
    Commonwealth versus John Fisher.
    To constitute a forgery of an “ order for the delivery of goods,” within the statute of 1804, c. 120, § 1, it is not necessary that the person, whose name is forged, have goods in the hands of the drawee.
    Indictment for falsely making, forging, and counterfeiting a certain order for the delivery of goods purporting to be made and signed by one James Fisher, of the following purport, viz. “ Salem, September 28th, 1819. Mr. Parker. Sir, deliver my son one pair of walking-shoes, and charge the same to me. Yours, James Fisher,” with intent to defraud one Thomas Parker, against the peace and the form of the statute in such case made and provided. The jury returned a special verdict, that the said James Fisher had no goods or effects in the hands of the said Parker, at the time when the order described in the indictment was made, or after-wards ; and that the defendant did falsely make, forge, and counterfeit the said order. But whether the same order was, within the true intent and meaning of the statute of March 15th, 1805, an order for the delivery of goods, the jury were wholly ignorant, *and prayed the advisement of the Court. If [ * 47 ] it was within the statute, the defendant was guilty; otherwise he was not guilty.
    
      Dunlap, for the defendant,
    contended that the offence, of which he had been found guilty, is not within the statute referred to by the jury . The paper recited in the indictment is not an order for the delivery of goods, but a mere request; and it purports to be nothing more. No man can order another to deliver his own goods, in the way of trade; he can only request him. An order implies a control and power over property, which, in the private relations of life, none but the owner can possess. An order must be obeyed ; a request may be refused. Thus in the case at bar, had the paper been genuine, Parker, the drawee, would have been under no obligation to deliver the shoes, but was entirely at liberty to comply with or to refuse the application. It was merely a request, and not an order.
    This is not merely verbal criticism ; but the distinction exists in law, and, in its application to the case at bar, is supported by numerous authorities. Our statute is almost a transcript of the British statute of 7 Geo. 2, c. 22 
       ; and these words in this statute have repeatedly received a judicial construction in the English courts, whose decisions have been uniform, and are recognized by the latest writers on criminal law .
    Since the formation of the constitution of this commonwealth, two statutes have been enacted on this subject, viz. that of 1784, c. 67, and that upon which the indictment in the present case is founded. In the former the word request is inserted in this con nection, “ any order or request for the payment of money or delivery of goods,” evidently recognizing the distinction we are attempting to establish; and probably with a view to Mary Mitchell’s case, the only one which had then been decided, and upon the authority of which the other decisions referred to were made.
    
      [ * 48 ] *In the statute of 1804, c. 120, § 1, the word request is omitted; and the language is, as in that of 7 Geo. 2, “ order for the delivery of goods.” The cases cited are, therefore, authorities for the construction of our own statute.
    There are good reasons for the insertion of the word request in the first statute, and the omission of it in the second. A man is, or may be, upon his guard against a request; he may or may not grant it. He is at liberty to delay, until he can satisfy himself of its genuineness; but he refuses an order at his peril. If genuine, he exposes himself to an action of trover at the suit of the drawer. There is, therefore, greater danger of fraud and imposition, in one case than in the other; and this may well be supposed to have induced the legislature, in its wisdom, to include requests in the former law, because the punishment by that law was left to the discretion of the Court, and might have been the slightest known in law; and to exclude the same word in the last law, wherein the least punishment that can be inflicted under its provisions is of the severest kind; too severe, one would think, for the case of a man impelled to the commission of a crime, by such necessity and distress as has led casuists to inquire how far a man may be justified or excused in overleaping the laws of civil society. But if the omission in the statute is considered to have been accidental, which is hardly to be supposed, the law is so highly penal, as to call for a construction favorable to the defendant.
    
      Davis (Solicitor-General), for the commonwealth.
    The strict construction of the English statute, adopted in the cases cited by the defendant’s counsel, arose wholly from the penalty which was' to follow a conviction, viz. death. The reasoning of the judge, who differed from the majority in Mary Mitchell’s case, is very applicable to the case at bar. He observes, “ that the word order was in daily use among traders in a larger sense than had been then contended for; extending to letters or messages between them, where one desires the other to send him a quantity [ * 49 ] * of goods in the way of trade, without pretending to have any interest or disposing power over them ; that in that case had the order been genuine, and the goods delivered on the credit of it, the drawer would have been liable ; or if the goods had been delivered on the forged order, the drawee would have been defrauded. He concluded, therefore, that as the case was within the mischief intended to be prevented, and, as he apprehended, within the words of the act, judgment ought to pass upon the prisoner.” In Lockett’s case , a request to pay money was held to be within the statute, where the person whose name was forged never had any funds in the hands of the drawee. Nor is it conceivable how the mischief or the crime is in any way affected by that circumstance.
    
      
      
        Stat. 1804, c. 120, § 1.
    
    
      
       See 2 East's Crown Law, 923.
    
    
      
      
        Foster's C. L. 119, Mary Mitchell's case.—Leach, 611, Rex va. Clinch ; 363, Rex vs. Ellor ; 144, Rex vs. Williams.—3 Chitty's C. L, 1033.
    
    
      
      
        Leach, 111.
    
   By the Court.

The language of our statute is very similar to that of the statute on which the decisions cited for the defendant were grounded; and in favor of life the latter received a stricter construction than we think it necessary to give to our own, by which the life of the offender is not put in jeopardy. We are all satisfied that the facts found by the jury bring the defendant within the statute upon which the indictment is framed; and that it makes no difference in the crime, whether the supposed drawer of the order has funds in the hands of the drawee or not . 
      
       [Vide 2 Russell, C. fy M., 470. 474.—Ed.]
     