Page images

28. For Violation of Revenue Laws. 1

29. By Statute.?—When the statute declares that the doing or omitting to do a certain act shall be followed by forfeiture of the thing concerning which the act is to be done, but effective only by judicial proceedings.3

30. Relief Against Forfeiture.—At an early date, equity granted relief against forfeitures and penalties in cases where justice was grossly violated; as, where one bound in an obligation to pay money paid it, but took no acquittance or took an acquittance without seal.* This was extended to embrace forfeitures of bonds and mortgages, so as to permit redemption, notwithstanding a forfeiture at law.5 And the rule has since been settled that relief is proper when the court can give, by way of compensation, all that was expected or desired; 6 in case of accident, mistake, fraud, or

v. Walsh, 44 Mo. 41; White v. McMurray, (N. S.) 744; Dimes v. Canal Co. 9 Q. B. 2 Brewst. (Pa.) 485.

491; Day 2. Frank, 127 Mass. 497; Lynde Such forfeiture may be waived by any v. Thompson, 2 Allen (Mass.), 456; V. S. act or word recognizing or acknowledging v. Distillery, 11 Blatchf. (U. S.) 255. the tenancy-equivalent to an estoppel; 3; Fire Dept. v. Kip, 10 Wend. (N. Y.) such as receiving rent due at a subsequent 226. Such forfeiture is within the statute quarter,-Collins v. Hasbrouck, 56 N. Y. of fraudulent conveyancing. Twyne's 157; 15 Am. Rep. 407; -distraining for Case, 3 Co. 80; s. c., Moore, 638. arrears, or giving a receipt therefor,– 4. i Spence Eq. Jur. 629; Underwood Jackson v. Sheldon, 5 Cow. 448; Coon v. v. Swan, Car. 1; 1 Rep. Ch. 86. Brickett, 2 N. H. 163; contra, Jackson v. 5. Lennon v. Napper, 2 Sch. & Lefr. Allen, 3 Cow. (N. Y.) 220;-but with 684; Seton v. Slade, 7 Ves. 273; i Story knowledge of the forfeiture, – Jackson v. Eq. Jur. $ 89; Bostwick v. Stiles, 35 Brownson, 7 Johns. Ch. (N. Y.) 227. Conn. 195; Warner v. Bennett, 31 Conn.

The English cases hold that a bare 468; Smith v. Jewitt, 40 N. H. 530. acceptance of the rent after forfeiture is

6. Peachy v. Duke of Somerset, 1 Stra. not a waiver unless attended by other 447; Stoman v. Walter, i Bro. Ch. 418; 2 circumstances showing intention to con- White & Tud. Lead. Cas. 992; Snell Eq. tinue the tenancy, except in case of a 274. Extended by statute 22 & 23 Vict. lease for life, where the acceptance of c. 35. $ 14; 23 & 24 Vict. c. 126, § 2, to such rent will affirm the lease. Adams forfeiture for breach of covenant to insure on Ejeci. 173; Doe v. irch, 1 Mees. & W. against fire. Wms. Real Prop. 384; 402; Dendy v. Nicholl, 4 C. B. (N. S.) Woodf. Land. & Ten. 297 et seq. The 376; 27 L. J. C. P. 220; Doe v. Johns, 1 English conveyancing act of 1881, $ 14, Stark. 411; Grimwood v. Moss, 41 L. J. C. provides that forfeiture shall not be en

But the American rule (founded forceable by action or otherwise unless and on the doctrine of escoppel) is the best. until lessor serves on lessee a notice spe. Dermott v. Wallach, 11 Wall. (U. S.) 61; cifying the breach and requiring him to Collins v. Hasbrouck, 56 N. Y. 157; 15 remedy or compensate for the same, Am. Rep. 407.

and lessee fails to comply within a reason1. Cross v. U. S., 1 Gallis. (U. S.) 26; able time. The Mars, i Gallis (U. S.), 192; The Relief from forfeiture is always proper Ploughboy, 1 Gallis (U. S.), 41; The when compensation in damages can be Salley, 8 Cranch (U. S.), 382: Gelston v. calculated with certainty. Giles v. Austin, Hoyt, 3 Wheat. (U. S.) 246; The Josefa 62 N. Y. 486; Rector v. Higgins, 48 N. Segunda, 5 Wheat. (U. S.) 338; The Y. 533; Nelson v. Carrington, 4 Munf. Rochel v. U. S., 6 Cranch (U. S.), 29. (Va.) 332; Bracebridge 2. Buckley, 2

