[*848

now in force any person falsely personating another, or falsely acknowledging anything in the name of another, or falsely representing any other person than the real party to be such real party, or wilfully making a false entry in any book, account, or document, or in any manner wilfully *falsifying any part of any book, account, or document, or wilfully making a transfer of any stock, annuity, or fund, in the name of any person not being the owner thereof, or knowingly taking any false oath, or knowingly making any false affidavit or false affirmation, or demanding or receiving any money or other thing by virtue of any probate or letters of administration, knowing the will on which such probate shall have been obtained to have been false or forged, or knowing such probate or letters of administration to have been obtained by means of any false oath or false affirmation, would, according to the provisions contained in any such Act, be guilty of felony, and would before the passing of the said Act of the first year of King William the Fourth have been liable to suffer death as a felon; or where by any Act now in force any person making or using, or knowingly having in his custody or possession, any frame, mould, or instrument for the making of paper, with certain words visible in the substance thereof, or any person making such paper, or causing certain words to appear visible in the substance of any paper, would, according to the provisions contained in any such Act, be guilty of felony, and would before the passing of the said Act of the first year of King William the Fourth have been liable to suffer death as a felon; then, and in each of the several cases aforesaid, if any person shall after the commencement of this Act be convicted of any such felony as is hereinbefore in this section mentioned, or of aiding, abetting, counselling or procuring the commission thereof, and the same shall not be punishable under any of the other provisions of this Act, every such person shall be liable, at the discretion of the court, to be kept in penal servitude for life or for any term not less than five(kk)years,or to be imprisoned for any term not exceeding two years, with or withont hard labor, and with or without solitary confinement."(1)

Sec. 49. "In the case of every felony punishable under this Act, every principal in the second degree, and every accessory before the fact, shall be punishable in the same manner as the principal in the first degree is by this Act punishable; and every accessory after the fact to any felony punishable under this act, shall on conviction be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement; and every person who shall aid, abet, counsel, or procure the commission of any misdemeanor punishable under this Act, shall be liable to be proceeded against, indicted, and punished as a principal offender."(m)

Sec. 50. "All indictable offences, mentioned in this Act which shall be committed within the jurisdiction of the Admiralty of England or Ireland shall be deemed to be offences of the same nature, and liable to the same punishments as if they had been committed upon the land in England or Ireland, and may be dealt with, enquired of, tried, and determined in any county or place in England or Ireland in which the offender shall be apprehended or be in custody, in the same manner in all respects as if they had been actually committed in that county or place; [*849 and in any indictment for any such offence, or for being an accessory to such an offence, the venue in the margin shall be the same as if the offence had been committed in such county or place, and the offence shall be averred to have been committed on the high seas;' provided that nothing herein contained shall alter or affect any of the laws relating to the government of Her Majesty's land or naval forces." (n)

Sec. 51. "Whenever any person shall be convicted of a misdemeanor under this Act it shall be lawful for the court, if it shall think fit, in addition to or in lieu of any of the punishments by this Act authorized, to fine the offender, and to require

(kk) 27 & 28 Vict. c. 47.

(1) This clause is taken from the 1 Will. 4, c. 66, s. 1, and extended to Ireland to meet any case, if such there be, to which its provisions may apply.

(m) See the note to sec. 67 of the Offences against the Person Act, ante, vol. 1, p. 881. (n) See the note to sec. 68 of the Offences against the Person Act, ante, vol. 1, p. 762.

VOL. II.-42

him to enter into his own recognizances, and to find sureties, both or either, for keeping the peace and being of good behavior; and in all cases of felonies in this Act mentioned it shall be lawful for the court, if it shall think fit, to require the offender to enter into his own recognizances, and to find sureties, both or either, for keeping the peace, in addition to any of the punishments by this Act authorized: provided that no person shall be imprisoned under this clause, for not finding sureties, for any period exceeding one year."

Sec. 52. Whenever imprisonment, with or without hard labor, may be awarded for any offence under this Act, the court may sentence the offender to be imprisoned, or to be imprisoned and kept to hard labor, in the common gaol or house of correction."

Sec. 53. "Whenever solitary confinement may be awarded for any offence under this Act, the court may direct the offender to be kept in solitary confinement for any portion or portions of his imprisonment, or of his imprisonment with hard labor, not exceeding one month at any one time, and not exceeding three months in any one year."

Sec. 54. "The court before which any indictable misdemeanor against this Act shall be prosecuted or tried may allow the costs of the prosecution in the same manner as in cases of felony; and every order for the payment of such costs shall be made out, and the sum of money mentioned therein paid and repaid, upon the same terms and in the same manner in all respects as in cases of felony."(0)

*850]

*CHAPTER THE THIRTY-FOURTH.

