Page images
PDF
EPUB

that it was not executed by Cor, in their presence ; and that Cox's signature was not upon the power when they attested it; and that they believed the words in the attestation, “and John Cox," were added after they attested. The Bank ledger was produced ; according to which, the stock was still standing in the prisoner and Cox's names; and the party to whom the power was granted, viz. Underhill, a stock-broker, in London, proved that when he applied to sell under the power, he was not permitted to do so. Cox was then called as a witness to prove the forgery, and other points ; he was objected to, but the two learned Judges thought him competent, and he was examined. He produced the probate of a will of Mr. Fitchew, dated July, 1804, by which he left some money to the prisoner and Edmund Naish, in trust for Mrs. Fitchew for life, remainder to testator's nephews, Stephen and John Cor; and he proved that Naish refused to act: that the trust money was invested in the joint

1823.

THE KING

WAIT.

the said Governor and Company by our executors or administrators, or by some person or persons interested in the property to wbich this letter of attorney refers; and unless such notice be given, we hereby severally covebant, promise, and engage, and bind ourselves and our respectire executors and administrators, to and with the said Governor and Company of the Bank of England, that our respective executors and administrators shall and do allow, ratify, and confirm, as good, valid, and effectual against them and against our respective estates whatsoever shall or may be done by our said attorney after our respective decease, so far as the said Governor and Company of the Bank of England shall or may be in any way or manner interested therein.

In witness whereof we have hereunto set our hands and seals, the twentysecond day of October, in the year of our Lord one thousand eight bundred and twenty-one.

John Wait (LS)

« John-Cor (LS)
“ Signed, sealed, and delivered, in

the presence of us, by the above-
named John Wait and John Cox,
William Sheppard, stationer,

Corn Strcet, Bristol.
Thomas Davis, auctioneer,

Carn Street, Bristol."

1823.

WAIT.

names of the prisoner and himself; that he never gave any power to sell; that the signature in his name was

TBE KING a forgery; and that as soon as he knew it, vis. three days after the date of the letter containing the information, and one day after he received it, he wrote and sent a letter to the Accountant-General of the Bank of England, stating that he had not executed any such power, nor was he privy to its execution. This letter was produced by the counsel for the Bank, and had upon it the country and London post-marks. No express evidence was given of its reaching the Accountant-General, or any officer of the Bank.

The prisoner petitioned the Crown, on the ground that John Cox was improperly received as a witness; and he relied upon the following grounds of objection that a party whose name is forged, is not competent to prove the forgery, where the instrument, if genuine, could prejudice him. That the power would prejudice Cor if genuine, and the stock was sold out. That for any thing that appeared in evidence at the trial, the stock might have been sold before it took place; for though no sale appeared upon the ledger, and a witness stated that the stock.was still standing in the original names of the prisoner and Cox, it might have been sold under the power after he left the Bank with the ledger. That if not sold before the trial, it would be saleable afterwards, anless the prisoner was convicted, or the power was duly revoked. That the Bank was compellable to submit to it, unless it were duly revoked: that as the power was by deed, it would require a deed to revoke it; and that as quch deed must be attended with expense, Cox had a direct interest to avoid such expense. If there was any weight in either of these objections, the conviction was wrong; and they were therefore now submitted to the consideration of the twelve Judges.

Mr. Campbell, for the prisoner, premised that Cor was

1823.

The KING

WAIT.

an incompetent witness to prove the forgery, whether the power of attorney was genuine or forged; as he was materially interested in the question. Although it is a general rule, that in criminal prosecutions, the injured party may be a witness; yet an exception to this rule has been made in the case of a prosecution for forgery, where, on whatsoever grounds the interest of the party whose hand is forged, may be supposed to rest, if he be in fact interested in setting aside the instrument, supposing it genuine, either as against the prisoner or any other, his evidence is, to the point of the forgery at least, inadmissible (u). So in Bayley on Bills (6), it is laid down, that “on an indictment for forgery, the person whose name is forged, or upon whose genuine name a forgery is committed, is not a competent witness to prove the forgery, if he has an interest in the destruction of what is supposed to be forged." The decisions establishing these rules are Watts's Case (c), where, on an information of the forgery of a deed purporting to be the revocation of a will, it was held that no legatee named in the will, nor any other person'who was or might be a loser by the deed, or who might receive any benefit froin the verdict, could be a witness for the prosecution. So, in Rex v. Russel (d), where the prisoner was indicted for forging an acquittance and receipt, the person whose name was forged was deemed to be incompetent to prove the forgery. Again, in Rer v. Rhodes (e), upon an indictment for forging a power of attorney to transfer stock in the name of the proprietor, the latter was rejected as a witness to prove the forgery, although he had not the most remote interest in the event of the prosecution; as the power had been acted on, and the stock transferred.

