WHEN IS A DOCUMENT FALSE IN THE LAW OF FORGERY?
| DOI | http://doi.org/10.1111/j.1468-2230.1952.tb02106.x |
| Date | 01 January 1952 |
| Published date | 01 January 1952 |
| Author | R. N. Gooderson |
WHEN
IS
A
DOCUMENT
FALSE
IN
THE
LAW
OF
FORGERY?
THERE have recently been two important articles on the definition
of
"
document
"
in the law of forgery,' but little seems to have been
written on the problem of when a document is false. Even the larger
textbooks do little more than give a string of cases without making
a
serious attempt to correlate and elucidate them. Yet the cases on
the topic are not easy: in most
of
them detailed reasons
for
the
decisions are not found in the reports, and in some there is a failure
to cite relevant authorities. In these circumstances it is not sur-
prising that there is at times conflict between different precedents,
and that the law has developed in a haphazard manner.
It
is here proposed to consider four of the aspects of making a
false document which. seem to demand special treatment
:
-
Making a false document by
(1)
Signing a fictitious name;
(2)
Passing
off
an otherwise true document by false represen-
(3)
Signing one's own name;
(4)
Writing a false address
or
description to a true signature.
It
is hoped to show that in the last three cases the law of forgery
has departed from its early principles in the matter, in each case
so
as to enlarge the scope of the offence.
tations dehors the instrument;
(1)
Signing.
a
fictitious name.
It
was doubted until
1754
whether a document executed in a
fictitious name could ever constitute a forgery, but in that year
eleven of the judges met to consider the case of
Anne
Lezvis,2
and
approved the conviction of the prisoner. She had been indicted for
uttering a forged power of attorney, purporting to be executed by a
fictitious Elizabeth Tingle, alleged to be the daughter of
a
deceased
seaman, who had in fact died childless. The object of the prisoner
was to obtain prize-money which was due to the deceased, and would
have been recoverable by his next-of-kin had he left any.
The next important case, eleven years later,
R.
v.
D~nn,~
is
similar in that the alleged falsity consisted in the signature of an
apparently non-existent person, the widow of a deceased seaman,
Wallace, who,
so
far as the evidence showed, left no widow. The
prisoner personated the
"
widow
"
of the seaman to whom wages
1
Mr.
J.
W.
C.
Turner,
32
Va.L.R.
939;
Professor Glanville Williams,
11
2
Fost.
116; 168 E.R. 57 (C.C.R.).
J
1
Leach
57;
2
East P.C. 976; 168 E.R.
131
(C.C.R.).
M.L.R. 150.
11
12
THE
MODERN
L.4W
REVIEW
l70L.
15
were due, and induced the prosecutor to advance her money on her
own promissory note, which she executed in his presence in the name
of
Mary Wallace. The charge was
of
forging and uttering this
promissory note. The case was reserved for the consideration of all
the judges, of whom nine were for conviction, Aston
J.
dissenting.
The basis of the decision is that Dunn obtained superior credit by the
use of the fictitious name
:
the prosecutor would not have lent money
to her, had he not believed her to be entitled to the wages which he
knew were due
to
Wallace. The judges agreed that
“
in all forgeries
the instrument supposed to be forged must be a false instrument in
itself; and that if a person give a note entirely as his own, his sub-
scribing it by a fictitious name will not make
it
a forgery, the credit
there being wholly given to himself, without any regard to the name,
or
any relation to a third person.”
*
Pausing there, it appears that
the judges would consider such a case as they pose not to be forgery,
because the instrument would not be a false one. Then they argue
that if a superior credit is obtained by the fictitious name the
document is false, because the prosecutor is materially deceived
thereby.
It
is submitted that this reasoning is fallacious, and that
forgery, as distinct from the statutory felony of obtaining property
on forged instruments enacted in section
7
of the Forgery Act,
1913,’
is a crime whch is independent of the state of mind of the prosecutor.
It
is suggested that the only reason there may be no forgery in such
R
case is that no intent to defraud can be proved, and, however false
the instrument, there is of course no forgery
of
a private document
without such an intent. This is perhaps recognised implicitly in a
subsequent passage in
R.
v.
Dunn,
where the court
is
reported as
saying:
“
If
an instrument be false in itself, and by its purporting
to
be the act of another, a credit is obtained, which would not other-
wise have been given,
it
is a forgery.” There seems, therefore, to be
some ambiguity in the dicta in
Dunn’s Case.
The rule of law is
clearly laid down that, if a person gives a note entirely as his own,
his subscribing it by a fictitious name will not make it a forgery, but
it is not
so
clear whether this is because the instrument is not false,
or
because there is no intent to defraud thereby.
The dicta in
Dunn’s Case
are of importance, because they form
the
ratio decidendi
of the decision of five judges of the Court for
Crown Cases Reserved in
R.
v.
Martin
(1879).6
There the prisoner
bought a pony and chaise from one Lee, who .had long known him,
and in payment gave a cheque on a bank where his account had been
closed some months previously, drawing it in the presence of Lee in
the name of William Martin, whereas his real name was Robert
Martin. Lee pocketed the cheque unread. Martin was clearly guilty
This quotation and the hypothetical case considered are
of
great itnportance.
a-
they
are
the foundation
of
the
difficitlt
case
of
R.
v.
.Ifartin
(1879),
shortly
to
be
discussed.
5
Reenacting
ss.
38,
39,
Forgery Act,
1861.
6
5
Q.B.D.
34;
49
L.J.M.C.
11;
41
L.T.
531;
14
Cox
375
(C.C.R.)
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