nor knoweth that any other did. They tell insist, therefore, that this name and the word you also, that the witnesses for the prosecution ffree' were upon the paper before the note was have in a great measure proved the denial of wrote, and that this is a strong and reasonable Mr. Kinnersley of his knowing of the indorse- evidence that Kinnersley must be privy to the ment: but they call themselves for further name of Edwards, and the indorsement at that proof, evidence of it. They call Mr. John Hayes, time. After that, Mr. Kinnersley desired to be who saith that he was present at the examination heard, and be was indulged: but as to that you of Mr. Kinnersley before sir Richard Hopkins; have been informed, that in indictments for that at that time the defendant Kinnersley owned misdemeanours, whatever the defendant saith his writing the body of the note, but at the for himself, it will have no further validity than same time said, that how the indorsement came as the counsel insist, and evidence is brought there he could not tell. He tells you that the for him. The circumstance, therefore, is very caution that was given to the defendant Kin- different from what is allowed when persons nersley, was after this declaration made by are prosecuted in capital cases. However, you him; that then there was an admonition that he have heard how he hath declared in the most should be cautious in the answers that he gave. solemn manner his innocence. You are to conOne Andrew Grants likewise was present at that sider whether that is of any validity, unless examination. He saith, that that was all that there was evidence of such a debt due from the passed at that time, and that he was not stopped defendant Kinnersley to Hales the other deby Mr. Mitford, but only a reasonable caution fendant, whether you will take it upon his given him that he should not be too much in an word. This being the evidence on both sides, hurry, or the like. This is the substance of the first question is, whether the indorsement is the defence made by the counsel for both the forged, because till you determine that it is a defendants. It is the right of the counsel for forged indorsement, there can be no prosecuthe king to reply. They say, that there hath tion for the publication of it. If it be a true been no evidence of transactions between Kin-indorsement, no person can be guilty of the nersley and Hales to the amount of any such sum as the note is for; that if the note was given with a design to defraud, both must be equally guilty; and that it is a very extraordinary thing that this note should be written by Mr. Kinnersley as a promissory note for such a sum payable to Samuel Edwards, esq. when it doth not appear, on the defendant's part, that there was any correspondence between Edwards and Kinnersley, and on their side it hath been proved that there was no such correspondence; that it was very extraordinary if this note was given for a debt due, that it should be taken in the name of one with whom they had no money-dealings whatsoever, and over whom they could not be supposed to have any power; that this therefore seems to be only to give a credit to the note; that it could not be of any use whatsoever without having the name of some person of circumstance and condition to it who would be obliged to pay the note; that this note must have been thrown upon Mr. Edwards, ap. pears (they say) from the declaration of Kinnersley, that he was an undone man. If then it was of any use to borrow money upon or in any other way, it must be from the substance of Mr. Edwards, and not from the poverty and deficiency of Kinnersley. They insist upon that circumstance, and the declaration of Kinnersley, that he knew of that indorsement, though how it came there, he said that he knew not. And further they say, that as the name was Mr. Edwards's own hand-writing, if that the word ffree' was wrote upon the paper, it must be before the writing of the body of the note. It cannot be imagined that the words were not there before. It cannot be supposed that Mr. Edwards would set his name to the word ffree,' or to any other word on the back of a note promising the payment of 1,260., within six months, to him or his order. They

publication, much less can Mr. Kinnersley, who did not deliver the note: that therefore lieth upon the defence of Mr. Hales, which is not made but by the defence of Kinnersley. You are to consider then the opportunity that the defendant might take hold of from the receiving of franks for several years from Mr. Edwards; and you will consider whether there is any clear proof, or so much as the colour of it, that Mr. Edwards was privy to an indorsement of this nature, or there was any occasion for such an indorsement. If no such money was indeed due, to what purpose should the note be indorsed? Upon the best observations that I can make, I see not any evidence to raise a reasonable presumption from, that this was a fair and justifiable indorsement. If it was not an imposition on Mr. Edwards, because it makes him liable as an indorser for the sum mentioned in the mote, if you should find that, yet you are to consider whether it is fair to make use of another's name in a note; for Mr. Kinnersley, who by his own confession is a poor, undone man, and whose living is under a sequestration, to make a note indorsed, by another person who can never be reimbursed by this person who subscribed the note, it is a very extraordinary way; though they say that it is an innocent way of raising money, for a person in custody, or liable to it, to make use of the name of a substantial person in such a note, whose credit must be at stake for the money. And then as to the nature of the note: if it was only a promissory note for so much money payable to Samuel Edwards, esq. it was not of such consequence, for then he was not liable: but he is liable to the payment only upon the indorsement of such a note. Why then, gentlemen, you are to consider, whether this note, when Mr. Kinnersley had wrote it, could be of any use in the world unless it was indorsed af

Jury. My lord, if your lordship please, we will take the note up with us.

