
    *The State vs. George W. Jones.
    The words warrant and order, in an indictment for forgery, describing the instrument forged, are synonymous with taarrant or order.
    
    An instrument signed by a party, is, in legal parlance, the paper writing of such party. It is his signature which gives it that character and not the body of the instrument.
    Every indictment for forgery, must set forth the instrument charged as fictitious, in words and figures, so that the Court may be able to judge from the record, whether it is an instrument in respect of which forgery can be committed.
    If an indictment charges the forgery to be with intent to defraud an incorporated bank, and its corporate name is set forth, it is sufficient if it appears to be an incorporate bank within this State.
    The cashier is a mere officer representing the bank, and a check drawn upon him as such is drawn upon the bank; therefore, a fraud committed on him, is a fraud upon the bank.
    The same indictment set forth that the paper writing, alleged to be forged, purported to be a warrant and order for tlie payment of money, and to have been drawn by one Tristram Tupper. It then set out the instrument in hcec verba, from which it appeared that it was signed T. Tupper, and averred that the prisoner made it with the intention to defraud Tristram Tupper: Held, that there was no variance, and that the count was well framed.
    If an instrument from its face purports to have been made in Charleston, S. C., and it is proved the prisoner at its date was there, and had the same in his possession, it is sufficient evidence to show that it was made there.
    If a prisoner is guilty in fact of forgery, his conviction may be sustained either under the Acts of 1736-7, the Act of 1801, or at common law.
    Before O’Neall, J., at Charleston, May Term, 1840.
    The prisoner was indicted in the 1st, 3d, and 5th counts, for the false making, and in the 2d, 4th, and 6th counts, for uttering and publishing, as true, the following paper :
    “No. 13. Charleston, S. C., February 19/7i, 1840.
    “ Cashier of the Bank of Charleston, So. Ca., pay to Geo. W. Jones, or bearer, tlnrty-two dollars.
    “ $32 00. T. TuppeR.”
    It was proved that the prisoner came to Charleston on the 17 th day of February, 1839; he boarded ata Mr. Harrison’s. The night after he came, he applied to his landlord for the loan of $2, to go to the theatre ; he pulled out the check, signed T. Tapper, on the Bank of Charleston, for $32, and offered it to him, saying, keep it for security, tomorrow I will collect it, get the money, and return it to you. Harrison ^declined taking the check, as he thought there was something suspicious about it; he, however, loaned him the $2. The prisoner afterwards told him he had collected the check and spent the money. After the prisoner was arrested for grand larceny, his trunk was examined, and the check set out in the indictment was found in it; and Mr. Harrison identified it in Court, as the one offered to him.
    The check was fully proved to be a forgery. In Charleston there is but one man named Tristram Tupper; he is the President of the Hamburg Railroad ; he sometimes, in small matters of business, such as orders for payment of bills against the company, signs his name T. Tupper. On more important matters, such as scrip, he writes his name Tristram Tupper. The prisoner, in the purchase of some clothes, on the 18th of February, from Mr. Flynn, passed by the name of Henry G. King ; he ordered some clothes from Mr. Pemberton, on the 17th or 18th of February, by the name of George Ross.
    Four objections were taken to the indictment; 1st. That the indictment describes the paper forged, to be a warrant and order; the Act of Assembly speaks of a warrant or order. 2d. The indictment describes the paper forged as a paper writing, when it was partly in print and partly in writing. 3d. That, according to the Act of 1801, and the case of the State vs. Houseal,
      
