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Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. Vignell (1828) Sel Cas (Dowling) 351; [1828] NSWSupC 28

forgery, promissory note, Spanish dollars, currency, evidence, competence of witness, statutory interpretation, reception of English law, repugnance to English law

Supreme Court of New South Wales

Dowling J., 5 May 1828

Source: Australian, 7 May 1828

Richard Vignell was indicted capitally for forgery.  The indictment contained four counts; the first imputing a forgery, with intent to defraud Peter Plomer; 2d -- uttering, with the same intent;[1 ] 3d -- forging, with intent to defraud Phillip McCormick; and the last -- for uttering, with the same intent.

The Attorney-General having opened the case, Peter Plomer was called, and being examined stated his residence to be in Sydney.  Knows the prisoner.  Recollects seeing him on the 3d of August, 1826.  Did not know at that time his name was Veneau.  Saw him in the course of that day at the Lumber-yard, in George-street.  He came there in company with a person named John Gordon.  On that occasion prisoner put a signature, purporting to be his own, to a promissory note, for the payment of 24 Spanish dollars, payable to P. McCormick, and signed by J. Norris.  Witness at the time understood that the prisoner was the person named McCormick in the note.  Witness had seen him frequently before, but never knew his name.  [A written paper was here put into the witness's hands]  This paper witness identifies to be the same he had received from prisoner and Gordon.  The names of both these person appear as indorsers on the said bill; as a consideration for which, witness gave twenty dollars.  Cannot recollect to which of the before-named parties he gave that sum -- whether to Gordon or the prisoner.  On the day following the chief constable came to witness and enquired if he had cashed a note of the description alluded to; and upon his replying in the affirmative, was desired by the chief constable to go with him to the Police-office.  Witness did so, and an examination on the subject immediately ensued.  It then appeared that the note was a forgery on the persons named in whose favour it purported to be drawn.  The prisoner at the bar had absconded; but Gordon, who had come with him to witness, was committed by the magistrates for trial, and afterwards convicted of having had a hand in the forgery.

Cross-examined -- Does not yet know whether the prisoner's name is Venean, Vignell, or McCormick.  The description of money given by witness, in consideration of the note, was Spanish dollars.

P. McCormick being next put into the box, Counsel for the prisoner objected to his being sworn, on the ground, that should the instrument or written paper before the Court prove to be genuine, in such case the witness might be answerable for the amount.

The Court -- That is quite clear, as a general proposition.  It has been over and over again ruled, that a person whose name is purported to have been forged, is not a competent witness.  The Attorney-General upon this withdrew the witness, and called John Gordon.

Counsel for the prisoner also started an objection to the examination of this witness, on the ground of his having been already convicted on the note in question; and therefore as he could not be admitted a competent witness for plaintiff, in a civil action, neither by parity of reasoning should he be so admitted in a criminal one.  [This objection the Court over-ruled, and the examination was proceeded with.]

In the early part of the year 1826 the prisoner came to my house to board and lodge.  He had been a fortnight under my roof, and had incurred a debt with me of £2.  About this period, returning home one day, he represented to me that some friend had procured a lucrative situation for him, and had given him a promissory note for £5, in advance of his salary.  This note he said would be cashed by any person, as the parties to the note were so well known.  Witness declined cashing it himself, but recommended him to Peter Plomer, of the Lumber-yard, to whom witness accompanied him.  Plomer agreed to cash the note, upon being allowed a consideration of four dollars for the accommodation, and by witness and prisoner respectively indorsing their names upon the note. Both accordingly did so.  Witness however was not close enough to distinguish what signature prisoner affixed to the note, but swears that the written paper now produced, is the one which he indorsed upon the occasion alluded to.  [The paper was here handed to the Jury; it was indorsed with the following names: J. Gordon and P. McCormick.]  Witness knew at the time, that the prisoner's name was Veneau.  He had paid witness the £2 which he owed him, out of the £4 he received from P. Plomer.  Did not see the prisoner again, after this, for nine months.

Fitzpatrick, a constable, deposed, that some time in the year 1825, he had a long conversation with prisoner, about himself and family, in Dublin.  He then described himself by the name of Veneau, by which name witness knew him.  He had never gone by the name of McCormick, to witness's knowledge.

This was the case for the prosecution.

