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In some cases treason.

Cheat and

CHAPTER THE FOURTH.

OF RECEIVING, UTTERING, Or tendering counterfeit COIN.

In some cases the putting off counterfeit money may amount to treason as if A. counterfeit the gold or silver coin current, and by agreement before that counterfeiting B. is to take off and vent the counterfeit money, B. is an aider and abettor to such counterfeiting, and consequently a principal traitor within the law. (a) And in the case of the copper coin, B. acting a similar part will be an accessory before the fact to the felony, within the statute 11 Geo. 3. c. 40. (b) And if B., knowing that A. hath counterfeited money, put off this false money for him after the fact, without any such agreement precedent to the counterfeiting, he seems to be as a receiver of A. because he maintains him. And if B. know that A. counterfeited the money, and conceal his knowledge, though he neither receive, maintain, nor abet A., he will be guilty of misprision of treason. (c)

If A. counterfeit money, and B. knowing the money to be misdemeanor. counterfeit vent the same for his own benefit, B. is neither guilty of treason, nor misprision of treason. But he may be proceeded against under the provisions of the 15 Geo. 2. c. 28. which will be presently noticed, before which statute he was only liable to be punished as for a cheat and misdemeanor. (d) And upon the principles which have been mentioned in a former part of this Work, (e) the unlawful procuring of counterfeit coin with intent to circulate it, though no act of uttering be proved, is a misdemeanor; and the possession of counterfeit coin unaccounted for was held to be evidence of an unlawful procurement with intent to circulate. (f) But the uttering and tendering in payment coun

(a) 1 Hale 214.

(b) 1 East. P. C. c. 4. s. 26. p. 178.
(c) 1 Hale 214.

(d) 1 East. P. C. c. 4. s. 26. p. 179.
1 Hale 214. See precedents of in-
dictments for a misdemeanor at com-
mon law in uttering a counterfeit
half-guinea, Cro. Circ. Comp. 315.
(7th Ed.) Starkie 466. 2 Chit. Crim.
Law, 116. See also a precedent of an
indictment for a misdemeanor at com-
mon law, against a man for uttering a
counterfeit sixpence, and having ano-
ther found in his custody, Cro. Circ.
Comp. 315. (7th Ed.) 2 Chit. Crim.
Law, 117. The uttering of false mo-
ney, knowing it to be false, is men-

There

tioned as a misdemeanor in the recital
to the 15 Geo. 2. c. 28. s. 2.
is also a precedent for a misdemea-
nor at common law, in uttering, and
causing to be uttered, guineas filed
and diminished as good guineas. Cro.
Circ. Comp. 317. (7th Ed.) and 2 Chit.
Crim. Law, 116. and also a precedent
for a misdemeanor at common law in
selling counterfeit Dutch guilders.
Cro. Circ. Comp. 313. (7th Ed.) 2 Chit.
Crim. Law, 119, 120.

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terfeit copper money has been held not to be an indictable offence. (g)

But the receiving, uttering, or tendering in payment counterfeit Statutes. money, have been made the subject of legislative provision by several statutes. I. By the 8 and 9 W. 3. c. 26. 11 Geo. 3. c. 40. and 15 Geo. 2. c. 28. relating to the coin of the realm; and, II. By the 37 Geo. 3. c. 126. relating to foreign coin.

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SECT. I.

Of receiving, paying, putting-off, &c. Counterfeit Coin of the

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Realm.

I. The statute 8 and 9 W. 3. c. 26. s. 6. enacts, that " if any person shall take, receive, pay, or put off, any counterfeit milled money, or any milled money whatsoever, unlawfully diminished "and not cut in pieces, at or for a lower rate or value than the same by its denomination doth or shall import, or was coined or "counterfeited for, he shall be guilty of felony." The seventh section saves the corruption of blood; and by section 9. no pro secution is to be made for any offence against this act, unless it be commenced within three months after the offence committed. (h) The act was at first only temporary, but was made perpetual by 7 Ann. c. 25. S. 3.

8 & 9 W. 3.
c. 26. s. 6.
(made perpe-

tual by 7 Ann.
c. 25. s.3.) as

to receiving, paying, or put

ting off, &c.

a putting off

Under this statute there must be an actual passing or getting What shall be rid of the money, and not merely an attempt to do so. In a case considered as at the Old Bailey, in the year 1784, a question was raised upon counterfeit this point. It appeared in evidence that the prisoner had carried money within a large quantity of counterfeit shillings to the house of a Mrs. 8 & 9 W. 3. Levey, which she agreed to receive from him, and which he agreed to put off to her at the rate of twenty-nine shillings for every guinea. In pursuance of this bargain, the prisoner laid a heap of counterfeit shillings on a table, and Mrs. Levey proceeded to count them out at the rate beforementioned: and had counted out three

cumstances; the coin being wrapped up in parcels with soft paper to prevent it from rubbing. The marginal note to Parker's case, 1 Leach 41. states, that "having the posses"sion of counterfeit money, with in"tention to pay it away as and for "good money, is an indictable offence "at common law." But qu. if the point stated in the marginal note was actually decided in Parker's case; and see ante, 47.

