#### THE STATE vs. ANTHONY BURROWS.

The provisions of the Act of 1311, oh. 814. Rev. Code, Revised Statutes, ch. 34, sec. 61, punishing the cheating hy false tokens, &c , do not apply to the case of conveyances of lands.

Where the charge intended to be made in such an indictment' is, that the defendant intended to cheat the plaintiff out of twenty acres of land, the excess in quantity over thirty-five acres, the indictment should expressly aver that there was, in fact, such an excess of twenty acres.

Where the true ground of complaint was, that the defendant, by means of a forged paper, induoed the prosecutor to execute a deed for 35J acres of of land instead of OS 1-2 acres, thereby defrauding the prosecutor, the indictment should distinctly aver this fraudulent purpose; but, though this be a fraud, it does not come within the definition of any crime or misdemeanor, known either to the common or statute law.

Appeal from the Superior Court of Law of Martin County, at the Pall Term 1850, his Honor Judge Bailey presiding.

The defendant was tried upon the following indictment :

State op Noeth Caeolina, ? Superior Court of Law, Martin County, > Pall Term 1849.

The jurors for the State upon their oath present, that Anthony Burrows, late of the County of Martin, on the first day of May, in the year of our Lord one thousand eight hundred and forty nine, with force and arms, at and in the County of Martin aforesaid, unlawfully, knowingly and designedly, a certain forged paper in writing as ¡a true paper in the proper hand-writing of one Thomas R. Cofield, falsely, fraudulently and deceitfully did exhibit to o'ne Eli Cherry (the said Eli Cherry having thereto*478fore agreed to sell to the said Anthony Burrows a tract of land, situate in the County of Martin at the price of one dollar an acre, and both the said Eli,Cherry and Anthony Burrows having requested the said Thomas R. Cofield to survey the said tract, in order to ascertain the number of acres contained, and the said Thomas R. Cofield having surveyed the same and made a plat, as requested, and -delivered the same to the said Anthony Burrows, to be exhibited to the said Eli Cherry, before the execution of a deed, whereby the said tract of land was to be conveyed from the said Eli Cherry to the said Anthony Burrows,) in and by which false and forged writing it was made to appear by the writing thereof that the said tract of land had been surveyed by the said Thomas R. Cofield, and contained only thirty-five and one half acres of land, by reason of which said forged paper the said Anthony Burrows, on the day aforesaid at and in the County aforesaid,unlawfully, knowingly and designedly, falsely,fraudulently and deceitfully did obtain a deed of conveyance from the said Eli Cherry for the tract of land aforesaid, wherein and whereby the said tract of land was described as containing thirty five and one half acres of land at the price of thirty-five dollars and fifty cents, and, for payment thereof to the said Eli Cherry, the said Anthony Burrows then and there executed his bond to the said Eli Cherry for the said sum of thirty five dollars and fifty dents, with the intent then and there to cheat and defraud the said Eli Cherry of twenty acres of said tract of land of the value of twenty dollars: Whereas, in truth and in fact, the said plat and survey so made as aforesaid by the said Thomas R. Cofield, when delivered to the said Anthony Burrows by the said Thomas R. Cofield as afore, said, did represent the said tract of land to contain fifty-five and one half acres of land, and the said Anthony Burrows, after the said plat came to his hands and before he ■exhibited it to the said Eli Cherry as aforesaid, at and in *479the County aforesaid, unlawfully, knowingly, designedly, falsely, fraudulently and deceitfully did alter and change the writing of the said Thomas R. Cofield on the said plat, so that the said tract, by means of the said alteration and change, was described as containing only thirty five and one half acres, to the great damage and deception of the said Eli Cherry, to the evil example of all others in the like case offending, against the form of the statute in such cases made and provided, and against the peace and dignity of the State.”

