Schnell et al. vs. Toomer et al.

Another suggestion we would make is, that if the legal title was in Mrs. Amos the instant after her marriage was solemnized, it is not by any means easy to see why it did not pass on through her into her husband, and thus she would have had no title whatever at the commencement of this suit. The marriage probably took place in 1838, the year the trust was created, and the adverse possession is not shown to have begun prior to 1853. But we hold that the whole scope and purpose of the trust required it to commence at the execution. of the instrument, and continue during the coverture, at least, if not during the life of the wife. And if the power of sale is inconsistent with that construction, it is inconsistent with the estate conveyed; and being a reservation contrary to the grant, and not preceding but following the words of conveyance, it should be deemed subordinate, and, if necessary, be declared void. In our judgment the trustee held the legal title.

2. If the trustee was barred, it is the settled law of this state that the beneficiaries of the trust, for whom he held title, were barred also: 10 Georgia Reports, 358; 51 Ibid., 139.

3. In regard to the evidence of adverse possession, etc., the court was requested to charge the jury, as laid down in 30 Georgia Reports, 619, that the plea of the statute must be supported by proof so conclusive as to exclude reasonable doubt. The court declined so to charge, but seems to have given what we think is the true meaning of the cases on the subject, namely, that it is only necessary for the proof to clearly satisfy the minds of the jury of the truth of the plea. In civil cases, as in 11 Georgia Reports, 160; 30 Ibid., 619; and 17 Ibid., 559, the exclusion of reasonable doubt means that and no more: Code, section 3749; and as "reasonable doubt" is a phrase more appropriate to criminal cases, its employment to instruct the jury in civil cases had best be avoided. There is certainly a difference in the strength of conviction required by the law in the two class of cases; and that being so, it is desirable not to confound in language what should be distinguished in thought.

Mitchell vs. The State of Georgia.

4. Another request to charge was refused; it was, in substance, that if the defendants had the means of proving clearly and certainly the date of erecting a certain fence, and its position with reference to the line of the lot in controversy, and had failed to produce the evidence or render a satisfactory reason for not producing it, this circumstance would tend to raise a presumption unfavorable to their case on these points. There was no evidence before the jury that the defendants held back anything in their power. The evidence they produced was not quite certain, but it did not appear that, at the time and under the circumstances, the defendants could have

made the matter any more clear. It had been a very long time since the fence was built-over twenty years-and the builders were not before the court. The court was altogether justifiable in refusing the request; more especially, as the charge given was that the jury must find against the claim of title by prescription unless they were clearly satisfied that defendants, and those under whom they claimed, had been in possession, with written color of title, for more than seven years prior to the suit, holding adversely under claim of right. The fence in question was involved only as related to the fact and date of the possession, and the charge just recited was as favorable to the plaintiffs as that requested, if not more so. As there was no motion for a new trial, we are not called to pronounce upon the sufficiency of the evidence to make out the statutory bar, upon the element of fact. We find no error of law in the record, and consequently affirm the judgment. Judgment affirmed.

EMANUEL MITCHELL, plaintiff in error, vs. THE STATE OF GEORGIA, defendant in error.

If Mitchell forge the name of Price to a letter, by which money belonging to Price, in the hands of his bailee in Thomasville, is sent by express to Augusta, and if Mitchell, personating one Cousins, to whom he had directed the money to be sent, takes it from the express office and appropriates it

Mitchell vs. The State of Georgia.

to his own use, Mitchell is guilty of forgery under section 4451 of the Code, and such facts sustain the allegation in the indictment that Mitchell's intent was to defraud Price, though Price, afterwards, by suit, recover the money from the express company. The forgery, including the fraudulent intent against Price, was complete when the forged letter moved Price's money from the depository he chose for it, and put it where Mitchell could get it, and where he actually got it and appropriated it; nor does it make him the less guilty of the forgery, that before he could pocket the money, he committed another crime in personating Cousins, nor is his criminal intent to defraud Price lessened by the fact that he also defrauded the express company.

Criminal law. Forgery. Before Judge GIBSON. Richmond Superior Court. April Term, 1875.

Reported in the opinion.

H. CLAY FOSTER, for plaintiff in error.

DAVENPORT JACKSON, by JACKSON & LUMPKIN, for the

state.

JACKSON, Judge.

