soner, conceiving some doubts upon the case, respited the judgment in order to take the opinion of the TWELVE JUDGES. THE statute on which the indictment was framed enacts, "That whoever (other than the persons employed in the "Mint) shall make or mend, or assist in making or mend"ing, &c. any puncheon, counter-puncheon, matrix, stamp, "die, pattern or mould, of any materials whatsoever, in or "upon which there shall be, or be made or impressed, or "which will make or impress the figure, stamp, resemblance, " or similitude, of both or either of the sides or flats of any "gold or silver coin current within this kingdom." The Act then proceeds through a variety of other clauses, and concludes," or shall have in their houses, custody, or pos"session, any such puncheon, counter-puncheon, matrix, "stamp, die, (omitting the word mould), or other tool or "instrument before-mentioned, shall be adjudged guilty of High Treason." 66 THE doubt of the learned Judge arose from the words pattern or mould being omitted in this latter clause of the Act, it being the particular clause upon which the indictment was framed. He therefore submitted the following points: First, WHETHER the mould found in the custody of the prisoner is comprized under the general words other tool or instrument before-mentioned, so as to make the unlawful custody of it High Treason? Secondly, Ir it be so comprized, Whether it should not have been laid in the indictment to be a tool or instrument mentioned in the statute? ON the first day of Easter Term all the Judges, except L. C. J. DE GREY, met to consider this case: and they were unanimously of opinion, That this mould was a tool or instrument mentioned in the former part of the statute, and therefore comprized under these general words; and secondly, as a mould is expressly mentioned by name in the first clause of the Act which respects the making or mending, it need not be averred to be a tool or instrument so mentioned. 1772. LENNARD'S 1772. LENNARD'S A mould is an instrument on which is made and impressed the similitude and stamp of the current coin. BUT after this opinion was given, a new doubt arose upon a different point in this case, which was: WHETHER the mould which was found in the prisoner's custody, it having only the resemblance of a shilling inverted, viz. the convex parts of the shilling being concave in the mould, and vice versa, the head or profile being turned the contrary way of the coin, and all the letters of the inscription reversed, was not properly an instrument which would make and impress the resemblance, stamp, &c. rather than an instrument on which the same were made and impressed, as laid in this indictment, the statute seeming to distinguish between such as will make and impress the similitude, &c. as the matrix, die, and mould; and such on which the same is made and impressed, as a puncheon, counter-puncheon, or pattern. BUT on 19th June 1772, a great majority of the Judges were of opinion, that this evidence sufficiently maintained the indictment; because the stamp of the current coin was certainly impressed on the mould in order to form the cavities thereof. They agreed, however, that the indictment would have been more accurate, had it charged that he had in "his custody a mould that would make and impress the simi"litude, &c." and in this opinion some who otherwise doubted acquiesced. THE prisoner died in gaol before judgment could be pronounced upon him. CASE LII. If a person, having ordered a THE KING against SHARPLESS AND GREATRIX. AT the Old Bailey in May Session 1772, John Sharpless and Samuel Greatrix were convicted before MR. JUSTICE GOULD, tradesman to present MR. BARON ADAMS, of stealing six pair of silk stockbring goods ings, the property of Owen Hudson; but a doubt arising to his house, look out a certain quantity, ask the price of them, separate them from the rest, and then, by sending the tradesman home, on pretence of wanting other articles, take the opportunity of running away with the goods so looked out, with intent to steal them, it is Larceny; for as the sale was not completed, the possession of the property still remained in the tradesman. S. C. 2 East, 675. whether the offence was not rather a fraud than a felony, the judgment was respited, and the question referred to the consideration of the Judges upon the following case: 1772. SHARPLESS AND CASE. CASE. On the 14th March 1772, Samuel Greatrix, in the GREATRIX'S character of servant to John Sharpless, left a note at the shop of Mr. Owen Hudson, a Hosier in Bridge-street, Westminster, desiring that he would send an assortment of silk stockings to his master's lodgings, at the Red Lamp in Queensquare. The hosier took a variety of silk stockings according to the direction. Greatrix opened the door to him, and introduced him into a parlour, where Sharpless was sitting in a dressing-gown, his hair just dressed, and rather more powder all over his face than there was any necessity for. Mr. Hudson unfolded his wares, and Sharpless looked out three pair of coloured and three pair of white silk stockings, the price of which, Mr. Hudson told him, was 14s. a pair. Sharpless then desired Hudson to fetch some silk pieces for breeches, and some black silk stockings with French clocks. Hudson hung the six pair of stockings which Sharpless had looked out, on the back of a chair, and went home for the other goods; but no positive agreement had taken place