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1831.

REX

บ.

SMITH.

or pack of playing cards, or any
part thereof, with intent to use
such stamp or mark for any other
writing, matter, or thing, in re-
spect whereof any such duty is or
shall be payable, or denoted to be
paid or payable as aforesaid; then,
so often, and in every such case,
every person so offending in any
of the particulars before mention-
ed, and every person knowingly
and wilfully aiding, abetting, or
assisting any person or persons to
commit any such offence or of-
fences, as aforesaid, shall be deem-
ed and construed to be guilty of
felony; and, being thereof con-
victed by due course of law, shall
be transported to some of his Ma-

jesty's plantations beyond the seas, for a term not exceeding seven years, according to the laws in force for the transportation of felons: and if any such person or persons so convicted or transported shall voluntarily escape or break prison, or return from transportation before the expiration of the time for which he, she, or they shall be so transported as aforesaid, such person or persons, being thereof lawfully convicted, shall suffer death as a felon, without benefit of clergy, and shall be tried for such felony in the county where he, she, or they shall be apprehended."

BEFORE THE HON. CHARLES EWAN LAW, COMMON

SERJEANT.

Dec. 11th.

A forged paper lowing form

was in the fol

"Per bearer two

REX v. CULLEN.

THE prisoner was indicted for that he, on &c., at &c., feloniously did utter, dispose of, and put off to one John Smith, a certain forged request for the delivery of goods, which is as follows:-" Per bearer, two 11—4 suvis, E. Twell." perfine counterpanes. T. Davis, E. Twell," with intent to defraud John Lainson and others, he the said Charles Cullen well knowing the said request to be forged. The

11-4 superfine counterpanes. T. Da

It was not ad

dressed to any

person-Held bythe 15Judges, that it was nei

ther an order

nor a request within the stat.

indictment also contained a count, calling the instrument a forged order.

1 Will. 4, c. 66, s. 10, (the forgery consolidation act).

The prisoner having been found guilty on this and on other charges of the same description, which, by the 1 Will. 4, c. 66, s. 10 (a), the act upon which the indictment was framed, rendered him liable to be transported for life.

F. V. Lee, for the prisoner, objected, in arrest of judgment, that the instrument set out in the indictment was neither an "order" nor "request," within the terms of the act of Parliament. First, it was not an order, because it was not directed to any person; and to be so, it ought not only to purport to be signed by some person who might command the delivery of the goods; but it ought also to be directed to a person who was compellable to obey it. And he cited Rex v. Clinch (b), Rex v. Williams (c), Rex v. Mitchell (d). Secondly, it was not a request, for a request was the act of asking something from another, which, in this case, was not done, for although the act of presenting the paper, in effect, might be so, yet in words it was not; and he, therefore, submitted it fell within the principle of the above decisions.

The prosecutor stated, that such orders were common in the trade.

(a) By which it is enacted, "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 deed, bond, or writing obligatory, or any court-roll or copy of any court-roll relating to any copyhhold or customary estate, or any acquittance or receipt either for money or goods, or any accountable receipt either for money or goods, or for any note, bill, or other security for payment of money, or any warrant, order, or request for the delivery or transfer of goods, or for the de

livery of any note, bill, or other
security for payment of money,
with intent to defraud any per-
son whatsoever, every such of-
fender shall be guilty of felony,
and, being convicted thereof, shall
be liable, at the discretion of the
Court, to be transported beyond
the seas for life, or for any term
not less than seven years, or to be
imprisoned for any term not ex-
ceeding four years or less than
two years."

(b) 2 East, P. C. 938.
(c) 1 Leach, 114.
(d) Fost. 119.

1831.

REX

V.

CULLEN.

1831.

REX

v.

CULLEN.

The COMMON SERJEANT thought, upon the authority of the cases cited, that it was not an order; but he had some doubts whether it was not a request; and, as the point was new, and of some importance to commercial men, he said he would submit it to the Fifteen Judges; which he did, and they were of opinion that the conviction was improper, as the instrument was neither an order nor request within the 1 Will. 4, c. 60, s. 10.

The prisoner was discharged.

OLD BAILEY JULY SESSION, 1831,

BEFORE MR. JUSTICE GASELEE AND MR. JUSTICE

J. PARKE.

July 2nd.

On an indict

REX . BACkler.

