Opinion
August Term, 1816.
An indictment for forging a writing is fatally defective which describes it by saying "purporting to be signed by the president and directors," and setting out the forged writing verbatim, upon the face of which it does not appear to have been by order of the president and directors. (See Fogg v. State, 9 Y., 392, 394, where this case is cited, and said to be a case of fatal repugnance between the description and the instrument as set out. And see Croxdale v. State, 1 Head, 139.)
We have looked into the authorities upon the point argued before us, and they satisfy us that an indictment for forging a writing, describing the same by saying purporting to be signed by the president and directors, and setting out the forged writing verbatim, upon the face of which it does not appear to have been by order of the president and directors, is a fatal defect. Therefore the prisoner must be discharged from this judgment, and we can not order him to be retained in custody to be tried, because we have no original jurisdiction. As to the point whether under our Constitution he can be tried again, we do not say any thing at this time, it not being necessary.
Judgment accordingly, that he be discharged from this judgment.
NOTE. — There must be some error either in the date of this decision, or the name of the judges who made it; for Whyte succeeded Overton, and White resigned, 31st December, 1814. The date ought, probably to be 1814, and the judge was White as printed, instead of Whyte as given in the original. — ED.