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it provides no other punishment, shall be guilty of a misdemeanor, (provided the injury shall exceed the value of 51.,) and be liable to imprisonment (with or without hard labour) to the extent of two years; and if the offence be committed by night, may be sentenced either to such imprisonment or to penal servitude to the extent of five years (t). And another, that such offenders as last mentioned, in cases where the damage does not exceed the value of 5l., may be summarily convicted before a justice of the peace, and may either be committed to prison (with or without hard labour) to the extent of two months, or else shall forfeit such sum of money (not exceeding five pounds) as shall appear to the said justice a reasonable compensation for the damage committed: which sum, in the case of private property, shall be paid to the party aggrieved; but, when property of a public nature or a public right is concerned, shall be paid over to the treasurer of the county, borough or place for which the convicting justice acts(u). There is, however, a proviso that nothing in either of these provisions shall extend to any case where a party trespassing, acted under a fair and reasonable supposition that he had a right to do the act complained of; nor to any trespass, (not being wilful or malicious,) committed in hunting, fishing, or the pursuit of game (2).
III. [Forgery (or the crimen falsi) is an offence which was punished by the civil law with deportation or banishment, and sometimes with death (y). It may with us be defined to be, the fraudulent making or alteration of a writing, or seal, to the prejudice of another man's right; or of a stamp, to the prejudice of the revenue (z).] In reference to this crime, as regards writings, it has been decided, that the instrument forged must so far resemble
(t) 24 & 25 Vict. c. 97, s. 51.
See also sect. 53.
(y) 4 Inst. 18, 7.
the true instrument as to be capable of deceiving persons who use ordinary observation(a): that any material alteration, (however slight,) is a forgery, as well as an entire fabrication (6): that the fraudulent application of a false signature to a true instrument, or a real signature to a false one, are consequently both forgeries (c): and that even if the name forged be merely a fictitious one, it is as much forgery, if done for the purpose of fraud, as if the name were that of a real person (d). It may also be remarked, that by 9 Geo. IV. c. 32, it was provided-even before the change of law, by which interested parties were made competent witnesses in criminal as well as civil inquiries (e),—that the party whose name was forged might be called as a witness to prove that the writing is not his. But on the other hand, it is an established rule, that the proof of forgery by a mere comparison of handwriting is not admissible (f). At common law, this offence was a misdemeanor only: but when, in the progress of society, the perpetration of it became more easy, and its tendencies more dangerous, it became necessary to assign to it a more penal character, as regards those instruments which most required protection.
An act passed in the year 1861 (24 & 25 Vict. c. 98) has consolidated and amended “ the statute law relating to indictable offences by Forgery"(9); and, among other
(a) R. v. Collicott, R. & R. C. C. R. 212; S. C. 229.
(6) 2 East, P. C. c. xix. 3. 4.
(c) 3 Chit. Crim. Law, 1038, cites 1 Hale, P. C. 683; et vide 2 East, P. C., ubi sup.
(d) R. v. Bontein, R. & R. C. C. R. 260.
(e) This was by 6 & 7 Vict. c. 85.
(f) Doe v. Suckermore, 5 A. & E. 703. See Taylor on Evidence, p. 1428, n. (6), 2nd edit.
(9) This Act, which has been supplemented by the 33 & 34 Vict.
c. 58 (the Forgery Act, 1870), is in substitution of the 11 Geo.4 & 1 Will. 4, c. 66, which, so far as it relates to our present subject, is repealed by 24 & 25 Vict. c. 95. There are also a variety of earlier statutes, containing provisions against forgery in particular cases, and especially with regard to records and process of courts, the public funds and stocks, the securities of public companies and official documents. As to these (many of which appear to be practically superseded by the
enactments, it provides against the felonious offence of forging the great seal of the united kingdom, the privy seal or any privy signet, the sign-manual, the seals of Scotland, or the great seal and privy seal of Ireland (h). It also makes it a felony to forge any stamp, exchequer bill, bank of England or other note, bill of exchange, promissory note, deed, receipt (i), order for the payment of money (j), transfer of stock, or will, or any records or proceedings of courts, court rolls, registers of deeds, registers of births, marriages and deaths, marriage licences,—and a variety of other documents, comprising all that are in the most ordinary use in the transactions of mankind. It attaches also the same felonious character to the offence even of having in possession, without lawful excuse, (such excuse to be proved by the party accused,) any forged bank-note or the like, knowing it to be forged (k); or of having in possession, (without such excuse,) any frames, mould, plates, paper, &c., used in making bank-notes, or any paper with the name of any bank visible on the substance thereof (1).
The punishment of forging, uttering and the like at common law, or in those instances in which it was made by statute a mere misdemeanor, was fine, imprisonment and pillory ; but in the cases in which it was made by statute felonious, it was at one time deemed necessary also to inflict on the offender the extreme penalty of death. Capital punishment, however,—having been previously taken away with regard to many cases
recent Act), we must refer the but punishable with transportation reader to the treatises on criminal for life. law.