Prisoner's Counsel raised an objection to the information.[2 ]  The note, he contended, was described as a promissory note, in every count of the indictment.  The statute upon which the same indictment was framed, referred to promissory notes for the payment of monies.  It could not be contended for a moment, that Spanish dollars were to be considered in the sense of their being money.  Even had the note been drawn for its amount in sterling, or twenty-four dollars, he (the learned Counsel) submitted the objection already taken would still be fatal, as regarded the present indictment.  There was a case in point to which Counsel would beg leave to refer.  A note drawn, payable to a party for one guinea in cash, or a bank note, was held by the Judges not to be a promissory note, under the statute.  Such a case was reported in 2 Russel, 1623.  One Daniel Wilcox was tried on an indictment; one count charging him with forgery, and another with uttering a promissory note; which note ran as follows: -- I promise to pay the bearer one guinea, here, in cash, or a £1 Bank of England note. £1 1 0. --  Upon this an arrest of judgment was moved, whether the note was or was not a note for the payment of money.  The Judges were of opinion the conviction was wrong.  There was something more than this wanting - the note was not complete.  How much less then, Counsel contended, could the note now the subject of question be considered a promissory note, when it was drawn for 24 Spanish dollars, and no mention of sterling money of the realm appearing in any way upon it, whereas a promissory note (vide Chitty) must be for money only.

The Attorney-General in reply argued, that at the time of the forgery taking place, for which the prisoner was indicted, all transactions (in the Colony) were passing in dollars or promissory notes for dollars.[3 ]  He (the Attorney-General) did believe that since then there had appeared a colonial enactment, declaring that dollars should not be considered longer in the light of sterling money; but at the period above alluded to, dollars were regularly acknowledged a circulating medium throughout the Colony, and goods were transferred from the possession of one to that of another, upon dollar notes, to the perfect satisfaction of all parties therein concerned.  He (the Attorney-General) should suppose that the principle of English law applied to dollar notes, which were at the time he referred to legalized and passed current, applied to them as well as to Bank of England one pound notes. -- He therefore submitted, that the case now under investigation, was in point of fact a case of forgery, having about it every trait necessary to constitute it a forgery committed before the enactment spoken of, which had been passed subsequently.

The Court observed that this case turned entirely upon the alteration of the local Act, in the 5 George IV, No. 1, of the Colonial Legislature, dated, September, 1824.  At present, the Court would put the case to the Jury upon the facts adduced, and reserve the point of law arising out of it for further consideration till such time as his Honor the presiding Judge, would be enabled to avail himself of the assistance of his two able colleagues.

The prisoner having declined calling any witnesses, the learned Judge proceeded to sum up the evidence.

To draw a line of distinction between a money transaction and one that was not to be considered as such, was, in the opinion of his Honor, at times, a very nice point.  In the present case, however, it was not a point for the consideration of the Jury, but for the Court to decide, whether such a promissory note as that laid to the charge of the prisoner, actually did, or did not come within the legal meaning of the Statute.  On either question the learned Judge himself preferred being just then silent.  The witnesses had all spoken of the prisoner, by the name of Venoe, but that mattered little; the prisoner had pleaded to the name laid in the indictment and doubt on that point was therefore to be considered as concluded.  If the Jury were satisfied as to the truth of the facts, as related by the witnesses, and should arrive at the conclusion that the prisoner did endorse the note as described, they would find him guilty of defrauding one or other of the two persons named in the information.

Verdict - Guilty.  Remanded - to be brought up for judgment on Wednesday next.

 

Forbes C.J. and Dowling J., 7 May 1828

Source: Australian, 9 May 1828

The first case called, and on which the Attorney General prayed judgment, was that of Richard Vigneau, who had been convicted of forging a promissory note or order, with intent to defraud certain parties.  In this case it will be recollected grounds of objection had been raised against the indictment, which the learned Judge who presided at the trial chose to reserve for further argument.  Those objections having again undergone repetition, both Judges preferred deferring any decision upon them till such time as they might have an opportunity of examining more minutely into their validity.  The prisoner was therefore for the time being remanded.[4 ]

 

Forbes C.J. and Dowling J., 8 May 1828

Source: Australian, 9 May 1828[5 ]

Having come into, and been fairly seated in Court, at the usual hour this morning, Mr. Justice Dowling proceeded to deliver the opinion at which himself, and his learned friend on the Bench, Chief Justice Forbes, had arrived on the case of Richard Vigneau, whom the Jury had found guilty on the 5th instant, on two counts of an indictment -- the first, purporting to charge the prisoner with forging a promissory note, professing to be made by one "J. Norris," in favor of "P. McCormick," dated the 29th of September, 1825, with intent to defraud a person named Peter Plomer - and secondly, with uttering the same with the like intent.  Arrest of judgment had been moved and granted, upon the following grounds; -- firstly, that the paper having written upon it, a promise to pay so many Spanish dollars, was not a promissory note for the payment of money within the meaning of the Statute, under which the indictment had been framed.  Secondly -- that the local Act, No. 1, passed in Sir Thomas Brisbane's administration, in September, 28, 1824, did not contemplate providing for cases of forged promissory notes, payable in Spanish dollars.

