CHAPTER THE SECOND.

OF FRAUDS RELATING TO BULLION, AND OF COUNTERFEITING

BULLION.

SEC. I.

Of Frauds relating to Bullion.

BULLION signifies properly either gold or silver in the mass; but is sometimes used to denote those metals in any state other than that of authenticated coin; comprising in this latter sense gold and silver wares and manufactures. Many statutes have been passed for the prevention of frauds with respect to such bullion, by creating offences in making, working, putting to sale, exchanging, selling, or exporting any gold or silver manufactures of less fineness than the standards respectively fixed at the time by the several Acts. But it is not intended to make any particular mention of those statutes; (a) the punishments inflicted by them being in general certain penalties and forfeitures, or, in default of payment, commitment to the house of correction. The knowingly exposing for sale and selling wrought gold under the sterling alloy as gold of the true standard, though indictable in goldsmiths, is a private imposition only in a common person, and the party injured is left to his civil remedy. (b)

It is conceived also that offenders fraudulently affixing public and authentic marks on goods of a value inferior to such tokens are liable to suffer at common law upon an indictment for a cheat. J. Fabian, a working goldsmith, was indicted for falsifying plate, by putting in too much alloy, and then corrupting one of the assay master's servants to help him to the proper marks, with which he stamped his plate, and sold it to the goldsmiths; and being convicted, he was fined £100 and adjudged to stand three times in the pillory; and was also forejudged of his trade that he should not use that trade again as a master workman. This judgment must have been at common law. (c)

The offences of counterfeiting the assay marks on bullion or plate, or transposing such marks from one piece of manufacture to another, will be mentioned in a subsequent part of the work.

Provisions were made by several statutes to prevent the fraudulent exportation of bullion, but these statutes are either repealed, or their provisions do not fall within the scope of this work.

(a) See them collected in 1 East, P. C c. 4, s. 32, pp. 188 to 194. The 28 Ed. 1, st. 3, c. 20, was repealed by the 19 & 20 Vict. c. 64.

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(b) R. v. Bower, Cowp. 323.

(c) Fabian's case, Old Bailey, Dec. Sess. 1664. 1 East, P. C. c. 4, s. 34, p. 194. Kel. 39.

CHAPTER THE THIRD.

OF THE MAKING, MENDING, OR HAVING IN POSSESSION ANY INSTRUMENTS FOR COINING.

By the 24 & 25 Vict. c. 99, s. 24, 'Whosoever, without lawful authority or excuse (the proof whereof shall lie on the party accused), shall knowingly make or mend, or begin or proceed to make or mend, or buy or sell, or have in his custody or possession, any puncheon, counter-puncheon, matrix, stamp, die, pattern, or mould, in or upon which there shall be made or impressed, or which will make or impress, or which shall be adapted and intended to make or impress, the figure, stamp, or apparent resemblance of both or either of the sides of any of the Queen's current gold or silver coin, or of any coin of any foreign prince, state, or country, or any part or parts of both or either of such sides; or shall make or mend, or begin or proceed to make or mend, or shall buy or sell, or have in his custody or possession, any edger, edging or other tool, collar, instrument, or engine adapted and intended for the marking of coin round the edges with letters, grainings, or other marks or figures apparently resembling those on the edges of any such coin as in this section aforesaid, knowing the same to be so adapted and intended as aforesaid; or shall make or mend, or begin or proceed to make or mend, or shall buy or sell, or have in his custody or possession, any press for coinage, or any cutting engine for cutting, by force of a screw or of any other contrivance, round blanks out of gold, silver, or other metal or mixture of metals, or any other machine, knowing such press to be a press for coinage, or knowing such engine or machine to have been used, or to be intended to be used, for or in order to the false making or counterfeiting of any such coin as in this section aforesaid, shall, in England and Ireland, be guilty of felony, and in Scotland of a high crime and offence, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for life, or for any term not less than three years, or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement.' (a)

Lawful authority or excuse. It has been decided upon this section that the word 'excuse' includes authority, and that it is unnecessary to allege or prove any intent. The felony is knowingly to have possession of a die, and the guilty knowledge required is that of being in possession of the die, contrary to the provisions of the Act of

(a) This clause is framed from the 2 Will. 4, c. 34, s. 10, and is extended to tools for making foreign coin, and to other tools

and machines than those mentioned in the former enactment, and to tools for cutting blanks out of mixed metals.