The defendant was indicted for forging a letter, and thereby procuring money to be sent by express to Augusta, with intent to defraud Bill Price. The facts are that he did write the letter and put the name of Bill Price at the end of it; that by so doing he procured the money to be sent by a person in whose hands Price had placed it, by express to Augusta; that he had it sent to Cæsar Cousins, and it came to the express office for delivery to Cæsar Cousins; that defendant personated Cousins and got the money; that Price had to sue for it, and finally recovered it from the company. The jury, under the charge of the court, found defendant guilty. A motion for a new trial was made, on the ground that the verdict was against the law and the evidence, and without evidence; the court below overruled it, and error is assigned on that ruling.

There can be no doubt that the defendant was guilty of personating Cousins, and so getting this money from the express office, and he might have been indicted and convicted of

Mitchell vs. The State of Georgia.

that crime. But is he not guilty of forgery? Does not the transaction show that he was guilty of the latter offense before he had committed the former? Let us see. Section 4451 of our Code enacts that if any person shall fraudulently make, sign, forge, counterfeit, or alter any writing, with intent to defraud any person, he shall, on conviction, be purnished, etc.

Well, Mitchell signed and forged the name of Price to this letter-a writing. With what intent? Evidently to defraud. Whom? When he wrote the letter, whom did he intend to defraud? Whose 'money was he scheming to pocket? Unquestionably Price's money. He had ascertained that Price had the money in the hands of a person in Thomasville; he forged a letter in Price's name to this person; he had the money sent by express to Cousins, and he went to the express office and got it out. The express company was not in his thoughts when he forged the letter, or if it was, it was the mere instrumentality by which he was contriving to get Price's money; he had no intent to defraud that company; if he did he certainly intended to defraud Price too; it was not his intention to defraud Cousins, for it was not Cousins' money he was planning to get. But he did intend to defraud Price; and what is more, he succeeded in his intent, and did defraud him. He put in his pocket Price's money and appropriated it to his own use. It is true Price got it by suit out of the express company, but it took time, fees to counsel, trouble, expense and delay to get it out of that company-all of which this forgery caused. We hold that Price had a right to keep his money in Thomasville, and if defendant, by forging a letter and signing Price's name to it, got the money sent to Augusta, and pocketed it; that if he only kept it one hour from Price, with intent to apply it to his, the defendant's, own use, the crime of forgery is complete; the intent is demonstrated to defraud Price by the fact that he wrote the letter and reaped the fruits of the writing. We do not think that this case is at all affected by 51 Georgia Reports, 535. The principle there ruled is that the person intended to be defrauded must be designated in the indictment. It is doue here, and moreover,

Saffold vs. Wade.

we think it is clearly and satisfactorily proved. The verdict is in accordance with the law and abundantly supported by

the facts.

Judgment affirmed.

THOMAS P. SAFFOLD, plaintiff in error, vs. JAMES A. WADE, executor, defendant in error.

1. Where the verdict is against both of the defendants sued, and finds one of them to be security only, a judgment entered up against "the defendant," is to be construed as including both, the omission of the letter "s" at the termination of the word defendant, being an immaterial clerical error. The judgment is not void by reason of failing to describe the security as security, but is amendable.

2. Where, upon an execution against both defendants, the sheriff entered a levy, in due time, as made upon the property of one, (naming him,) the entry kept the judgment from becoming dormant as to either, for seven years from the date of the levy.

3. After such a levy had been disposed of by selling the property and paying out the proceeds to older fi. fas., it was competent, by leave of the court, to amend the judgment by inserting therein the letter "s" and the name of one of the defendants as principal, and the name of the other as security, so as to make the judgment, in that respect, conform to the verdict. And it was competent, by like leave of the court, at the same time, to amend the fi. fa. by designating therein one of the defendants as principal and the other as security, thus making the fi. fa. conform to the judgment as amended.

4. It was no obstacle to making these amendments that an affidavit of illegality, interposed by the security, had previously been sustained, and a levy upon his proporty dismissed, the grounds of illegality insisted upon being the variances between the verdict and the judgment, and between the judgment and the fi. fa., which the amendments served to obviate, 5. Such amendments were favorable to the security, being chiefly in respect to matters intended by the law for his benefit. They were, moreover, warranted by the record, which imports absolute verity. That they were made without notice to him is, consequently, nothing to his prejudice. Before they were made, he complained by affidavit of illegality, of the defects which they remedied, and, by so doing, virtually demanded the correction of said defects, the same being amendable.

6. As between the parties to the action, amendments to the judgment and fi. fa., made to establish conformity in the whole record, relate back, gen