(g) Cirwan's case, Oxford Sum. Assiz. 1794, MS. Jud. 1 Fast. P. C. c. 4. s. 28. p. 182. The defendant was indicted for " unlawfully uttering and tendering in payment to J. H. ten

46

"counterfeit halfpence, knowing
"them to be counterfeit." Upon
reference to the Judges, this was held
not to be an indictable offence.

(h) But the proceedings before a
magistrate, and not the preferring
the indictment, will be considered
as the commencement of the pro-
secution, as in Willace's case, ante, 56,
note (7). S. P. ruled by Le Blanc, J.
Stafford Sum. Ass. 1812. in Barker's
case, who was indicted under this
statute, for putting off counterfeit
milled money. The prisoner had been
in gaol upwards of three months be-
fore the assizes.

c. 26.

The meaning of milled money within this statute.

The money

parcels, containing eighty-seven counterfeit shillings, for which she was to pay the prisoner three guineas; but before she had paid him, and while the counterfeit money lay there exposed upon the table, the officers of justice entered the room and apprehended them. Mrs. Levey was admitted as a witness for the crown; and swore that she had bought the three parcels of shillings, and was going to pay the prisoner three guineas for them at the moment they were detected. This was ruled not to be a completion of the offence charged, and the prisoner was acquitted. (i)

A case has also been decided upon the meaning of " milled money" in this statute. The prisoner was indicted for putting off to one J. P. nine pieces of false and counterfeit milled money and coin, each counterfeited to the likeness of a piece of legal and current milled money and silver coin of the realm, called a shilling, at a lower rate and value than the same did by the denomination import, and were counterfeited for; i. e. at so much, &c. The fact of knowingly putting off the shillings at a lower value than according to their denomination was fully proved; but there was no appearance of milling on them: and it was proved by officers from the Mint, that this money never had been milled, nor any attempt made to counterfeit on them the milling which is always put on the shillings coined at the Tower. Upon this the prisoner's counsel contended, that the evidence did not prove the offence as described in the statute, or charged in the indictment, but directly the contrary, as it proved that the money illegally put off was not milled. The case was reserved for the opinion of the Judges ; who thought that the expression "milled money" could not have any reference whatever to the edging which is put on real and lawful coin, and which is properly termed graining. That the money-coin at the Mint in the Tower is milled money before it is edged, that is, before those marks, which had been falsely imagined to constitute milled money, are put upon it; for that all current money is passed through a mill or press to make the plate out of which it is cut of a proper thickness; and that from this process it receives its denomination of milled money, and not, as generally but erroneously imagined, from the grainings on its edges. The Judges, therefore, thought it unnecessary that the counterfeit money should appear to have been milled: for considering milled money as one word, (as if written with a hyphen,) and descriptive of the money now current, if the counterfeit resemble the money which, if genuine, would have been milled, it is enough. (k)`

It is necessary, in order to bring a case within this statute, that must be vented the money be vented at a lower value than the coin imports, and at a lower va- that it should be so stated in the indictment. (1) And if the lue, &c. Names of pernames of the persons to whom the money was put off can be sons to whom put off to be stated.

(1) Wooldridge's case, 1 Leach. 307.
1 East. P. C. c. 4. s. 27. P: 179.

(k) Bunning's case, Old Bailey, 1794.
2 Leach 624. 1 East. P. C. c. 4. s. 27.
p. 180.
The case of Hannah Dor-
rington, and the case of Jacobs and
Lazarus, were considered by the
Judges at the same time, and being
precisely similar, were disposed of by

the like resolution. It seems that
milled money was so called to dis-
tinguish it from hammered money,
which was prohibited by 9 W. 3. c. 2.
Mr. East says (p. 180. note (a)) that
he had been informed that there had
been no hammered money since the
time of Car. 2.
p. 180.

(7) 1 East. P. C. c. 4. s. 27.

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ment must

nished.

the money was

"not cut in

ascertained, they ought to be mentioned, and laid severally in the indictment: but if they cannot be ascertained, the same rule will The indictapply which prevails in the case of stealing the property of persons charge that the unknown. (m) If the indictment be for putting off diminished money was un money at a lower rate, it must be averred that it was unlawfully lawfully dimidiminished. (n) And it has been held, that an indictment upon And it should this statute was bad, for omitting to state that the counterfeit be stated that money was not cut in pieces," as those words are a material part of the description of the offence. (0) This statute, mentioning "counterfeit money" generally, has been considered as confined to gold or silver coin: (p) but with respect to copper coin, it is enacted by 11 Geo. 3. c. 40. s. 2. that if any person" shall buy, sell, take, receive, pay, or put off, any "counterfeit copper coin, not melted down or cut in pieces, at or "for a lower rate or value than the same by its denomination "imports, or was counterfeited for, he shall be adjudged guilty of "felony."

pieces."

