Alexander v. Alexander, 9 Wend. 141

Alexander v. Alexander

9 Wend. 141 | N.Y. Sup. Ct. | 1832

By the Court,

Sutherland, J.

I am inclined to think the plaintiff was improperly nonsuited ; that the forgery alleged in the declaration to have been charged by the defendant upon the plaintiff is not to be understood as meaning necessarily and exclusively & felonious forgery, punishable as such ; but such a forgery as would subject him to criminal punishment of some description, if he had in fact committed it. In som *143of the counts some of the words are simply, that Jonathan had been guilty of forgery, without the accompanying declaration that the defendant would or could send him to the state prison for it. Now I do not see why these words are necessarily to be construed as imputing a technical felonious forgery; they may well be understood as comprehending any forgery which is punishable as a crime.

If this consti’uction of the declaration is correct, then the words as proved by the witnesses with the reference which appears always to have accompanied them to a petition to the legislature, supported the declaration. That a petition to the legislature may be of such a character that the'forging of a name to it would be a misdemeanor, and punishable as such, there can be no doubt; and so far as the nature of this petition was disclosed by the defendant to the witnesses, in explanation of this charge, it might have been one of that description. If it was not, I apprehend it was incumbent upon the defendant to show it. It was sufficient for the plaintiff, in the first instance, that the explanation did not show that the words did not and could not impute a crime 6ó the plaintiff. If they would, then it was for the jury to say whether they were so intended.

Nonsuit set aside and new trial granted.