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FORGERY.

a genuine signature made to have a different effect from that intended by mutilation of the document.

All other cases of fabrication, or vitiation by erasure, interpolation, addition, antedating, and the like, are minor offences, to which the term forgery, in

its strict sense, is not applicable (1). Most writing be It appears still to be a question not definitely obligatory.

settled, whether to constitute forgery, the document must be obligatory. In the latest case

In the latest case an opinion seems to have been indicated that it must be obligatory (2). It is thought that this is not consistent with principle, and cannot be supported by authority. It is not sound, because the prejudice which may result from a forgery, does not depend upon the document being obligatory. A forged threatening letter, or a forged letter falsely announcing a death, may produce results more disastrous than the mere pecuniary loss which a forgery of an obligatory character is likely to occasion. But there is no authority for the doctrine. Hume speaks of “the felonious making and

publishing of a writing to the prejudice of another, as the signed instrument of a person who has not

signed it ” (3). And, again, among private writ“ings it is not confined to those which, like bills,

bonds, or bank notes, are calculated for patrimonial

profit: It applies equally to all such forgeries as “ tend to any purpose of personal security or revenge, “ or other gratification or advantage, in itself of a

grave and serious nature, and by the panel deemed “sufficiently material to be compassed in this way.” This would include all cases except those in which the forgery is manifestly only of a jocular nature, not intended, and having no tendency to injure. It is easy to suppose

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1 Hume i. 158, 159, 160.-Simon Fraser, H.C., Nov. 21st and Dec. 5th 1859 ; 3 Irv. 467 and 32 S. J. 148 (Opinions of the majority of the

Court).-Alison i. 384 contra.

2 Henry Imrie, Perth, Sept. 18th 1863 ; 4 Irv. 435 and 36 S. J. 3.

3 Hume i. 140.

a case within the definition, in which there would FORGERY. still be no element of obligation. Suppose that, in order to prevent a person from voting in an election, forged letters in the names of relatives announcing the illness or death of members of the voters' families residing at a distance, were posted so that they arrived the day before the election, such a case would be within Hume's definition. The language of Alison is less clear than that of Hume,-"It is equally

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forgery to imitate the subscriptions of persons to the "most irregular as to the most solemn instruments, "provided the writing be of such a kind as was in"tended to create an obligation against the party "whose subscription is counterfeited, or seriously to "affect his patrimonial interest" (1). This is his general definition, and in elaborating it he says, “forgery may be committed of all writings intended "to be obligatory," &c. But he immediately adds, "nay, the same holds of the forgery of writings in"tended to answer any purpose of personal security "or revenge, or any other gratification or advantage "in itself of a grave and serious nature" (2). As regards practice, the indictments in which the using and uttering of "any forged writing" has been libelled are innumerable (3). And the question was raised in two cases, and the objection to the indictment repelled (4).

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1 Alison i. 381, 382.

2 Alison i. 383.

3 Besides a large number of indictments in the Adv. Lib. Coll., the following reported cases may be referred to, in all of which an interlocutor of relevancy was pronounced. Will. Foodie and John Campbell, H.C., June 12th 1837; 1 Swin. 509 and Bell's Notes 54.Walter H. Smith, H.C., Dec. 7th 1840; 2 Swin. 525.-John Neil, H.C., Jan. 13th 1845; 2 Broun 368. - David Howieson, H. C., Mar. 15th F

1847; Ark. 237.-Arch. M'Millan, H.C., Jan. 24th, 1859; 3 Irv. 317 and 31 S. J. 175. This case was brought before the whole Court on a separate question of relevancy; but no objection was raised from the bar or by the Court to the major proposition, which charged the uttering of a forged "letter or "other writing."

4 John M'Leod, Inverness, April 28th 1858; 3 Irv. 79 and 30 S. J. 521.-Will. Rhind, Perth, Sept. 26th 1860; 3 Irv. 613.-In both these

Imitation not essential

as of one of sarne

name.

FORGERY.

It is not essential that there should be any imita

tion of handwriting. It is forgery to sign the name of Signing name of a person who cannot write (1), or the name of another, one who write. on a false pretence that he gave his authority to the Pretence of authority to act (2). It is also forgery if a person sign his own sign.

name with the intention that it shall pass as that of Signing rame

another person of the same name, or as that of a pername. or holding son having a certain position or character, when in di certain posi- reality he has no such position (3). Thus it is forgery .

if a person sign his own name on a bill, so as to make it appear to be the name of a person carrying on busi

ness as a partner of a firm, and there be no such Getting person firm (4). And it is forgery to get a person to sign to sign in order to pass off as by his name and to pass it off as that of another person

of the same name (5). Obtaining It is forgery to obtain the signature of a deed by notaries to sign by falsehood. notaries and witnesses, as for a third party, by false

representations. Here, though it is the notaries and witnesses who sign, still the persons who procure the signature are guilty, as they obtain that which is not

the deed of the party for whom the notaries sign, and Notarics signing use it as his deed (6). On the same principle, it is for another without mandate. forgery if notaries, for purposes of their own, sign a Forging names deed for another on the false narrative that they were fictitious seisin. authorised to sign for him (7), or if a notary draw a

cases the Court stated that the pre- of another Alexander Mackintosh, vious practice supported the relev. who was truly the party in whose ancy of such a charge.

favour the letter was drawn. Lord 1 Hume i. 141.-Alison i. 374. Wood's MSS.

2 Daniel Taylor, H.C., May 16th 4 Jas. Hall and others, H.C., 1853; 1 Iry, 230 and 25 S. J. 403. July 25th 1819; J. Shaw 254.

