1822. THE KING V. GOLDSTEIN. instrument as to the authority; as it was proved that all instruments of that description were paid in cash, on being presented at the treasury office at Konigsberg. It is therefore in effect, a promissory note; or at all events, an undertaking or order for the payment of money. Mary Mitchell's Case, Williams's Case, and Clinch's Case, are inapplicable to the present, as they all turned on the construction of orders for payment of money, under the statute 7 Geo. 2. c. 22. [The learned Counsel was proceeding with his ar gument, by referring to the case of Rex v. Elliott (a), when he was stopped by Lord Chief Justice Abbott, who observed, that all the Judges present were satisfied that the instrument was within the provisions of the statute 43 Geo. 3. c. 139, and one on which forgery might be committed; and he was requested to apply himself to the objection in arrest of judgment, viz. that it was not translated or explained by averments in the indictment.] This was unnecessary, both on principle and by the authority of decided cases; and first, on principle. It has been contended, that the note should have been so set out, that the Court might be enabled to judge whether, upon the face of it, it came within the provisions of the statute or not; and further, that the tenor should have been set out, or that at all events, a translation was necessary to supply the tenor, as it was couched in a foreign language, and consequently unintelligible. The engravings and cyphers which appear on the face of the instrument, are incapable of translation; for instance, the crown could not be supplied by it. So the purport of the initials F. W. R. cannot be assisted by translation, but can only be explained by evidence. At all events, a translation must (a) 2 East's Pl. Cr. 951. S. C. Leach's Cr. Ca. 175. be defective, and might convey a limited or erroneous view of the obligation or authority which the instrument purports on the face of it to bear; which can be only duly ascertained and appreciated by a Prussian subject. [Mr. Justice PARK.-How is a Court of error to know the purport and tenor of an instrument, if they do not understand the language in which it is written?] Translation would not supply the tenor, and its purport was matter of evidence. The jury have found that the prisoner was guilty of forgery, and a Court of law is to enquire whether the penalty imposed by the statute attaches on the instrument, or not. The tenor of it is set out on the record; the authority by which it becomes an order or undertaking for the payment of money, is also shewn; and the words of the statute are strictly followed, so as to render a translation altogether unnecessary. Further, a translation of an instrument of this nature might tend to mislead; for instance, in the case of a French bill of exchange, which, by the law of that country, must not only express on the face it whether or not value has been received, but also the nature of the consideration which constitutes the value, viz. whether money or goods (a). Here however, it is otherwise; for value received is implied in every bill and indorsement, as much as if expressed in totidem verbis. If such a bill were translated, without stating the nature of the consideration, it would be unobjectionable, and the Court would consider it to be valid; although it would not only be defective by the French law, but an absolute nullity. (a) See Code de Commerce. S. P. Manuel de droit Francais par Pailliet, fifth edit. p. 1002. Pothier, pl. 8. 34. 1822. THE KING' U. GOLDSTEINY 1822. بنا THE KING V. GOLDSTEIN. So here a Court of error can only look to the record. The tenor of the instrument is only to be collected or supplied by evidence, for the operative parts of it cannot be literally translated. The interpreter swore that it was a valid security in Prussia, where it was intended to be circulated; and it would be nugatory to suppose that a translation would be beneficial to, or assist the prisoner. Secondly, a translation is unnecessary, according to the authority of decided cases. This bears no analogy to the case of libel: even if it did, Zenobio v. Axtell does not shew that a translation was necessary; as it was there merely decided, that the libel must be set forth in the original language. So here the tenor of the instrument has been set out in the tongue in which it was written. Further, if this case must be governed by analogy to that of libel, it must be recollected that libel is only slander reduced into writing; and the authorities collected by Mr. Serj. Williams, in his note to Craft v. Boite, are express to shew, that if words are spoken in a foreign language, it is not necessary, or indeed safe or prudent, to translate them; and the case in Hobart (a) is not confined to words spoken in the Welsh language. In Gibbs v. Jenkins (b), which, was an action for words spoken in the Welsh language, on issue of not guilty, witnesses were examined after verdict, as to the signification of the words. So in an anonymous case (c), it was held, that if a man brings an action on the case for speaking certain scandalous Welsh words of him, though he does not put the English of them in the declaration, yet the declaration is good; for the Court ought to take information by Welshmen, what the words signify. Here, the testimony of the interpreter explained the import of (a) 126.- -(6) Id. 191.. (c) Id. 169. the instrument, the obligation and authority of which were established by foreign law. Whether the proceeding be by indictment on a criminal charge, or by action for a civil remedy, the principle is the same; and where an instrument is written in a foreign language, it may be explained by evidence at the trial, without setting out a translation of it on the record. The Court have determined that it is an instrument within the meaning of the statute; and as the latter objection goes only to the form of the indictment, and not to the merits of the case, no evil can arise to the prosecutor; for, if it be deemed expedient, another indictment may be preferred against the prisoner. Mr. Platt, in reply. It has been said, that the crown, and other devices, engraved on the face of the instrument, cannot be translated; and that the initials F.W.R. could only be explained by evidence. That may be fully admitted, and their import was assented to at the trial; but the only question is, whether the operative or verbal part of the instrument should not have been translated on the record, so as to shew the mandatory or promissory parts of it. It is quite clear, that such part might have been translated without difficulty, so as to receive a proper construction, by the introduction of necessary averments in the indictment. A Court of error cannot be considered as a Pantalogia, or being well versed in the tongues of every foreign clime. The case in Hobart (a), seems to apply only to those languages, the meaning of which might be understood by persons in this country. Although the Welsh is not, strictly speaking, the English tongue, it may still be considered as part of the dialect of Great Britain. The case put as to the French bill of exchange, (a) 126. 1822. THE KING v. GOLDSTEIN. 1822. THE KING v. GOLDSTEIN. appears to be founded in fallacy; for if a person were indicted for forging such an instrument, and it were translated on the record, the request to the drawee to pay, as well as his address, and the acceptance by him, must appear. For the reasons before urged, and which have not been satisfactorily answered, the judgment must be arrested; the only effect of which will be to have a proper translation set out on the record. Lord Chief Justice ABBOTT.-This case has been extremely well argued, both for the prisoner and the prosecution. Cur. adv. vult. The majority of the Judges, after much deliberation, were of opinion, that a translation of the instrument should have been inserted in the indictment; and that this not having been done, the judgment ought to be arrested; and that consequently the prisoner was entitled to his discharge, unless it should be deemed expedient to prefer a fresh indictment against him; and as the prosecutor declined to do so, he was accordingly, at the last sittings at the Old Bailey, ordered to be Discharged. |