With regard to the first ground of objection, Mr. Justice Dowling maintained, that it was a fixed principle of Criminal law, to interpret penal Statues most strictly, according to their wording, without calling in the assistance of any inuendoes to eke out unforeseen defects.  An able commontator on the law, had very wisely said, that the best interpreter of a Statute, was the Statute itself.  The present information was founded on a Statute highly penal in its consequences, for the Statute alluded to in the present case, enacted, that any person who should be proved to have forged or counterfeited, or caused to be forged or counterfeited any deed, will, testament, bond, or promissory note, for the payment of money, or any bill of exchange with intent to defraud any person, knowing the same to be false, forged, or counterfeited, such person should be deemed guilty of felony, and suffer death without benefit of clergy.  The question that had been raised upon this Statute, was, upon the meaning of what should be considered money.  Regarding British subjects, his Honor took it, that the English law, knew none other as money, than the current coin of the united realm.  All Statutes against coining, meant the King's money, which had been made by the King's authority within the realm.  It was laid down by various authorities, and his Honor would more particularly advert to a Statute of Edward and Mary, where it would be found, that on occasions, when it was found expedient to make a foreign coin current in the realm of England, it was held necessary, by proclamation, & by Act of Parliament, to make the forging such coin an offence at law.  His Honor took it, therefore, that unless it was shewn that there was some Act in the British Legislature, that the word money, within the meaning of the Statute, meant to take in any other coin than such as was the current coin of the realm, --- the note, the subject of this prosecution, was not a legal instrument.  The word money, when used in all British Acts of Parliament, meant none other than the money of the realm.  What was there to shew that Spanish dollars were the money of the realm?  The use and adoption of them, were not sufficient to make them money, within the meaning of the Statute, without the King's prerogative.

The note in question, it appeared to his Honor (Mr. Dowling, was a promissory note for the payment of twenty-four Spanish dollars, and as such did not come within the meaning of the Act 2, Geo. II. ch. 22, sec. 1.  Then secondly -- Did the local Act, his Honor would ask, passed during the government of Sir Thomas Brisbane in the Colony, make any difference in the Act of Parliament?  the passing of that Act was one of general expediency; but it could never do that which the Legislature of the Mother Country never intended should be done.  He (his Honor) should be very slow to think so; but the Court was not just then called upon to decide that question.  It however was clear, that the local Legislature never had it in contemplation to apply that Act to criminal cases -- cases wherein persons forged promissory notes for the payment of Spanish dollars.  In consequence of a scarcity of the coin of the realm, it was found necessary to resort to Spanish dollars to carry on the commerce of this country; and it was in consequence of this, that a temporary plea of expediency, was laid hold on by the passing of an Act of Council; but that Act did not go so far as to make a complete felony, the forging of promissory notes for the payment of Spanish dollars.  All it did was to make bills of this description binding between party and party, and in order to prevent any objection being made in courts of law to the legality of such notes.  Thence it appeared to his Honor, in the first place; that the promissory note, the subject of the present indictment, was no forgery, it being for the payment of Spanish dollars and consequently not coming within the meaning of the Act 2, Geo. II. ch. 25, sec. 1; and secondly, the difficulty had not been removed by the local Act; in consequence no judgment could be passed upon the prisoner.  It would however remain with the Attorney-General to determine what course he was disposed to pursue, in order that justice should not be altogether defeated.

The Chief Justice entirely agreed with his learned colleague, Mr. Justice Dowling, in the able view he had taken on the subject.  It was within his Honor's knowledge, that it was not the intention of the Coloniol [sic] Legislature, in passing the Act referred to, to apply it to the Statute, but merely to render instruments, such as promissory notes, binding between party and party, without applying to criminal cases.

The Attorney General hereupon moved, that the prisoner be detained, to answer to another information for a misdemeanor.[6 ]

Forbes C.J. and Dowling J., 8 May 1828

Source: Dowling, Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461

[p. 102]

[A promissory note for the payment of  "Twenty Four Spanish Dollars" is not a promissory

note for the payment of money, within the 2. G. 2. C. 25. s. 1 to support an indictment for forgery.]