The U. S. district court has exclusive Price (Exchequer), 200; Hill v. Barclay, original jurisdiction in forfeitures, seiz- 16 Ves. 402; Giles v. Austin, 46 How. (N. ures, and penalties, under the United Y.) 269. For the failure of the precise perStates laws. Act of Sept. 24, 1789; 8 formance. Walker v. Wheeler, 2 Conn. Wheat. (U. S.) 395.

299; Messersmith v. Messersmith, 22 Mo. 2. Walter v. Smith, 5 B. & A. 440; Van 369; De Forest v. Bates, i Ed. Ch. (N. Y.) Diemans Land Co. v. Cockerell, i C. B. 394; Hagar v. Buck, 44 Vt. 285; 8 Am. $ C. of L.-29


P. 239.

surprise, unmixed with laches; 1 when unjust for creditor to take advantage of forfeiture.But equity will not interfere when the forfeiture is liquidated damages and proportionate, or when imposed by statute, 3 ror against the condition that, if interest is not paid when due, the whole amount would thereupon become due and payable.

31. of Stock or Shares in Corporations."— For non-payment of principal or instalments, or any condition upon which the same was issued, if such power is expressly conferred by law or in the charter,6 which must be strictly followed, without favor, collusion, or mala fides.' The power of forfeiture is a trust to be exercised in good faith for the benefit of the corporation and the general body of the members. Forfeiture is the reclamation, by corpora

Rep. 368; Voorhis v. Murphy, 26 N. J. Soc., 106 Mass. 479; Rosenbach v. Salt Eq. 434; Malcolm 2'. Allen, 49 N. Y. 145; Spgs. Nat. Bank, 53 Barb. (N. Y.) 495; 2 Story Eq. Jur. $ 1019.

Master Stevedors Assoc. 2 Daly (N. Y.), 1. Hancock v. Carlton, 6 Gray (Mass.), 14; Carton v. Father Mathew Assoc. 3 39; Asher v. Pendleton, 6 Gratt. (Va.) Daly (N. Y.), 20; Westcott v. Minn. Co., 628.

23 Mich. 145; Pentz v. Citizens Co., 35 2. Sanders v. Pope, 12 Ves. 289; Hill Md. 73: Barton's Case, 4 De G. & J. 46; v. Barclay, 18 Ves. 6o.

Fletcher's Case, 37 L. J. Ch. 49; Clarke v. 3. Powell v. Redfield, 4 Blatchf. (U. S.) Hart, 6 H. L. 633; Lesseps v. Architects 45; Reynolds v. Pitt, 19 Ves. 140; Green Co., 4 La. Ann. 316; Deitweiler V. Bridges, 4 Sim. 96; Parker v Butcher, Breckenkamp, 53 Mo. 45. The power to L. R. 3 Eq. 762, 767; Nichols v. Maynard, forfeit must be expressly conferred, be3 Atk. 519; Downey v. Beach, 78 Ill. 53; cause it is not inherent and does not exist Capen v. Crowell, 66 Me. 282; Hubbard at common law. Williams v. Lowe, 4 v. Callahan, 42 Conn. 524; s. C., 19 Am. Neb. 382. If it is attempted to sell the Rep. 564; Herbert v. R. Co., L. R. 2 Eq. stock for the payment of assessments, 221; Skinner V. White, 17 Johns. 369; it is in the nature of a proceeding in rem, Skinner v. Dayton, 2 Johns. Ch. (N. Y.) and the jurisdiction can only be exercised 535; Lowe v. Peers, 4 Burr. 22; 2 Poth. by having the thing in the custody of the Ob. (by Evans) 85; Fonbl. Eq., B, 1, c. 3, law. Williams v. Lowe, 4 Neb. 382. $ 3; Eden on Inj. 22; Hill v. Barclay, 16 7. Green's Brice's Ultra Vires (2d Ed ), Ves. 403; Eaton v. Lyon, 3 Ves. 692. 186; R. Co. v. Fitler, 60 Pa. St. 124;

