The offences relating to those cheats which are effected by means of cards, dice, and other kinds of gaming have been mentioned in a former part of this treatise.(j) The 9 Geo. 2, c. 5, repeals certain acts relating to conjuration, witchcraft, &c., and then, for the more effectual preventing and punishing of any pretences to any acts or powers of witchcraft, sorcery, enchantment, or conjuration, whereby ignorant persons are frequently deluded and defrauded, enacts, "that if any person shall pretend to exercise or use any kind of witchcraft, sorcery, enchantment, or conjuration, or undertake to tell fortunes, or pretend from his or her skill or knowledge in any occult or crafty science to discover where or in what manner any goods or chattels, supposed to have been stolen or lost, may be found; every person so offending, being thereof lawfully convicted (on indictment or information in England, or on indictment or libel in Scotland), shall, for every such offence, suffer imprisonment by the space of one whole year without bail or mainprise, and once in every quarter

of the said year, in some market town of the proper county, upon the market day, there stand openly on the pillory by the space of one hour,(k) and also shall (if the court by which such judgment shall be given shall think fit) be obliged to give sureties for his or her good behavior, in such sum and for such time as the said court shall judge proper according to the circumstances of the offence, and in such case shall be further imprisoned until such sureties be given."

The 32 Geo. 3, c. 56, entitled, "An Act for preventing the counterfeiting of cer tificates of the characters of servants," after reciting the great and increasing evil occasioned by false and counterfeit characters of servants being given, either personally or in writing, by evil-disposed persons, enacts, that any person falsely personating any master or mistress, or the executor, administrator, wife, relation, housekeeper, steward, agent, or servant of a master or mistress, and, either personally or in writing, giving a false character to a servant; or pretending, or falsely asserting in writing, that a servant had been hired for a period of time, or in *a station, or was discharged at any other time, or had not been hired in any *704] previous service, contrary to truth; and any person offering himself or herself as a servant, pretending to have served where he or she has not served, or with a false certificate of character, or who shall alter such certificate; and any person who having before been in service shall pretend not to have been in any previous service, shall, on conviction before two justices, forfeit the sum of twenty pounds. (1)

By the 25 & 26 Vict. c. 88, "An Act to amend the law relating to the fraudulent marking of merchandise," sec. 1, "in the construction of this Act the word 'person' shall include any person, whether a subject of her Majesty or not, and any body corporate or body of the like nature, whether constituted according to the law of this country or of any of her Majesty's colonies or dominions, or according to the law of any foreign country, and also any company, association, or society of persons, whether the members thereof be subjects of her Majesty or not, or some of such persons subjects of her Majesty and some of them not, and whether such body corporate, body of the like nature, company, association, or society be established or carry on business within her Majesty's dominions or elsewhere, or partly within her Majesty's dominions and partly elsewhere; the word 'mark' shall include any name, signature, word, letter, device, emblem, figure, sign, seal, stamp, diagram, label, ticket, or other mark of any other description; and the expression trade mark' shall include any and every such name, signature, word, letter, device, emblem,

(j) Ante, vol. 1, p. 624.

(k) The punishment of the pillory is abolished by the 1 Vict. c. 23.

See the different sections of the statute, the substance of which only is here given. The statute provides also that the informer may be a witness, and indemnifies offenders discovering accomplices before information. It also gives a form of conviction, provides for the recovery of the penalties, and gives an appeal to the quarter sessions. An abstract of the statute is given in 5 Burn's Just. Servants, Sec. II. In 8 Ev. Col. Stat., Pt vi.. G. xxxi., No. 12, p. 909, note, the learned editor says, that a case which he had lately known to occur is not within the provisions of the Act, although attended with all the mischiefs intended to be provided against by it, viz., the case of assuming the name of another person who has been a servant in the same place with the offender. As to the civil consequences of knowingly giving a false character, see 1 Black. Com. 432, note (13).