Kinnersley. I desire to be heard

L. C. B. Not in case of a misdemeanor. I know not any instance in which it hath been allowed.

terwards. Why then this note is either a pre- | him. Consider, therefore, whether this latter paration to obtain Mr. Edwards's voluntary in part of his declaration be sufficient to discharge dorsement for a security, or an imposition upon him. If he knew that it was indorsed, you him. Hath any evidence been produced to should have some evidence upon what account shew a probability that Mr. Edwards would it was. As to the rest, as to the character, his give him that liberty to transfer his own insuffi- coat, or the like, you are to try him upon the ciency and poverty upon him, and make him same law with Hales. I know not why the fiable to Mr. Edwards, which can have no effect habit he wears should exempt him from the but by an indorsement; doth not Mr. Kinners- common rules of proof. As to the particular Jey put it into the power of Hales to negociate circumstance of his usefulness depending on this note? Therefore I must inform you, if two his credit, that is left to you. But the same persons contrive together to draw such a note, law is made for one that is for another: You and make use of it, both persons concerned in are therefore to consider of it. If this be a fair the transaction, in my opinion, will be guilty. indorsement you must acquit both. If you Forgery is an entire fact. Though one person are satisfied that it is not, but the indorsement doth one part, and another the other, both are is a forged indorsement, whether either, and equally guilty.* Gentlemen, it is material, as which of the defendants seems to be guilty. hath been observed, to consider when this in-You are to consider the nature and circum. dorsement was made; and if it was a forged instances of the transaction, and whether there dorsement, you will consider when it will appear appears any thing to distinguish the one from to have been indorsed. You have been truly told the other, and accordingly give your verdict that this can be only known by circumstances: against the one or the other. If you desire it, therefore you are to consider, whether the name the note will be given to you. of Samuel Edwards can be supposed to be set there after the note was wrote. Well then, what is the proper and natural way of understanding this transaction? If there be the name of a person on any paper, where there is room for making an alteration, what is natural? Why, to transact on the other side what is necessary to supply and make that complete, without which the name would be to no purpose. Therefore, that is a material consideration; if it is impossible that the name could be wrote after the making of the note, whether that be not a reasonable presumption that he saw this indorsement when he wrote this note. Suppose the words only ffree Samuel Edwards,' it was not proper to write this note on the back of it. If this indorsement was made without his privity, how came he to know of it when he came to Mr. Bird? And upon Mr. Bird's telling him that he had a note of his left with him, immediately answered, "I know that you have; it is for so much, payable in three months to Mr. Edwards, but how it came indorsed by him I know not ;" when Mr. Bird swears that he had not then acquainted him with the indorsement, nor showed him the note at that time. No evidence hath been produced to shew how he came to know that it was indorsed. He declared, indeed, that he knew not how it came to be indorsed but you are to consider, whether that part wherein he declares his knowledge is to be regarded, or what he declares he knows not of. A declaration of this nature will be taken most strongly against

66

Kinnersley. I beg leave, my lord. I take the Lord to witness

L. C. B. All I can say is, if you have a mind to aver or affirm any thing, the Court would rather be irregular than abridge you of any thing.

Serj. Whitaker. My lord, it never was allowed; after your lordship has summed up the evidence, and the jury going out: it is strange Mr. Kinnersley will behave so.

Att. Gen. Is it, my lord, to be allowed? L. C. B. The gentlemen have insisted upon it. You cannot be heard. Kinnersley. By the living God, I know nothing of it!

Cl. of Arr. [Calling over the Jury.] Are
you all agreed in your verdict?
Jurymen. All.

Clerk. Who shall speak for you?
Jurymen. Our foreman.

Clerk. How say you, is William Hales Guilty of the misdemeanor wherewith he stands charged, in forging an indorsement on a promissory note for 1,2601. in the name of Samuel Edwards, esq. and publishing the same knowing it to be forged, or Not Guilty?

Foreman. Guilty.

Clerk. How say you, is Thomas Kinnersley
Guilty of the said misdemeanour wherewith ho
stands charged, or Not Guilty.
Foreman. Guilty.