(i) See Clark v. Newsam, 1 Exch. (h) 24 & 25 Vict. c. 98, s. 1. An- 131. tecedently to this Act, the offence (j) See Queen v. Dawson, 20 L. of counterfeiting the Great Seal, J. (M. C.) 102. &c, amounted to treason. This was (k) 24 & 25 Vict. c. 98, s. 13, formerly punishable with death ; fourteen years. though under 11 Geo. 4 & 1 Will. 4, (1) Sects. 14, 18, fourteen years. c. 66, it was not a capital offence,
of forgery, by 11 Geo. IV. & 1 Will. IV. c. 66, and 2 & 3 Will. IV. c. 123,—was altogether abolished, as a punishment for this offence, by 7 Will. IV. & 1 Vict. C. 84 (m). And now (under the 24 & 25 Vict. c. 98, above referred to) the felon convicted of any of the forgeries provided against by that Act, is liable to penal servitude for life, fourteen, seven or five years (n)—the extreme term which may be awarded varying according to the document forged; or else (at the discretion of the court) to imprisonment for not more than two years, with or without hard labour and solitary confinement(o).
The same statute of 24 & 25 Vict. c. 98, contains enactments against other practices connected with, or aiding the perpetration of, the crime of forgery: which in most cases are made felonies, and punishable with penal servitude or imprisonment. Of these our limits will not allow
(m) It remained a capital offence, receipts, &c., for money, life; (sect. till the Act last mentioned, to forge 26) debentures, fourteen years ; a will or testamentary writing, a (sect. 27) records or proceedings of power of attorney or other authority courts, seven years; (sect. 28) copies to transfer stock or receive divi. or certificates of records, &c., or dends ; and certain other instru
process, seven years; (sect. 29) inments. (See 2 & 3 Will. 4, c. 123; struments made evidence by act of 5 & 6 Will. 4, cc. 45, 51.)
parliament, seren years; (sect. 30) (n) See 27 & 28 Vict. c. 47. court rolls relating to copyholds,
(0) By the 24 & 25 Vict. c. 98, the life; (sect. 31) registers of deeds, different forgeries under that Act fourteen years; (sect. 32) orders of are made thus punishable:-(sect. 1) justices of the peace, five years, see forging, &c., the Seals, (extreme of 27 & 28 Vict. c. 47; (sect. 33) cersentence by way of penal servitude,) tificates, &c., accountant-general, life; (sect. 2) stock transfers or &c., fourteen years; (sect. 35) marpowers of attorney, life; (sect. 4) riage licences, seven years; (sects. attestation of stock transfers or 36, 37) registers of births, baptisms, powers of attorney, seven years; marriages, deaths, or burials, life. (sect. 5) entries in the books of the In all of the above forgeries, howBank of England or Ireland, life; ever, punishment by way of im(sect. 7) India bonds, life; (sect. 8) prisonment, instead of penal serviexchequer bills, bonds, &c., life; tude, may be awarded at the dis(sect. 12) bank notes, life; (sect. 20) cretion of the court to the extent of deeds, life; (sect. 21) wills, life; two years, and with or without hard (sect. 22) bills of exchange or pro- labour and solitary confinement. missory notes, life; (sect. 23) orders,
us to give a complete enumeration, but they comprise the following :-making paper, &c., in imitation of that used for exchequer bills or bonds (p) ;--purchasing forged notes, bank paper or bills (1);-making or engraving plates, moulds, &c., for bank-notes (r); -- accepting bills, notes, &c., without authority, with intent to defraud (s);obliterating or altering marks on cheques or drafts, signifying they are to be paid through a banker (t);—falsely acknowledging recognizances or bail (u);—destroying or making false entries in registers (2'); – and demanding (with intent to defraud) property on any forged instruments (y).
It has also since the above statute, viz., by 25 & 26 Vict. c. 88, been made a misdemeanor, fraudulently to forge or counterfeit any trade mark lawfully used by any other person to denote that any chattel or thing therewith marked is of his own manufacture or merchandize, or in respect of which he has any copyright(z); and such offence (besides the forfeiture of the articles impressed with such forged or counterfeited marks) is made punishable by fine or imprisonment, or both. If imprisonment is awarded, it may be to the extent of two years, with or without hard labour (a).
Also by the Forgery Act, 1870 (33 & 34 Vict. c. 58), the forgery of stock certificates or coupons, issued by the bank of England in payment of interest of the National Debt-or the personation of the owners of such stock,is made felony, and punishable with penal servitude for life or not less than five years, or imprisonment to the extent of two years, with or without hard labour and solitary confinement. (P) 24 & 25 Vict. c. 98, ss. 9, 10, (y) Sect. 38, fourteen years. See
also 30 & 31 Vict. c. 131, s. 36, as (9) Sect. 13, fourteen years. to engraving share warrants or (r) Sects. 14—19, fourteen years. coupons. (8) Sect. 24, fourteen years.
(z) The definition of “copyright" (t) Sect. 25, life.
is given in 24 & 25 Vict. c. 98, s. 1. (11) Sect. 34, seven years.
(a) 25 & 26 Vict. c. 88, s. 14. (2) Sects. 36, 37, life.