COURT OF APPEAL.

Globe, Volume IX, Issue 1344, 5 June 1878, Page 3

COURT OF APPEAL.

Friday, May 31. [Before their Honors the Chief Justice, Mr Justice Johnston, Mr Justice Richmond, Mr Justice Gillies, and Mr Justice Williams.] Judgment was delivered in the following case : EKGINA V SIMOANS. The Chief Justice—l am of opinion that the conviction cannot bo supported. The alteration in the cheque does not affect its value, and is not material, Mr Justice Johnston —I am of opinion that this conviction cannot be supported. The alteration made is in a part of the instrument, which is not material as respects its legal operation. The alteration did not change the civil rights and liabilities of the parties. I am not prepared to say that the alteration of a part of a document not material in that respect, if made with the intent to defraud, and being likely or apt to deceive, might not be forgery. Here the jury have found that the alteration was not likely to deceive an ordinary person, and we must accept that conclusion of fact, even if wo think it erroneous. I am, therefore, of opinion that, although there was no intent to defraud, yet, as the alteration is found by the jury to have been one which was not likely to accomplish the intent, it was not an alteration within the Forgery Act. Mr Justice Williams—The effect of the alteration, or rather of the addition made to the cheque by the prisoner, in no way varies the effect of the instrument. Had the cheque been originally drawn in its altered form it would have been a cheque for £3 only. If the drawer had been sued upon it the plaintiff could not have recovered more than £3, and evidence would have been inadmissible to show that the cheque was intended to be for the amount expressed in figures. This is clear from the case of Sanderson v Piper, 5, Bing ; N. 425. The alteration also is not of such a nature as to render the cheque void. The drawer is discharged from his liability only if the altered instrument, supposing to bo genuine, would speak differently from the original instrument, whether the alteration be or be not to his prejudice (see Gardiner and others v Welsh, 24, L.J.Q.8., at page 228). An instrument is a|forgcry when it fraudulently purports to be that which it is not (see R. v Ritson, L.R., 1 O. 200). Here the legal effect of the document after the alteration remains the same as before. It may be true, as laid down in R. v Elliot, 2 Bast,, P. 0., 952, that in forgery it is sufficient that the instrument is prima facie fitted to pass for a true one, but the jury have found expressly that an ordinary person would not have been deceived by the altered instrument. Had the jury found differently the question would have been one of greater difficulty, but on the case as it stands I am clearly of opinion that the conviction should be quashed unless it can be maintained that the word “alter” in the statute extends to some kind of alteration that would not have been included under the word “ forgo.” Ido not think that the word “alter” has any such effect. The word “ alter” in connection with the word “ forge,” as relating to orders for the payment of money, first appeared in the Statute Book in the 7 Geo. 11., c. 22, and has remained ever since. If the effect of the word had been to render felonious an alteration which would not have amounted to forgery, it is certain that in the course of nearly a century and a half some notice of such an extended effect would have been found, either in reports or in the works of text writers. During all this period no case can be found where a person has been convicted of altering an instrument whore ho would not have been as properly convicted if he had been indicted for forging it.