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it became so by the determination of the defendant not to take the goods; and this fact being communicated to the plaintiff, he took the note subject to that condition." M'Fadden v. Maxwell, 17 Johns. R. 188. So the endorser of a note is a competent witness to prove whether he endorsed the note previously or subsequently to its becoming due. Baker v. Arnold, 1 Cain. R. 258. See also Baird v. Cochran, 4 Serg. & Raw. 397.

So the endorser of a note was held to be a competent witness to prove that the date of the note had been altered after it was made. In this case the note had been in the hands of a third person previously to the making of the endorsement, although the endorser was payee of the note; and he could not state whether the alteration had been made when he endorsed the note or not. The Court said, "The note is not objected to as originally void, but as having been fraudulently altered; and this the witness was competent to prove." Parker v. Hanson, 7 Mass. R. 470.

In an action against the drawer of a bill endorsed by Robinson and Co. to Taber and Son, and by the latter to the plaintiff, without recourse to them, it was held that Taber was a competent witness to prove that Taber and Son were merely agents of Robinson and Co. to procure payment of the bill, and that Taber and Son endorsed it to the plaintiff merely as the agent of Robinson and Co. and for their use, and that Robinson and Co. had requested the drawer before this suit was brought, not to pay the bill to the plaintiff. Barker v. Prentiss, 6 Mass. R. 430. In an action against the payee of a note, who had endorsed it for the accommodation of the makers for them to raise money on it, but they becoming insolvent with the note in their hands, had directed them not to part with it; it was held that one of the makers of the note was a competent witness to prove that they afterwards sold the note to the plaintiffs, and at the same time informed the plaintiffs of all the above facts in relation to the note. Skilding v. Warren, 10 Johns. R. 270. See also Hubbly v. Brown, ante, p. 374.

So the drawer of a bill is a competent witness to prove a conversation which he had with the payee, respecting the terms on which the drawee had agreed to accept the bill. Storer v. Logan, 9 Mass. R. 55.

Where the plaintiff is himself a party to the illegal consideration of a bill or note, or to a fraud in its transfer, the rule which prevents parties to negotiable instruments from being witnesses to impeach them, does not apply, and a party to the bill or note if not interested, may prove the illegal consideration or fraud.

Thus it has been held, in an action on a note, that an endorser who had negotiated the note to the plaintiff was a competent witness to prove that the plaintiff, since the note was discounted, had admitted to him that it was usuriously discounted. Spencer C. J. giving the opinion of the Court, said, "The situation in which the witness stood did not incapacitate him from testifying to that fact. He was not asked any question involving his own turpitude, as whether the note which he passed as a good and available note, was void within his knowledge when he offered it to the plaintiff, In Winton v. Saidler, Mr. Justice Thompson considered it as contrary to sound policy and morality, that a party to a negotiable note should be a witness to invalidate it; meaning, undoubtedly, that a person whose name was on a negotiable paper, and who had thereby contributed to its circulation, should not be heard to say that the paper thus sanctioned by his name, was tainted when it passed into his hands. But if it receives its taint when it is negotiated to the party plaintiff by the facts then happening, it is not contrary to

public policy or morality, nor would it come within the princicle of the decision of Winton v. Saidler, to hear the witness as to such facts. The principle in Winton v. Saddler, was intended as a protection for the fair and bonâ fide holders of a negotiable note or bill, against any prior transaction, which had already invalidated the paper." Powell v. Waters, 17 Johns. R. 176.

So in an action against the first endorsers of a note for $4000, it was held that the maker and second endorser were competent witnesses for the defendants, to prove that for the accommodation of the makers and second endorser, the first endorsers endorsed a blank paper, on which the maker was to draw a note for $2000, and that the plaintiff, without the privity or consent of the defendants, afterwards persuaded the maker to draw the note for $4000. Per Curiam. "It is insisted that this case comes within the rule that the party to a promissory note, shall not be admitted to impeach its original validity. It would however be a misapplication and abuse of the rule to extend it to this case. The reason and policy of the rule is to protect bonâ fide holders of negotiable paper, which they have honestly received in the usual course of business. Here the party who asks for the benefit of the rule is the very person who committed the fraud, which is now relied on by the defendant to annul the contract." Myers v. Palmer, 18 Johns. R. 167.

So an endorser of a note, in a suit against the maker, is a competent witness to prove that it was given to the plaintiff to take up two other notes endorsed by the witness to the plaintiff, and on which two notes the plaintiff had received more than legal interest. Platt J. giving the opinion of the Court, says, "If the decision in the case of Winton v. Saidler be still considered as sound law, it has no application in this case. Skilding v. Warren, and Powell v. Waters, give the rule for this case. Tuthill v. Davis, 20 Johns. R. 287.