       the party to be defrauded must be alleged to be within the State. 4th. The indictment alleged that the paper was forged with the intent to defraud one Tristram Tupper, and the paper was signed T. Tupper.
    I thought there was nothing in these objections. As to the first, I thought the words in the Act, “warrant or order,’’ were used as synonymous, and to describe the same paper, and therefore, that the description in the indictment, by the words warrant and order, was good. To the second, I thought it a sufficient answer, that a paper partly in print and partly in writing, and signed, or purporting to be signed, by a person, was legally the papier writing of such person. As to the third, the case of the State vs. Houseal, (2 Brev, Rep. 219,) furnished the answer ; the want of the allegation, that the party intended to be defrauded resided within the State, prevented the case from being covered by the Act of 1801 ; but without such allegation it was within the Act of 1136-1.  (P. L. 141.) The fourth objection, was one, I thought, dependant on the *proof. If it was shown that the paper forged, signed T. Tup-per, was intended to represent Tristram Tupper, then the matter was well laid in the indictment.
    The case then went to the jury, and they were instructed, that forgery consists in the false making of any one of the papers enumerated in the Act of Assembly, with the intent to defraud another; or in the uttering and publishing of such paper as true, knowing it to be forged. They were told, that the inquiries in fact for them were — 1st. Did the prisoner falsely make the paper set out in the indictment, as the cheek of Tris-tram Tupper Here they were told, first, to ask was Tristram Tupper the person meant by T. Tupper ? They were referred to the proof, that he was the only man in ■ Charleston known to be thus designated ; that his signature was sometimes T. Tupper, and sometimes Tristram Tup-per; and that the prisoner said he would collect the check next day. If they were satisfied that Tristram Tupper of Charleston, was the person intended by T. Tupper, then there was no doubt that the paper was false. And then the inquiry would be, did the prisoner make it 1 The jury were referred to the facts that it was made payable to him ; it was found in his possession ; it was offered by him as a genuine paper to Harrison ; his statement, that he afterwards collected it, when in fact it was still in his own possession ; his bearing false names, and his want of money. If they were satisfied he made the paper, then the jury were directed to inquire, did he make it at Charleston ? Here the jury were referred to the facts, that on its face it purports to be made at Charleston ; and that the prisoner at its date was in the city. If these questions were all found against the prisoner, then the second inquiry would arise — did he make the paper with an intent to defraud another ? They were told, if it was made without any intention of being used as genuine, then the fraudulent intention would be at once negatived, and the prisoner would he guiltless. But this ought to be manifest, before such a conclusion was adopted. For, generally, the false making of a paper, creating a liability on another, or conferring benefit on the maker, would be the evidence of a fraudulent intent.
    They were told, if the offer to Harrison was with a view of raising money on the check, either bypassing it away, or depositing it as security for money loaned, it would show *that the instrument had been forged with a corrupt intent. And when it was thus shown that it was intended to be used as a money security, it was in contemplation of law hi fraud of Tupper and the Bank of Charleston. For a draft on the cashier of the Bank of Charleston, was a draft on the Bank. The effect of such an order was to withdraw the drawer’s funds from the Bank; and if forged, the Bank could not credit his account with the payment; and hence, therefore, the Bank would be defrauded by such a forgery, although it might have a remedy even against the officer. In an indictment for forgery, it was not necessary to make the party guilty, that his intended fraud should be fully consummated, by obtaining money, or money’s worth, on the paper forged ; it was sufficient if the fraudulent intent with which the paper was forged, was made out. The jury found the prisoner guilty on the first, third, and fifth counts, for forging the check ; but acquitted him on the second, fourth, and sixth grounds, for uttering and publishing the check as true, knowing it to be forged. As to this branch, I do not therefore report my charge. The prisoner moves for a new trial, and in arrest of judgment, on the annexed grounds :
    GROUNDS OP APPEAL.
    1. Because the indictment in the 1st, 3d and 5th counts, is defective, inasmuch as the words of the act are “warrant or order,” in the disjunctive, and the words in the counts are “ warrant and order,” in the conjunctive ; the words are not synonymous.
    2. Because, in these counts, the forging is alleged to have been of a “ certain paper writing,” and proof was of a paper partly written and partly printed.
    3. Because those counts are still further defective, inasmuch as they do not set forth that the party whom it is intended to defraud, if a corporation, was in the United States, or within this State; or, if a person, was resident in this State, or within the United States,
    4. Because the first count is still further defective, as it alleges the intention to defraud the Bank of Charleston, S. 0., and the tenor of the check shows that it was a check upon the cashier of the Bank of Charleston, S. C.
    5. Because the third count is further defective, because the purport and the ^enor the check in the count are at variance ; *the purport being that it was the check of Tristram Tupper, and the tenor showing that it was the cheek of T. Tupper.
    6. Because the same count was further defective, alleging that it was to defraud Tristram Tupper, and the tenor of the check showed that it was the check of'T. Tupper.
    7. Because there was no proof where the check was forged, and the jury was instructed that if they believed the prisoner made the paper, the date showed where he made it.
    8. Because his Honor charged the jury, that the prisoner might be convicted under the Act of 1801, or 1730, or the common law, although the offence was charged to be against the Act of Assembly, &c.
    
