Skip to Content

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

R v Mulligan [1832] NSWSupC 54

forgery and uttering

Supreme Court of New South Wales

Stephen J., 24 August 1832

Source: Sydney Gazette, 25 August 1832[1 ]

 

Owen Mulligan, was indicted for feloniously making and forging an order for the delivery of goods, and payment of money, in the words and figures following, that is to say -

 

To Mr. D. Wilson

``Please to give the bearer, Patrick Daly, the undermentioned articles: - six blankets, one dozen shirts, six pairs of trowsers, four jackets, six pairs of men's shoes, and £1 in cash, the amount of the above, to be placed to my account.

``JAMES PHILLIPS."

``Patterson's-river

19th July, 1832"

 

with intent to defraud Caleb Wilson and Felix Wilson, at Sydney, on the 25th of July last.

A second count charged the prisoner with uttering the aforesaid order, knowing it to be forged.

Caleb Wilson examined by Mr. Moore - I am a shopkeeper, residing in George-street; I am in partnership with my son, Felix Wilson; I know Mr. James Philips' he resides on Patterson's-river; he has dealt with me for several years past, and is in the habit of drawing orders on me for goods; this order was presented to me, by the prisoner at the bar, on the 25th of July last; it is not in the hand writing of the Mr. James Philips, of whom I have spoken; I suspected, when it was presented, that it was a forgery, and handed it to my son, who at once said it was a forgery and asked the prisoner where he got it; there was another man with the prisoner, whom I do not know; the prisoner, when told the order was a forgery, and asked where he got it, said it was quite correct, and desired the man who was with him to go and bring a person who could prove it to be so; the other man went out, and returned in a short time with another person whom we considered was an accomplice; we discovered afterwards that he had been an assigned servant to Mr. Philips, who had then lately become free; after the man who went out for this person returned with him, I asked him who he was; he said he was a government man to Mr. Philips; my son asked where was his pass; he said he had not got one, and my son then said he would send him to the watch-house till he got one; at this time, the prisoner and the man who was brought in last, were standing between me and the door, and immediately started out of the shop, and ran down the street in opposite directions; I requested a young man who was in the shop at the time to pursue the prisoner, which he did, and my son pursued the other man; the prisoner was apprehended a few minutes after, and together with the man who remained in the shop, given in charge of some constables; I should have stated, that before I challenged the prisoner with the forgery, he said he was in Mr. Philip's employ, but afterwards he seemed to wish to deny that, and said he was working sometimes in the employ of one person, and sometimes in the employ of another.

Cross-examined by Mr. Rowe - The order was presented folded in the shape of a note and sealed; I broke the seal in order to see the purport of the note, but it appeared to me to have been sealed in an artful manner, so that it could not be opened without tearing off part of the signature; the initial of my Christian name is C; neither my Christian name nor my son's commences with a D; Mr. Philips always directs to us ``Messrs. C. and F. Wilson;" from the appearance of the instrument I at once saw it was a forgery; the first impression on my mind was, that the initial letter of my Christian name on the order was a D; afterwards I thought the writer was uncertain what my name was, and made the letter so that it might be construed either a C or a D; Mr. Philips has a running account with us, but we have no funds of his in our hands; it is discretionary with us to furnish him with goods on his order; it is not compulsory on us to do so; it is optional.

James Philips - I am a farmer at Patterson's River; I deal with the firm of Wilson and Son, and occasionally draw orders on them; this order is not in my hand-writing, but is an imitation of it.

Cross-examined - I should detect it to be forgery at once; I never direct to D. Wilson; I do not think the letter on the order is a D; it is, in my opinion, more like a C.

Re-examined - I don't know the prisoner; he never was in my service.

This was the case for the prosecution.

