EVIDENCE. OBSERVATIONS. though not forcible (a); proof of a forcible entry is not therefore necessary. Where a lessee at the end of his term keeps arms in his house to prevent the entry of the lessor, or a lessee-at-will retains possession with force after the termination of the will (b); their continuance in possession after the term or the will had determined, may amount in judgment of law to a new entry (c); retaining possession under these circumstances amounts also to a forcible detainer (d); for the same circumstances of violence or terror which make an entry forcible, will make a detainer forcible also (e); see ante, p. 112, n. But merely refusing to go out of the house (f); or a lessee-at-will denying possession to the lessor, or shutting the door against him when he would enter; or a man keeping out of his land by force a person claiming common upon it; these are not forcible detainers within the meaning of the statute (g). parish register (4); or a certificate of holy orders, or any matter of record (5); sending a forged letter in the name of a magistrate to the governor of a gaol, directing the discharge of a prisoner (6), have severally been holden forgeries punishable at common law. It is the same with regard to private writings, as (4) 1 Hawk. c. 70. (5) Id. c. 70, ss. 9, 10. (6) Fawcett's case, 2 East, P. C. 862; Harris's case, 6 C. &. P. 129; 1 Mood. C. C. 339, S. C. OFFENCE. FORGERY-continued. ment of, any bank-note, bank-bill of exchange, or bank-post bill." (F.) Forgery is not triable at Quarter Sessions, 5 & 6 Vic. c. 38, s. 1. 11 Geo. IV. and 1 Wm. IV. c. 66, s. 3. PUNISHMENT. THREE labour, and with or without [This section provides also for this offence as to "any Exchequer Bill or exchequer debenture, or any indorsement on or assignment of 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 indorsement on or assignment of any East India Bond." The punishment is as supra. See Astlett's case, 2 Leach, 954: R. & R. 67.] Forging and uttering "any BILL OF EXCHANGE, or any promissory-note for the payment of money; or any indorsement on, or assignment of, any bill of exchange or promissory-note for the payment of money; or any acceptance of any bill of exchange. (F.) 11 Geo. IV. and 1 Wm. IV. c. 66, s. 3. Same as supra. to forge a deed or will (7); or an order for the delivery of goods (8). Upon an indictment at common law, it must appear in the indictment what the instrument is, in respect of which the prisoner is charged, and how the party signing it had authority to do so (9). That prejudice should in fact have happened by reason of the forgery is not necessary at common law (10); nor that there should be any publication of the forged instrument (11). See Arch. 12 ed. 481, for a precedent of an indictment, etc., for forging a fieri facias. Venue. In indictments for forgery the venue may be laid, and the offences charged to have been committed, either in the county in which the offence took place (12), or that in which the prisoner was apprehended, or is in custody; and in the latter case there need not be any averment that the prisoner is in custody there (13). The same provisions apply to the forgery of documents not made, or purporting not to be made in England (14). Accessaries before and after the fact in felony, and aiders and abettors in misdemeanour, may be indicted in the county where the principal may be tried (15). Indictment-variance.]—If the indictment contain the operative words of the statute, the insertion of other terms also will not vitiate it; but it is best to allege the offence in the words of the Act on which the indictment is framed (16); Forging the signature to a bill of exchange is the same as forging the entire bill, 1 Hawk. c. 70, s. 10. Ward's case, Str. 747; 2 Ld. Raym. 1461; see 2 East, P. C. 861. (9) See Wilcox's case, R. & R. 50. (10) Ward's case, ante, Goate's case, 1 Ld. Raym. 737. (11) 2 East, P. C. 855, 951; 1 Russ. 318. (12) See Colicott's case, R. & R. 212. (13) 1 Wm. IV. c. 66, s. 24; James's case, 7 C. & P. 558; R. v. Smithies, 1 Den. C. C. 498, S. C. T. & M. 190. (14) 1 Wm. IV. c. 66, s. 30. (15) 1 Wm. IV. c. 66, s. 24. (16) Rosc. Cr. Ev. 2 ed. 454; Arch. 12 ed. 446; Brewer's case, 6 C. & P. 363. s. 30. EVIDENCE. OBSERVATIONS. p. 123, n., post. Of the intent to defraud, p. 124, n., post. Of the uttering, p. 126, n., post. Of guilty knowledge, p. 127, n., post. As to the forgery of foreign notes, see p. 128, n., post, and 1 Wm. IV. c. 66, By statute 1 Geo. IV. c. 92, s. 3, and 16 Vic. c. 2, the Bank of England may cause the name of their signing clerk to be impressed by machinery; and all bank-notes on which the name of the person authorized by the Bank to sign them shall be impressed by machinery, shall be good and valid to all intents and purposes, as if such notes had been signed in the proper handwriting of such person. Produce the bill of exchange in evidence—prove the forgery (see p. 119, n.)