Adams’ Notes of Authorities1
Barnstable Superior Court, May 1767
Cotton vs. Nye
4. Bac. 485. “All Words are actionable which import the Charge of such a Forgery, as is within any of the statutes against this offence.”2
“An action also lies for charging a Man with Forgery, although it is not said to be of such a Record, Deed, Writing, or Instrument as is within any of the statutes; for Forgery is an offence indictable and punishable at common Law.”3
“But no Action lies for saying of J.S. he hath forged the Hand of J.N., these Words being too general; for unless it had been said to what Deed or Instrument, this is no offence under any of the statutes or at Common Law.”4
3. Leonard. 231. Hill. 31. Eliz.9 “An Action upon the Case was brought for these Words vizt. Thou hast forged my Hand: It was holden by Gawdy and Wray Justices that such Words are not actionable, because too general, without shewing to what Writing. And by Wray, these Words Scil. Thou art a Forger, are not actionable because it is not to what Thing he was a Forger. Godfrey, Between Warner and Cropwell Scil. She went about to kill me; an Action lyeth for them: for if they were true, she should be bounden to the good Behaviour.
“And by Gawdy, for these Words scil. ’Thou hast forged a Writing’: They are not actionable because they are uncertain Words; which Wray concessitt:10 But if the Declaration had been more certain, as “innuendo,11 such a Deed,” then it had been good enough.
“Fuller, a Case was betwixt Brook and Doughty, Scil.; He hath Counterfeited my Lord of Leicesters Hand unto a Letter against the Bishop of London; for the which he was committed to the Marshalsea for it. And it was holden, not Actionable. And afterwards in the principal Case, Judgment was, Nihil capiat Per Billam.”12
Hawk. P.C. 1st. Part. chap. 70. Page. 184. §8. “and first it is clear, that one may be guilty thereof by the Common Law, by counterfeiting a matter of Record.” §9. “any other authentic matter of a public Nature,” &c.13
§11. “As to other Writings of an inferiour Nature, [. . .] the Counterfeiting them is not [properly] forgery,” rather Cheats.14
§12. Forgery by Statute. §13.15
Page 188, §4. Offences of this Kind &c. falsely and deceitfully obtain Money, Goods Chattells, Jewells by counterfeit Letter.16
Libel, Lye to Damage.
1. Roll. 66. [pl.] 8. “Si home dit al Auter “Thou hast made forged Writings and thou shouldest have lost thy Ears for it. Null Action gist pur ceux Parols, pur ceo que est tout ousterment uncerten queux Writings, il intend par le[s] primer Parols, car peradventure il intend ascuns Writings le Forgerie de que ne violent deserver le perder de ses Aures et donque les d’arren Parols ne explaneront son Intention, entant que Poet estre que ceo fuit forsque un male Conclusion sur le[s] Premisses.”19
“9. Si home dit al J.S. Thou didst Forge an Acquittance, and I will prove it, Action gist, car n’est material pur quel Chose L’Acquittance fuit, car tiel Forgerie est deins l’Estatute.”20
“10. Thou has caused a Deed to be forgd and a dead Mans Hand to be put to it, and cheated and couzened my Husband of his Land. Action gist. [. . .] Pudsey and Pudsey.”21
“11. Si A. dit, This is B. his Writing and he hath forged this Warrant (innuendo, &c.) B. n’avira ascun action pur ceux Parols par ceo le Parol Warrant est de un uncertain sense et le innuendo ne ceo aidera.”22
Sheppards Actions on the Case for slander.23
“It is said to be adjudgd not to lie for this thou are a forger of false Writings.”
“Nor as it seems for this Thou hast made false Writings, thereby to get my Land from me.”24
Croo. 1. Shep. Page. 166.25
1. In JA’s hand. Adams Papers, Microfilms, Reel No. 185.
4. 4 Bacon, Abridgment description begins Matthew Bacon, New Abridgment of the Law, London, 1736–1766; 5 vols. description ends 485. Quotation marks supplied. The citations at notes 5–8 below appear as notes in Bacon.