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So in an action by the administrators of the payee of a note against the administrator of the maker, a person who was a several promiser on the note as surety, was held to be a competent witness to prove that the note was given to the intestate for a usurious consideration. Fox v. Whitney, 16 Mass. R. 118.

But in some cases, parties to negotiable instruments, though not interested, have been held not to be competent witnesses to prove an illegal consideration in the origin or transfer of a bill or note, where the plaintiff was himself a party to the illegal consideration. Mann v. Swann, 14 Johns. R. 270; Manning v. Wheatland, 10 Mass. R. 502. See also Houghton v. Page, 1 N. Hamp. R. 60; and Cumming v. Fisher, Auth. N. P. 1.

The rule excluding parties to negotiable instruments from being witnesses to impeach them, only applies to the case of bonâ fide holders of bills and notes passed to them in the usual course of business, and before they are due.

Thus in an action against partners as makers of a note, it was held that the payee, who endorsed it, was a competent witness, to prove that the note was given by one of the partners for his separate debt to the witness, and that he endorsed it to the plaintiff some time after the day of payment. Baird v. Cochran, 4 Serg. & Raw. 397.

In Connecticut it has been decided, after much argument, that a party to a negotiable instrument, if not interested in the event of the suit, is a competent witness to prove that it was usurious in its creation. Townsend v. Bush, 1 Conn. R. 260.]

CHAP. XIV.

Forgery of Bills or Notes.

FORGING or causing to be forged, or assisting in forging, any bill or note, or any endorsement or assignment thereof, with intention to defraud any person whatever; or uttering the same as true, knowing it to be forged, with a like intent, was made a capital offence by 2 Geo. 2. c. 25. (1)

This act did not extend to Scotland. (2)

By 7 Geo. 2. c. 22. it is applied to acceptances, and the term alter is used as well as forge. (3)

By 31 Geo. 2. c. 22. s. 78. (4) the second of Geo. 2. is

(1) By 2 Geo. 2. c. 25. s. 1, made perpetual by 9 Geo. 2. c. 18, if any person after 29th June, 1729, shall falsely make, forge, or counterfeit ; or cause or procure to be falsely made, forged, or counterfeited: or willingly act or assist in the false making, forging, or counterfeiting, amongst other things, any bill of exchange or promissory note for payment of money, or any endorsement or assignment of any bill of exchange or promissory note for payment of money, with intention to defraud any person whatsoever; or shall utter or publish as true any false, forged, or counterfeit bill of exchange or promissory note for payment of money, or any endorsement or assignment of any bill of exchange or promissory note for payment of money, with intention to defraud any person, knowing the same to be false, forged, or counterfeited; then every such person shall be deemed guilty of felony, without benefit of clergy.

(2) By 2 Geo. 2. c. 25. s. 4, provided always, that nothing in this act contained shall extend to that part of Great Britain called Scotland.

(3) By 7 Geo. 2. c. 22, which recites that by 2 Geo. 2. c. 25. no punishment is inflicted upon any person who shall falsely make, alter, forge, or counterfeit, or cause or procure to be falsely made, altered, forged or counterfeited, or willingly act or assist in the false making, altering, forging, or counterfeiting, any acceptance of any bill of exchange, or who shall knowingly utter or publish the same as true: it is therefore enacted, that if any person, after the 24th day of June, 1734, shall falsely make, alter, forge, or counterfeit, or cause or procure to be falsely made, altered, or counterfeited, or willingly act or assist in the false making, altering, forging, or counterfeiting any acceptance of any bill of exchange with intention to defraud any person whatsoever; or shall utter or publish as true any false, altered, forged, or counterfeited acceptance of any bill of exchange, with intention to defraud any person, knowing the same to be false, altered, forged, or counterfeited; then every such person shall be deemed guilty of felony, without benefit of clergy.

(4) By 31 Geo. 2. c. 22. § 78., which recites that doubts might arise whether the punishment inflicted by 2 Geo. 2. c. 25. extends to the

extended to cases where the intent is to defraud, not an individual, but a corporation; and by 18 Geo. 3. c. 18. (5) the seventh of Geo. 2. c. 22. is in like manner extended.