—the uttering (see p. 126, n.) Rosc. Cr. Ev. 2 ed. 473; Arch. 12 ed. 463. Prec. of Indict. Arch. 461; Matt. C. L. 478. As to the venue, indictment, variance, see p. 116, n., ante. As to forgery by use of fictitious name, p. 119, n., post. By alteration, p. 120, n., post. As to necessary resemblance to true instrument, p. 121, n., post. As to proof of handwriting, p. 123, n., post. Of the intent to defraud p. 124, n., post. Of the uttering, p. 126, n., post. Of guilty knowledge, p. 127, n., post. As to forgery by several in combination, p. 123, n., post. As to the forgery of foreign instruments, see p. 128, n., post, and the 1 Wm. IV. c. 66, s. 30. and may be laid as such (17). Although the fact of an alteration may be given in evidence, and will support a charge of the forgery of the entire instrument, it is better that it should be specially alleged in one set of counts, even where the word "alter" is not in the statute (18). Since the statute of 2 & 3 Wm. IV. c. 123, s. 3, it is not necessary to set out the instrument forged; but if set out, the cases arising under the previous state of the law are still applicable, and the slightest variance will be fatal (19). Now by 14 & 15 Vic. c. 100, s. 5, it shall be sufficient to describe the instrument by any name or designation by which the same may be usually known, or by the purport thereof, without setting out any copy or fac simile thereof, or otherwise describing the same or the value thereof. Where an instrument is set out in the indictment, a misdescription is immaterial if any of the terms used to describe it be applicable (20). To charge the forgery of a promissory-note, as that the prisoner "did forge a certain promissory-note for the payment of £50," without stating any value, is suffi (17) Dunn's case, 1 Leach, 57. Where the forgery charged is that of the acceptance of a bill of exchange, see Horwell's case, 1 Mood. C. C. 405; 6 C. & P. 148; see also Birkitt's case, R. & R. 251. The forgery of an acceptance or indorsement to a bill of exchange must be specially alleged. (18) Elsworth's case, 2 East, P. C. 986-8; 2 Russ. 370; see Atkinson's case, 7 C. & P. 669. (19) See the cases collected, Arch. 12 ed. 447; Rosc. Cr. Ev. 2 ed. 463. Recent cases have shown that the 2 & 3 Wm. IV. c. 123, s. 3, is applicable, although the instrument itself could not have been the subject of an indictment for larceny, per Parke and Patteson, J. J., in Sharpe's case, 8 C. & P. 436; and Gurney, B., in Vaughan's case, 8 C. & P. 276. As to the description of written instruments in an indictment for larceny, see title LARCENY, post, under the offence, "stealing bills of exchange, etc." (20) R. v. Williams, 2 Den. C. C. 61; S. C. T. & M. 382. OFFENCE. FORGERY-continued. Forging and uttering "any WILL, codicil, or testamentary writing." (F.) 11 Geo. IV. and 1 Wm. IV. c. 66, s. 3. PUNISHMENT. Transportation for LIFE, or for any term not less than FOURTEEN years; or penal servitude for LIFE, or for not less than FOUR nor more than TEN years; or imprisonment not exceeding FOUR years, with or without hard labour, and with or without solitary confinement, such confinement not exceeding ONE month at a time, nor THREE months in any one year; 1 Vic. c. 84, ss. 2, 3. 16 & 17 Vic. c. 99, ss. 1 & 4, and 9 & 10 Vic. c. 24, s. 1. cient (21); and the date need not be set out (22); nor need it be described as "for the payment of money" (23). A fictitious signature must be described as "purporting" to be the signature of the real party (24). If the particular nature of the instrument is misdescribed, as where a "promissory-note" was described as a "bill of exchange" (25), the variance is fatal. A bank-post bill must not be described as a bill of exchange, but designating it a bank bill of exchange is sufficient (26). A draft by A. upon B., payable to the order of C., without acceptance, is a bill of exchange, and may be described as such (27). Sewing to the parchment on which the indictment is written impressions of forged notes taken from engraved plates, is not a legal mode of setting out the notes in the indictment (28). If the instrument forged be in a foreign language, it must be set out in that language, and a complete and accurate translation must also be set out; but a defect as to this is cured after verdict, by 7 Geo. IV. c. 64, s. 21 (29). The intent to defraud must be charged as mentioned in