On the trial of this indictment,-upon the plea of not guilty, the evidence was, that the prosecutor Eli Chefry owned a tract of land in the County of Martin, and that he agreed with the defendant to sell the same to him at one dollar per acre — that they agreed upon the boundaries, but did not know the quantity, and selected one Thomas R. Cofield to survey the same to ascertain the number of acres. It was further agreed, that, after the survey was made, and the number of acres ascertained by a plat, the surveyor should hand the plat, which he had made, to the defendant, in order to procure a deed for the said land from the prosecutor — that, in pursuance of the said agreement, Cofield, (accompanied by the prosecutor and the defendant,) surveyed the said tract of land, made a plat by lines, words and figures, and found that it contained fifty -five and one half acres of land — that the said plat contained within its course and distance, and about the middle thereof, the figures and letter 55J A. — that the plat, with these figures upon it, was handed to the defendant — that, while the plat was in the defendant’s possession, he said to a witness, “How easy it would be to alter the figure 5 into a 3, and that he would do so; and .(he witness must say nothing about it.” The defendant afterwards handed the plat to the prosecutor, with the first figure 5 oí the figures 55§ changed into the figure 31 so as to represent by the said figures 35& acres of land, *480instead of 55§ acres. The prosecutor examined the same, and believing the land contained but 35§ acres, and believing that was the plat made by the surveyor, Cofield, and having no suspicion that it had been altered, agreed with the defendant to execute a deed to him for the land embraced within the said plat. A paper writing was prepared, conveying to the defendant the land embraced within the courses and distances of the said plat, and described as conveying thirty-five and one half acres only, when it conveyed fifty five and one half acres, in consideration of thirty-five dollars and fifty cents paid by the defendant to the prosecutor. The courses and distances mentioned in the deed were the same as those mentioned in the plat, with the exception of the distance of one line, as to the number of poles in the said line. The number of poles in the said line was left blank, at the request of the defendant; but there were trees at the beginning and termination of the said line, which trees were marked by the surveyor, and agreed upon by the prosecutor and defendant as the correct termini of the said line. The paper writing, thus prepared, was executed by the prosecutor and delivered to the defendant as his deed, with a request that the blank should be filled up shortly thereafter, because he (the prosecutor) was fearful that he (the defendant) would run beyond the line into his (the prosecutor’s) land. The courses, the lines and distances of the said plat were correctly made and laid down on the said plat by the surveyor, The name of the surve3ror was not to the said plat, but it was all in his handwriting except the figure 3 substituted for the figure 5.

The defendant’s counsel objected, that there was a variance between the proof and the charge in the bill of indictment — that, according to the proof, it did not appear, that by ‘ the false and forged writing, it was made by the writing thereof that the said tract of land had been surveyed by the said Thomas R. Cofield and contained only *481thirty-five and one half acres and further it was charged in the bill of indictment, that the fraudulent means i«sorted to by the defendant was with the intent to cheat and defraud Eli Cherry of twenty acres of land, whereas the proof shewed that he intended to cheat and defraud Cherry of twenty dollars and not of his land. It was further insisted by the defendant, that the number of poles being left blank, in the paper writing handed to him as the prosecutor’s deed, although it appeared that the blank was afterwards filled up with the number of poles, yet it was not a deed sufficient to convey lands and tenements, because there was no evidence that the prosecutor assented to the filling up of that blank, nor was there any evidence of a re-delivery. It was further objected, that, admitting the charge in the bill of indictment to be true, it was not an indictable offence — that real estate was not embraced in the statute (Rev. Stat. ch. 24, sec. 61,) by the words used or any of them, to-wit, "money, goods, property or other thing of value” — that it was not intended by these words in the statute to include any other than personal property. It was further insisted, that, if it was an indictable offence under the statute, the bill of indictment was insufficient. 1st. Because the bill of indictment did not negative the allegation that the plat was forged and was made to appear as containing thirty five and one half acres of land. 2ndly. It was not alleged, nor did it appear by the bill, except by inference, that the deed conveyed more, or the plat actually embraced more, than thirty-five and one half acres — and, further, that it is no where alleged, that the land conveyed to the defendant was the land of the prosecutor; and, if it did not belong to him or was not convej’ed with warranty, he was not and could not be defrauded.

The questions at law, which could be urged in arrest of judgment, were reserved by the Court. The Court sum-od up the evidence, and charged the jury, that if the *482prosecutor agreed to sell a tract of land, which he owned, and the defendant agreed to purchase the same, at the price of one dollar per acre, and they selected the wit* ness, Thomas R. Cofied, to make a sur-vey to ascertain the quantity, and the agreement was, that Cofield, alter making the survey and plat, should hand the plat to the defendant, in order to procure from the prosecutor a deed for the land contained in the survey ; and the plat embraced 555 acres or any number of acres over 355, and that the defendant altered, or procured another, who altered by his consent, the figure 5, so as to make it appear, as if the plat contained 355 acres of land instead of 554 and this was handed to the prosecutor as a true plat, with the. fraudulent design and purpose of procuring a deed from the prosecutor for all the land embraced in the said plat, and the prosecutor, being misled and deceived by the defendant, and supposing that the plat exhibited to him contained but thirty-five and one half acres, executed a deed to the.defendant, by which he conveyed to him fifty-five and one half acres, or any number of acres over and above thirty five and one half, in consideration of thirty-five and one half dollars paid by the defendant, the defendant would be guilty of cheating and defrauding the prosecutor of twenty acres of land, or the amount over and above the thirty five and one half acres, which he paid for, as charged in the bill of indictment; and that, although a blank was left in the paper writing, as to the number of poles of one of the lines, if the points ,of beginning and termination of the said line were fixed upon and agreed to by the prosecutor and the defendant, and marked by the surveyor as the termini of the said line, and the paper was handed to the defendant as the act and deed of the prosecutor, it was in law a valid deed to convey the laud embraced in its boundaries, although the blank was filled up afterwards by the defendant, in the absence of the prosecutor and without any re-delivery by him.

