appears on the face of a negotiable in Co., The question of the burthen of proof in such cases arose in the Supreme Court of Pennsylvania in Simpson v. Stackhouse, 9 Barr, 186, and it was held that the onus of showing that an alteration in a material part of a negotiable instrument was lawfully made is on the holder: and that where the place of payment is in a different handwriting from the body of the instrument there is a presumption of alteration. Chief Justice Gibson, after stating that as a general rule the law presumes in favour of innocence that an alteration in an instrument is a legitimate part of it, till the contrary ap pears; but that it is not according to the English cases extended to negotiable instruments, remarks that the decisions in the United States are discrepant, but their preponderance is in favour of restraining the general rule to deeds and writings not negotiable. He then observes: "But how stands the question on principle? The English decisions are founded in reason and not in considerations growing out of the stamp acts. He who takes a blemished bill or note takes it with its imperfections on its head. He becomes sponsor for them, and though he may act honestly, he acts negligently. But the law presumes against negligence as a degree of culpability; and it presumes that he had not only satisfied himself of the innocence of the transaction but that he had provided himself with the proof of it to meet a scrutiny he had reason to expect. It is of no little weight, too, that the altered instrument is found in his hands, and that no person else can be called on to speak of it; for without a presumption to sustain him the maker would in every case be defenceless. It may be said that the holder, with such a presumption against him, would also be defenceless. But it was his fault to take such a note. As bills and notes are intended for circulation, and as payees do not usually receive them when clogged with impediments to their circulation, there is a presumption that such an instrument starts fair and untarnished, which stands till it is repelled: and a holder ought therefore to explain why he took it branded with marks of suspicion, which would proba bly render it unfit for his purposes. The very fact that he received it is presumptive evidence that it was unaltered at the time; and to say the least his folly or his knavery raised a suspicion which he ought to remove. The maker of a note cannot be expected to account for what may have happened to it after it left his hands; but a payee or indorsee who takes it, condemned and discredited on the face of it, ought to be prepared to show what it was when he received it.” FORGERY is the counterfeit(a) making or altering of any writingwith intent to defraud. (1) It is a misdemeanor at common law, punishable by fine and imprisonment, (6) and a conviction of it, as to any other species of crimen falsi, makes a man infamous, and formerly rendered him incompetent as a witness. (c) The following statutes, viz., the 2 Geo. 2, c. 25, s. 1, (made perpetual by the 9 Geo. 2, c. 18,) the 31 Geo. 2, c. 22, s. 78, the 7 Geo. 2, c. 22, and the 45 Geo. 3, c. 89, erect the forgery of bills and notes, or of any part of them, and the uttering of them, knowing them to be forged, into capital felonies. The 11 Geo. 4 and 1 Wm. 4, c. 66, which consolidated the statute (a) See Reg v. White, 1 Den. C. C. 208. (b) 4 Bla. Com. 248. (c) Com. Dig. Testm. A. 5; Rex v. Davis, 5 Mod. 74. He is now capacitated by 6 & 7 Vict. c. 85. (1) Ames's case, 2 Greenl. 365. Com- People v. Shull, 9 Cowen, 778. Barnum monwealth v. Ladd, 15 Mass. 526. v. State, 15 Ohio, 717. *law relating to forgery, repealed the above acts, but(d) con[*261] tinued the punishment of death for forgery of bills and notes, and of any undertaking, warrant, or order, for the payment of money, and for the uttering them knowing them to be forged. The 2 & 3 Wm. 4, c. 122, s. 1, substitutes for the punishment of death, the punishment of transportation for life.(e) The result of the existing enactments, therefore, is, that, the forgery of bills or notes, or of any part of them, and the uttering of them knowing them to be forged, are respectively felonies, punishable by transportation for life. Forging or uttering such a bill or note as the Legislature has declared void, is not within the statutes, as, for example, a bill or note for less than 20s., or a bill or note for less than 5l., which does not comply with the requisites of 17 Ger. 3, c. 30.(ƒ) Where there is no payee, or no maker's name, it has been held that the offence is not within the act.(g) A mere informality, as the omission of the word POUNDS in the body, where the letter £ preceded the figures 50 in the margin, (h) does not prevent the crime amounting to forgery. In order to constitute forgery, it is not necessary that the instrument should be duly stamped, or stamped at all.