3 Hume i. 142, and note 1.--Ali- 6 Jas. Hendry, Aberdeen, April son i. 376.—More ii. 390.--Alex. 1839; Bell's Notes 49. J. P. Menzies, H.C., Feb. 5th 6 Hume i. 143, 144, and cases of 1849; J. Shaw 153.- See also Will. Donaldson : and Watson there.Duncan and Alex. Cumming, H.C., Alison i. 378.-Jas. Dougherty and March 11th 1850; J. Shaw 334.- others, Glasgow, May 3d 1844 ; 2 At Perth, October 1848, Alexander Broun 159. Mackintosh was convicted of for- 7 Hume i. 143, and case of Stragery by indorsing his own name on chan and Hunter there.- Alison i. the back of a letter of credit, in- 377, 378.-An indictment chargtending it to pass for the signature ing a notary with the crime of

of witnesses to

ing signature to

deed relating a seisin of lands which he never gave, and append imaginary names to it as witnesses (1). It is forgery if a messenger draw up a false execution, Messenger forgand write the name of a witness, or pretended witness, execution. at the bottom of it (2); or if a person, having a reason to antedate a deed, put in names of pretended witnesses (3). Indeed, it can scarcely be doubted that the mere adhibiting of false signatures of wit- False signatures nesses to a document otherwise exceptionable, whether witnesses. by the granter or any one else, is forgery. For the using of that deed as valid is fraudulent, and it is injurious that a deed be passed off as binding, which, if the truth were known, would be held null (4).

of

scription.

of

person dead.

It follows from what has been already said, that it Fictitious subis forgery to put a fictitious name to a deed (5), or the Forging subname of a dead person (6). forgery by signing and uttering a document in the circumstances above described, was raised some years ago. (Will. Galloway, Perth, April 23d 1857; Indictment Adv. Lib. Coll.) The case was certified to the High Court, but was not proceeded with by the Crown. The following entry occurs in Lord Ivory's MSS. :-"We thought it "right to certify, without indicat"ing any opinion." The novelty of the point seems, therefore, to have been the ground of certification, not any doubt of the relevancy.

1 Hume i. 146.-Alison i. 380, 381.

2 Will. Brown, H.C., Dec. 4th 1839; 2 Swin. 478 and Bell's Notes 51.

3 Hume i. 145, 146.-Alison i. 381. In the case of Simon Fraser, H.C., Nov. 21st and Dec. 5th 1859; 3 Irv. 467 and 32 S. J. 148; the Lord Justice Clerk Inglis observed: "Where therefore the Act makes "legal subscription necessary, and "where that subscription is charged

66

as being forged, and as having "been forged by the panel, and

"uttered by him, I can conceive
66 nothing answering better to the
"crime of forgery."

4 Hume i. 145.-Alison i. 381.-
Michael Steadman, H.C., Feb. 27th
1854; 1 Irv. 369 (Lord Cockburn's
opinion). Simon Fraser, H.C., Dec.
5th 1859; 3 Irv. 467 and 32 S. J.
148 (Lord Justice Clerk's opinion
as quoted supra).

5 Hume i. 142, and case of Forrester in note 2.-i. 143.-The point seems to have been undecided when Baron Hume wrote.-Alison i. 374, 375.-Moore ii. 390.-Jas. Hall and others, H.C., July 25th 1849; J. Shaw 254 (Lord Justice Clerk Hope's charge.)-The other cases in the books illustrative of this point are too numerous for quotation. In the case of Andrew Ovens, H.C., Nov. 24th 1828, the Lord Justice Clerk Boyle, in pronouncing sentence, said, "that it ought "to be known that if persons put "fictitious names of fictitious indi"viduals or firms on bills and "passed them, they were guilty of "forgery.' Lord Wood's MSS.

19

6 Jas. Aitchison, July 1st 1833; Bell's Notes 56.

FORGERY.

FORGERY.

Where the forgery is of a subscription, it need not Initials or mark. be complete, but may be of a signature by initials

only (1), or even by mark, and it is immaterial whether the person's usual mode of signature was in either of these ways or not (2). It has not been decided whether the making of the mark is sufficient. In the cases that have occurred, the accused was charged with also writing the words round the mark. But these words are part of the body of the deed, and there seems no reason why the addition of the false mark should not be held to be forgery. Suppose a John Brown, who cannot write, has got a document written for him, including the words “ John Brown, his mark," and has put it aside without placing his mark upon it, either from having changed his mind, or from there being some reason for delay, and that some one were to add the mark, and use the writing, it is thought that this would be forgery. In one case, the adhibiting of the mark alone seems to have been charged as forgery, and the writing of the words round it stated

as part of the narrative of the res gesto (3). Artificially

A false use of a genuine signature may be forgery. genuine signa- It is forgery to cut off a genuine signature from one

deed, and after affixing it to another, to attempt to pass the second deed off as genuine ; also, to write on the space above a genuine subscription without the authority of the person whose signature it is, and then to pass off the paper as his deed (4). But it is not forgery to write what the person who signed intended or understood was to be written, even though what is

ture.

Writing above signature.

1831 ;

1 Alex. Humphreys or Alexander, H.C., April 29th 1839; Bell's Notes, 50.

2 Duncan Cattanach, H.C., May 27th 1840 ; 2 Swin. 505 and Bell's Notes 51.–Archibald M.Millan, H.C., Jan. 24th 1859; 3 Irv. 317 and 31 S. J. 175.

3 Rob. Gillies, H.C., May 23d

Bell's Notes 50. 4 Hume i. 145, and case of Halli. day and others there (and in Appendix vol. ii. 522), and cases of Forbes in note a and Binning in pote 2.-Alison i. 379, 380.—More ii. 300.-Rob. Brown, Ayr, Sept. 1833; Bell's Notes 51.

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