*483The jury found the defendant guilty. The defendant moved fora new trial for misdirection, which was refused. He then moved in arrest of judgment, whichjast motion was sustained, and the judgment was arrested. Both the defendant and the Attorney General prayed an appeal, which was allowed.

Alterney General for the State.

Biggs and Rodman, foi the defendant.

Peaksox.J.

The judgment was properly arrested. There are three fatal objections to the indictment, 1st. Land is not included within the operation of the statute. It is true the words are very general: “Money, goods, property, or other things of value,” “or any bank note, check or order for the payment of money. &c.” But they must be construed, with reference to the nature of the offence, the mischief intended to be guarded against, and the particular terms used in connection with the general terms.— Larceny at common law was confined to “goods and chatties,” it did not extend to land, because land could not be feloniously taken and carried away, except insignificant parcels thereof, and there was no mischief complained of in that regard. By the act of 1811, Ch. 814 Rev, Code. Rev. Staf. ch. 84 sec. 23. larceny is extended, so as to include “any bank note, check or order for the payment of money issued by or drawn on any bank or other society or corporation within this State or within any of the United States. &c ” The 24 Sec. includes corn, wheat, cotton, rice, &c., growing or standing together in any field &c.; this was necessary because these articles, being attached to the land, did not fall within the rule at common law, but, it was supposed, fell within the mischief to be guarded against.

By, the same act of 1811, Ch. 814, Rev. S’tat. Ch.' 34 Sec. 61, it is provided, that, “if any person shall know*484ingly and designedly by means of any forged counterfeit paper, &e., obtain from any person, &c., any money, goods, property-or other things of value, in any bank note, &c., check or order for the payment of money, issued by, or drawn on any bank or other society or corporation within this State or any of the United States, &c., and goes on in the very words of the 23 Sec. and concludes by subjecting the party offending, to the pillory, public whipping not exceeding thirty nine lashes,&c., the appropriate punishment of larceny.

Thus we are furnished with a key, whereby to unlock the meaning of the Statute. It was justly considered as great a mischief to be defrauded of property by means of a forged or counterfeit paper, &c.< as to be deprived of it by means of a felonious taking, and carrying away, and the object was to extend the principie to cases, where property was obtained in this fraudulent manner. Money, goods and chatties, were included in common law larceny, and bank notes, checks or orders, &c , were included in larceny as extended by statute ; so the same statute under consideration is made in express terms to embrace all of these ; ¡t may be that “other things of value,” was inserted to include corn, wheat, &c , growing, and standing nn-gathered, but it would be a strained construction to make it include the very land, for that is not the subject of larceny, at common law, and as extended by the statute. -It would be, to make the corollary or sequent embrace a subject not embraced by the original proposition, which is t ad logic as well as bad law.

2nd. The land was bargained for by metes and boundst ard the deed is made corresponding thereto. The charge is. that the defendant cheated Cherry out of twenty acres of land, to wit, the excess in quantity over thirty five and one half acres. But there is no averment that, in point offact, the tract of land contained more than thatnum-ler of acres; so, non constat, that he cheated him out of *485any land, and he certainly did not do it, unless the tract really contained more than that quantity. It is true, the indictment was that the plat, made by Coffield, represented the said tract of land to contain 55] acres, and ■that the defendant altered the plat, so as to make it 355 acres, but that does not make good the charge, of cheating Cherry out of the excess over 355 acres, without a direct avowal of the existence of such excess ; it may be the plat was incorrect, and that the tract contained but 35.] acres or a less number; and, if so, Cherry was not cheated out of any land, the plat to the contrary notwithstanding.

3rd. The intent charged is, “to cheat and defraud tfte said Cherry of twenty acres of said tract of land, of the value of twenty dollars.” It seems to us, the indictment does not “fit” the case. No more land was conveyed than was agreed upon by the original contract; so Cherry was not cheated out of any land. We do not adopt the suggestion, that the indictment should have charged the intent, to cheat Cherry out of “twenty dollars.” He never had the twenty dollars, and therefore it could not be said, that the intent of the defendant was “to obtain” from him that sum by means of the forged paper. The true ground of complaint is, that the defendant by means of the forged paper, induced Cherry to execute a deed for 55] acres of land upon the receipt of $35], and thereby obtained the conveyance without paying for twenty acres of land ; so the fraudulent intent was to procure the deed upon the payment of $35-], instead of $55]. This is a fraud, but it does not come within the definition of any crime or misdemeanor, known either to the common or statute law. There is no error. This opinion will be certified.

Per Curiam. Ordered to be certified accordingly.