475. The Trial of WILLIAM HALES,* for a Misdemeanor, in obtaining from Thomas Bird the Sum of Seven Hundred and Fifty Pounds by false Tokens, &c.: 3 GEORGE II. A. D. 1729.

had ordered him to receive it of his cashier, or sent the note to his goldsmith, whose payment would it have been? Suppose he had sent him to the Bank to receive that money before he delivered up the note, certainly he had obtained the money by colour or means of that note.

My lord, I admit that if it had been paid by his servant or by his cashier upon a note drawn upon him for it, I take it that it might have been laid either way.

Serj. Whitaker. The Bank in that respect are but cashiers for the gentlemen that have

their notes.

Serj. Eyre. The other indictment laid it doubly.

Judge Reynolds. Though they might do that by way of caution, yet it might have been laid the other way as this is.

L. C. B. Gentlemen of the jury, you are to consider whether the indorsement on this note was a forged indorsement: for if it was not forged, the defendant cannot be said to obtain the money by a false token. And further you are to consider, as he obtained this of Mr. Bird by this false token, whether it ever came

to his hands or not. You are to consider upon the evidence that he never complained that be had not received the money for those bills, but, on the contrary, paid back 4007, part of the money, whether he would have paid it if he had not received the money. Therefore, if you apprehend that indorsement of the note was not a forged indorsement, or that the money was not paid, you are to acquit him. But if you judge that the indorsement upon the note was forged, and the money paid, whether it was paid by Mr. Bird in money, or in bills upon which he afterwards received money, I think that that makes no difference.

Jury called over.

Clerk. Are you all agreed in your verdict?
Jury. Agreed.

Clerk. Who shall speak for you?
Jury. Our Foreman.

Clerk. How say you, Is William Hales
Guilty of the misdemeanour whereof be stands
indicted in obtaining. a sum of money by this
false token, or Not Guilty?
Foreman. Guilty.

476. The Trial of WILLIAM HALES and THOMAS KINNERSLEY,* Clerk, for a Misdemeanor, for fraudulently forging a Promissory Note, &c. in the Name of Samuel Edwards, esq. for Sixteen Hundred and Fifty Pounds, and publishing the said Note, knowing the same to be forged: $ GEORGE II. A. D. 1729.

Jury called and sworn over again. Clerk. OYEZ! Oyez! If any man can inform, &c.

INDICTMENT.

Gentlemen of the jury, William Hales and Thomas Kinnersley stand indicted by the names, &c. for fraudulently forging a note or a writing, purporting to be a promissory note, on the 2nd of March, in the first year of his majesty's reign, in the words following:

"I promise to pay to Mr. Thomas Kinners ley, or his order, within six months after dale, the sum of sixteen hundred and fifty pounds, for the value received, SAMUEL EDWARDS." and knowingly and wittingly publishing of this as a true writing, knowing it to be so forged

and counterfeited.

Mr. Strange. May it please your lordship, and you gentlemen of the jury, this is an indictment against the two prisoners William Hales and Thomas Kinnersley. This indictment sets forth, that they being persons of ill fame, and intending to deceive Mr. Edwards,

Bethe preceding and following Cases.

&c. on the 2d of March, in the first year of his majesty's reign, did forge a writing purporting to be a promissory note, &c. The indictment further sets forth, that the defendants did likewise produce and publish this promissory note of Mr. Edwards's for 1,650/.; that knowing this to be a forged note, they did publish the said note for a true one. It is laid in other words, that they forged a note of Samuel Edwards's, whereby he is supposed to promise to pay to Thomas Kinnersley, within six months, the sum of 1,6501., &c. To all these facts they both have pleaded Not Guilty.

Att. Gen. My lord and gentlemen of the jury, I am counsel for the king. Gentlemen, this is an indictment against both the defendants, for forging a promissory note in the able to Thomas Kinnersley, or order, within name of Samuel Edwards, esq. for 1,6501., paysix months after date, and also for publishing the same. And, gentlemen, though it is laid several ways in the indictment, the note is one and the same. There are not several notes. Gentlemen, it will appear to you that this forgery of this note was by the same opportunity taken by Mr. Hales, in conjunction with Mr. Kinnersley, that the former was. It hath been observed already, that in cases of this kind

Therefore, this indorsement is a strong evidence against him. The use made of this note, thus forged and indorsed, was this: it being in the hands of Mr. Hales, Mr. Hales wanting a sum of money applied to one Mr. Thrup, desiring him to lend him his note of 400l. Upon his doing this with difficulty, Mr. Hales deposited this note as a security for his money, and here

Thrup. Gentlemen, upon the discovery that Hales was apprehended, there was a suspicion : was made of another forgery, whereupon Mr. hereupon Mr. Edwards, being informed that this note was in the hands of Mr. Thrup, enquired of him about it. The thing upon this appeared, and Mr. Kinnersley thereupon was apprehended and carried before sir Richard Hopkins. At first he seemed willing to make a discovery: afterward he went back, and denied (I think) what he seemed before to have owned: that will be proved to you. I think that this will appear plainly to have been a forgery, and to have been done by Mr. Hales and Mr. Kinnersley.

the same method as before, by calling two or Serj. Whitaker. My lord, we will go on in three witnesses.