      Simmons, for the motion,
    cited 3 M‘C. 383 ; 2 Brev. 202; 3 Tom. L. Die. 761; 6 .Jacob. U>. 387, 388; 4 Tuc. Blac. 249, (note,) Acts, 1736-7, P. L., 147; Acts 1801, 2 Faust. 379. Was the indictment framed under the Act of 1801 ? Cited also, 2 Bos. & Pul. 238 ; 2 Mason U. S. R. 464. Nothing would make a printed paper a written paper. Suppose the prisoner had been acquitted, and subsequent to his acquittal, a paper had been found wholly written, could he plead his acquittal ? He could not. The prisoner could not, in such a case, apprehend what he was to answer.
    An indictment undertaking to recite, and not doing so, produces a fatal variance. Mr. S. contended that there was a difference between the Acts of 1736 and 1737, and the Act of 1801. Cited The State vs. Ilouseal, 2 Brev. 219. It is as essential that an indictment should set out that the person named in the indictment resided in the State and in the United States, as that he forged or assisted in forging.
    The offence of forgery is only made capital by statute. Under the fourth ground, cited 2 Starkie Ev. 330 ; 3 Brev. Rep. 507, State vs. Waters. An error in a single word is fatal. Fifth ground, 2 Leach. Cli. Cases, 808 ; 2 Starkie Ev. 331 ; 2 Ji. P. C. 992.
    
      Bailey, Attorney General, contra,
    on the first ground, cited 1 Brev. Rep. 35. As to the place where made, 2 Russel on Cr. 373; Foster’s case, 3 M‘C. 442. The first count is good *under the Act of 1S01. He cited 2 Brev. 262, State vs. Crank, 2 Bail. 60.
    
      Wilson, in reply,
    said that forgery, at common law, was the counterfeiting of any writing with a fraudulent intent, whereby another may be prejudiced. First, the forgery must be proved to be in the country, and made by the party, and his handwriting proved. Tire bare fact of finding the instrument in the country at the time, and the defendant, is not prima facie evidence that he forged it in that country. Rex vs. Park ,† Brown, Starkie, 231; 2 East, P. C. 992. If an intent to defraud a corporation be alleged, an intent must be proved to defraud them in their corporate capacity ; and if an attempt to defraud several in their individual capacities, be alleged, and it should appear that the real intention was to defraud them in their corporate capacity, the variance will be fatal. E. P. C. 991. A warrant of attorney to forge, is forgery. Paris’ case, 1 Raym. 81 ; 2 Brev. 219, as to recital of words. As to the printing and writing, 2 B. & P. 238 ; 1 Brev. 25. Warrant or order, 2 Bail. 06 ; 2 Russ. 373 ; 3 M‘C 441; 5 Pickering’s Rep. 279 ; 2 Devereaux N. C. 444 ; 2 Southard, 744.
    
      
       5 Stat. 397. An.
      
    
    
      
       3 Stat. 470, § 3.
    
   Curia, per

O’Neall, J.

The different grounds of the prisoner’s motion have received from the Court a deliberate consideration, and it is now my duty to give the judgment upon them. This shall be done in as few words as possible.

The first ground objects to the manner in which the indictment describes the instrument forged, “ a warrant and order,” when the Acts of 1736-7, and of 1801, speak of “a warrant or order.” I had, on the trial below, and I have now, no doubt that the indictment sets it out properly. The Legislature employed two words to describe the same thing. A warrant for the payment of money or the delivery of goods, is an order, and an order for the same purpose is also a warrant.

Indeed, the manner in which they are used in the Acts : “Any warrant or order for the payment of money or delivery of goods,” shows that one instrument was intended to be described. The same thing is supposed to be accomplished by either, and hence having the same effect, they must have the same meaning. They are synonymous, and have been always so regarded. In The State vs Holly, (1 Brev. 37,) decided in 1800, *by Waties, Bay, Johnson, Ramsey, and Trezivant, it was said, that the obvious meaning of the words ‘ warrant or order’ in the sense used in the indictment, cannot be fairly misunderstood, the words being evidently intended to express the very same thing.” And they held, although in that case they were used disjunctively, “ warrant or order,” yet that the indictment was good. It is clear, beyond all doubt, if they mean the same thing, they ought to be laid conjunctively, and «sing them otherwise might be objected to.