Mr. Rowe submitted, with great confidence, to the Court, that, in point of law, the prisoner was entitled to his acquittal upon this information.  The instrument upon which the prosecution was founded, he contended, was not a warrant or order under the statute; because, in order to constitute a warrant or order for the delivery of goods or payment of money under the statute [7 Geo II., c 22] there must appear upon the face of it something compulsory upon the party to whom it is addressed to deliver the goods or money.  There was nothing of that kind here.  The instrument merely stated ``Please to deliver to the bearer," &c.; and Mr. Wilson, in his evidence, said that it was discretionary in him to give the goods, and, moreover, that the prosecutor had no funds in his hands.  The law, as stated by him (Mr. Rowe) has been so ever since the decisions in the cases of the King against Mitchell, reported in [Foster, p.119] the King against Williams [1Leach 114] and the King against Ellor [1 Leach 323].  Again he referred the Court to Archbold's Criminal Pleading, 3d edition, 1828, page 242, wherein, speaking of a forged warrant or order, it was laid down that the instrument must purport to be signed by a person who could command the delivery of the goods or the payment of the money specified in it; and on that ground it had been held that an order to a tradesman to deliver certain goods, where it was optional with him to obey it, did not come within the Act under which the prisoner was indicted.  Also, in the same work, page 185, in reference to the Act of the 7th and 8th Geo. IV., c.29 § 53, which makes it a misdemeanor to forge or utter a letter for the delivery of goods, it was stated, that the difference between this offence, and the forging or uttering a warrant or order under the statute 7th Geo. II., c 22, is that in the latter case it must be compulsory on the party to whom the order is directed to comply with it; but in the former, a forged letter containing a mere request with which it is optional with the party to whom it is addressed to comply, will be sufficient to constitute the offence - that is a misdemeanor, not a capital felony with which the prisoner at the bar was charged.  Again, inRussell on Crimes and Misdemeanors, page 1641, referring to East's Please of the Crown, itwas stated that it seemed to be settled law, if the warrant or order, under the 7th Geo. II., c.22,did not purport on the face of it, or were not shown by averments, to be compulsory on the party to whom it was directed, but merely contained a request on the credit of the party applying, that it did not come within the statute, 7 Geo. II.; and then the writer went on to cite Mitchell's case as reported in Leach. There was no averment in the present information, that Philips had power to draw on Wilson, and Wilson himself expressly stated that Philips had no funds in his hands, and that it was discretionary in him whether he would comply with order or not.  For these reasons, and on the authority of the cases he had cited he (Mr. R.) submitted, with confidence, that the prisoner must be acquitted.

Mr. Moore replied briefly - He said that, as he looked at the Statute, he considered that, in the common course of dealing with a tradesman, an order to deliver goods came within it.  With respect to the argument on the other side, that the instrument contained a mere request - that it commenced, ``Please to deliver, &c." if that doctrine were supported, a check on a banker would not come within the Act, for all such instruments commenced with, ``Please to pay to, &c."  It was for the Court, he contended, to look at the paper and to say whether it contained a mere request, or whether it was not, in fact, an order from the party by whom it purported to be written, to a tradesman with whom he had constant dealings.

After a few observations by Mr. Rowe.

Mr. Justice Stephen said, whether this case would or would not come within the Act of the 7 and 8th Geo. 4th, is not now the question; but it appears to me, upon a hasty consideration, that the cases cited by the prisoner's Council, are decisive against the present prosecution under the 7th Geo 2nd. c.22; for it is not an order for the delivery of goods in his possession, over which the supposed drawer had a power, but is a mere request with which the party to whom it is addressed might or might not comply, in his discretion.  Without entering into the subject of whether or not the laws relating to forgery have been wisely framed, or are agreeable to natural justice, as regards the moral guilt of that offence, in reference to other offences for which the punishment of death is awarded, it is only necessary to state that those laws are highly penal and it is the duty of a Judge to see that the case before him falls strictly within them.  As at present advised, and upon authority of the cases that have been cited to day, I have no hesitation in saying that I do not think this case comes within the meaning of the Act under which the prisoner is indited.  I shall, however, let the case go to the jury on the merits, and reserve the point (as it has come by surprise upon me), for the consideration of the other Judges should it become necessary.

His Honour then summed up the evidence, and the jury found the prisoner guilty of uttering.  Remanded.

 

Notes

[1 ] See also Sydney Herald, 27 August 1832.

Published by the Division of Law, Macquarie University