4. Ferris v. Ferris, 28 Barb. (N. Y.) 29; R. R. v. Ritchie, 40 Mo. 425: Water Reuben v. Prindle, 44 Barb. (N. Y.) 336; Valley M. Co. v. Seaman, 53 Miss, 656; Voorhis v. Murphy, 26 N. J. Eq. 434; Klein v. R. Co., 13 M. 514; Mitchell v. Sterne v. Beck, i De G. J. & S. 595. Vermont C. M. Co., 40 N. Y. 406; Walker

5. Small U. Herkimer Mfg. Co., 2 v. Ogden, 1 Biss. (U. S.) 287; Railroad Comst. (N. Y.) 330; Mills v. Stewart, 41 v. Bolton, 48 Me. 441; Johnson v. Lyttle N. Y. 384; Stevens v. Hauser, 39 N. Y. Iron Agency, 46 L. J. Eq. 756; Watson 302; Bigg's Case, L. R. 1 Eq. 309: Wool- v. Eales, 23 Beav. 291; Eppes v. R. Co., aston's Case, 4 De G. & J. 4+5; Creyke's 35 Ala. 33; Hughes v. Mig. Co., 34 Md. Case, L. R. 5 Ch. 63; Ex parte Barton, 317; Heaston v. R. Co., 16 Ind. 275; 28 L. J. Ch. 637; Ex parte Jones, 27 L. J. Sands v. Sanders, 26 N. Y. 236; Turnpike Ch. 668; Syster's Case, L. R. 4 Eq. 233; Co. v. Meriwether, 5 B. Mon. (Ky.) 13; Snell's Case, L. R. 5 Ch. 22; Knights R. Co. v. Gaster, 20 Ark. 455. The folCase, 5 L. R. Ch. 707; 2 Add. Cont. 303. lowing held that substantial compliance

6. Matter of Long Island R., 19 Wend. would be sufficient: Mining Co. v. Mc(N. Y.) 37; Cotter v. Doty, 5 Ohio, 393; Lister, L. R. 1 App. 39; Stokes v. LebSmall v. Herkimer Mig. Co., 2 N. Y. 330; anon, etc., Co., 6 Humph. (Tenn.) 241. Plank Road Co. v. Vaughn, 20 Barb. 8. Richmond's Case, 4 K. & J. 305; (N. Y.) 155; Downing v. Patts, 23 N. J. Sweney 7. Smith, L. K. 7 Eq. 324; Green's 66; 2 Kyd on Corp. 109; Clark v. Tucket, Brice's Ultra Vires, 498;-and the capital 3 Lev. 281; Waltham v. Austin, 1 Bulstr. stock is a trust fund for creditors,–Upton II, 12; Kirk v. Nowill, i Term Rep. 118; v. Tribilcock, 91 U. S. 45; Webster v. I Waterman on Corp. 252; Perrin u. Upton, 91 U. S. 65;-and power of for. Granger, 30 Vt. 595; French v. Old South feiture must be exercised with justice and

tion, of the stock to its own use, 1/another name for foreclosure.

32. Of Ship.—By the English Shipping Act,3 if any master or owner of a British ship conceals the British character of the ship or assumes a foreign character with intent to deceive any person entitled to inquire into the matter, the ship is forfeited to the crown.

33. Of Tenancy.--Takes place when the tenant does any act inconsistent with his tenancy; such as alienation, attorning to adverse claimant or stranger, accepting lease from stranger, wilfully disclaiming tenancy,' denial of landlord's title, or adverse claim of title, illegal use, 6 or voluntary waste.