OF THE FORGING, ETC., OF RECORDS, JUDICIAL PROCESS, AND EVIDENCE.

It is clear that, by the common law, a person may be guilty of forgery by falsely and fraudulently making or altering any matter of record: for, since the law gives the highest credit to all records, it cannot but be of the utmost ill consequence to the public to have them either forged or falsified. (a) If, therefore, a man should insert in an indictment the names of those against whom in truth it was not found, it would be forgery.(b)1

Even if the offence should not constitute a forgery, yet in no instance can the counterfeiting or alteration of any judicial process or matter be less than a very high misdemeanor, as tending to stop or impede the course of justice, or to encroach upon the judicial power. (c) The defacing or rasure of any record, without due authority is an offence at common law, highly punishable by fine and imprisonment. (d) And it has been holden that any person making or knowingly using a false affidavit, taken abroad (though a forging could not be assignable on it here), in order to mislead our own courts, and to prevent public justice, is punishable by indictment for a misdemeanor.(e)

Judges are highly punishable at common law for offences of this kind.(ƒ) And the statute 8 Rich. 2, c. 4, applies expressly to judges as well as to clerks.

(0) The Act does not extend to Scotland. It came into force Nov. 1, 1861.

(a) 1 Hawk. P. C. c. 70, s. 1, 8; Bac. Ab. Forgery (B.); Roll. Ab. 65, 76; Yelv. 146; Cro.

Eliz. 178.

(b) Rex v. Marsh, 3 Mod. 66; 1 Hawk. P. C. c. 70, s. 2.

(c) East P. C. c. 19, s. 9, p. 866.

(d) 3 Inst. 71, 72; 1 Hale 646; 1 Hawk. P. C. c. 47, s. 1. (e) Omealy v. Newell, 8 East 364.

862; ante, p. 770.

And see Fawcett's case, 2 East P. C. c. 19, s. 7, p.

(f) 3 Inst. 72; 1 Hale 646. In 3 Inst. 72, the case of Justice Ingham (or Hengham, or, as Hawkins says, Ingram), who was a judge in the reign of Edward I., is mentioned thas:

1 Where a person puts his name on a blank piece of paper and agrees that the officer may fill up a delivery bond above his signature, the officer commits no forgery, so long as he acts within the scope of his authority: Griffith v. Comm., 5 J. J. Marsh. 320.

The 8 Rich. 2, c. 4, enacts, that "if any judge or clerk" offend by the false entering of pleas, rasing of rolls, or changing of verdicts, to the disherison of any one, he shall be punished by paying a fine to the King, and making satisfaction to the party.

As to forging Her Majesty's seals, by the 24 & 25 Vict. c. 98, s. 1, "whosoever shall forge or counterfeit, or shall utter, knowing the same to be forged or counterfeited, the Great Seal of the United Kingdom, Her Majesty's Privy Seal, any Privy Signet of Her Majesty, Her Majesty's Royal Sign Manual, any of Her *Majesty's seals appointed by the twenty-fourth Article of the Union between [*851 England and Scotland to be kept, used, and continued in Scotland, the Great Seal of Ireland, or the Privy Seal of Ireland, or shall forge or counterfeit the stamp or impression of any of the seals aforesaid, or shall utter any document or instrument whatsoever, having thereon or affixed thereto the stamp or impression of any such forged or counterfeited seal, knowing the same to be the stamp or impression of such forged or counterfeited seal, or any forged or counterfeited stamp or impression made or apparently intended to resemble the stamp or impression of any of the seals aforesaid, knowing the same to be forged or counterfeited, or shall forge or alter, or utter, knowing the same to be forged or altered, any document or instrument having any of the said stamps or impressions thereon or affixed thereto, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for life or for any term not less than five(g) years,—or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement."(h)

The 52 Geo. 3, c. 143, s. 5, enacts, "that if any person shall make, forge, or counterfeit, or cause or procure to be made, forged, or counterfeited, the mark or hand of the receiver of the prefines at the alienation office, upon any writ of covenant, whereby such receiver or any other person shall or may be defrauded, or suffer any loss thereby; every person so offending, and being thereof convicted, shall be adjudged guilty of felony, and shall suffer death as a felon, without benefit of clergy."(i)

By the 1 & 2 Vict. c. 94, s. 1, the records in the Tower of London, Chapter House of Westminster, Roll's Chapel, Petty Bag Office, offices in the custody of the

He paid "eight hundred marks for a fine, for that a poor man being fined in an action of debt at thirteen shilling four-pence, the said justice, moved with pity, caused the roll to be raised, and made it six shilling eight-pence. This case J. Southcot remembered when Catlyn, C. J., of the King's Bench, in the reign of Queen Elizabeth, would have ordered a rasure of a roll in the like case, which Southcot, one of the judges of that court, utterly denied to assent unto, and said openly, that he meant not to build a clock-house; for (said he) with the fine that Ingham paid for the like matter, the clock-house at Westminster was builded, and furnished with a clock, which continueth to this day." (g) 27 & 28 Vict. c. 47.