And by 45 Geo. 3. c. 89. (6) forging or altering or caus

commission of forgeries with intention to defraud any corporation, it is enacted, that if any person from and after the 1st of July, 1758, shall falsely make, forge, or counterfeit, or cause or procure to be falsely made, forged, or counterfeited, or willingly act or assist in the false making, forging, or counterfeiting, any bill of exchange or promissory note for payment of money, or the endorsement or assignment of any bill of exchange or promissory note for payment of money, with an intention to defraud any corporation whatsoever; or shall utter or publish as true, any false, forged, or counterfeited bill of exchange or promissory note for payment of money, or the endorsement or assignment of any bill of exchange or promissory note for payment of money, with intention to defraud any corporation, knowing the same to be falsely forged or counterfeited; then every such person shall be deemed guilty of felony, without benefit of clergy.

(5) By 18 Geo. 3. c. 18, which recites that doubts had arisen whether the punishment inflicted by 7 Geo. 2. c. 22. extended to such forgeries when committed with an intention to defraud any corporation, it is enacted, that if any person after the 25th of March, 1778, shall falsely make, alter, forge, or counterfeit, or cause or procure to be falsely made, altered, forged or counterfeited, or willingly act or assist in the false making, altering, forging, or counterfeiting, any acceptance of any bill of exchange, with intention to defraud any corporation whatsoever; or shall utter or publish as true any false, altered, forged, or counterfeited acceptance of any bill of exchange with intention to defraud any corporation whatsoever, knowing the same to be false, altered, forged, or counterfeited; every such person, being thereof lawfully convicted, shall be deemed guilty of felony, and shall suffer death as a felon without benefit of clergy.

(6) By 45 Geo. 3. c. 89, § 1, which recites 2 Geo. 2. c. 25. and certain other acts, and states that certain provisions had been made and enacted for the preventing and punishing the forgery of bank notes, and other notes, bills, and instruments, in those acts respectively mentioned; and that it was expedient that such provisions should extend and be in force in every part of Great Britain, with such alterations and amendments therein as were thereby made; it is enacted, that if any person or persons shall from and after the passing of this act, falsely make, forge, counterfeit, or alter, or cause or procure to be falsely made, forged, counterfeited, or altered, or willingly act or assist in the false making, forging, counterfeiting, or altering (among other instruments) any bill of exchange, promissory note for payment of money, endorsement or assignment of any bill of exchange or promissory note for payment of money, or acceptance of any bill of exchange, with intention to defraud any person or persons, body or bodies politic or corporate whatsoever; or shall offer, dispose of, or put away any false, forged, counterfeited, or altered bill of exchange, promissory note for payment of money, endorsement or assignment of any bill of exchange or promissory note for payment of money, or acceptance of any bill of exchange, with intention to defraud any person or persons, body or bodies politic or corporate,

ing to be forged or altered, or willingly acting or assisting in the forging or altering any bill or note, or any endorsement or assignment, or acceptance thereof, with intent to defraud any person or body politic, or offering, disposing of, or putting away any such forged or altered bill, note, endorsement, assignment, or acceptance, with a like intent, knowing it to be forged or altered, is a capital offence; and this act extends to every part of Great Britain. (7)

By 43 Geo. 3. c. 139. s. 1. forging or uttering any bill or note purporting to be the bill or note of any foreign prince, state, or country, or of any person or company of persons residing in any foreign country, or of any body corporate, or body in the nature thereof, constituted by any foreign prince or state, with intent to deceive his Majesty, or any such foreign prince, &c. or any person or body politic here or abroad, is made a felony, and punishable by transportation for a term not exceeding fourteen years.

There are other provisions as to bank notes, bank post bills, and certain other securities, as to which the different statutes which refer to them must be consulted.

Forgery may be committed either by altering or adding to what has a genuine signature, or by introducing a false signature.

And a signature will be false, though in a man's own name, if he attaches to it or adopts the description or addition of any other person of the same name.

And a signature in a false name assumed for the purpose," or in the name of a non-existing person, will be as much a forgery as a signature in the name of an existing person.

Altering a bill or note from a lower to a higher sum is a forgery; the instrument, as altered, is a false instrument. (8)

knowing the same to be false, forged, counterfeited, or altered, then every person or persons so offending shall be deemed guilty of felony, without benefit of clergy.

(7) And by 45 Geo. 3. c 89. § 8. all and every the clauses and provisions in this act contained, shall extend to every part of Great Britain. (8) Rex v. Teague, Mich. 1802. Prisoner altered a 101. country bank bill to 50l; it was on a sixteen-penny stamp, and had been thrice paid and reissued. The indictment charged, first, that the prisoner forged the bill, and secondly, that he uttered it knowing it to be forged: two

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