case the king against gibson after conviction for a misdemeanour the defendant  can move for a new trial unless he be personal present in court SC stram SC  Sess Cas SC bar king b SC Cunn stram the defendant have be convict of forge a  note it be object on the modern er p part of the crown upon a motion for a new  trial that no such motion can be make in the absence of the defendant any more  than a motion in arrest of judgement this seem to be the opinion of the court  Lord Hardwicke chief justice the next day mention the case of the king v Latt  Michaelmas term will a which be a information for perjury and the queen v  Ridpath easter term Ann Mod SC fort b which be a information for a libel in  which case it be determine that there be no difference between move in arrest  of judgement and for a new trial as to that purpose and Lord Hardwicke direct  this to be observe as a settle rule for the future this same motion be regular  make another day the case appear to be this the defendant be convict before  Lord Hardwicke in London of forge a note the indictment set modern out that  the defendant forge a note date the thirty of June under the hand of lady  Macarty the word be import to be a write whereby she acknowledge to have  receive and borrow of the defendant and that he have lie out and expend for  her and for good for her use to the amount of two hundred and twentyone pound  twelve shilling then the indictment go on the tenor of which note or write be  as follow then the note be set out in Axe verbal which acknowledge the receipt  of money by the lady other money lie out and pay for her and for good before  deliver amount to the same sum the exception take to the indictment be that  here be a variance between the case set out as the purport of the note and the  tenor of it for the purport suppose money lend money pay for the lady use and  other money pay for good for her use to be the condition of the note whereas  it appear by the note itself that part of the condition of it be the sale of  good to her by the defendant which must be take to be the meaning of the word  good deliver Lord Hardwicke chief justice inform the court what be the reason  which induce he to overrule the objection which be likewise take at the trial  first that the word before deliver may as well be construe to mean money  advance by the defendant to pay for good deliver by a three person to the lady  as good sell and deliver by the defendant himself oh her and by that  construction money pay for good for her use and for good deliver to her will  mean the same thing second that suppose this be to be consider as a variance  yet as the note set out in haec word be clear prove to be forge that be  sufficient to warrant the verdict there be no necessity that every thing  charge in the indictment shall be prove but a proof of the most material fact  as there be in this case be all that be necessary three that what be set out  as the tenor of the note be the fact charge in the indictment and what there  be mention as the purport c be matter of inference and collection of the jury  and therefore any failure therein will not vitiate the court unanimous concur  with the chief justice and the motion be deny