figure, sign, seal, stamp, diagram, label, ticket, or other mark as aforesaid lawfully used by any person to denote any chattel, or (in Scotland) any article of trade, manufacture, or merchandise, to be an article or thing of the manufacture, workmanship, production, or merchandise of such person, or to be an article or thing of any peculiar or particular description made or sold by such person, and shall also include any name, signature, word, letter, number, figure, mark, or sign which in pursuance of any statute or statutes for the time being in force relating to registered designs is to be put or placed upon or attached to any chattel or article during the existence or continuance of any copyright or other sole right acquired under the provisions of such statutes or any of them; the word 'misdemeanor' shall include crime and offence in Scotland; and the word 'court' shall include any sheriff or sheriff substitute in Scotland."

Sec. 2. "Every person who, with intent to defraud, or to enable another to defraud, any person, shall forge or counterfeit, or cause or procure to be forged or counterfeited, any trade mark, or shall apply, or cause or procure to be [*705 applied, any trade mark or any forged or counterfeited trade mark to any chattel or article not being the manufacture, workmanship, production, or merchandise of any person denoted or intended to be denoted by such trade mark, or denoted or intended to be denoted by such forged or counterfeited trade mark, or not being the manufacture, workmanship, production, or merchandise of any person whose trade mark shall be so forged or counterfeited, or shall apply, or cause or procure to be applied, any trade mark or any forged or counterfeited trade mark to any chattel or article, not being the particular or peculiar description of manufacture, workmanship, production, or merchandise denoted or intended to be denoted by such trade mark or by such forged or counterfeited trade mark, shall be guilty of a misdemeanor; and every person so committing a misdemeanor shall also forfeit to her Majesty every chattel and article belonging to such person to which he shall have so unlawfully applied, or caused or procured to be applied, any such trade mark or forged or counterfeited trade mark as aforesaid, and every instrument in the possession or power of such person, and by means of which any such trade mark or forged or counterfeited trade mark as aforesaid shall have been so applied, and every instrument in the possession or power of such person for applying any such trade mark or forged or counterfeit trade mark as aforesaid, shall be forfeited to her Majesty; and the court before which any such misdemeanor shall be tried may order such forfeited articles as aforesaid to be destroyed or otherwise disposed of as such court shall think fit."

Sec. 3. "Every person who, with intent to defraud, or to enable another to defraud, any person, shall apply or cause or procure to be applied any trade mark or any forged or counterfeited trade mark to any cask, bottle, stopper, vessel, case, cover, wrapper, band, reel, ticket, label, or other thing in, on, or with which any chattel or article shall be intended to be sold or shall be sold or uttered or exposed for sale, or intended for any purpose of trade or manufacture, or shall enclose or place any chattel or article, or cause or procure any chattel or article to be enclosed or placed in, upon, under, or with any cask, bottle, stopper, vessel, case, cover, wrapper, band, reel, ticket, label, or other thing to which any trade mark shall have been falsely applied, or to which any forged or counterfeited trade mark shall have been applied, or shall apply or attach or cause or procure to be applied or attached to any chattel or article any case, cover, reel, ticket, label, or other thing to which any trade mark shall have been falsely applied, or to which any forged or counterfeited trade mark shall have been applied, or shall enclose, place, or attach any chattel or article, or cause or procure any chattel or article to be enclosed, placed, or attached, in, upon, under, with, or to any cask, bottle, stopper, vessel, case, cover, wrapper, band, reel, ticket, label, or other thing having thereon any trade mark of any other person, shall be guilty of a misdemeanor; and every person so committing a misdemeanor shall also forfeit to her Majesty every such chattel and article, and also every such cask, bottle, stopper, vessel, case, cover, wrapper, band, reel, ticket. label or other thing as aforesaid in the possession or power of such person; and every other similar *cask, bottle, stopper, vessel, case, cover, wrapper, band, [*706 reel, ticket, label, or other thing made to be used in like manner as afore

said, and every instrument in the possession or power of such person, and by means of which any such trade mark or forged or counterfeited trade mark as aforesaid shall have been applied, and also every instrument in the possession or power of such person for applying any such trade mark or forged or counterfeit trade mark as aforesaid, shall be forfeited to her Majesty, and the court before which any such misdemeanor shall be tried may order such forfeited articles as aforesaid to be destroyed or otherwise disposed of as such court shall think fit.”(m)