FORGERY. The first count of the indictment charged

ment for forging the prisoner with forging a check, with intent to defraud

a check, pur

porting to be

drawn by G. A.
upon Messrs.
J. L. & Co.
proof that no
person named
G. A. keeps an
account with or

has any right to draw on Messrs. J. L. & Co., is prima facie evidence that G. A.

is a fictitious

person.

Thomas Blackwell and another. There was a second count for uttering with the like intent; and two similar counts, charging the forgery and uttering to be with intent to defraud Samuel Jones Loyd and others.

The check was as follows:

"No. 24. No. 23, Lothbury, London, May 24, 1831. Messrs. Jones Loyd & Company,

Pay to

£10 0 0

Newman, Esq. or bearer, ten pounds.
G. Andrewes."

It appeared that the prisoner went to Mr. Blackwell, and asked change for the check for Mr. Newman of Soho Square, in whose service he stated himself to have been for three months. The prisoner also said, that Mr. New

man had put his name on the check. Mr. Newman was not called as a witness; but it was proved, that the name on the check was not of his hand-writing, and that the prisoner had never been in his service. It was also proved, by a clerk of Messrs. Jones Loyd & Co., that No. 43, Lothbury, was their banking house, and that no person of the initial and name G. Andrewes kept any account there, or had any right to draw checks on their house.

Mr. Justice J. PARKE (in summing up).-You must be satisfied not only that the prisoner uttered this check, but also that it is a forgery, and that he knew it to be so. Now, we find that he stated that he was a servant of Mr. Newman, and that Mr. Newman had put his name on the back of the check: but it is shewn, not only that the name is not of Mr. Newman's hand-writing, but that the prisoner never was in his service. There is no proof as to who this G. Andrewes is, and the question therefore is, whether there is evidence sufficient to satisfy you that Andrewes is a fictitious person. That being a negative, it is not easy to prove, and the evidence from which you are asked to infer it, is that this check is drawn upon Jones Loyd & Co., no person of that initial and name having any right to draw on them. My learned brother and myself, after conferring, think that this is sufficient primá facie evidence that he is a fictitious person; and if there was any such real person either keeping cash at this banking house or not, the prisoner might have produced him or have given some evidence on the subject. If it had turned out that a person named Andrewes had drawn upon Jones Loyd & Co., without funds, that would have been a fraud and not a forgery; but, we think, in point of law, that there is sufficient evidence of Andrewes being a fictitious person, more especially as the prisoner does not produce any evidence, nor even make any statement as to who Andrewes is.

Verdict-Guilty, on the second count.

See the case of Rex v. King, post, p. 123.

1831.

REX

v.

BACKLER.

1831.

July 2nd.

REX V. BOUrne.

A. was fighting INDICTMENT on the stat. 9 Geo. 4, c. 31, ss. 11, 12,

with his brother; for stabbing and wounding James Lightfoot, with intent to

and to prevent

this B. laid hold

of A., and held

him down upon

a locker on

board the barge

in which they were, but struck no blow.

A.

stabbed B.:

did nothing

more than was

murder him.

tent to be to
bodily harm.

There were two other counts, laying the indisable him, and to do him some grievous

The prosecutor stated that the prisoner and his brother, who was a boy about six years younger than himself, were Held, that if B. fighting on board the barge Alfred, which was lying in the West India Docks, and in which he (the prosecutor) also worked; that he laid hold of the prisoner to prevent him from beating his brother, and held him down on a locker, but did not strike him; and that the prisoner stabbed him with a knife just above the knee.

sufficient to pre

vent A. from

beating his bro

ther, and had

died of this stab,

the offence of A.

would have been murder; but that if B. did more than was neces

sary to prevent the beating of A.'s brother, it would have been manslaughter only.

The prisoner in his defence said, that the prosecutor had knocked him down.

Mr. Justice J. PARKE (in summing up).-The prosecutor states that he was merely restraining the prisoner from beating his brother, which was quite proper on his part; and he says, that he did not strike any blow. If you are of opinion that the prosecutor did nothing more than was necessary to prevent the prisoner from beating his brother, the crime of the prisoner, if death had ensued, would not have been reduced to manslaughter; but if you think that the prosecutor did more than was necessary to prevent the prisoner from beating his brother, or that he struck any blows, then I think that it would. You will, therefore, consider whether any thing was done by the prosecutor more than was necessary, or whether he gave any blows before he was cut.

Verdict-Guilty, on the third count.

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