c. 66, s. 3, and requested the opinion of the Judges on this point.

This case was argued at a meeting of all the Judges, except Park J. and Bolland B., in Michaelmas term 1838.

Cottingham for the prisoner.

This is not such an undertaking as must be taken to be contemplated by the 11 Geo. IV. and 1 W. IV. c. 66, s. 3. The words of that Act are,

That if any person

shall forge or alter, or shall offer, utter, dispose of, or put off, knowing the same to be forged or altered, any exchequer bill or exchequer debenture, or any bond under the common seal of the united company of merchants of England trading to the East Indies, commonly called an East India bond, or any indorsement on or assignment of any East India bond, or any note or bill of exchange of the governor and company of the Bank of England commonly called a bank note, a bank bill of exchange, or a bank post bill, or any indorsement on, or assignment of any bank note, bank bill of exchange, or bank post bill, or any will, testament, codicil, or testamentary writing, or any bill of exchange, or any promissory note for the payment of money, or any indorsement on or assignment of any bill of exchange or promissory note for the payment of money, or any acceptance of any bill of exchange, or any undertaking, warrant, or order for the payment of money, with intent in any of the cases aforesaid to defraud any person whatsoever, every such offender shall be guilty of felony, and being convicted thereof shall suffer death as a felon.

66

This is a case of novelty, the Act in question being the first Act relating to forgery in which the term undertaking to pay money occurs. The sort of [64] instrument intended by the Legislature must be judged of by the rest of the instruments mentioned in the section; all of these are in the nature of negotiable instruments, or at least securities for money, on which some sum of money is at all events to be paid. Now, though the fourth section extends the provisions of the third to all instruments, the forging, &c. which, then were capital under any other name, it is impossible to give the construction sought to be given to the term " undertaking to pay money to the instrument in question, without at the same time including a bond under the penalties of the third section, a bond being clearly an "undertaking to pay money" but the forging a bond is made liable to transportation for life only under a subsequent section of the Act (the tenth). This is in fact nothing more than an agreement to guarantee, and if this is comprehended within the section, so must every guarantee, which is in fact an undertaking to pay money in case of a specified certain damage. Nor will the application of the term stop here, because it must also include every agreement in which the undertaking on one or both sides is to pay money either at all events or on any contingency. The object of the forgery must be the immediate procurement of money, and the instrument intended must be some one of the sort usually designated as securities for money containing some positive undertaking to pay money.

Parke B. Your definition would include a promissory note, which is expressly mentioned in this Act. The term must include some instrument beyond a promissory note.

An undertaking to pay money out of a particular fund is not a promissory note. I have not been able to find any case decided upon the meaning of the term in question. But on analogy to the decision on [65] the terms warrant or order," this conviction cannot be sustained. Mary Nicholl's case, Foster's Crown Law, 119, on the terms warrant or order" which first occur in the 7 Geo. II. c. 22, decided that a mere request to deliver goods to a pauper though in the name of a person having authority (namely an overseer) to order, was not within the Act, the Judges being of opinion that the order must be positive.

Tindal C. J. Is there any case in which a warrant or order to pay on a contingency has been held not within that Act?

I have not been able to find any, but the principles of the case cited have been recognised in William's case, 1 Leach 134; Clinch's case, 611; Ellis's case, 363, all of which cases shew that the document must amount to an order from a person having authority. So here the undertaking should be positive, not conditional, on an event that may never happen. R. v. Cartwright, Russ. & Ry. 106, is also in point; and the case, Rex v. Donolly and Murray, Moody, C. C. R. 438, an informal order, was held bad.

Bosanquet J. The ground of that decision was, that the instrument was not an order at all; it was a senseless document.

This is in fact nothing more than an agreement in writing, an undertaking for an indemnity.

The Judges present were unanimously of opinion that the instrument was an undertaking for the payment of money, within the statute.

[66] 1838.

REGINA v. GOTTHARD RAAKE.

(A charge of forging, &c. an order for the payment of money, is supported by proof of a foreign letter requesting a correspondent of the supposed writer in England to advance money, it being proved that such letters are in the course of business treated as orders.)

[S. C. 8 C. & P. 626.]

The prisoner was tried before Mr. Justice Park, present Littledale J. and Vaughan J., at the July sessions 1838, in the Central Criminal Court, for forgery and uttering scienter, &c.

There were four counts in the indictment. The first count was for forging a certain order for the payment of money, to wit, for the payment of £60, with intent to defraud Lionel Nathan Rothschild and others.

Second count, uttering the same scienter.

Third count was for forging a warrant for the payment of £60.

Fourth count, uttering scienter, &c.

The prisoner was found guilty upon the second and fourth counts; of the forgery and facts there was no doubt whatever; and upon the law the learned Judge thought not much difficulty, but it was deemed advisable to save the points.