Sec. 5. "Every addition to and every alteration of, and also every imitation of any trade mark which shall be made, applied, or used with intent to defraud, or to enable any other person to defraud, or which shall cause a trade mark with such alteration or addition, or shall cause such imitation of a trade mark to resemble any genuine trade mark so or in such manner as to be calculated or likely to deceive, shall be and be deemed to be a false, forged, and counterfeited trade mark within the meaning of this Act; and every act of making, applying, or otherwise using any such addition to or alteration of a trade mark or any such imitation of a trade mark as aforesaid, done by any person with intent to defraud, or to enable any other person to defraud, shall be and be deemed to be forging and counterfeiting a trade mark within the meaning of this Act."(n)

By sec. 7, every person who puts on any article any false description, &c., of the number, quantity, measure, or weight thereof, or of the place where the article was made, or puts any word, &c., falsely indicating an article to be the subject of a patent, is to forfeit a sum equal to the value of the article, and a further sum not exceeding £5, nor less than 10s.

By sec. 8, every person who sells, &c., any article having any false description, &c., of the number, quantity, measure or weight thereof, or of the place where it was made, is to forfeit a sum not exceeding £5, nor less than 5s.

*Sec. 9. " The provisions of this Act shall not be construed so as to make *707] it any offence for any person to apply to any chattel or article, or to any

cask, bottle, stopper, vessel, case, cover, wrapper, band, reel, ticket, label, or other thing with which such chattel or article shall be sold or intended to be sold, any name, word, or expression generally used for indicating such chattel or article to be of some particular class or description of manufacture only, or so as to make it any offence for any person to sell, utter, or offer or expose for sale any chattel or article to which, or to any cask, bottle, stopper, vessel, case, cover, wrapper, band, reel, ticket, label, or other thing sold therewith, any such generally used name, word, or expression as aforesaid shall have been applied."

Sec. 10. "In every indictment, pleading, proceeding, and document whatsoever in which any trade mark shall be intended to be mentioned it shall be sufficient to mention or state the same to be a trade mark without further or otherwise describing such trade mark, or setting forth any copy or fac-simile thereof; and in every

(m) Sec. 4. Every person who, after the thirty-first day of December, one thousand eight hundred and sixty-three, shall sell, utter, or expose either for sale or for any purpose of trade or manufacture, or cause or procure to be sold, uttered, or exposed for sale or other purpose as aforesaid, any chattel or article, together with any forged or counterfeited trade mark, which he shall know to be forged or counterfeited, or together with the trade mark of any other person applied or used falsely or wrongfully or without lawful authority or excuse, knowing such trade mark of another person to have been so applied or used að aforesaid, and that whether any such trade mark or forged or counterfeited trade mark as aforesaid, together with which any such chattel or article shall be sold, uttered, or exposed for sale or other purpose as aforesaid, shall be in, upon, about, or with such chattel or article, or in, upon, about, or with any cask, bottle, stopper, vessel, case, cover, wrapper, band, reel, ticket, label or other thing in, upon, about, or with which such chattel of article shall be so sold or uttered or exposed for sale or other purpose as aforesaid, shall for every such offence forfeit and pay to her Majesty a sum of money equal to the value of the chattel or article so sold, uttered, offered, or exposed for sale or other purpose as aforesaid, and a further sum not exceeding five pounds and not less than ten shillings. (n) By sec. 6, every person who shall have sold, &c., any article having a false trade mark, is bound on the demand of the owner of the trade mark to give him information of the person from whom he obtained the article, and, if he refuses, a justice may summon him, and order the information to be given; and, on refusal, may inflict a penalty of £5, and such refusal is to be primâ facie evidence that the person refusing had full knowledge that the trade mark was a false trade mark.