(h) This clause is taken from the 1 Will. 4, c. 66, s. 2; 2 & 3 Will. 4, c. 123; and 1 Vict. c. 84, ss. 2, 3; and is new in Ireland.

Under the 1 Will. 4, c. 66, s. 2, the offences mentioned in the earlier part of this clause were treason; but as the capital punishment had been abolished, it was thought proper to reduce them to felonies.

The part in italics is new, and provides for offences much more likely to be committed than the forgery of the seals themselves. These offences are: 1, The forging the impression of any of the said seals; 2, The uttering any document having the impression of any such forged seal on it, knowing it to be forged; 3, The uttering any forged impression intended to resemble the impression of any of the said seals, knowing the same to be forged; 4, Forging or uttering, knowing the same to be forged, any document having any of the said impressions thereon. As to hard labor, &c., see ante, p. 849.

(i) The 52 Geo. 3, c. 143, not being expressly repealed by the 1 Will. 4, c. 66, and the forgeries mentioned in the 52 Geo. 3, c. 143, not being made capital by the 1 Will. 4, c. 66, they are now punishable under the 24 & 25 Vict. c. 98, s. 48, ante, p. 847, with penal servitude for life, or for any term not less than five years, or imprisonment for any term not exceeding two years, with or without bard labor, in the common gaol or house of correction, and the offender may be directed to be kept in solitary confinement for any portion or portions of such imprisonment not exceeding one month at any one time, and not exceeding three months in any one year, as to the court in its discretion shall seem meet. As to the punishment of principals in the second degree and accessories, see sec. 49, ante, p. 848.

Queen's Remembrancer of the Exchequer, or of any other officer of the Exchequer, Augmentation Office, First Fruits and Tenths' Office, office of the Land Revenue and Enrolments, of the late auditor of the land revenues of England and Wales, and the records lately deposited in the office of the Pells of the Exchequer, and now in the custody of *Her Majesty's Comptroller of the Exchequer, the *852] records belonging to the Courts of Chancery, Exchequer, and Admiralty,

Queen's Bench, Common Pleas, and Marshalsea, the records of the lately abolished Courts of Wales and of Chester, Durham, and of the Isle of Ely, are placed under the charge of the Master of the Rolls.(j) And by sec. 8 a public record office is to be established, and by sec. 12 the Master of the Rolls may allow a copy to be made of any of the said records, which is to be "certified as a true and authentic copy by the deputy-keeper of the records, or one of the assistant record keepers." and to "be sealed or stamped with the seal of the record office;" and by sec. 13 such copies are made evidence.

Sec. 19. "Every person belonging to or employed in the said public record office, who shall certify any writing as a true and authentic copy of a record in the custody of the Master of the Rolls, knowing the same to be false in any material part, and every person who shall counterfeit the signature of an assistant record keeper for the purpose of counterfeiting a certified copy of a record, or shall forge or counterfeit the seal of the public record office, shall be guilty of felony, and being duly convicted thereof shall be liable, at the discretion of the court, to be transported(k) beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years.'

Sec. 20. "The word 'records' means 'all rolls, records, writs, books, proceedings, decrees, bills, warrants, accounts, papers, and documents whatsoever of a public nature belonging to Her Majesty, or now deposited in any of the offices or places of custody before mentioned." "()

By the 24 & 25 Vict. c. 98, s. 27, "whosoever shall forge or fraudulently alter, or shall offer, utter, dispose of, or put off, knowing the same to be forged or fraudulently altered, any record, writ, return, panel, process, rule, order, warrant, interrogatory, deposition, affidavit, affirmation, recognizance, cognovit actionem, or warrant of attorney, or any original document whatsoever of or belonging to any Court of Record, or any bill, petition, process, notice, rule, answer, pleading, interrogatory, deposition, affidavit, affirmation, report, order, or decree, or any original document whatsoever of or belonging to any Court of Equity or Court of Admiralty in England or Ireland, or any document or writing, or any copy of any document or writing, used or intended to be used as evidence in any court in this section mentioned, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding seven years and not less than five(m) years,—or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement."(n)

*853] *Sec. 28. "Whosoever, being the clerk of any court, or other officer having the custody of the records of any court, or being the deputy of any such clerk or officer, shall utter any false copy or certificate of any record, knowing the same to be false; and whosoever, other than such clerk, officer, or deputy, shall sign or certify any copy or certificate of any record as such clerk, officer, or deputy; and

(j) By sec. 2, the Queen in Council may order records in other offices to be included in the Act.