The second ground objects that the forged instrument is described as a “paper writing,” when it is partly printed and partly written. There is unquestionably nothing in this ground. An instrument signed by a party is, in legal parlance, the paper writing of such a party. It is his signature to it which gives it that character, and not the body of the instrument. In a declaration on a note of hand, it is described as a note in writing, although every word, except the signature, may be in print. So of a bond partly written and partly printed, it is said to be “the writing obligatory” of the party executing it The manner in which an instrument forged is to be set out is well settled. In 3 C. L. 1040, it is said “ every indictment for forgery must set forth the instrument charged as fictitious, in words and figures, so that the Court may be able to judge from the record, whether it is an instrument in respect of which forgery can be committed.” This ride is fully complied with in this case, for the warrant and order is exactly set out. The same author, at the same page, says “though it is sufficient to aver that the defendant forged a certain writing, describing it truly, and setting forth its tenor, it seems more proper to lay it as a certain paper writing, purporting to be one that the statute on which the indictment is framed, describes.” The instrument in this case is described in the very words used in this case. I have looked into Waters’ case, 3 Brev. (507, An.,) and have been permitted to examine the indictment on file in the clerk’s office ; the bank note in that case was not described as partly printed and partly written. That indictment was drawn by Mr. Justice llichardson, then Attorney-General, and the prisoner defended by Mr. Wilson, one of the counsel for the prisoner now before us. No objection was taken to the indictment on that account. The only case in which I have observed that the instrument was ^described as partly printed and partly written, is the case of Rex vs. Wilcox, 1 Eng. Crown Ca. 50.) In that case the judgment was notwithstanding arrested, because the indictment did not state what the instrument was of which the forgery was alleged to have been committed, nor how the party signing it had authority to sign it.

The third ground insists that the indictment does not set out that the party whom it is intended to defraud, if a corporation, was in the United States, or within this State, or if a person, was resident in this State, or within the United States. This particularity is supposed to be necessary, under the Act of 1801, (2 Faust, 379,) which in the first section provides “that if any person, from and after the passing of this Act, shall, within this State, falsely make, forge or counterfeit, or willingly act or assist in the false making, forging or counterfeiting, of any deed, will, testament, bond, writing obligatory, bill of exchange, promissory note for payment of money or delivery of goods, bank note, for payment of money, of any incorporated or unincorporated bank or company within this State or any of the United States, or any endorsement or assignment of any bill of exchange or promissory note for payment of money, or of any bank note for the payment of money, of any incorporated or unincorporated bank or company within this State or any of the United States, or any acquittance or receipt, either of money or goods, or any acceptance of any bill of exchange, or the number or principal sum of any promissory note or bank note, for the payment of money, of any incorporated or unincorporated bank or company, in this State or any of the United States, or the number or principal sum of any accountable receipt for any note, bill or other security for the payment of money, or any warrant or order for the payment of money, or delivery of goods, with intention to defraud any person or persons residing or being within this State or any of the United States, or any bank or company, corporated or unincorporated, within this State or any of the United States, or the President or any other officer of any such bank or company, then every such person, being lawfully thereof convicted, shall be deemed guilty of felony, and shall suffer death, as a felon, without benefit of clergy.” Two questions here arise, under this Act ; 1st. Is it necessary to set out the indictment that the bank or person intended *to be defrauded, is within this State, or some other of the United States ; 2nd. Is the Act of 1801 a repeal of the Act of 1736-7 ? and if it is not, are not the 3d and 5th counts good under it? and the 1st count under the Act of 1801 ? admitting it to require that the bank to be defrauded should appear, from the indictment, to be in this State, or some other of the United States. In passing upon the first question, I would first remark that on examining Waters’ indictment, it seems that the learned attorney who drew it, alleged that the bank note then forged, was so forged with intent to defraud an incorporated bank within this State, and in another count a person within this State. This is the only precedent to which I have had access, andas that offence had to be covered by the Act of 1801, or not be punished capitally, I have no doubt it was so cautiously drawn from the decision in HouseaVs case, to which I shall presently refer. My brothers, Evans and Earle, and Chancellor Johnson, who long filled the office of Solicitors, agree that no such particularity was resorted to by them. In Houseal’s case, (2 Brev. 219,) the Judges held that “the offences charged in the indictment, are not pursuant to the Act of Assembly of 1801, and are not within the scope or intent of that Act, because the persons intended to be defrauded are not stated to be within any of the United States.” This, I confess is a decision on the point now before us, although it is not, perhaps conclusive authority, inasmuch as that point was not necessary to the decision of the cause. That decision out of the way, I should not hesitate to say, that there is no necessity to set out that the bank or person intended to be defrauded is within the State. It is no portion of the definition of the offence ; and when a forgery is charged to be in fraud of a bank, or an individual, it is to be inferred that they are within the State, unless the contrary be alleged. If the proof does not correspond with the indictment, as understood or expressed, the prisoner would be acquitted. But I yield my own judgment to that decision, and it is therefore necessary to inquire whether the Act of 1801 is a repeal of the Act of 1736-7. Act of 1136-7, sec. 3, (P. L. 147.) The latter is more general in the respect in which we are considering it than the former. It provides, inter aha, that “ to falsely make, forge or counterfeit any warrant or order for the payment of money or delivery of goods, with the intention to defraud any *person,” shall be a felony. By comparing the two Acts, it will be found that that part of the Act of 1801 which relates to banks atid companies, corporated or uneorporated, is not within the Act of 1736-7 ; and that the Act of 1801 is more restricted as to the person to be defrauded than the Act of 1736-7. The Act of 1801 contains no repealing clause, and can therefore, only be a repeal of the former Act, by implication. This is not favored, and unless there was some contradictory or repugnant provisions, there cannot be any implication of repeal. There is nothing of this kind ; the two Acts may well stand together; the latter applying to its peculiar subject, and the former governing those falling within its provisions. They cannot be construed in pari materia, for they do not entirely relate to the same subject matter. This point, however, was expressly adjudged in Houseal’s case, (2 Brev. 222,) and if that case is authority for the precision with which the offence must be laid, under the Act of 1801, it must also be for the non-repeal of the Act of 1736-7. In it, the Judges said, it does not appear to us that these two Acts are repugnant or contradictory, or so inconsistent as that they may not well stand together. The latter, to be sure, is more limited and confined in its operation, than the former; but there does not seem to be any necessity for construing this latter so as to operate the repeal of the former ; nor would there be any propriety in so doing. The Acts of Congress of 1790 and 1819, were passed on the same subject, (piracy;) they differed in some of their provisions ; they were both held to be in force ; Klintock was adjudged to be within the Act of 1790, and Smith within that of 1819, (5 Wheat. 144, 153.) The Act of 1736-7 being in force, the 3d and 5th counts are so framed as to bring the prisoner within its provisions, and, as was ruled in Houseal’s case, his conviction on those counts must be sustained under it.