indictment, pleading, proceeding, and document whatsoever in which it shall be intended to mention any forged or counterfeit trade mark, it shall be sufficient to mention or state the same to be a forged or counterfeit trade mark, without further or otherwise describing such forged or counterfeit trade mark, .or setting forth any copy or fac-simile thereof." (0)

Sec. 12. "In every indictment, information, conviction, pleading, and proceeding against any person for any misdemeanor or other offence against the provisions of this Act in which it shall be necessary to allege or mention an intent to defraud, or to enable another to defraud, it shall be sufficient to allege or mention that the person accused of having done any act, which is hereby made a misdemeanor or other offence, did such act with intent to defraud, or with intent to enable some other person to defraud, without alleging or mentioning an intent to defraud any particular person; and on the trial of any such indictment or information for any such misdemeanor, and on the hearing of any information or charge of or for any such other offence as aforesaid, and on the trial of any action against any person to recover a penalty for any such other offence as aforesaid, it shall not be necessary to prove an intent to defraud any particular person, or an intent to enable any particular person to defraud any particular person, but it shall be sufficient to prove with respect to every such misdemeanor and offence that the person accused did the act

charged with intent to defraud, or with intent *to enable some other person [*708

to defraud, or with the intent that any other person might be enabled to defraud."

of

Sec. 13. "Every person who shall aid, abet, counsel, or procure the commission any offence which is by this Act made a misdemeanor shall also be guilty of a misdemeanor."

Sec. 14. " Every person who shall be convicted or found guilty of any offence which is by this Act made a misdemeanor shall be liable, at the discretion of the court, and as the court shall award, to suffer such punishment by imprisonment for not more than two years, with or without hard labor, or by fine, or both by imprisonment with or without hard labor and fine, and also by imprisonment until the fine (if any) shall have been paid and satisfied."(p)

Sec. 19. "Every person who sells an article with a trade mark is to be deemed to have warranted that the trade mark is genuine.

Sec. 20. Every person who sells an article with a description of its number, quantity, measure or weight, is to be deemed to have warranted that such description was not in any material respect false.(g)

We have already seen the provisions relative to the fraudulent omission in the schedule of bankrupts.(r)

The annual Mutiny Acts usually contain clauses providing for the punishment of apprentices and other persons fraudulently enlisting themselves.(s)

(o) Sec 11. The provisions in this Act contained of or concerning any act or any proceeding, judgment, or conviction for any act hereby declared to be a misdemeanor or offence, shall not nor shall any of them take away, diminish, or prejudicially affect any suit, process, proceeding, right, or remedy which any person aggrieved by such act may be entitled to at law, in equity, or otherwise, and shall not nor shall any of them exempt or excuse any person from answering or making discovery upon examination as a witness or upon interrogatories, or otherwise, in any suit or other civil proceeding: Provided always, that no evidence, statement, or discovery which any person shall be compelled to give or make shall be admissible in evidence against such person in support of any indictment for a misdemeanor at common law or otherwise, or of any proceeding under the provisions of this Act.

(p) Sec. 15 provides for the recovery of penalties; sec. 16 for summary proceedings; sec. 17 for the disposal of penalties recovered in actions, and the costs therein; sec. 18 for the limitation of actions.

(9) By sec. 21, in suits at law or in equity the court may order the article to be destroyed, and may grant an injunction, &c. By sec. 22, persons aggrieved by forgeries, &c., of trade marks may recover damages. By sec. 23, defendants obtaining verdicts are entitled to full indemnity for costs. And by sec. 24, a person suing for a penalty may be compelled to give security for costs.

