REGINA v. JOHN REED.

A written promise to pay a sum specified, or such other sum not exceeding the same, as A. B. may incur by reason of a suretyship, is an undertaking to pay money within 11 G. 4, and 1 W. 4, c. 66.

THE prisoner was tried before Mr. BARON ALDERSON, at the Summer assizes, 1838, for Yorkshire, on an indictment charging him with the forgery of an undertaking for the payment of money. He was found guilty, and sentenced to transportation.

The instrument was in the following terms:

"York, 13th February, 1837.

"1007. I promise to pay to Mr. William Bellerby on order the sum of one hundred pounds, or such other sum of money not exceeding the same as he may incur or be put unto, for, or by reason or means of, his becoming one of the sureties to Mark Millbank, Esquire, sheriff-elect for the county of York for the year ensuing, for John Reed of this city, sheriff's officer.

"VAL. WILSON."

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*The learned Judge reserved the question, whether this was an undertaking for the payment of money within the statute 11 G. 4, and 1 W. 4, c. 66, s. 3, and requested the opinion of the Judges on this point.

This case was argued at a meeting of all the Judges, except PARK, J., and BOLLAND, B., in Michaelmas term, 1838.

COTTINGHAM for the prisoner.

This is not such an undertaking as must be taken to be contemplated by the 11 G. 4, and 1 W. 4, c. 66, s. 3. The words of that act are, "That if any person shall forge or alter, or shall offer, utter, dispose of, or put off, knowing the same to be forged or altered, any exchequer bill or exchequer debenture, or any bond under the common seal of the united company of merchants of England trading to the East Indies, commonly called an East India bond, or any endorsement on or assignment of any East India bond, or any note or bill of exchange of the governor and company of the Bank of England commonly called a bank note, a bank bill of exchange, or a bank post bill, or any endorsement on, or assignment of any bank note, bank bill of exchange, or bank post bill, or any will, testament, codicil, or testamentary writing, or any bill of exchange, or any promissory note for the payment of money, or any endorsement on or assignment of any bill of exchange or promissory note for the payment of money, or any acceptance of any bill of exchange, or any undertaking, warrant, or order for the payment of money, with intent in any of the cases aforesaid to defraud any person whatsoever, every such offender shall be guilty of felony, and being convicted thereof shall suffer death as a felon."

This is a case of novelty, the act in question being the first act relating to forgery in which the term "un

dertaking to pay money" occurs.

The sort of

*instrument intended by the Legislature must

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be judged of by the rest of the instruments mentioned in the section; all of these are in the nature of negotiable instruments, or at least securities for money, on which some money is at all events to be paid. Now, though the fourth section extends the provisions of the third to all instruments, the forging, &c., which, then were capital under any other name, it is impossible to give the construction sought to be given to the term "undertaking to pay money" to the instrument in question, without at the same time including a bond under the penalties of the third section, a bond being clearly an "undertaking to pay money;" but the forging a bond is made liable to transportation for life only under a subsequent section of the act (the tenth). This is in fact nothing more than an agreement to guarantee, and if this is comprehended within the section, so must every guarantee, which is in fact an undertaking to pay money in case of a specified certain damage. Nor will the application of the term stop here, because it must also include every agreement in which the undertaking on one or both sides is to pay money either at all events or on any contingency. The object of the forgery must be the immediate procurement of money, and the instrument intended must be some one of the sort usually designated as securities for money containing some positive undertaking to pay money.

PARKE, B. Your definition would include a promissory note, which is expressly mentioned in this act. The term must include some instrument beyond a promissory note.

An undertaking to pay money out of a particular fund is not a promissory note. I have not been able to find any case decided upon the meaning of the term in question. But on analogy to the decision on *the terms "warrant or order," this conviction [*65] cannot be sustained. Mary Nicholl's case, Foster's Crown Law, 119, on the terms "warrant or order" which first occur in the 7 G. 2, c. 22, decided that a mere request to deliver goods to a pauper though in the name of a person having authority (namely an overseer) to order, was not within the act, the Judges being of opinion that the order must be positive.

TINDAL, C. J. Is there any case in which a warrant or order to pay on a contingency has been held not within that act?

I have not been able to find any, but the principles of the case cited have been recognised in Williams's case, 1 Leach 134, Clinch's case, 611, Ellis's case, 363, all of which cases show that the document must amount to an order from a person having authority. So here the undertaking should be positive, not conditional, on an event that may never happen. R. v. Cartwright, Russ. & Ry. 106, is also in point; and the case, Rex v. Donolly and Murray, Moody, C. C. R. 438, an informal order, was held bad.

BOSANQUET, J. The ground of that decision was, that the instrument was not an order at all; it was a senseless document.

This is in fact nothing more than an agreement in writing, an undertaking for an indemnity.

The Judges present were unanimously of opinion that the instrument was an undertaking for the payment of money, within the statute.

*REGINA v. GOTTHARD RAAKE.

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A charge of forging, &c., an order for the payment of money, is supported by proof of a foreign letter requesting a correspondent of the supposed writer in England to advance money, it being proved that such letters are in the course of business treated as orders.

THE prisoner was tried before Mr. Justice PARK, present LITTLEDALE, J., and VAUGHAN, J., at the July sessions, 1838, in the Central Criminal Court, for forgery and uttering scienter, &c.

There were four counts in the indictment. The first count was for forging a certain order for the payment of money, to wit, for the payment of 607. with intent to defraud Lionel Nathan Rothschild and others. Second count, uttering the same scienter.

Third count was for forging a warrant for the payment of 607.

Fourth count, uttering scienter, &c.

The prisoner was found guilty upon the second and