The facts shortly were these: the prisoner, a German, teacher of that language at Leicester, which he had quitted (a second indictment shewed for what reason), but spoke English perfectly well, went to Messrs. Rothschild in May last, with a letter purporting to come from Messrs. Schaaffhausen, who lived at Cologne, and who were correspondents of Rothschild, whose house had money of Schaaffhausen in their hands. He presented himself as a Dr. F. A. Stern, with the following letter:

if

66

"Cologne, 23d March, 1838.

Gentlemen, I beg to introduce to you Dr. F. A. [67] Stern, who intends stopping some time in England for scientific purposes. You would therefore much oblige me you could procure him the necessary access to public buildings, such as libraries, &c. I also request you, in case he should be at any time in want of money, to pay him at his desire to the extent of £60 sterling, as he is accredited with me, and I am consequently prepared to pay such an amount against his receipt. It will in similar cases be my zealous endeavour doubly to outweigh all the kindness you may pleased to shew him, and I have the honour to remain, &c.

be

It was proved, that when the prisoner presented this letter, he described himself as the Dr. Stern therein mentioned, and wished to go to the libraries; but the first time he went to Messrs. Rothschild no money was paid him, but in two days he called for £30 and it was paid him on the credit of the letter. He brought a receipt with him in these words: For account of Mr. A. Schaaffhausen of Cologne, to have received of Rothschild and Sons the sum of £30. Attests Dr. F. A. Stern.'

66

He again went in two days more with another receipt for £30 more, and got that money, £60 altogether.

It was proved, that when such a paper as this letter is brought to Messrs. Rothschild from a correspondent who has money in their hands, the person who brought it is paid whatever he claims, not exceeding the amount mentioned. If the person who presents the letter does not require the whole, the house write upon the letter whatever is paid, and they consider such a document exactly as they would a bill of exchange, and equally obligatory on them to [68] pay to the extent of the fund in hand. It appeared in evidence, that the prisoner and another man, not before the Court, had two lodgings at different parts of the town, at each they had a joint sitting room, and at each house, when at home, slept together. At one of the houses the prisoner went by the name of Dr. Stern, the other man by the name of Bartells; and at the other lodging the other man was Dr. Stern, and the prisoner was Bartells.

This indictment was founded on the stat. 1 Will. IV. c. 66, s. 3, the words of which are, who shall forge or utter amongst other things "any undertaking, warrant, or order for the payment of money, &c."

The question was, whether the document above set out was a warrant or order for the payment of money, and upon that the opinion of the Judges was requested. The indictment was general.

The Judges considered this case at a meeting in Michaelmas term 1838 they were unanimously of opinion that the facts with the paper warranted their considering the document as an order, and that the conviction was therefore right.

1838.

REGINA v. JOHN RADCLIFFE.

(The omission of contra formam, &c. in an indictment for a statutable offence, is good ground for an arrest of judgment, and is not cured by 7 Geo. IV. c. 64, ss. 20, 21.)

IS. C. 2 Lew. C. C. 57 sub nomine Ratcliffe's case.]

The prisoner was tried before Mr. Justice Williams, at the Summer Assizes for Yorkshire 1838, upon an indictment on 6 Geo. IV. c. 16, s. 112, stating, inter alia, that the prisoner was a trader, was indebted to A. B. in £100 and upwards, and committed [69] an act of bankruptcy; that a fiat in bankruptcy was issued against him; that F. M. &c. were commissioners thereunder; that he was duly declared a bankrupt; and that the prisoner had notice to appear before them. He did so, and was examined. (Here the examination was set out at great length.) The indictment then went on, that prisoner did not disclose and discover all his estate and effects to the said commissioners; but he, the said John Radcliffe, on &c. at &c. wilfully, fraudulently and feloniously, and with intent to defraud the creditors of him the said J. R. in that behalf, did conceal and embezzle part of his said personal estate to the value of £10 or more, the same or any part not being the necessary wearing apparel of himself, his wife, or children (that is to say), a large sum of money, to wit, the sum of £100, 100 sovereigns of the current coin of the realm, and twenty promissory notes for the payment of money, the said promissory notes being due and unsatisfied to the creditors of the said J. R., with intent to defraud the petitioning creditor, and the just creditors of him the said J. R., and against the peace, &c.

To this indictment it was objected, in arrest of judgment, that the offence was not stated to be done against the form of the statute, and that the words of the statute are not pursued, the printed statute (as was alleged) not agreeing with the Roll of Parliament. See 7 Geo. IV. c. 64, ss. 20, 21; Eden's Bankrupt Law, p. 360; and Deacon, p. 514, were referred to upon this point. Rex v. Pearson, 1 Moody's C. C. p. 313, was cited. Other objections were made:-1. It was not stated that the fiat was duly issued." 2. Summons to surrender was not stated to be served at the dwelling-house. The question for the opinion of the Judges was, whether the indictment was sufficient?