The first count, however, charges the forgery to be with intent to defraud the Bank of Charleston, South Carolina, and this must be sustained under the Act of 1801, or fail. I think, however, that this count is sufficiently framed to be supported under that Act. It is sufficient, if it appear to be an incorporated bank within this State. The Bank is described by its corporate name, the Bank of Charleston, South Carolina, which sufficiently shows that it is a bank within this ’■‘State. It is, too, incorporated by a public Act, and we are judicially to take notice and be informed of this fact, and there is, therefore, no necessity for more than the designation of the bank by its name. The first count is therefore sufficient.

The fourth ground contends that the first count is defective, as it alleges the intention to defraud the Bank of Charleston, and the tenor of the forged warrant and order for the payment, shows that it was made to defraud the cashier. There is nothing in this ground. The intent of the forged writing is to withdraw the funds of the supposed signer from the bank, and this makes it a fraud intended upon it. The cashier is a mere officer representing the bank, and a paper drawn upon him as such, is drawn upon the bank. If the teller had paid the forged warrant or order in this case, the bank must have lost the credit of so much in a settlement with Mr. Tupper, the supposed drawer. It may be that the bank might have compelled the officer making the payment to refund, and thus replace its loss. Still this does not prevent the fraud from being of the bank and not the officer.

The fifth ground alleges that the third count is defective, inasmuch as it supposes that it sets out the forged writing as purporting to be of Tristram Tupper, when the tenor shows that it was of T. Tupper. This ground was framed upon the fourth ground, which was sustained as fatal to the indictment, in Houseal’s case. But unfortunately for the prisoner, his ground here is founded in mistake ; the indictment in the third count does not set out the paper writing as purporting to be the warrant and order of Tristram Tupper, but as purporting to be a warrant and order for the payment of money, and then sets out in hcec verba, and avers the prisoner’s intention to be to defraud Tristram Tupper. There is no variance here, and the count is well framed.

See 3 Rich. 172. An.

The sixth ground is a mere variety of the fifth, and was intended to apply to the facts. The jury found that the paper signed T. Tupper, was intended to represent Tristram Tupper, and thus to defraud him, and the proof too well sustains their conclusion.

The seventh ground supposes there was no proof where the warrant and order was made. It is only necessary to read and understand the report, to see that here again the prisoner *has no just ground of complaint. Two facts were ascertained ; it purports to be made in Charleston, and the prisoner was in Charleston at its date, and had it in possession. These were enough to show where it was made.

The eighth ground supposes there was error in saying to the jury, that if the prisoner was guilty in fact, his conviction might be sustained under the Act of 1736-7, the Act of 1801, or at common law. There certainly cannot be any doubt upon this, as a legal proposition, but as it is questioned, in proof of its accuracy, I will refer to Houseal’s case, (2 Brev., 219,) and to Foster’s case, (3 McC., 442.) The prisoner’s motion is dismissed.

Evans, Eabze and Butler, JJ-, concurred. Gantt and Richardson, JJ., dissented.  