(i) The most common species of forgery is, fraudulently writing the (d) Sect. 3. (e) The only forgeries recently capital were of wills, and of powers of attorney to transfer stock, or receive dividends; 2 & 3 Wm. 4, c. 123, s. 2; and even as to these the capital punishment is now taken away by 7 Wm. 4 and 1 Vict. c. 84, s. 1. (ƒ) Rex v. Moffat, 1 Leach, 431; 2 East, P. C. 954, S. C. (g) Rex v. Richards, R. & R., C. C. 193; Rex v. Randall, R. & R. C. C. 195; and see as to other fatal defects, Rex v. Jones, Doug. 287; Rex v. Pateman, R. & R. 455, where there was no maker's name; Rex v. Burke, R. & R. 496; Rex v. Wilcox, Bayley, 6th ed. 11. To constitute the forgery of a bill of exchange within 1 Wm. 4, c. 66, s. 4, the instrument must be complete. Forging an acceptance to an instrument in the form of a bill, but without the drawer's name, is not within the statute. Reg v. Butterwick, 2 Moo. & R. 196. (h) Rex v. Post, R. & R. 101, and Bayley, 11; and see Collison's case, 2 Leach, 1048. (i) Teague's case, 2 East, P. C. 979; Rex v. Hawkeswood, 1 Leach, 257; 2 East, P. C. 955, S. C.; Rex v. Lee, 1 Leach, 258, n.; Merton's case, 2 East, P. C. [*262] name(k) of an existing person. But the misapplication of *a genuine signature is as much forgery as the making a false one. Thus, where the prisoner, having in his possession the genuine signature of one Thomas Gibson, wrote over it a promissory note for 64007., he was indicted and convicted of having forged the note.(1) And where the same prisoner, having the genuine signature of Samuel Edwards, wrote on the other side of the paper a promissory note, payable to Samuel Edwards, and turned the genuine signature into an indorsement, he was convicted of forging the indorsement.(m) So if a clerk be intrusted to fill up a blank check signed by his master with a particular sum, and he fraudulently inserts a larger sum, it is a forgery of the check.(n) To sign the name of a fictitious or non-existing person is forgery.(0) Where the prisoner was convicted of forging an order for payment of money, and it appeared that he had bought goods from the prosecutor, and paid for them with a draft signed in the fictitious name of H. Turner, although the prosecutor had sworn that he gave credit to the prisoner, and not to the draft, it was held that the prisoner was rightly convicted. The Judges said that it was a false instrument, not drawn by any such person as it purported to be, and that the using a fictitious name was only for the purpose of deceiving.(p) But the signing a fictitious name will not amount to forgery, if it were used on other occasions as well as for that very fraud, or system of fraud, of which the forgery forms a part.(g) Where proof is given of the prisoner's real name, and no proof of any change of name until the time of the fraud committed, it lies on the prisoner to show (k) Making a mark, and suffering the assumed name to be written against it, is forgery. Rex v. Dunn, 1 Leach, 57; 2 East, P. C. 962. Putting the address of an existing person to a name, being the name of another person, is forgery. Reg. v. Blenkinsop, 1 Den. C. C. 276. (1) Rex v. Hales, 17 St. Tr. 161. (m) Rex v. Hales, 17 St. Tr. 209, 229. (n) Reg. v. Wilson, 17 L. J. Mag. Ca. 82; 1 Den. C. C. 284, S. C.; Rex v. Hart, 1 M. C. C. 486. (0) Rex v. Francis, Bayley, 6th ed. 572; Rus. & Ry. 209; Lockett's case, 1 Leach, 94; East's P. C. 940; Taft's case, 1 Leach, 172; East, P. C. 959; or in the prisoner's own name to represent a fictitious form; Reg. v. Rogers, 8 C. & P. 629. 90. (P) Shepherd's case, 1 Leach, 226; 2 East, P. C. 967; Whiley's case, R. & R. (2) Rex v. Bontien, R. & R. 260. that he has before assumed the false name on other occasions, and for other purposes unconnected with forgery.(r) It is a forgery, also, to sign a man's own name with intention that the signature should pass for the signature of another person of the same name.(8) And where a person, whose name was Thomas Brown, was indicted for forging a *promissory note signed Thomas [*263] Brown, and it appeared that he had uttered the note as a note of Captain Brown, a fictitious person, and the prisoner was convicted, the Judges held the conviction right.(t) But the adoption of a false description and addition, where a false name is not assumed, is not forgery. Thus, where the prisoner drew a bill, and directed it "to Mr. Thomas Bowden, baize-mannfacturer, Romford, Essex;" and it was accepted by one Thomas Bowden, but there was no Thomas Bowden of Romford, it was held by a majority of the Judges, that the giving a false description of Bowden on the bill, with intent to defraud, was not forgery.(u) Where the signature on the bill is genuine, an uttering by another person, with a representation that he is the person whose signature is on the bill, is not forgery, or a felonious uttering. The prisoner uttered a bill purporting to be payable to Bernard M'Carthy, or order, and having the indorsement B. M'Carthy thereon; he was indicted for forging that indorsement, and uttering it knowing it to be forged, the jury found that there was such a man as B. M'Carthy and that the indorsement was his hand writing, but that the prisoner passed himself off as that B. M-Carthy when he uttered the bill. The Judges were unanimous, that as the indorsement was not forged, the prisoner was not liable to be convicted.(v) Writing a principal's name 'per procuration,' but without authority, is not forgery ;(w) nor as it should seem writing merely another (r) Peacock's case, R. & R., C. C. 278. (s) Mead v. Young, 4 T. R. 28. (t) Rex v. Parkes, 2 Leach, 775. (u) Webb's case, R. & R., C. C. 405; 3 B. & B. 229, S. C.; Rex v. Watts, R. & R., C. C. 436; 6 Moore, 442; 3 B. & B. 197, S. C. (v) Rex v. Hevey, 1 Leach, 229; 2 East, P. C. 556, S. C.; Bayley, 577. (w) Reg. v. White, 1 Den. C. C. 208. |