to come of age, or left lawful issue, who then on their death were to take? The answer is, still the youngest, and next youngest of his children. And who were they? Unquestionably Mrs. Brailsford, and Nathaniel Heyward answered this description. But it is said, the house and lot vested in Mrs. Brailsford, on the death of Benjamin and Elizabeth, as an ex cutory devise, and having once vested, she never could again be devested of it; it became her's absolutely. And here it is alleged, that this rule of law controlled the intention of the testator, and gave her by operation of law, the whole of the estates which might have been intended for the youngest, and next youngest children by the testator originally. But this is evidently a mistake; because, there was no specific devise of this house and lot to Mrs. Brailsford, after the death of Elizabeth and Benjamin, either express or implied; for the estate was in trustees, and could not possibly vest until after the contingencies happened, namely, the death of the mother, and the death of the two youngest children successively; then it was held in trust, for what? for the uses and purposes mentioned in the testator's will. It then went over according to the terms of the will to the next youngest child, and Mrs. Brailsford took the plantation and negroes, as the youngest child which arrived at twenty-one years of age, agreeably to her father's intention, as a contingent remainder. Upon the death of Benjamin, she changed positions; and instead of being the next youngest child of the testator, she became the youngest; and this was the kind of lottery mentioned by the last gentleman in the argument, or chance created by her father's will. It was a change of situations naturally resulting from the death of the two youngest children. It is the duty of the judges, to find out the intention of the testator if possible; and when discovered, to see that it be carried into due execution. That being the case, it is evident to all of them, and they are unanimously of opinion, that the house and tot in dispute, eventually went into Na Hey yard V. B. Ford. Heyward Brailsford. thaniel Heyward, as the testator's next youngest child that survived and arrived at twenty-one years of age; and that agreeably to the finding of the jury, judgment should be for the plaintiff in this action, and that the record should be delivered over to him, in order that final judgment may be entered on it in his favour. Present, GRIMKE, WATIES, BAY, JOHNSON, and TREZE VANT. Columbia, 1800. Forging an order for the delivery of THE STATE against WILLIAM HOLLY. FORGERY. Case from Camden, in Kershaw district. The prisoner in this case had been convicted of forging my within the an order, purporting to be an order drawn by Charles Evans meaning of on Mr. Coleman, a shop-keeper in the town of Camden, in goods is felo ny the statute, though no favour of one John Adner, or bearer, for the delivery of precise words to constitute are necessary goods, and which he desired to be charged to his, Charles the offence, if Evans's account, and for which, the order expressed, he would be obliged to Mr. Coleman for so doing. it is calculated to deceive and defraud. But if the indictment the offence to This order was presented by the prisoner to Mr. Colestates man, who refused to deliver the goods on suspicion of its he against a being a forgery; the prisoner was afterwards taken up, tried, and eventually convicted of the offence. British act of parliament made of force here, when in fact no such act had ever Mr. Brevard, counsel for the prisoner, moved in arrest been made of of judgment on two grounds. force, instead of concluding against the act 1. That this order was not such an instrument of writing, of the legisla- as the act against forgery contemplated. ture of the 2. That if it was, the indictment was defective, and state, it is a On the first ground, Mr. Brevard contended, that this was not such a warrant or order for the delivery of goods, as brought this case under the statute. That the kind of order for the delivery of goods contemplated by the act, was one where (if genuine) the party making the order had or claimed a right and interest in the goods, or a power of disposing of them, and took upon him the right of transferring them as his own property, out of the custody of him who had the possession of them, to the person presenting such order; when in fact and in truth, he had no such right or power, with intent to deceive the party in possession of the goods. The State V. Holly. Whereas, he said, the present order (if a genuine one) was no more than a request from Evans to Coleman, to dever the goods to the bearer upon his, Evans's, credit, and that he would see him paid for them, which was not an order for goods under the statute; and in support of this position, he quoted Mary Mitchell's case, Foster, 119. in Leach, 90. which it was determined by ten judges, that a writing similar to the one under consideration, was not a warrant or order within the meaning of the act of Geo. II. against forgery; only a request to let her have the articles mentioned in the writing, and that they should be paid for this he said, might be considered only as a collateral undertaking, that if Coleman would let the bearer have the goods, he would see them paid for. That from the terms of the order in question, it would appear that Evans had a credit with Coleman in Camden, and had been in the habit of getting goods from him on credit as a customer, and only requested him as a favour to let the bearer have the goods; from this view of the subject, therefore, he contended, that this could not be considered as a forgery within the meaning of the act, especially as no injury was done, the goods having never been delivered; if then no injury was done, no offence was committed. Salk. 375. 