Parliament, that is, without lawful authority or excuse. intention to use the dies is not necessary. (b)

A guilty

Where two galvanic batteries were found in the prisoner's house, with white metal and other things plainly indicating that they had been used for coining, and it was proved that counterfeit coin is electro-plated before it is put in circulation, and that that is generally done by the aid of galvanic batteries, it was held that the batteries were machines within the meaning of this section. (c)

Conveying tools or monies out of the mint without authority. Sec. 25. Whosoever, without lawful authority or excuse (the proof whereof shall lie on the party accused), shall knowingly convey out of any of Her Majesty's mints any puncheon, counter-puncheon, matrix, stamp, die, pattern, mould, edger, edging or other tool, collar, instrument, press, or engine used or employed in or about the coining of coin, or any useful part of any of the several matters aforesaid, or any coin, bullion, metal, or mixture of metals, shall, in England and Ireland, be guilty of felony, and in Scotland of a high crime and offence, and being convicted thereof shall be liable' (d) to the same punishment, as in s. 24.

Making or having tools for coining copper. Sec. 14. Whosoever, without lawful authority or excuse (the proof whereof shall lie on the party accused), shall knowingly make or mend, or begin or proceed to make or mend, or buy or sell, or have in his custody or possession, any instrument, tool, or engine adapted and intended for the counterfeiting any of the Queen's current copper coin, shall, in England and Ireland, be guilty of felony, and in Scotland of a high crime and offence, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for any term not exceeding seven years, and not less than three years, or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement. (e)

Decisions on repealed statutes. Several points arose as to the tools or instruments which were within the words of the 8 & 9 Will. 3. Where the prisoner was indicted for having in his custody a press for coinage without any lawful authority, a question was raised whether a press for coinage was one of the tools or instruments within that clause of the Act on which the indictment was founded; and a majority of the judges held that it was. (f) In another case, the prisoner was convicted of having in his custody, without lawful excuse, one mould made of lead, on which was impressed the resemblance of one of the sides of a shilling, viz., the head side of a shilling; and it was submitted to the judges whether the mould found in the prisoner's custody was comprised under the general words other tool or instrument before mentioned,' so as to make the unlawful custody of it high treason; and also whether, if it were so comprised, it should not have been laid in the indictment to be a tool or instrument in the words of the Act. And the judges were unanimously of opinion that this

(b) R. v. Harvey, L. R. 1 C. C. R. 284. 40 L. J. M. C. 63.

(c) R. v. Gover, 9 Cox, C. C. 282. The Common Serjeant, after consulting Keating, J.

(d) This clause is taken from the 2 Will. 4, c. 34, s. 11.

(e) This clause is taken from part of sec. 12 of the 2 Will. 4, c. 34.

(f) Bell's case, Fost. 430.

mould was a tool or instrument mentioned in the former part of the statute, and therefore comprised under the general words; and that as a mould is expressly mentioned by name in the first clause of the Act which respects the making or mending, it need not be averred to be a tool or instrument so mentioned. (g)

The prisoner was indicted for having in his custody a puncheon made of iron and steel, upon which was impressed the resemblance of the head side of a shilling, without lawful authority, &c. Several puncheons were found in the prisoner's lodgings, together with a quantity of counterfeit money, and he had them knowingly for the purposes of coining. These puncheons were ready for use; but it was impossible to say that the shillings which were found were actually made with these puncheons, the impressions being too faint to be exactly compared; but they had the appearance of having been made with them. The manner of making these puncheons was as follows: a true shilling was cut away to the outline of the head; that outline was fixed on a piece of steel, which was filed or cut close to the outline, and this made the puncheon; the puncheon made the die, which is the counter-puncheon; a puncheon is complete without letters, but it may be made with letters upon it; though from the difficulty and inconvenience it is never so made at the mint; but after the die is struck the letters are engraved on it; a puncheon alone without the counter-puncheon, will not make the figure; but to make an old shilling or a base shilling current, nothing more is necessary than the instrument produced. They may be used for other purposes, such as making seals, buttons, medals, or other things, where such impressions are wanted. Eleven of the judges (absente, De Grey, C. J.) were unanimously of opinion that this was a puncheon within the meaning of the Act; for the word 'puncheon' is expressly mentioned in the statutes, and will, by the means of the counter-puncheon or matrix, 'make or impress the figure, stamp, resemblance, or similitude of the current coin;' and these words do not mean an exact figure, but if the instrument impress a resemblance in fact, such as will impose on the world, it is sufficient, whether the letters are apparent on the puncheon or not; otherwise the Act would be quite evaded, for the letters would be omitted on purpose. The puncheon in question was one to impress the head of King William; and the shillings of his reign, though the letters were worn out, were