5. See text at note 21 below.
6. Garbritt v. Bell, 1 Rolle, Abridgment description begins H. Rolle, Abridgment des plusieurs Cases et Resolutions del Common Ley, London, 1668. description ends 65 (K.B. 1639): Action lies for saying of B: “I have found Records which he hath forged, and he shall dearly pay for it. I have catched the forger.”
9. Anonymous, 3 Leon. description begins William Leonard, Reports and Cases of Law in the Courts at Westminster, London, 1658. description ends 231, 74 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 652 (Q.B. 1589).
11. “Meaning.” The innuendo was that part of a declaration for libel or slander which explained or pointed out the defamatory nature of the words. Here Gawdy was noting that not all forgeries were crimes (as forgery of a deed was), and that therefore an imputation of an undifferentiated forgery would not be actionable.
12. “He takes nothing by his writ.” That is, judgment for the defendant. Quotation marks supplied.
14. 1 Hawkins, Pleas of the Crown description begins William Hawkins, A Treatise of the Pleas of the Crown, 4th edn., London, 1762; 2 vols. description ends 184. Quotation marks supplied. At the ellipsis JA has omitted the words: “it seems to have been generally laid down as a rule that.”
15. 1 Hawkins, Pleas of the Crown description begins William Hawkins, A Treatise of the Pleas of the Crown, 4th edn., London, 1762; 2 vols. description ends 184–185. The statute is 5 Eliz., c. 14 (1562). See note 20 below. (The section numbers refer to the treatise, not the statute.)
16. 1 Hawkins, Pleas of the Crown description begins William Hawkins, A Treatise of the Pleas of the Crown, 4th edn., London, 1762; 2 vols. description ends 188: “Offenses of this kind by statute depend upon 33 Hen. VIII c. 1 [(1541)] by which it is enacted, ’That if any person or persons shall falsely and deceitfully obtain or get into his or their hands or possession, any money, goods, chattels, jewels, or other things of any person or persons, by colour and means of any privy fake token, or counterfeit letter made in another man’s name,’” he or they shall upon conviction be liable to suffer imprisonment or any corporal punishment other than death.
17. “If a man says to another.”
18. “No action lies for these words, because of their generality.” 1 Rolle, Abridgment description begins H. Rolle, Abridgment des plusieurs Cases et Resolutions del Common Ley, London, 1668. description ends 65. Quotation marks supplied.
19. “No action lies for these words, because it is completely uncertain which writings he meant by the first words; for peradventure he meant some writings the forgery of which would not cost one the loss of his ears; and thus the last words would not disclose his intent, so that perhaps it would be a wrong conclusion in the circumstances.” 1 Rolle, Abridgment description begins H. Rolle, Abridgment des plusieurs Cases et Resolutions del Common Ley, London, 1668. description ends 66. Quotation marks supplied.
20. “If a man says to J.S. ... an action lies, for it is not material by what means the acquittance came, for such a forgery is within the statute.” 1 Rolle, Abridgment description begins H. Rolle, Abridgment des plusieurs Cases et Resolutions del Common Ley, London, 1668. description ends 66. Quotation marks supplied. The statute referred to is 5 Eliz., c. 14 (1562), “An Act Against Forgers of False Deeds and Writings,” especially §3.
22. “If A says ... (meaning &c.) B shall not have any action for these words because the word ’warrant’ is of uncertain sense and the innuendo will not aid it.” 1 Rolle, Abridgment description begins H. Rolle, Abridgment des plusieurs Cases et Resolutions del Common Ley, London, 1668. description ends 66. Quotation marks supplied.
23. Sheppard, Actions upon the Case for Slander. The two following paragraphs appear at p. 166 of this treatise.
24. Sheppard cites “Croo. 1 part last publisht 855,” probably an inadvertence for Perkinson v. Bowman, Cro. Eliz. description begins George Croke, Reports of Cases in King’s Bench and Common Bench. Part 1, Elizabeth, London, 1661. description ends 853, 78 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 1079 (1600), which indeed seems to hold as the treatise suggests. Quotation marks supplied in this and the preceding paragraph.