11 Geo. 3.
c. 40. s. 2. re-
ceiving, pay-
ing, or putting
off counterfeit
copper coin.

The punishment under these statutes of 8 and 9 W. 3. and 11 Punishment. Geo. 3. was originally burning in the hand, and imprisonment not exceeding a year, under the statute 18 Eliz. c. 7. s. 3.: (q) but in lieu of this punishment a moderate fine or whipping, at the discretion of the Court, may be imposed upon the offender by 19 Geo. 3. e. 74. s. 3. (r)

The statute 8 and 9 W. 3. relating only to the putting off counterfeit money at a lower rate or value than that imported by its denomination, the offence of uttering such money in the course of traffic was punishable only as a misdemeanor, until, from its becoming very frequent, it was thought proper to subject it to more severe punishment.

15 Geo. 2.
c. 28. s. 2. as to

counterfeit

money.

The statute 15 Geo. 2. c. 28. s. 2. enacts "that if any person “shall utter or tender in payment any false or counterfeit money, uttering or knowing the same to be false or counterfeit, to any person or tendering in "persons," and shall be thereof convicted, he shall suffer six payment months' imprisonment, and find sureties for good behaviour for six months further; and on conviction for a second offence shall suffer two years' imprisonment, and find sureties for two years more; and on conviction for a third offence shall be adjudged guilty of felony without benefit of clergy. The statute further provides by the third section "that if any person shall utter or "tender in payment any false or counterfeit money, knowing the same to be false or counterfeit, to any person or persons; and "shall either the same day, or within the space of ten days then

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(m) 1 East. P. C. c. 4. s. 27. p. 180. citing a case from MS. Tracy, of a woman who was indicted at the Old Bailey, 1702, for putting off ten pieces of counterfeit gilt money like guineas, to divers persons unknown; Holt, C. J. said, that the names of the persons ought to be mentioned and laid severally; yet he tried the prisoner, and she was convicted. Probably the names of the persons to whom the money was put off could not be ascertained.

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(n) 5 T. R. 217. note (a) to the case
of Tooke v. Hollingworth. The coin
might be diminished by reasonable
wearing.

(0) Palmer's case, 1 Leach 102.
(p) 1 East. P. C. c. 4. s. 1, 9, 27.
(q) 1 East. P. C. c. 4. s. 27. citing
Rex v. West and Others, Old Bailey,
Sept. 1780. 1 MS. Sum. 91.

(r) This act was originally tempo-
rary, but continued by several acts,
and afterwards made perpetual by 39
Geo. 3. c. 45.

This statute does not include copper coin.

The statute

will apply to the case of passing coun

terfeit money

by the trick

of ringing the changes.

Where the indictment charges two utterings on

66

next, utter or tender in payment any more or other false or "counterfeit money, knowing the same to be false or counterfeit, "to the same person or persons, or to any other person or persons; or shall at the time of such uttering or tendering have "about him or her, in his or her custody, one or more piece or 66 pieces of counterfeit money besides what was so uttered or "tendered; then such person so uttering or tendering the same "shall be deemed and taken to be a common utterer of false "money; and being thereof convicted shall suffer a year's imprisonment, and find sureties for his or her good behaviour for two years more, to be computed from the end of the said year; and "if any person having been once so convicted as a common "utterer of false money, shall afterwards again utter or tender in payment any false or counterfeit money to any person or persons knowing the same to be false or counterfeit, then such 66 person being thereof convicted, shall for such second offence be "adjudged guilty of felony without benefit of clergy." (t)

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66

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This statute like that of the 8 and 9 W. 3. c. 26. mentioning counterfeit money, generally, is confined to the gold and silver coin of the realm. (u) In a case where the defendant was indicted for "unlawfully uttering and tendering in payment to I. H. ten "counterfeit halfpence, knowing them to be counterfeit ;" and this was laid in one count against the form of the statute, and in another generally; and the defendant was convicted on the general count; it being admitted at the trial that there was no statute applicable to the fact; upon reference to all the Judges they held the conviction wrong, it not being an indictable offence. (w)

The words of the statute "utter or tender in payment" are in the disjunctive, and will therefore apply to an uttering of counterfeit money, though it be not tendered in payment, but passed by the common trick called ringing the changes, as in the following case. The prosecutor having bargained with the prisoner, a Jew, who was selling fruit about the streets, to have five apricots for sixpence, gave him a good shilling to change. The prisoner put the shilling into his mouth, as if to bite it in order to try its goodness; and, returning a shilling to the prosecutor, told him it was a bad one. The prosecutor gave him another good shilling which he also affected to bite; and then returned another shilling, saying it was not a good one. The prosecutor gave him another good shilling, with which he practised this trick a third time; the shillings returned by him being in every instance bad. The court held that the words of the statute were sufficient to include this case; and that uttering and tendering in payment were two distinct and independent acts. (x)

Some points have arisen as to the form of the indictment upon this statute of 15 Geo. 2. c. 28. In one case the indictment charged the prisoner in the first count with having on the 15th

(1) By section 4 of this statute corruption of blood is saved; and by s. 8, any offender out of prison discovering two or more persons guilty of any of the said offences, so as they be thereof convicted, shall be pardoned.

(u) Ante, p. 56.

(w) Cirwan's case, Oxford Sum. Ass. 1794, MS. Jud. 1 East. P. C. c. 4. s. 28. p. 182. 2 Leach 834, note (a). (x) Franks's case, 2 Leach 64.

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