 

Thursday 8th May 1828

Present Forbes C.J & Dowling J.

The King v Richard Vignau.

This was an indictment against the prisoner, charging him with forging and uttering a promissory note, purporting to be dated 3rd August 1825. and made by one S Norris in favour of one Peter McCormack for the payment of "24 Spanish Dollars" with intent to defraud one Peter William Plomer. There were three other counts varying the charge but in each the forged instrument was described as a promissory note, and setting it forth in the words and figures in which it was written from which it appeared to be for the payment of "24 Spanish Dollars".  At the trial before Forbes C.J. on the 5th instant the prisoner was found guilty; and on being brought up for judgement, the prisoners counsel moved to arrest the judgment [p. 103] on two grounds:- First that a party writing promising to pay so many Spanish dollars is not a promissory note for the payment of money within the intent and meaning of the statute 2. G. 2. C.25 s.1 on which the indictment was bounded: and second. That the local act of council passed during the government of Sir Thomas Brisbane No. 1. Sept 28 1824. does not contemplate the case of a forged promissory note made payable in Spanish Dollars. The learned Chief Justice took time to consider the case, and having conferred with me[7 ] upon it, I am of opinion that the judgment must be arrested.

As to the first point I take it to be a general rule and principle in the administration of criminal justice, established by a current of authorities, that penal statutes are to be construed most strictly and that no intendment shall be brought in aid, to eke out meaning [p. 104] of words even of doubtful import in an of parliament it is and old maxim of law." that the best interpreter of a statute is the statute itself. 8 Rep 117.  This information is founded upon a statute highly penal in its consequences, and must therefor be construed strictly.  By 2. G. 2. C 25. s. 1. it is enacted "that if any person shall falsely make, forge or counterfeit, or cause or procure to be falsely made, or forged or counterfeited, or willingly act or assist in the false making, forging or counterfeiting any deed, will, testament, bond or promissory note for the payment of money &c or indorsement of any bill of exchange or promissory note for the payment of money &c with intention to defraud any person whatsoever, or shall utter or publish as true any false, forged, or counterfeited deed, &c or promissory note for payment of money, &c with intention to defraud [p. 105] any person knowing the same to be false, forged or counterfeited; then every such person being thereof lawfully convicted according to the due course of law, shall be deemed guilty of felony, and suffer death as a felon, without benefit of clergy."

The question arising upon this statute is as to the meaning of the word money.  What are we, sitting in this place, to understand by that word?  I apprehend that the word "money", in its legal application in all transactions between British Subjects means the legal current, sterling money of the realm of England, as contra distinguished from foreign money.  All the statutes against coining clearly contemplate, The Kings money, such only as is coined by the King's authority, either in gold or silver within the realm.  I advert particularly to the 25 Edw. 3. C. 2 1 Mary Sess 2. C. 6. 5 Eliz. C. 11. 2. 2 14 Eliz. C.3. 18 Eliza. C 1. & 8 & 9 Will 3. C. 26 [p. 106] and we find that on occasions when it has been found necessary to make foreign coin carried in the realm of England by the King's proclamation it has been necessary to pass acts of parliament to render the forging and counterfeiting of the same a criminal offence.  In all commercial transactions in England, unless were it is otherwise provided by special contract between the parties, the word "money" will be found to have been construed to mean the sterling money of the realm.  I take it therefore that unless it be shown that there is some act of the British legislature which declares that "money", may be understood to mean any coined money of any country, we cannot understand the legislature to mean when it uses the words in this act," promissory note for the payment of money," - money [p. 107] which is of the current sterling money of the realm coined and issued by virtue of the King's prerogative.  The word "money" when used in an English act of Parliament, unless otherwise designated can mean no other money than the money of the realm,  What is there to shew that "Spanish Dollars" are the money of the realm?  I take this point to be too clear to admit of doubt.  The usage of adoption of a foreign coin as the representative of current value, will not make it the money of the realm unless it has the sanction of the King's proclamation or of parliament. 

