if you will send this to them they will pay it for me; *after deducting case I make balance 27. 78. 8d., and for which please give a receipt.

[211]

"I am, Sir, your obedient, T. D. CHAPPELL.

"Thames Street, London."

"Taunton, Fore Street, Feb. 20, 1841.

"MESSRS. SEAGER, EVANS AND Co: Gentlemen, I shall feel obliged by your paying Mr. Bennett the sum of 21. 78. 8d., and debiting me with the same; you will please have a receipt, and add the amount to invoice of order in hand. I am, &c., T. D. CHAPPELL.

"Distillers, &c., Milbank, Westminster, London."

"Feb. 24, 1841, Received 27. 78. 8d.

"T. BENNETT."

Telling him to receive 21. 7s. 8d., and bring it to him at Oliver's coffee-house. Walker went to Messrs. Seager's counting-house, presented the letter and the paper. Mr. Seager, who was present, conceived suspicion of a fraud, and he directed a clerk to deliver the money to Walker and went out himself. Walker returned towards Oliver's coffee-house; the prisoner met him in the way, received the money from him and gave him a shilling for his trouble, and was immediately apprehended by Walker and Mr. Seager with the money in his hand.

Mr. Chappell was called and proved that the letter was not sent by him, or by his authority. Mr. Seager

said that if he had not suspected a fraud he should certainly have complied with the request and paid the money, and that in the course of business his house does pay money on the request of their country custo

mers.

[*212]

The counsel for the prisoner contended that this *was not an offence within this Act of Parlia ment, as the paper was neither an undertaking, nor a warrant, nor an order for the payment of money, that it was nothing more than a request.

The learned Judge reserved the point for the consideration of the Judges. The Jury convicted the prisoner.

Vide Ravenscroft's case, Russ. & R. 161; R. v. Raake, 2 Moody, C. C. 66, 8 C. & P. 627.

This case was argued at the same meeting of the Judges as the last case in Easter term, 1841.

SIR F. POLLOCK for the prisoner.

This document is neither of the three things specified in 11 G. 4, & 1 W. 4, c. 66, s. 3. It is neither an undertaking, warrant, nor order for the payment of money. It is clearly not an undertaking, nothing of the sort is expressed in it. Nor is it a warrant; that is a word of legal import, not one of ordinary and familiar use. It always imports authority, such as dock warrants, dividend warrants, an order for goods purporting to come from a customer, though in some sense as against the person giving it as an authority, is not sufficient. Party must have some authority over the

goods beyond the instrument itself. There must be some power and control over the goods in the person giving it. Clinch's case, 2 East P. C. 938. There must be some right in the party giving it independent of the order or warrant, something dehors the instrument itself. The nearest case on the facts is Regina v. Raake (ubi supra); but that case is distinguishable, the instrument there does in fact authorize parties having money if ordered, to pay to a third person. Persons there had the power independent of the instrument. In the report of that case in 8 C. & P., PARK, J., in summing up, gives the reason. J. Ravenscroft's case, Russ. & Ry. 161, the "document was held no order, and so in R. v. Baker, 1 Moody's C. C. R. 231, because there was no disposing power over the money in the hands of Thomas. R. v. Ellis, 1 Leach, 363, is also in point. This is nothing more than a request, the party had no right to complain of a noncompliance. The course of business as found makes no difference. If the parties had been used to lend money they were not bound to do so. A felony cannot be made out by the intention of another person, by the fact that they would have paid. This ranges within the cases of Ravenscroft and Baker, as no authority is imported in the instrument.

BODKIN for the Crown.

[*213]

The facts as stated support all the counts in the indictment. This is an undertaking to pay money. The circumstances attending the uttering a forged instru

ment can now be taken into consideration in considering the nature of the instrument itself, though the older cases were somewhat different. The import of the instrument is clearly to make Chappell answerable for a repayment of the money to be advanced. If genuine, Chappell might have been sued on it as an undertaking. That word first appears in this act. It is not in any of the previous forgery statutes. In Reid's case, suprâ, p. 62, a similar instrument was held within the statute. As to its being a warrant or order, the doctrine is rather too large that persons giving such must have authority. Raake's case rather imports that the person had not money in the hands of the other party. Can a check be an order, or not, according as the person giving it had a balance in his favor or not? No distinction is taken between warrant and order; in the older cases they were considered the same. R. v. Rogers, 9 C. & P. 41,

[*214]

*shows that the course of dealing may be admitted to decide the nature of a document, and according to that case this may be a warrant, though perhaps not an order. The facts find that it would have been paid.

SIR F. POLLOCK, in reply.

As to this being an order the point seems to be abandoned. It is not an undertaking, because no terms equivalent to an undertaking are found in the document itself. An implied undertaking might arise from the whole facts, but that is not included within

the statute. It is no warrant, because there is no authority to deal with the money.

The Judges were unanimously of opinion that the conviction was wrong. All thought that it was no undertaking, because none was expressed in the document. That it was no order, because it does not purport to be one in form; and all agreed that according to the decided cases it was no warrant, though some thought it might have been otherwise, if res integra; it was not an authority to pay over, the prisoner having no control over the money. The proper meaning of the document was a request, and the same statute makes a forged request, for the delivery of goods, a felony.

*REGINA v. THOMAS ATKINSON. [*215]

Where it was shown to be the custom of bankers to give receipts on the deposit of money in the following form: "Received of A. B., eighty-five pounds to his credit. This receipt not transferable;" and to repay the money with interest on the return of the receipt, with A. B.'s name written on it. Held, that forging the name of A. B., and receiving the money due on its return, was a forging and uttering an acquittance, for 851.

THE prisoner was tried before Mr. Justice MAULE at the Spring assizes, for the county of Durham, in the year 1841, for forging and uttering a certain instrument with intent to defraud Jonathan Backhouse and others. The indictment contained eight counts, on four of which the prisoner was acquitted. He was