34. For Taxes.---By non-payment. Without office found. Complete by legislative act, which must be strictly complied with and rigidly enforced. Common law does not apply. 35. Of Wages. --By failure to perform contract.9 36. Waiver Of.-By any act or word amounting to an estoppel;

10 such as accepting rent,il receiving rent with knowledge of forin good faith, — Manisty's Case, 17 S. J. equity. Sparks v. Liverpool Water745; Dixon v. Evans, L. R. 5 H. L. 606; works, 13 Ves. 433. Gower's Case, L. R. 6 Eq. 77; Stanhopes 3. Merch. Shipp. Act 1854, s. 103, $ 2; Case, L. R. i Ch. 161; Railroad v. Bow. The Amendale, 2 P. D. 179, 218. ser, 48 Pa. St. 37; Mills v. Stewart, 41 N. 4. Jackson v. Kingsley, 17 Johns. Ch. Y. 386; Burke v. Smith, 16 Wall. (U. S.) (N. Y.) 158; Sharpe v. Kelly, 5 Den. 390; New Albany v. Burke, 11 Wall. (U. (N. Y.) 430; Jackson v. Vincent, 4 Wend. S.) 96; Putnain v. New Albany, 4 Biss. (N. Y.) 633; Bolton v. Landers, 27 Cal. (U. S.) 365.

104; Brown v. Kellar, 32 III. 151. 1. R. Co. v. Vason, 57 Ga. 314; Ma- 5. Doe d. Cheeser v. Creed, 2 M. & son v. Caldwell, 5 Gilman (I11.), 176; P. 648; Landsell v. Gower, 17 Q. B. 589; Richmond v. Caton, 24 III. 123; Carson Delancy v. Ganong, 9 N. Y. 9. V. Arctic Mining Co., 5 Mich. 288; Allen 6. Machias Hotel Co. v. Fisher, 56 Me. R. Co., II Ala. 437; R. Co. v. Pickens, 321. 5 Ind. 247; R. Co. v. Inhab. of Prescot, 7. London v. Greyne, Cro. Jac. 182; 110 Mass. 213; R. Co. v. Fairclough, 2 Jackson v. Tibbitts, 3 Wend. (N. Y.) 341. Man. & Gr. 674; R. Co. v. Habet white, 8. 2 Desty on Tax. 782; Cooley on 2 M. & W. 715; R. Co. v. Kennedy, 4 Tax. 461; Woodward_v. Sloan, 27 Ohio

St. 592; Magruder v. Esmay, 35 Ohio St. 2. Herkimer Co. v. Small, 21 Wend. 221. Covenant to pay rent, taxes, and (N. Y.) 273; Mills v. Stewart, 41 N. Y. assessments, with right of re-entry upon 384; Danbury R. Co. v. Wilson, 22 Conn. default to pay rent, lessor can regain 435; Mitchell v. R. Co., 17 Ga. 574. possession on lessee's failure to pay Contra, Ashton v. Burbank, Dill. (U. taxes. Byrane v. Rogers, 8 Minn. 281. S.) 435; Sparks v. Water-works Co., 13 9. Decamp v. Stevens, 4 Blackf. (Ind.) Ves. Jr. 428; Smith v. Maine Boys Tunnel 24; Boyle v. Parker, 46 Vt. 343; Painote Co., 18 Cal. III.

v. Saunders, 41 Vt. 66. If house is furFor feiture is a cumulative remedy, which nished to hired man in addition to may be deferred until the party has ex. certain sum for wages for work, his hausted other remedies. Canal Co. v. Sam- ceasing to work forfeits his right to the son, 1 Binn. (Pa.) 70; Ferry Co. v. Jones, house. McGee v. Gibson, I B. Mon. 39 N. H. 390; Conn. Co. v. Baily, 24 Vt. (Ky.) 105. 465; Mechanics Co. v. Hall, 121 Mass. 10. Hunter v. Osterhaudt, 11 Barb. 272; R. Co. v. Wellington, 113 Mass. 79; (N. Y.) 33; Keeler v. Davis, 5 Duer N. O., etc., Co. v. Briggs, 27 La. Ann. (N. Y.), 507; Bowman v. Foot, 29 Conn. 318; Spangler v. R. Co., 21 Ill. 270; Troy 331; Newman v. Rutter, 8 Watts (Pa.), Co. v. McChesney, 21 Wend. (N.Y.) 296; 55; Ward_v. Day, 33 L. J. 2. B. 254; R. Co. v. Thrall, 35 Vt. 536. It has been Lash v. Druse, 4 Wend." (N. Y.) 313; held that forfeiture of stock for non-pay. Chapman v. Kirby, 49 Ill. 211. ment of instalments is not relievable in 11. McGlynn v. Moore, 25 Cal. 384.