It appears to me therefore that the forging of a promissory note for the payment of so many Spanish Dollars, is not an offence within the meaning of the Statute 2 G. 2. C. 25. s.1 which makes it a Capital felony to forge or utter a forged promissory note for the payment of money.  It is true that [p. 108] all coined metal used for the purpose of mercantile currency may in common part be called money.  But is all coined metal, money within the meaning of this act of Parliament.  I am clearly of opinion that it is not, and consequently that this is a case not within the terms of the act of parliament.  Then secondly, does the Colonial act passed during the Government of Sir Thomas Brisbane make any difference?  Can we piece or tack on a local measure of temporary expediency to a general act of the British Parliament, in order to give it a force and effect, which the legislative of the mother country never contemplated, even supposing the local act will bear that interpretation?  I should be very slow in coming to such a conclusion.  But it seems to me that we are not called upon to decide that [p. 109] question.  It is quite obvious from the preamble and enacting part of the local act No 1 passed by the Colonial legislature on the 28th. Nov. 1824 that even in the contemplation of the local legislature no criminality was intended to attach to a person forging a promissory note payable in Spanish dollars.  That act recites that "Whereas the ordinary business of buying and selling in New South Wales and dependencies thereof, is, and has long been transacted in a foreign silver coin, commonly called Spanish Dollars, and by bills of exchange and promissory notes payable in such dollars; and whereas to improve the security of the said bills and notes will promote trade and just dealing", and then it enacts "That all Bills of Exchange and promissory notes, payable in such dollars as a foresaid, shall be holden in the courts of law in the said Colony and of the dependencies Thereof, [p. 110] to be valid, negotiable and transferable instruments; and the holders of the same, and all other persons interested therein shall have and be allowed, in the said courts, all such remedies, in respect of their claims upon such bills and notes as aforesaid as if the said bills and notes had been drawn payable in money of the realm."  Without adverting to the history of the current specie of the Colony, it may be fairly understood from this act of the local legislature that in consequence of the scarcity of coin of the realm, it had been found necessary to resort to the use of Spanish dollars as well as other foreign coin in ordinary mercantile transactions of the inhabitants of this remote settlement, and that for the purpose of removing doubts as to the validity of securities made payable in foreign dollars, the legislature as a [p. 111] measure of temporary expediency resorted to this measure in order to remove such doubt; but if it had contemplated the policy of making it a capital felony to forge a promissory note payable in Spanish Dollars, we should have found some express enactment to that effect.  But no such provision is to be found.  All that it does is to make valid and binding as between party and party all instruments of pecuniary contract which were then made payable in Spanish Dollars, and that no direction should be made in a court of law as to the validity of such instruments on the ground that they were not made payable in the sterling kings money of the realm.  This very enactment,/which has been since repealed by another act passed in the 7 Geor 4. during the administration of His Excellency Governor Darling No. 3 - 12 July 1826) [p. 112] is itself a practical interpretation of the 2 Geo. 2. C. 25. s. 1 shewing in the opinion of those who frame it that but for this local act, even as a genuine mercantile security, a promissory note payable in Spanish Dollars, would not be valid and finding, as a payment for money of the realm, without going more into detail of the reasons for forming my judgment, it appears to me first that this is not a forged promissory note for the payment of money within the meaning of the 2 Geo 2. C. 25. and seemed that the difficulty is not removed by the local act making valid promissory notes payable in Spanish Dollars; and consequently no judgment can be passed on the prisoner upon this indictment.  It remains for the Kings attorney General to determine what [p. 113] alterior [sic] proceedings he may think proper to adopt against the prisoner in order that the justice of the Country may not be altogether defeated.

Notes

[1 ] See also Sydney Gazette, 7 May 1828.  On the same point of law concerning Spanish dollars, see R. v. Riley, 1826; R. v. Hughes, 1827.

[2 ] The Sydney Gazette, 7 May 1828, stated that Rowe acted for the defence.  He cited R. v. Wilock 2 Rus. 1623.

[3 ] According to the Sydney Gazette, 7 May 1828, The Attorney General, A.M. Baxter, "contended, that the principle of British law should be applied here, as far as the circumstances of the Colony would admit.  Up to the passing of the Act of Council, No. 3, of His Excellency General Darling, in 1828, dollars were a legal tender in the Colony, and had been expressly made so by the Act of Council, No. 1, of Sir Thomas Brisbane.  Subsequent to July, 1826, when that Act was repealed, he admitted that promissory notes, payable in Spanish dollars, were not available; but the offence, with which the prisoner was charged, was in August 1825.  He, therefore, contended, that the principle of the English law applied to the case before the Court, and that Spanish dollars being the legalized circulating medium to the 12th July, 1826, was to be considered the money of the Colony up to that period."

[4 ] See also Sydney Gazette, 9 May 1828.

[5 ] See also Sydney Gazette, 9 May 1828.

[6 ] Eventually the misdemeanour charge was abandoned as well, and he was released: Sydney Gazette, 30 May 1828.

[7 ] This refers to Dowling J., on whose notes this report is based.

Published by the Division of Law, Macquarie University