(g) Lennard's case, 1 Leach, 90. 1 East, P. C. c. 4, s. 17, p. 170. Another point was afterwards raised in this case upon the form of the indictment. The doubt was, whether the mould which was found in the prisoner's custody, it having only the resemblance of a shilling inverted, viz. the convex parts of the shilling being concave in the mould, and vice versà, the head or profile being turned the contrary way of the coin, and all the letters of the inscription reversed, was not properly an instrument which would make and impress the resemblance, stamp, &c., rather than an instrument on which the same were made and impressed, as laid in this indictment, the statute seeming to distinguish between such

as will make and impress the similitude, &c. as the matrix, die, and mould; and such on which the same is made and impressed, as a puncheon, or counter-puncheon, or pattern. But a great majority of the judges were of opinion that this evidence sufficiently maintained the indictment; because the stamp of the current coin was certainly impressed on the mould in order to form the cavities thereof. They agreed, however, that the indictment would have been more accurate had it charged that he had in his custody a mould that would make and impress the similitude,' &c., and in this opinion some, who otherwise doubted, acquiesced.

current coin of the kingdom. The puncheon made an impression like them, and the coin stamped with it would resemble them on the head side, though there were no letters. This was compared to the case mentioned by Sir Matthew Hale, (h) that the omission or addition of words in the inscription of the true seals, for the purpose of evading the law, would not alter the case. (i)

The part of the 8 & 9 Will. 3, c. 26, which related to instruments to mark the edges of coins, was not confined to such instruments as were in use when the Act passed; but extended to newly-invented instruments, which would produce the same effect; and it was not confined to such instruments, as, used by the hand unconnected with any other power, would produce the effect. A collar therefore, marking the edge of coin, by having the coin forced through it by machinery, is an instrument within the 8 & 9 Will. 3, c. 26, though this mode of marking the edges is of modern invention, and though the collar cannot be used by itself, but must be used in conjunction with other machinery. (j)

It was decided, that having a tool or instrument (of such sort as is included in the 8 & 9 Will. 3, c. 26) in possession for the purpose of coining foreign gold coin not current here, was not within that statute; (k) but it is expressly included in the present clause.

Where a die calculated to make shillings is made by an innocent agent, the party procuring him to make such die is the principal. The prisoner was indicted for feloniously making a die which would impress the resemblance of the obverse side of a shilling. The prisoner applied to a die-sinker to sink dies for counters for two whist clubs, stating that it was their practice to play with counters with one side resembling coins, and that they wished to have counters stamped by dies made under the following directions:-Four dies for whist counters, obverse head of Queen Victoria, as in the shilling coin. Reverse. "Blandford Whist Club, established 1800." Obverse the shilling, as in coin, with wreath, &c. Reverse, "Exeter Whist club, established 1800." The die-sinker, entertaining suspicions, applied to the agent of the Mint, and communicated the order to him. The agent sent to the officers of the Mint in London, and the diesinker was by them directed to execute the prisoner's order. The prisoner afterwards desired to have the obverse of one of the pieces, and the obverse of the other finished first, and they were so. When they were finished, they formed a die for the coining of a shilling. For the prisoner, it was objected that he could not be convicted, as he had not himself done anything in the making of the die, and that he was not answerable in this form of charge for the act of the diesinker; that the die-sinker having acted under the instructions of the Mint, no felony whatever had been committed, and that the prisoner should have been indicted for a misdemeanor in inciting the die-sinker to commit a felony. But, upon a case reserved, the judges thought the die-sinker an innocent agent, and held the conviction good. (1)

(h) 1 Hale, 184.

2 Hale, 212, 215.

(j) R. v. Moore, R. & M. 122; S. C., 2 C. Robinson's case, 2 Roll. Rep. 50. 1 East, & P. 205.

P. C. c. 2, s. 25, p. 86.

(i) Ridgelay's case, 1 Leach, 189. 1 East, P. C. c. 4, s. 18, p. 171.

(k) Bell's case, 1 East, P. C. c. 4, s. 17, p. 169 Fost. 430.

(1) R. Bannen, 2 M. C. C. R. 309. 1 C. & K. 295.