(a) 2 East's Pl. Cr. c. 19, 8. 63, page 994. -(6) 4th edit. 450. (c) 3 Salk, 172. S. C. Hardr. 331.- -(d) I Leach. Cr. Cas. 3d edit. 1€

-(e) 2 Stra. 728.

1823.

THE KING

Wait,

Still, however, he was interested in proving the forgery, because it would be eventually for his benefit that the power should not be considered as genuine. In Thornton's case (a) the assignee of a certificate to a navy bill, whose name was charged to have been forged to a receipt for the money, was held not to be a competent witness to prove the forgery. And in Rer v. Robert Rhodes (6), on an indictment for forging a seaman's will, an executor named in a subsequent will by the same testator to that which was charged to be forged, was not compelent to prove the forgery. That was a strong case, as he had no interest whatever in overturning the first will; for whether it were true or false, the last alone was valid, provided it were sufficient in itself. In Caffy's case (c), on an indictment for forging the indorsement of J. G. upon a promissory note made payable to him or order, it was held that J, G. could not be a witness to prove that the hand writing was not his. And in Rex v. Bunting (d), the executor of a person whose note had been forged, was rejected as a witness to prove a fact tending to criminate the prisoner. And in the late case of Rex v. Crocker (e), the majority of the Judges seem to have considered, that on an indictment for forging a promissory note, the person whose name was forged as maker, was not even a competent witness to disprove an indorseinent on the note made by the party who forged it, respecting the payment of interest on the note. In Rex v. Boston, which was an indictment for perjury, Lord Ellenborough, after adverting to the rule in civil cases, that a witness was competent, unless he was immediately interested in the event of the action, observed, that (f) “the only anomaly that he knew in the law, which might be regarded as an exception to that rule, was in the case of forgery, where a prosecutor

(a) 2 Leach. Cr. Cas. 3d. edit. 723.- (0) 1 Leach. Cr. Cas. 31.

(c) 2 East's Pl. Cr.995. (d) 2 East's Pl.Cr. 996.(e) 2 New Rep. 87.-- (f) 4 East, 582. VOL. VII.

21

1823.

THE KING

WAIT

should not be permitted to say, that a bond, purporting to have been made by him, was forged. That upon what principle that anomalous case was so settled, he could not pretend to say; but that having been so settled, it might be too much for Judges sitting on trials to break in upon it; and that the anomaly could only be remedied by the Legislature.” And in Hunter v. King (a), which was an action against an attorney for negligence in the negociation of an annuity; and the question was, whether the party, who on the face of the deed appeared to be the grantor, was a competent witness to prove the forgery, Lord Chief Justice Abbott again adverted to the distinction drawn by Lord Ellenborough, and said (6), “ the case of forgery has always been considered an anomaly in the law of evidence. The question, however, in civil cases is, whether the witness has any interest in the verdict.” Here then the question is, whether, when Cor was called into the witness box, he had any interest, however remote, that the power of attorney, purporting to have been executed by him, should not be his deed ? If the stock had been transferred, there would be no doubt but that he would have been incompetent to prove the forgery, as he would have been guilty of a breach of trust, and immediately answerable in a Court of Equity to the cestuis que trust. It may, at all events, be inferred from the evidence at the trial, that at the time of the examination of Cox, the power might have been acted on, or the stock sold. It was transmitted by the prisoner to Underhill, as having been executed by him and Car for the purpose of Underhill's effecting the sale ; and he would be thereupon entitled to his commission: it may, therefore, be fairly considered, as he obtained the instrument, and sent it to the prisoner in the first instance, so he would cause it to be completed by the sale of the

[blocks in formation]
« PreviousContinue »