(k) Penal servitude for life, or for any term not less than five years. See vol. 1. p. 4, and the 27 & 28 Vict. c. 47.

(1) The Act contains no provision as to principals in the second degree or accessories. But the principals in the second degree are punishable as principals in the first degree, according to the general rule 4 Bl. Com. 39, and the accessories under the 24 & 25 Vict. c. 94. See vol. 1, p. 67, et seq.

(m) 27 & 28 Vict. c. 47.

(n) This clause is new. It provides for the forging and uttering of any proceedings in any Court of Record, in any Court of Equity, and in any Court of Admiralty, and also of any document, &c., used, or intended to be used, as evidence in any of these courts. As to hard labor, &c., see ante, p. 849.

whosoever shall forge or fraudulently alter, or offer, utter, dispose of, or put off, knowing the same to be forged or fraudulently altered, any copy or certificate of any record, or shall offer, utter, dispose of, or put off any copy or certificate of any record having thereon any false or forged name, handwriting, or signature, knowing the same to be false or forged; and whosoever shall forge the seal of any Court of Record, or shall forge or fraudulently alter any process of any court other than such courts as in the last preceding section mentioned, or shall serve or enforce any forged process of any court whatsoever, knowing the same to be forged, or shall deliver or cause to be delivered to any person any paper falsely purporting to be any such process, or a copy thereof, or to be any judgment, decree, or order of any Court of Law or Equity, or a copy thereof, knowing the same to be false, or shall act or profess to act under any such false process, knowing the same to be false, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding seven years and not less than five(o) years,- -or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement."(p)

On an indictment under the 9 & 10 Vict. c. 95, s. 57, for acting under false color of the process of a county court, it appeared that J. Roberts was indebted to the prisoner in the sum of ten shillings, and that the prisoner, for the purpose of obtaining *payment of such debt, sent to J. Roberts the following docu

ment:

[*854

V. [Coat of arms.] R.

"Welchpool, October 17th, 1836.

"To Mr. John Roberts, "Sir,

"I hereby give you notice that unless the amount of your account, £0 10s. Od., which is due to me, is paid on or before the 23d instant to me at the quarry, proceedings will be taken to obtain the same in pursuance with the provisions of the statute 9th & 10th of Victoria, cap. 25th, of the new County Court Act, for the more easy recovery of small debts, &c.

"Yours, &c.,

"Frederick Mugliston, Clerk to Court,
"Instructed by John Evans."

The whole except the parts in italics was in print. After the letter had been received, the wife of Roberts went to the prisoner and asked if he had sent the letter; he replied that he had ordered the court to send it; and on being so informed she

(o) 27 & 28 Vict. c. 47.

(P) This clause is new as a general provision, but is framed from the 7 & 8 Geo. 4, c. 28, s. 11, and 9 Geo. 4, c. 54, s. 21 (I.) (which relate to certificates of previous convictions of felony); 2 Will. 4, c. 34, s. 9 (which relates to copies of previous convictions in coining cases); and the 9 & 10 Vict. c. 95, s. 57 (which relates to the forgery, &c., of proceedings in the county courts).

dif

In Reg. v. Evans, D. & B. 236, and Reg. v. Richmond, Bell C. C. 142, Bramwell, B., fering from the other judges, thought that the words in the 9 & 10 Vict. c. 95, s. 57, "who shall act or profess to act under any false color or pretence of the process of the court," implied an acting under genuine process by false color or pretence; and, in order to prevent any such doubt, the words "any such false process" are substituted in this clause. The 2 Will. 4, c. 34, is the only one of the statutes mentioned in this note, which is repealed, but this section seems to include all the cases within the other clauses.

The provisions of this clause are:-1, against any clerk, officer, or deputy, uttering any false copy or certificate of any recotd knowing it to be false; 2, against any person other than such clerk, &c., signing or certifying any such copy or certificate as such clerk, &c.; 3, against forging or uttering, knowing it to be forged, any such copy or certificate, or any such copy or certificate with a forged signature, knowing it to be forged; 4, against forging the seal of any Court of Record, or forging the process of any court other than the courts mentioned to the preceding section; 5, against serving or enforcing any forged process of any court whatsoever, knowing it to be forged; 6, against delivering any paper falsely purporting to be any such process, or a copy thereof, or any judgment, decree, or order of any court of law or equity, or a copy thereof, knowing it to be false; 7, against acting, or professing to act, under any such false process, knowing it to be false. As to hard labor, &c., see ante, p. 849.