2. Whatever the opinion of the court might be on the first ground he had taken, he had very little doubt of success on this second ground; as he conceived the indictment. to be radically defective. Certainty, he observed, was the The State V. Holly. life of the law; and in no case was it more essentially necessary, than in a case where the life of a man was concerned. It ought to set forth with sufficient certainty, not only the nature of the offence, but also the law against which the offence was committed, in order that the prisoner might know how to defend himself against the charge, and the court the nature and extent of the punishment, in case of conviction. That the indictment in this case, states the offence to be against "a British act of parliament made "of force in this state," when in fact, there never was any such British statute made of force in South Carolina; for although in the preamble of an act against forgery, it would seem, as if the legislature meant and intended to make the British act of parliament against forgery of force in this country; yet they evidently abandoned the idea, and passed an act under the legislative authority of South Carolina, against such offence; and the offence in this indictment, if any has been committed, is not stated to be against the act of assembly of South Carolina, but against a British act of parliament, which never was extended to, or of force in this country; consequently, if there was no such British act of parliament in force against this offence, there could be no transgression of it; and if no transgression of it, then there can be no punishment under it; he therefore prayed the court, that the judgment might be arrested and the prisoner discharged. Mr. Solicitor James opposed this motion, and insisted that the act was complete by the delivery of the order to Coleman, and demanding the goods; because it was then uttered within the meaning of the act, and sent into circulation, as, and for a true and genuine order. The prisoner had then done all that he could, to give currency to this forged order, with intent to deceive and defraud Mr. Coleman out of his goods. It is the parting with the possession of a forged instrument of any kind, that gives it utterance in law; and which completes the offence, within the meaning of the statute. The order itself was one, which came within the description of the warrant or order for goods contemplated by the statute, and within its true intent and meaning. There is no specific or express form necessary by this act; "it de"clares the making or uttering of any false, forged, or "counterfeit warrant, or order for payment of money, "or delivery of goods, a felony, if done with intention to "deceive or defraud any person whomsoever." It is no sort of consequence what the form or tenor of it may be, if it is false and calculated to deceive and defraud. It is this which constitutes the offence of forgery. If this order had been genuine, and Coleman had delivered the goods, there is no question but Evans would have been liable, and must have paid for them. But, on the other hand, as the order was not a true one, if Coleman had delivered the goods on the credit of the paper writing, he would have been deceived and defrauded by it; this offence then was both within the mischief and the words of the act itself. He then relied on West's case, tried in Charleston in 1785, who forged an order in the name of William Washington, on James Gregory, for the delivery of goods; the prisoner was indicted under this act, and convicted, but was afterwards pardoned by the governor. The solicitor next contended, that it was verimmaterial, whether the goods were delivered or not; for it was not essentially necessary by this act, that the money should be actually paid, or the goods delivered, in order to constitute this offence; the bare uttering or delivering the order for payment or delivery was sufficient. As to the second objection against the indictment, he said the offence was sufficiently certain and well described, according to approved legal precedents; and as to the conclusion of its being against an act of parliament made of force in this country, it was well known that the act against forgery in this state, was a transcript of the British act of parliament against forgery, passed in the second and seventh years of the reign of George II. while this was a British colony; and it was very immaterial, whether the then legisjature of the country, declared the same to be of force in The State V. Holly. |