Exch. 317


ed, 504.

feiture; 1 but receiving rent is not a waiver of breach of other covenant.2

37. For Waste.-For tenant for life, for years, in dower, by curtesy; to commit spoil or destruction voluntarily or permissively in houses, gardens, trees, or other corporeal hereditaments, to the disinherison of him who has the remainder or reversion in fee.3

FORGE.-See note 4.
I. Definition, 453:

4. Distinction Between Uttering and II. Essentials of the Crime, 457.

Forging, 496. 1. False Making, 458.

VII. Matters of Defence, 496. 2. Intent to Defraui, 459.

VIII. Venue and Jurisdiction, 497. 3. Must be Calculated to Deceive, 461. IX. Extradition, 500. III. How Accomplished, 464.

X. Indictment, 500. 1. By False Making, 465.

1. Description of the Alleged Offence, a. By Use of Another's Name, 465.

500. b. By Falsely Procuring a Genuine a. Stating Offence in Alternative, Signature, 467.

503. 6. By Fraudulent Alteration, 468.

b. Stating Offence in Different d. By Use of Same Name, 468.

Phrases, 504.
e. By Use of Fictitious Name, 469. C. Specifying Party to be Defraud.
f. By Fraudulently

Blanks, 471.

d. Actual Damages Need Not be g. By Fraudulently Using False

Averred, 505.
Dates, 472.

e. Variance, 505.
h. By Making False Entries, 472. 2. Averment of Guilty Knowledge,
(1) False Entries in Pass-books,

505. 472.

3. Averment of Intent to Defraud, (2) False Entries in Book of

506. Original Entry, 472.

4. Description of Instrument, 510. (3) False Entries in Book Settle- 5. Venue, 522. ments, 473.

6. Averment of Extrinsic Facts, 523. (4) False Entries by Clerk in a. Averment of Incorporation, 525.

Books He is Employed to 7. Joinder, 526.
Keep, 473.

XI. Evidence, 527.,
2. False Representations and Fraud, 1. Competency of Witnesses, 527.

2. Proof of Guilty K’nowledge and 3. By False Alteration, 475.

Fraudulent Intent, 528. IV. What Instruments May Be the a. In General, 528. Subject of Forgery, 478.

b. Proof of Other Forgeries by 1. In General, 478.

Defendant. 530. a. General Rules, 478.

c. Proof of Uttering on Trial for b. Instances, 478.

Forging, 531. V. Who May Commit Forgery, 489. d. Proof of Uttering on Trial for VI. Uttering and Publishing, 489.

Uttering, 531. 1. What is, Generally, 489.

3. Proof of Handwriting, 534. (See 2. Intent to Difraud, 493.

HANDWRITING; see also Evi3. Possession with Intention to Utter,


Evidence.) 1. Ireland v. Nichols, 46 N. Y. 413; of Gloucester. In some States some of Watson v. Fletcher, 49 Ill. 498.

the provisions of this statute have been 2. Bleeker v. Smith, 13 Wend. (N. Y.) enacted. In others none of the provisions 530; and see Doe v. Gladwin, 6 Q. B. have been adopted. 953; Jackson v. Allen, 3 Cow (N. Y.) 220; 4. A blacksmith's forge is not “a forge Dendy v. Nichols, 4 C. B. 376; Doe v. or furnace for the manufacture of iron. Miller, 2 Carr. & P. 348; Doe v. Bindley, By a blacksmith's forge iron is not man12 Moore, 37; Doe v. Meux, 4 Barn. & ufactured, but by it, from iron itself, Cres. 606; Doe v. Watt, 1 Man & Ry.694. machines or instruments of iron are man

8. i Hilly. Ab. Ş$ 34-48; 2 Bouv. Inst. ufactured." Rogers v. Danforth, 9 N. J. 375; 2 Bl. Com. 281; Co. Litt. 53; Statute Eq. 289.

4. Documents,and Secondary Evidence 9. Sufficiency, 538. Thereof, 534.

10. Question for Jury, 541. 5. Of Former Proceedings, 536.

XII. Instructions, 541. 6. Of Defendant's Pecuniary Condi- XIll. Verdict, 542. tion, 537:

[lious, 537: XIV. Sentence, 543. 7. To Show the Forged Name Ficti- XV. Appeal, 543.

