By the court.

delivered the resolution of the court upon the two first points.

It is the unanimous opinion of the court upon the first and second grounds of exception taken to the indictment in this case, in .arrest of judgment, that they are insufficient for the purpose for which they have been offered. The object of the act of assembly would be completely defeated, and the act would be vain and nugatory, if the doctrine contended for, on the first ground, should be established. All the mischiefs, against which the act was provided,. might prevail without any effectual restraint. The rule or principle of construction, therefore, which has been insisted on, ought not to be admitted ; but another rule, founded on policy, and having an eye to the mischiefs the act was intended to avoid, ought to be established : viz. that every order (or warrant,) for the receipt x>f money, or delivery of goods, which is forged, and’ fraudulently passed, with a fraudulent intention, and which is so drawn, and of such a nature as to be calculated, and sufficient to effect the pup *41fíese' of defrauding the person en, whom th.e fraud is practised, in a case where the common prudence and .caution of a man of nary care and foiesight would not be sufficient to protect him such imposition, must be deemed, and taken', to be such a warrant oí order as the act of assembly intends. According to this principle, the court have no difficulty in deciding, that the warrant .or order* in question in the present case, is clearly within the meaning of the act of assembly; and that the conviction is.not at all affected by this exception. As to the exception to the indictment’s being charged in the disjunctive, the court concur in the .opinion, that it does not vitiate the indictment. It is not such an alternative charge as exposes the party indicted to any danger or inconvenience, and, therefore, is not liable to the objection which has been raised against it on any sound foundation of law or reason.

As to the third and last ground of exception to the indictment, the judges were all of opinion the exception was fatal, and that they judgment should be arrested, and gave their opinions,’ seriatim, 3s follows:

I am of opinion, that the judgment ought to be arrested, because it does not appear that the British statute, against for.. gery ,is made of torce here as such, but only that certain clauses thereof are incorporated in an act of our legislature. The indictment, should, therefore, have concluded against the act, and for want of this must be quashed, , .

I am of opinion, that the motion should be sustained, as it is essential to justice that every tnan should know, with precision, the law under which he. is called upon, to answer ; and more especially in cases affecting his life : and if an indictment concludes against a law not in existence, the prosecution ought to be quashed.

I am of opinion that the judgment in this case oflght to be arrested, because the indictment concludes against the British statute in such case made and provided, and made of force in this State, when there is no statute made of force in giieh case. . ,

I am of opinion that the judgment ought to be arrested in this case, because of the conclusion of the indictment being against the form of the statute in such case made and pro»' vided, and made of force in this State, instead of charging' the of. fence to have been committed against the act of the general assem. bly. Although the title of our act of' assembly speaks of making «Je British statute of force' in this country, yet there is no enacting;* *42clause for that purpose. (SeeP. L. 147.) The act itself create» the offence in the language of the British statute; but this can g^e no more support to this mode of concluding the indictment,than it would have done if the British statute had never been men. honed in the title of the act. The style of this act differs very widely from that of the act by which most of the British statutes were adopted,- and which are now of force in this State. This ground being fatal to the indictment, it is unnecessary to give any opinion upon the others.

But the defendant’s counsel also moves to have him discharged, In my opinion he ought not to be discharged, but ought to be indicted again. Vaux’s ease, 4 Rep. 45. The indictment being insufficient, his life was never in jeopardy.

The judgment was arrested ; but the prisoner was remanded to the gaol of Kershaw district, and ordered to be indieted again: before-the next court, however, he made his escape, and left the State.

presided at the trial.