In re Tully
| Decision Date | 18 June 1884 |
| Parties | In re Extradition of TULLY. |
| Court | U.S. District Court — Southern District of New York |
F. F Marbury, for the British government.
A. P Whitehead, for the Preston bank.
C. S Luscomb, for the accused.
Gerald Thomas Tully having been held by a United States commissioner for extradition to England on a charge of forgery, the accused has been brought before this court, together with the proceedings upon which he was held, upon writs of habeas corpus and certiorari. There is no dispute about the facts. The only question presented is whether the offense constitutes the crime of forgery under the treaty with Great Britain. The record shows that Tully was the submanager of the Preston Banking Company, (Limited,) a banking company in Preston, England; that the bank had various banking agencies in the vicinity accustomed to have funds on its account; that it was the duty of Tully, as submanager, to regulate the balances standing to the bank's credit with its various agents, and when the amount of any particular agent was considered too high it was his duty to make some withdrawal of funds and apply them for other bank purposes; that the bank had been accustomed to make advances of money on security to Messrs. Railton, Sons & Leedham, of Manchester that Tully 'had a general authority from the Preston Bank to draw checks upon its agents in reducing their balances;' the practice on doing so was for Tully to fill out a printed memorandum, termed a 'blue-slip,' showing the amount drawn, and from whom, and how the proceeds were disposed of. These printed blanks were in the following form:
'PRESTON, . . . .
'Preston Banking Co.
'Debit, . . . .
'Credit, . . . . '
When such slips were filled out Tully signed them with the letter P. simply, which stood as his signature and authentication of the transaction stated in the memorandum. The blue-slips were then handed to the accountant's department, from which the proper entries were made in the books of the bank, and the slips were preserved as vouchers.
The complaint charges, and the proof shows, that Tully, upon three occasions, drew checks upon the bank's agents, received the money from them, and rendered to the bank blue-slips crediting the drafts to the agents, and directing the debit of the amounts to certain customers of the bank. The proof warrants the inference, however, that the money was appropriated by Tully to his own use, and not invested with the persons against whom it was charged. Three transactions of this kind are mentioned in the complaint, all similar, one of which is as follows: On the twenty-third of October, 1882, Tully drew a check upon the Manchester & Salford Bank, (Limited,) for 1,000L, payable to selves or bearer signed per pro. the Preston Bank Company; G. T. Tully, submanager. ' The drawee was one of the agents of the Preston Bank. Tully received the money in person, and on the fourth of November following rendered to the accountant's bureau of the Preston Bank the following blue-slip:
In October, 1883, Tully absconded. On examination of the books and accounts several leaves of the investment ledger were found missing, and Railtons' account was missing. Evidence from the Railtons shows that no such moneys were received by them.
The complaint charges forgery in respect to the drafts, and also forgery in respect to the blue-slips, in uttering a 'certain written instrument purporting to be an accountable receipt, acquittance, and receipt for money, dated on the fourth day of November, 1882, for the sum of 1,000L, purporting to be invested with Railton, Sons & Leedham.'
The commissioner held that the crime of forgery was not made out in respect to the checks or drafts upon which the money was procured by Tully; but he has held the prisoner for forgery on the ground that the blue-slips were accountable receipts.
Forgery is defined by Blackstone as 'the fraudulent making or alteration of a writing to the prejudice of another man's right.' 4 Bl.Comm. 247. I have not found any more succinct or accurate definition than this. Greenleaf adds: 'It may be committed of any writing which, if genuine, would operate as the foundation of another man's liability, or the evidence of his right.' 3 Greenl.Ev. § 103. In one of the latest English cases (The Queen v. Ritson, L.R. 1 Cr.Cas. 200) it is defined as including 'every instrument which fraudulently purports to be that which it is not;' and in that case it was held that a false date inserted in a deed by the grantor, prior to the time of its execution, for the fraudulent purpose of overreaching an intervening incumbrance, was forgery on the part of the grantor, because it was a false deed purporting to be what it was not; namely, a deed of the date stated, designed to cut off, by means of a false date, an existing right.
As respects the checks, the evidence shows that Tully had authority to draw them upon the bank's agents in the precise form in which these were drawn; and there is no proof that the circumstances of the agent's accounts were not such as warranted the drafts. The act was done in his ordinary course of business; it was an act which he was authorized to do; and there was nothing false or irregular about the checks themselves; his acts in drawing these checks were therefore rightly held not to constitute forgery. Even if Tully had had no authority to draw these checks, they would not, according to the English law, have constituted forgery, as was held by the 15 judges in Regina v. White, 2 Car.&K. 404, because the signature by him in his own name 'per procuration,' etc., showed on its face all that it purported to be, and was not a false making.
As respects the blue-slips, if I were at liberty to consider the question presented as an original one, in connection with the law of evidence prevailing in this state, I should be inclined to hold that they might possibly constitute forgery at common law; on the ground that, under the usage of the bank and the course of dealing, these blue-slips, as between Tully and the bank, when supplemented by his own oath, as correct entries made at the time of the transaction and in the course of his official duty, might, in the absence of his own recollection, become evidence in his favor, admissible under our rules of evidence, to show an investment by him of the moneys he had received as stated in the slips, and hence tending to show an acquittance...
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...a guilty verdict, we assume that Mr. Hunt played a role in the fabrication. 2. See also Greathouse, 170 F.2d at 514; In re Tully, 20 F. 812, 814-15 (C.C.S.D.N.Y.1884); Int'l Fin. Corp. v. People's Bank of Keyser, 27 F.2d 523, 526 (N.D.W.Va.1928); People v. Cunningham, 2 N.Y.3d 593, 780 N.Y.......
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