FORFEITURE1 OF MARRIAGE, Old law. The name of a penalty formerly2 incurred3 by a ward4 in chivalry5, when he or she married contrary to the wishes of his or her guardian6 in chivalry. The latter, who was the ward's lord, had an interest in controlling the marriage of his female wards7, and he could exact a price for his consent and, at length, it became customary to sell the marriage of wards of both sexes. 2 Bl. Com . 70.
2. When a male ward refused an equal match provided by his guardian, he was obliged, on coming of age, to pay him the value of the marrriage; that is, as much as he had been bona fide offered for it; or, if the guardian chose, as much as a jury would assess, taking into consideration all the real and personal property of the ward; and the guardian could claim this value, although he might have made no tender of the marriage. Co. Litt. 82 a; 2 Inst. 92 5 Co: 126 b; 6 Co. 70 b.
3. When a male ward between his age of fourteen and twenty-one years, refused to accept an offer of an equal match, and during that period formed an alliance elsewhere, without his permission, he incurred forfeiture of marriage; that is, he became liable to pay double the value of, the, marriage. Co. Litt. 78 b, 82 b.
FORGERY8, crim. law. Forgery at common law has been held to be "the fraudulent making and alteration9 of a writing to the prejudice of another man's right." 4 Bl. Com. 247. By a more modern writer, it is defined, as " a false making; a making malo animo, of any written instrument, for the purpose of fraud and deceit." 2 East, P. C. 852.
2. This offence at common law is of the degree of a misdemeanor. 2 Russel, 1437. There are many kinds of forgery, especially subjected to punishment by statutes10 enacted11 by the national and state legislatures.
3. The subject will be considered, with reference, .1. To the making or alteration requisite12 to constitute forgery. 2. The written instruments in respect of which forgery may be committed. 3. The fraud and deceit to the prejudice of another man's right. 4. The statory provisions under the laws of the United States, on the subject of forgery.
4. - 1. The making of a whole written instrument in the name of another with a fraudulent intent is undoubtedly13 a sufficient making but a fraudulent insertion, alteration, or erasure14, even of a letter, in any material part of the instrument, whereby a new operation is given to it, will amount to a forgery; and this, although it be afterwards executed by a person ignorant of the deceit. 2 East, P. C. 855.
5. The fraudulent application of a true signature to a false instrument for which it was not intended, or vice16 ve7-sa, will also be a forgery. For example, it is forgery in an individual who is requested to draw a will for a sick person in a particular way, instead of doing so, to insert legacies17 of his own head, and then procuring18 the signature of such sick person to be affixed19 to the paper without revealing to him the legacies thus fraudulently inserted. Noy, 101; Moor20, 759, 760; 3 Inst. 170; 1 Hawk21. c. 70, s. 2; 2 Russ. on Cr. 318; Bac. Ab. h. t. A.
6. It has even been intimated by Lord Ellenborough, that a party who makes a copy of a receipt, and adds to such copy material words not in the original, and then offers it in evidence on the ground that the original has been lost, may be prosecuted22 for forgery. 5 Esp. R. 100.
7. It is a sufficient making where, in the writing, the party assumes the name and character of a person in existence. 2 Russ. 327. But the adoption23 of a false description and addition, where a false name is not assumed, and there is no person answering the description, is not a forgery. Russ. & Ry. 405.
8. Making an instrument in a fictitious24 name, or the name of a non-existing person, is equally a forgery, as making it in the name of au existing person; 2 East, P. C. 957; 2 Russ. on Cr. 328; and although a man may make the instrument in his own name, if he represent it as the instrument of another of the same name, when in fact there is no such person, it will be a forgery in the name of a non-existing person.; 2 Leach25, 775; 2 East, P. C. 963; but the correctness of this decision has been doubted. Rosc. Cr. Ev. 384.
9. Though, in general, a party cannot be guilty of forgery by a mere26 non-feasance, yet, if in drawing a will, he should fraudulently omit a legacy27, which he had been directed to insert, and by the omission28 of such bequest29, it would cause a material alteration in the limitation of a bequest to another; as, where the omission of a devise of an estate for life to one, causes a devise of the same lands to another to pass a present estate which would otherwise have passed a remainder only, it would be a forgery. Moor, 760; Noy, 101; 1 Hawk. c. 70, s. 6; 2 East, P. C. 856; 2 Russ. on Cr. 320.
10. It may be observed, that the offence of forgery may be complete without a publication of the forged instrument. 2 East, P. C. 855; 3 Chit. Cr. L. 1038.
11. - 2. With regard to the thing forged, it may be observed, that it has been holden to be forgery at common law fraudulently to falsify, or falsely make records and other matters of a public nature; 1 Rolle's Ab. 65, 68; a parish register; 1 Hawk. c. 70; a letter in the name of a magistrate30, the governor of a gaol31, directing the discharge of prisoner. 6 Car. & P. 129; S. C. 25 Eng. C. L. R. 3 1 5.
12. With regard to private writings, it is forgery fraudulently to falsify or falsely to make a deed or will; 1 Hawk. b. 1, c. 70, s. 10 or any private document, whereby another person may be prejudiced. Greenl. Rep. 365; Addis. R. 33; 2 Binn. R. 322; 2 Russ. on Or. b. 4, c. 32, s. 2; 2 East, P. C. 861; 3 Chit. Cr. Law, 1022 to 1038.
13. - 3. The intent must be to defraud32 another, but it is not requisite that any one should have been injured it is sufficient that the instrument forged might have proved prejudicial. 3 Gill & John. 220; 4 W. C. C. R. 726. It has been holden that the jury ought to infer an intent to defraud the person who would have to pay the instrument, if it were genuine, although from the manner of executing the forgery, or from the person's ordinary caution, it would not be likely to impose upon him; and although the object was general to defraud whoever might take the instrument, and the intention of the defrauding33 in par15 ticular, the person who would have to pay the instrument, if genuine, did not enter into the contemplation of the prisoner. Russ. & Ry. 291; vide Russ.. on Cr. b. 4, c. 32, s. 3; 2 East, P. C. 853; 1 Leach, 367; 2 Leach, 775; Rosc. Cr. Ev. 400.
14.- 4. Most, and perhaps all the states in the Union, have passed laws making certain acts to be forgery, and the national legislature has also enacted several on this subject, which are here referred to. Act of March 2, 1803, 2 Story's L. U. S. 888; Act of March 3, 1813, 2 Story's L. U. S. 1304 Act of March 1, 1823, 3 Story's L. U. S. 1889; Act of March 3, 1825, 3 Story's L. U. S. 2003; Act of October 12, 1837, 9 Laws U. S. 696.
15. The term forgery, is also applied34 to the making of false or counterfeit35 coin. 2 Virg. Cas. 356. See 10 Pet. 613; 4 Wash. C. C. 733. For the law respecting the forgery of coin, see article Money. And for the act of congress punishing forgery in the District of Columbia, see 4 Sharsw. Cont, of Story's Laws U. S. 2234. Vide, generally, Hawk. b. 1, c. 51 and 70; 3 Chit. Cr. Law, 1022 to 1048; 4 Bl. Com. 247 to 250; 2 East, P. C. 840 to 1003; 2 Russ. on Cr. b. 4, c. 32; 13 Vin. Ab. 459; Com. Dig. h. t.; Dane's Ab. h. t. Williams' Just. h. t. Burn's Just. h. t.; Rose. Cr. Ev. h. t.; Stark36. Ev. h. t. Vide article Frank.
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