Thomas Maddox and Anne Clarke were called, sworn, and deposed as before.-As also Mr. Booth. Vide the preceding Cases.

Mr. Charlton Thrup sworn.

facts are to be proved only by circumstances. Plain and positive proof is not to be expected: but such circumstances speak the truth often more plainly than the other way of proof doth. As to Mr. Hales, Mr. Edwards being too obliging to him, he made use of it to much the same purpose as in the former case. But it was not now to indorse, but to make a promissory note for 1,650., payable by Mr. Ed-upon this note continued in the hands of Mr. wards to Mr. Kinnersley, within six months after date, and dated March 30, 1728. And, gentlemen, this note is signed on the back with the hand-writing of Thomas Kinnersley. The manner of this forgery will appear to have been like the other: but it will appear on the very face of it manifestly a forgery. Gentlemen, the note is wrote on a very small piece of paper, which appears plainly to have been cut off from another paper. And, gentlemen, the words, * for the value received,' are not wrote upon the line with the other words, but a little below the line. The words for the' appear done in the same manner as in the former note that before came under your consideration. Here is a such as before, and as Mr. Edwards always useth, then an r which appears to be of the same hand, then an o crowded in between them which seems not of the original writing. One of the ee's is made to serve for the first stroke of the y, and a long stroke between the two ee's, then the other e makes up the word ye. Then ' value received' is wrote in another manner of hand. This seems to be the nature of the forgery; and none can doubt it a forgery that inspects it. This appears to be done from a frank cover obtained from Mr. Edwards. And this is something remarkable: it is something odd that for the value received' should be wrote on another line. It is plain that the words are set thus odd because of the word wrote before, and that the ff beginning another line may make the better appearance. This note is made payable to Mr. Kinnersley. He was an absolute stranger to Mr. Edwards, as it appeared in the former case. There was no dealing between Mr. Edwards and Mr. Kinnersley, nor no colour of any such dealing, by which a debt of such a sum as this should become due from Mr. Edwards to Kinnersley. But, gentlemen, this note thus made for 1,6501., payable within six months from Mr. Edwards to Kinnersley, without any dealings between them to give a foundation for it, in the manner I have shewed you, which is sufficient to make it appear to any a forgery, is indorsed by Mr. Kinnersley. That will appear a clear evidence of the forgery being by Mr. Kinnersley. No man in his senses would do this. If a forged note for 1,650l. was made in the name of any person, and appeared in all these circumstances of a plain forgery, no man in his senses, and designing to act a fair part, would make an indorsement thereto. No other purpose, therefore, seems aimed at in the indorsing but to set the note a going. If such a note was offered to a fair and honest man to indorse would he not Startle at it? Would he ever have indorsed it?

Att. Gen. Look, Sir, on that note, and tell
ns when you first saw it before.
Thrup. On May the 22nd.
Att. Gen. Who brought it to you?
Thrup. Mr. Hales.

Att. Gen. What did he say to you?

Thrup. He brought it to me, and desired 500l. I refused him at first, alleging that it me that I would give him on it three notes of hand a promissory note for 400l. payable was not for my credit. At length I put into his within six months.

Att. Gen. Look on that note and see whether it now is in the same case that it then was. Was the indorsement then upon it?

the indorsement till I delivered it to Mr. Booth Thrup. I cannot say: for I took no notice of at the request of Mr. Edwards.

Att. Gen. In whose custody was it till you delivered it to Mr. Booth?

Thrup. In mine, Sir.

1

it?-Thrup. No, Sir.
Att. Gen. Did you make any alteration in

Booth you minded the indorsement, did you
Att. Gen. And when you gave it to Mr.
not?-Thrup. Yes, t

Sir.

Att. Gen. How came you not to mind it note if it had not been indorsed? before? What security was Mr. Edwards's

Thrup. I had such an opinion of Mr. Hales that I suspected nothing, and therefore gave him the note; I did not think he would have been guilty of so vile an action.

this note to Mr. Booth ?
Att. Gen. When was it that you delivered