[forgery and uttering]

R. v. McCann

Supreme Court of Van Diemen’s Land

Pedder C.J., 3 and 4 December 1840

Source: Hobart Town Advertiser, 8 December 1840[1]

            Charles McCann was indicted for uttering and disposing of a certain false forged and counterfeited order or warrant for the payment of money with intent to defraud John Thomas and another.

            The forgery was on a cheque in the following words:-

                                                                        Bank of Australasia

Hobart Town, May 29, 1840,

            Pay to Mr. Ballantyne or bearer the sum of Fifty pounds and place the same to account of £50.

                                                                        C. F. Salmon

            This appears to have been originally a £5 cheque which had been altered by some person to £50, and passed by the prisoner to Messrs. Thomas and Co. The altering was clearly proved.

Verdict guilty.

Mr. Stephen, for the prisoner, objected that this was not an order for the payment of money, inasmuch as the words “Bank of Australasia” might mean the place where the order was written. It did not purport to be directed to any one. To be an order there must be the person ordering the thing ordered, and the person to whom the order was given. His Honor overruled the objection, but would allow the point to be argued on Friday.

* * *

Friday December 4, 1840

            His Honor Sir John Pedder desired Charles McCann to be placed at the bar; upon which Mr. Stephen, support of the objection taken by him yesterday, cited the case of Rex v. Clinch 2 East P.C. 938; Rex v. Ravenscroft, Rus & Ry. 161; and Rex v. Cullen, 5 Car. & P. 116; where the orders not being directed to any person were held not to be within the stat. 1, W. 4, c. 66, s. 10.

            His Honor, however said that he could only consider the words “Bank of Australasia” as intended to indicate that the persons composing that body were to pay the order, and that it mattered not where the direction was placed, whether at the commencement, as was the case with mercantile letters generally, or at the bottom, as in the case of ordinary letters, nor was it necessary that the word “to” should be prefixed, in order to show that the persons whose names were used, were the persons addressed.

            Mr. Stephen then submitted to his Honor that the words Bank of Australasia did not necessarily denote that “persons” were at all meant, they might mean only “the place”. His Honor however overruled the objection.

            The prisoner being then called up for judgment, Mr. Stephen requested that the information might be read, when he submitted that the offence of which the prisoner had been convicted, was the putting off an order which had been altered from £5 to £50, whereas he was indicted for disposing of the false, forged, and counterfeited order.” That the Statute declared that “if a person shall forge or alter, or offer, utter, dispose of, or put off, knowing the same to be forged or altered,” and consequently that the indictment should have described the offence so as to suit the facts.

His Honor stated that this was not one of the grounds for moving an arrest of judgment, but that he would bear it argued.

Mr. Stephen continued, and contended that as the Statute made a distinction, the indictment should have suited the case.

The Attorney-General handed to his Honor, Arch. C. Law., calling his attention to page 341, where a precisely similar objection had been taken and over ruled (The cases were R. v. Teague, 2 East. P.C. 979, R and R., 33. - R. v. Atkinson, 7 C. and P. 669), though it is more usual and more prudent in one set of counts to charge it as an alteration merely.”

His Honor over ruled these objections, and sentenced the prisoner to fifteen years’ transportation.