the several statutes, and the proof must agree with the averment (30). By s. 28, of 1 Wm. IV. c. 66, the meaning of the word " person" is defined, as to whom it shall comprehend. It is now, by 14 & 15 Vic. c. 100, s. 8, sufficient to allege an intent to defraud generally. See farther as to proof of the intent, post, p. 124, n. Though the forgery is itself an offence (31), counts for uttering are necessary, to guard against a failure of the proof of actual (21) James's case, 7 C. & P. 553. (22) Burgess's case, Id. 490. (23) Taunton, J., intimated such an opinion in Saunderson's case, 2 Lew. C. C. 187. (24) Carter's case, 2 East, P. C. 985. (25) Hunter's case, R. & R. 511. (26) Birkitt's case, Id. 251. (27) Kinnear's case, per Pattison, J., 2 Mood. & Rob. 117. (28) Harris's case, 7 C. & P. 429; 1 Mood. C. C. 466. (29) See Szudurskie's case, 1 Mood. C. C. 419; Warshaner's case, 466; Harris's case, supra. (30) 2 East, P. C. 988. It is sufficient to aver a general intent to defraud a certain person, Powell's case, 1 Leach, 77. (31) Elliott's case, 1 Leach, 173; 2 Id. 187; Crocker's case, R. & R. 97; and see Shuckard's case, Id. 200. EVIDENCE. Prove the forging (see p. 119, n., post)—the uttering (see p. 126, n., post) that the party named in the indictment is heir-at-law, or next of kin to the deceased. If proof of either of these facts fails, a conviction may be had on some of the general counts. Rosc. Cr. Ev. 2 ed. 472; Arch. 12 ed 461. OBSERVATIONS. As to the venue, see p. 116, n., ante. As to forgery by alteration, p. 120, n., post. As to proof of handwriting, p. 123, n., post. This offence may be where the party whose name is forged is living (a); and it has been held that forging the will of a nonexisting person is an offence within the Act (b). Where a will of lands was signed by only two witnesses, it was held there was no forgery (c); otherwise, where the will was signed by the wrong christian name of the party (d). The probate unrepealed is not conclusive evidence to bar an indictment for forging a will (e). By the fourth section of the statute it is sufficient, if “such instrument or writing, however designated, is, in law, a will, testament, codicil, or testamentary writing." Prec. of Indict. Matt. C. L. 481. Arch. 460; (a) Coogan's case, 1 Leach, 449; 2 East, P. C. 948, post, p. 122, n. (59). (b) Per Pattison, J., Avery's case, 8 C. & P. 596. (c) Wall's case, 1 Leach, 449; 2 East, P. C. 948, post, p. 123, n. (64); but now by 1 Vic. c. 26, two witnesses are sufficient. (d) Fitzgerald's case, 953. East, P. C. (e) Buttery's case, R. &. R. 352. forgery; but it is not necessary to aver to whom the instrument was disposed of, where the statute makes the uttering generally an offence (32). See farther as to the requisites of the indictment, and cases of a variance, under the respective heads following. Proof of the forgery.]-The offence may be committed, though the party use only his own name (33); as where a bill of exchange comes into the hands of A. B., and is made payable to A. B., yet if the A. B. in whose hands it is, is not the party intended, and he fraudulently endorse it for the purpose of obtaining money, this is a forgery (34). By fictitious name.]-Making an instrument in a fictitious name, or the name of a non-existing person, is equally forgery, as making it in the name of an existing person (35). Where a prisoner had been convicted of indorsing a bill of exchange in a fictitious name, the Judges held unanimously, that where there were no such persons existing as the bill imported, it was a forged bill within the 2 Geo. II. (36). So also of a forged check on a banker in the name of a fictitious person (37); and if a person write an acceptance in his own name to represent a fictitious firm, with intent to defraud, it is a forged acceptance (38); and this is so, although the party gain no additional credit by the use of the fictitious name (39). Where the (32) Holden's case, R. & R. 154; 2 Leach, 1019; 2 Taunt. 334. (33) See 1 Hawk. c. 70, s. 2. (34) Mead v. Young, 4 T. R. 441; Parke's and Brown's case, 2 Leach. 775; 2 East. P. C. 993. But see Rosc. Cr. Ev. 2 ed. 441, as to the doubts thrown on the latter case. (35) 2 East, P. C. 957; 2 Russ. 328. Lewis's case, Fost. 116; Froud's case, 1 B. & B. 300; R. & R. 389; Shepherd's case, 1 Leach, 286; Whiley's case, 2 Id. 983; R. & R. 90; Francis's case, R. & R. 209; Webb's case, 3 B. & B. 228; R. & R. 405; Watts's (38) Rogers's case, 8 C. & P. 629, per Bosanquet, J. (39) Tuft's case, 1 Leach, 172; 2 East, P. C. 959; Taylor's case, Id. 960; 1 Leach. 214; Marshall's case, R. & R. 75; Whiley's case, Id. 90; Francis's case, Id. 209. |