66

[70] This case was considered at a meeting of all the Judges in Michaelmas term, 1838, except Park J., Littledale J., Bolland B., and Alderson B., and they were unanimously of opinion that the omission of contra formam, &c. was not cured by 6 Geo. IV. c. 64, ss. 20, 21, and was fatal to this indictment.

1838.

REGINA v. HENRY PIKE.

(It is no defence on an indictment for forging and uttering an order of a board of guardians of a Poor Law Union, to shew that the person who signed the order as presiding chairman was not, in fact, chairman on the day he signed, the forgery charged being of another name in the order.)

[S. C. 2 J. P. 727; 3 Jur. 27.]

The prisoner was tried before Mr. Justice Littledale at the Summer Assizes, 1838, for the county of Norfolk, on an indictment of which the following is an abstract :— that Henry Pike, on the 14th of November last, at Aylsham, was in possession of a paper writing purporting to be an order upon John Ringer, Esq., the treasurer of the guardians of the poor of Aylsham Union in the county of Norfolk, and to be signed by two of the guardians of the said union, to wit, John Warnes, as the presiding chairman at a meeting of said guardians, and by one John Rump, another of the said guardians, for the payment by the said John Ringer as such treasurer of £149, 10s. 10d. to one B. P. Drouet therein named or bearer, and being so in possession of said paper writing, feloniously did falsely make, forge, and counterfeit, and did cause and procure to be falsely made, forged, and counterfeited, a certain order for the payment of £149, 10s. 10d. in the words and figures following :

[71] " No.

66

To John Ringer, Esq. treasurer.

"Aylsham Union, the 14th day of Nov. 1837.

"Pay to B. P. Drouet, or bearer, the sum of £149, 10s. 10d.

"Clerk to the board of guardians of the said Union.”

By then and there feloniously and falsely forging and adding to the said paper writing the name "John Cross," the said John Cross being one other of the said guardians, with intent then and there and thereby to defraud the said guardians contra stat., &c.

2. Having in his custody and possession a false, forged, and counterfeited order for the payment of money, purporting to be an order under the hands of said John Warnes as presiding chairman, and of John Rump and John Cross, two guardians, &c. (setting out the order as above), he, with intent to defraud said guardians, the said false and counterfeited order did feloniously utter and publish as a true order under the hand of said John Cross, well knowing the same to be false, forged. and counterfeited.

3. Forging as in 1st.

4. Utterns in 20. with intent to defraud John Ringer the treasurer.

as

}

5. Making, forging, and counterfeiting an order for the payment of money, to wit, £149, 10s. 10d. (setting out the order), by adding the name of "John Cross," with intent to defraud the guardians.

6. Uttering and publishing as true with the like intent, knowing the same to be false.

7. and 8. Similar to two last counts, with intent to defraud John Ringer.

[72] 9. Forging an order for payment of money, to wit, £149, 10s. 10d. with intent to defraud the guardians.

10. Uttering same with the like intent.

11. and 12. General counts similar to the 9th and 10th, with intent to defraud John Ringer.

The Aylsham Union, in the county of Norfolk, was constituted by an order of the Poor Law Commissioners of the date of March 26, 1836. And by another order of the Poor Law Commissioners, of the date of April 8, 1836, another parish was added to the Union. The prisoner was clerk to the guardians of the Aylsham Union, and had been so ever since its formation.

It was objected that his appointment ought to be proved; but the learned Judge thought that evidence of his acting as clerk was sufficient.

John Ringer was treasurer of the Union.

John Warnes, John Rump, and John Cross, were guardians of the Union. And by another order of the Poor Law Commissioners for keeping, examining, and auditing the accounts of the Union, of the date of August 11, 1836, it was ordered, that every payment amounting to £3 should be made through a cheque drawn upon the treasurer of the Union, signed by the chairman and two guardians present at a meeting of the board, and countersigned by the clerk. (Vide 4 & 5 W. IV. c. 76, ss. 1, 15, 18, 42, as to the effect of rules, orders, and regulations, made by the Poor Law Commissioners.)

A person named Bartholomew Peter Drouet, who was contractor for the maintenance of the poor in Lambeth Workhouse, had from time to time supplied the Aylsham Union with goods, and in November, 1837, a sum of £46, 15s. and no more was due to him for goods supplied.

The course of business as to drawing cheques was, [73] that Pike the clerk delivered cheques to the chairman and he signed them, and handed them back to Pike; after they had been signed, Pike was to pay the creditors. A meeting of the board of guardians was held on the 14th of November 1837, and in the minutes of the proceedings at that meeting a person of the name of Blake is put as chairman. Warnes proved that Blake called on him Warnes to take the chair. Warnes said he occupied the chair part of the day, but he could not say whether he did so at the