(r) Ante, p. 522.

(s) In Reg. v. Jussup, Dears. C. C. 619, it was held that a recruit could not be convicted under the 18 & 19 Vict. c. 11, s. 57, where he had falsely answered questions on enlist

VOL. II.-35

Cheats and frauds and false personation, for the purpose of obtaining the pay, prize-money, &c., of soldiers or sailors are mentioned in subsequent chapters (1)

In addition to the statutes which have been thus mentioned there are others relating to cheats or frauds practised by servants and others, in particular trades, and punishable by pecuniary fines or summary proceedings before magistrates, which will be found arranged under their proper titles in that very excellent work, Dr. Burn's "Justice of the Peace."

*709]

*CHAPTER THE THIRTY-THIRD.

OF FORGERY.

FORGERY at common law has been defined as "the fraudulent making or altera tion of a writing to the prejudice of another man's right;"(a) or, more recently, as "a false making, a making malo animo, of any written instrument, for the purpose of fraud and deceit :"(b) the word "making" in this last definition being considered as including every alteration of, or addition to, a true instrument. (c) Besides the offence of forgery at common law, which is of the degree only of misdemeanor, there are a great many kinds of forgery, especially subjected to punishment by the enactments of a variety of statutes, which many years ago were spoken of as so multiplied as almost to have become general.(d)1

These statutes which, for the most part, made the forgeries to which they related capital offences, were consolidated by the 1 Will. 4, c. 66.(e) At present it will be attempted briefly to review the doctrine of forgery at common law, together with such principles and decided points as (though some of them may have arisen in prosecutions upon particular statutes) appear to be of general application. And, pursuing the order of the definitions above given, we may consider, I. Of the making or alteration of a written instrument necessary to constitute forgery; II. Of the written instruments in respect of which forgery may be committed; and III. Of the fraud and deceit to the prejudice of another's right. We may then briefly treat, IV. Of principals and accessories; and V. Of the indictment, trial, evidence, and punishment.

ment, which were not contained in that Act, or the 11 & 12 Vict. c. 11; but the recent Mutiny Acts contain different provisions. As to similar offences by persons enlisting into the marine forces, see the annual Acts relating to those forces. We have seen that it was a cheat or fraud at common law for an apprentice to enlist as a soldier, and obtain the king's bounty: Jones's case, ante, p. 608. And see Burn's Just. Military Law. (t) See post, On the Forgery of Official Papers, &c.; and On False Personation. (a) 4 Black. Com. 247.

(b)2 East P. C. c. 19, s. 1, p. 852; Rex v. Parkes, 2 Leach 785; 2 East P. C. c. 19, 8. 49, p. 965.

(c) Id. Ibid. As to the word forge, it is said in 3 Inst. 169, "To forge is metaphorically taken from the smith, who beateth upon his anvil, and forgeth what fashion or shape he will; the offence is called crimen falsi, and the offender falsarius; and the Latin word to forge is falsare, or fabricare."

(d) 4 Black. Com. 248.

(e) Repealed by the 24 & 25 Vict. c. 95.

1 Pennsylvania v. McKee, Addis. 33; Pennsylvania v. Misner, Ibid. 44; Comm. v. Searle, 2 Binn. 332; State v. Kimball, 50 Maine 409; State v. Thompson, 19 Iowa 299. Bank notes wholly printed or engraved are the subjects of forgery: People v. Rhoner, 4 Parker C. R. 166. The fraudulent counterfeiting of a railroad ticket is forgery by the common law: Comm. v. Ray, 3 Gray 441. The maker of a negotiable note wrote on the back of it, while it remained in his hands, the name of a firm and then passed it to the payee. This was held to be forgery, and may be described as an indorsement: Powell v. Comm.. 11 Gratt. 822. As to forgery of deed of lands in another state, see People v. Flanders, 18 Johns. 164. Of foreign bank notes: Corbett v. State, 31 Ala. 329.