respecting the stockings. During Hudson's absence, Sharpless and Greatrix decamped with the six pair of stockings, which were proved to have been afterwards pawned by Sharpless and one Dunbar, an accomplice in some other transactions of the same kind, for which the prisoners were indicted, THE JUDGES Were of opinion, That the conviction was 1 Shower, 59, right; for the whole of the prisoner's conduct manifested an original and preconcerted design to obtain a tortious possession of the property. The verdict of the Jury imports, That in their belief the evil intention preceded the leaving of the goods; but, independent of their verdict, there does not appear a sufficient delivery to change the possession of the property (a). (a) See the case of A. Chiffers, T. Raym. Rep. 275, 2 East, Pleas Crown, 677.683. and Rex. v. Pear, Old Bailey September Session 1779, post. 1772. CASE LIIL A forged draft on a banker is an order for the payment of money within 7 Geo. II. C. 22. al. though the person whose name is forged never kept cash at, or was known to, the banker. S. C. 2 East, 940. (1) Foster, 120. THE KING against LOCKETT. AT the Old Bailey in June Session 1772, Charles Lockett was tried before MR. BARON PERROTT, present MR. JUSTICE ASTON, for forging an order for the payment of money; AND ALSO for uttering it, knowing it to be forged, with intention to defraud one John Scholes, &c. The order was in the words and figures following: "LONDON, February 14, 1772. "Mess. Neale, James, Fordyce and Down, "PAY to Mr. William Hopwood, or bearer, sixteen pounds 66 R. VENNIST." THE prisoner went to the shop of Mr. Scholes, a colourman, and bargained for a quantity of goods, amounting to 10l. Os. 6d. He desired a bill might be made out, and said he would call in the afternoon and pay for them. He went away and took a small parcel of Prussian blue with him. He returned in the afternoon, seemingly in a great hurry; said his name was William Thompson, and that he lived at Ware, in Hertfordshire. He presented the order to pay for the goods, and Mr. Scholes gave him six pounds ten shillings in difference; but on presenting it for payment, no man of the name of R. Vennist had ever kept cash at the house of Neale, James, Fordyce, and Down; nor did the prosecutor know any such person existing; and it was in fact a ficti tious name. THE Jury found the prisoner guilty of uttering the order, knowing it to be forged; but as it appeared that no man of the name of Vennist had ever kept cash with these bankers, it was doubted whether this was an order for the payment of money within the meaning of the statute of 7 Geo. II. c. 22. the principle of Mary Mitchel's Case (1) being, that the words "warrant or order," as they stand in the Act, are synonymous, and expressive of one and the same idea, and in common parlance import that the person giving such warrant or order hath, or at least claimeth an interest in the money or goods which are the subject-matter of that warrant or order; that he hath, or at least assumes to have, a disposing power over such money or goods, and takes on him to transfer the property, or custody of them at least, to the person in whose favour such warrant or order is made. UPON this doubt, the case was referred to the consideration of the Judges; who, after very long consideration, at last agreed in Trinity Term 1774, that this was forgery, and in September Session 1774, MR. BARON PERROTT delivered their opinion to the following effect: The Judges are unanimously of opinion, "That this is an order for the payment of money within the meaning of the statute; for although no man of the name of Vennist had in fact ever kept cash at Fordyce's bankingshop, yet the nature of the order assumes that there was cash there in the name of the drawer, which he had taken upon him to transfer to the person in whose favour the order is made; for it would be a very forced construction of the statute to say, that the forgery of a fictitious name, with intention to defraud, is not within the intention of it (a).” (a) To the Manuscript Note of this case is subjoined the following observation;-In M. Mitchel's Case the Judges seem to have considered the meaning of the word "order" as importing a right on the part of the person who is supposed to have made it, and a duty on the part of the person on whom it is made. It follows, therefore, that whenever a forged order for the payment of money, or for the delivery of goods, is drawn in such terms as to induce the world to believe that it must, in common honesty, and the regular course of things, be complied with, it is within the meaning of the Act; but where it seems to leave compliance or refusal optional, and applies rather to the favour than the justice of the person on whom it is drawn, it is not within the penalty of the statute; for on such an order the party taking it can place no reliance; the terms of it import that compliance may be refused: and therefore, if it be refused, he cannot pretend that he is deceived; for a man has no right positively to expect performance when requisition is not a right and performance a duty. In Mitchel's Case it is rather a desire that a thing should be done, than an order to do it. A desire implies that the party has not a right, and it is the usurpation of another's right which the legislature intended to punish and prevent. See Willoughby's Case, 2 East, 582, and 2 East, 936. 1772. LOCKETT'S CASE. |