3. To Show Capacity to Injuri, 537. XVI. Punishment, 543. I. DEFINITION. — Forgery, at common law, consists in falsely?

1. At Common Law, forgery seeing more was sued and suffered a default, and at immediately confined to the falsification templed no defence until after the escape of records, and other instruments of a of the maker of the notes, that proof of public nature, and also of private deeds this fact was admissible in evidence, and and instruments under seal. By the de. that from it the jury might imply an aucision in Ward's Case, 2 Ld. Raym. 1461, thority from the indorser to the maker thus it was held, after solemn argument, that to use his name. Weed v. Carpenter, 4 forgery might be in respect to any writ- Wend. (N. Y.) 219. ing whatever by which another might be Forgery of Deed-Signing as Attorney in deirauded. People v. DeGraff, 1 Wheel. Fact. --Defendant W. was indicted for Cr. Cas. 203; 3 Chit. Cr. L. 760.

uttering a false deed, under a statule 2. State 7'. Shurtliff, 18 Me. 368; Rex against forgery. It was shown that the z'. Webb, 3 Brod. & B. 228; s. c., Russ. deed was signed thus: “ H., by W., his & Ry. 405; cited, 6 Moore, 447; Reg. v. attorney in fact." Held, that this did not Inder, i Den. C. C. 325; Rex v. Aickles, constitute the offence charged, although i Leach (4th ed.), 438; s. C., 2 East P. C. W. had no authority to act for H. Where 963; Rex v. Story, Russ & Ry. 81; Mead one executes an instrument purporting v. Young, 4 T. R 28.

on its face to be executed by him as the Belief by Defendant that He Was Author agent of a principal to execute the same, ized to sign.-It has been said that it he is not guilty of forgery; the instrument does not constitute forgery where one is not a false or a forged deed, within the has fair ground to believe, and does meaning of the statute. This is no false believe, that he is authorized to sign an- making of the instrument, but merely a other's name to an instrument, and does false assumption of authority. so sign it without any fraudulent design. In State v. Young, 46 N. H. 266, the Parmelee v. People, 8 Hun (N. Y.), 623; court say: “ The term 'falsely 'has referReg. v. Parish, 8 Car. & P. 94; Rex ence, not to the contents or tenor of the v. Forbes, 7 Car. & P. 224. How- writing, or to the fact stated in the writever, one who signs the name of a friend ing, but implies that the paper is false, or relative, trusting that he will pay the not genuine, fictitious, not a true writing, debt and will not prosecute him, is guilty without regard to the truth or falsehood of forgery. Reg. v. Beard, 8 Car. & P. of the statement it contains.” In Rex 113.

V. Arscoit, 6 Car. & P. 408, the defendAuthority to Sign may be inferred from ant had indorsed, on a bill of exchange, failure to repudiate the signature when Rec'd of R. Aikman, G. Arscout." information of it is first brought to the Littledale, J., says: “To forge a receipt party, -Reg. v. Smith, 3 Fosi. & F. 504; is writing the name of the person for -or from failure to repudiate previous whom it is received. But in this case forgeries by the same person,- Weed v. the acts done by the prisoner were the Carpenter, 4 Wend.(N.Y.) 219;--in some receiving for another and signing his cases, from mere silence when called on own name." to authorize the signing. Reg. v. Beard- In Reg. v. White, 2 Car & K. 404; s. sall, i Fost. & F. 329.

C., 2 Cox C. C. 210, a bill of exchange Acquiescence in Previous Forgeries. - payable to the order of Thomas TomWhere a person for a series of years linson was indorsed by the prisoner, forged the name of his friend as the in- · Per procuration Thomas Tomlinson, dorser of his notes and bills, with the Emanuel White." White had no author. knowledge of his friend, who, although ity whatever írom Tomlinson. It was held, judgments were obtained and executions by a unanimous court of fifteen judges, issued against him in suit on such forged that this was not forgery. In Heilbonn's indorselents, never disavowed such acts Case, i Park. Cr. Cas. (N. Y.) 429, a bill until the person committing the forger- of exchange had been made payable to ies had absconded and fled from just the order of McIntosh & Co. It was in ice, it was held, in a case where indorser dorsed by Alex. Heilbonn." Heilbonn

« PreviousContinue »