Paige v. People.

tion, may operate as an agreement, though defective; and and especially it may when the right, title and interest to be affected thereby is merely equitable.

I am not prepared to concede that the instrument set forth in this indictment is void, if not sealed; and if not, then the whole argument on this point fails. For, if averring the forgery of a deed imports forgery of a sealed instrument, then the indictment is sufficient for that reason; and, if averring the forgery of a deed does not ex vi termini import the forgery of a sealed instrument, the instrument, even if not sealed, is effective to create an interest in real estate.

Another objection, urged to this indictment, relates to the fourth, fifth, sixth, seventh, eighth and ninth counts, and is, that they do not sufficiently aver the offense of uttering and publishing. It is not denied, that they follow the words of the statute, which is: "Every person who shall be convicted of having uttered and published, as true, and with intent to defraud, any forged, altered, or counterfeited instrument, knowing such instrument counterfeited, shall suffer," &c.

to be forged, altered, or

This is charged in terms; but it is said, that it is not enough that the indictment follows the words of the statute; that it must state in other terms, what the party did, and that must appear to be an uttering and publishing of the instrument, or, at all events, if the party state the act claimed to be an uttering and publishing, it must amount thereto in law.

Here, in five of the counts, the allegation is that the plaintiff in error uttered and published the forged deed, by causing it to be recorded in the office of the clerk of Washington county, as genuine and true.

I cannot doubt that this was uttering and publishing, within the just meaning of these terms. That act must be judged of in the light of our statutes, which authorize and give effect to the recording of deeds. They make the recording notice to all the world of the claim, or apparent title, conferred by the instrument, and make the record itself evidence in courts of justice. Of necessity, then, the placing upon record of an instrument apparently conveying title per se, creates a doubt of the title of the pretended grantor, and is an assertion of the

Paige v. People.

right of the pretended grantee. It is made to operate usefully to the apparent grantee, by the very act of placing on record.

The case of an instrument having no operation in the hands of the forger, and not made nor offered to be made efficient in any manner, may be different. The discussion of this subject, in People v. Rathbun, 21 Wend. 509, and the cases there cited, show, that a deed of real estate may be uttered, within the meaning of the statute, and that the term uttering is not used in the restricted sense of selling or negotiating, which would be wholly inapplicable to such an instrument.

The suggestion that the plaintiff in error did not commit. the offense; that, if recording be uttering, the county clerk is the offender and the plaintiff a mere accomplice,-is entitled, I think, to but slight consideration. For all legal purposes, delivering to the county clerk for record completes the act. The clerk is the mere instrument by which the deed is spread upon the books of record, and the moment it was lodged for record in the office it became operative.

And, if this view be correct, it is not less clear that the charge in the seventh count, that such uttering was by setting up the same as genuine and true, in a complaint in an action wherein the party charged is plaintiff, and the parties intended to be defrauded are defendant, is sufficient.

In the language of the court below, in which I fully concur, the setting up of the instrument in the suit, and the founding of a right thereon in a court of justice, was an assertion, in the most solemn manner, of its genuineness and value. This was a very emphatic use and employment of it, for the purpose of maintaining and enforcing an asserted right.

The remaining objection is, that it does not appear by the indictment how the persons named were to be defrauded by the instrument. The answer is, that this is matter to be proved.

The felonious forging, and uttering and publishing, with intent to defraud parties named, are stated. They are persons shown to have an interest in the property. They were in a situation in which they could be prejudiced by giving faith and credit to the instrument. But it is an elementary rule, that the intent to defraud being duly averred, it is not necessary that the pleading should state the manner in which the party

Paige v. People.

was to be defrauded. 2 Russ. on Crimes, 383; and cases cited.

And Mr. Justice BOCKES, in the opinion below, has collected numerous cases which show that it is wholly unnecessary in pleading to enter into the details by which the intent to defraud is to be or may be established.

These are matters to be given in evidence on the trial in support of the averment of fraudulent intent. People v. Stearns, 21 Wend. 409; Commonwealth v. McDonald, 5 Cush. 365; 4 Allen, 311; 9 Id. 274; 2 Carr. & K. 293; Russ. & Ry. 154; Barb. Cr. L. 109.

I have thus considered the points discussed in this case by the counsel, relating to the sufficiency of the indictment, being uncertain what view my brethren, on our final consultation, would take of the question, whether, in the present state of the record, we can review the order of the supreme court reversing the judgment of the oyer and terminer sustaining the de

murrer.

The consequences of our decision to the plaintiff in error, whether we affirm the order of the supreme court or dismiss the writ, are not widely different.

In either case, the court of oyer and terminer must proceed upon the matter to a final judgment. Nevertheless, if the record does not show that the proceedings below are in a condition proper for review here, we ought to dismiss the writ.

The judgment below is not a final judgment. The reversal which has been had in the supreme court, in effect, overrules the demurrer to the indictment, and in such case there is no judgment until the court of oyer and terminer proceed therein.

After final judgment for the people in the oyer and terminer, such judgment being affirmed in the supreme court, the plaintiff is entitled of right to come to this court (2 R. S. 740, § 15) for a review of the judgment, and it is not proper, nor, as I think, permissible to the plaintiff in error, to enter into this court for a review of the same matter.

I find no warrant for his coming here to review any other than a final judgment. That is the term employed by the statute; and where similar questions have arisen in this court,

Parker v. Jervis.

the ruling here excludes the idea that any other can be reviewed.

In People v. Nestle, 19 N. Y. 583, the construction of the act of 1852, c. 82, authorizing the people to bring a writ of error to this court, was considered, and was held to warrant such writ only after final judgment had been entered in favor of the defendant; and in Hill v. People, 10 N. Y. 463, it was held that, under the practice of the former court of errors, and the judiciary act of 1847, this court could not review a record of conviction which did not show that judgment had heen pronounced.

If these views are correct, the writ of error should be dismissed, and the record be remanded.

On the merits, in support of the judgment below, all the judges, except MILLER, J., concurred.

On the question of jurisdiction, all the judges concurred in holding that the case was not in a condition to warrant a writ of error in this court, because there had been no final judgment.

Writ of error dismissed.

PARKER v. JERVIS.

March, 1867.

Neither the supreme court nor this court have power to review the questions of fact where the trial is had before a jury. Only one question can arise before the general term on the findings in such a case,-viz: whether there was any evidence upon which the finding of the jury can be sustained.

If the supreme court, at general term, decide that there was no proof by which the verdict can be sustained, then a question of law is presented which may be considered by this court.*

* Distinguished in Bryant v. Bryant, 42 N. Y. 11. Cited in Tell v. Beyer, 38 Id. 161; Coyle v. City of Brooklyn, 53 Barb. 41; Ames v. Rathbun, 55 Id. 195. For the present practice, see Sands v. Crooke, 46

29

Parker v. Jervis.

A symbolical delivery, by an assignor for the benefit of creditors, to his assignee, by delivering the keys of his store, his books, &c., accompanied by the assignee's hiring the clerk of the assignor and continuing him in charge, and by the assignor's ceasing to have any control over the assets, is sufficient evidence of a delivery to satisfy the statute of frauds.

William C. Chipman (for whom, on his death pending the action, Abraham X. Parker, trustee, &c. was substituted as plaintiff), sued Benjamin T. Jervis, Paul Worth, Russell T. Wheeler and E. B. Litchfield, in the supreme court, for wrongfully taking possession of and refusing to deliver, and converting to their own use, a quantity of merchandise belonging to the plaintiff.

The property had belonged to one George H. Goodrich, who made a general assignment, transferring it, for the benefit of his creditors, to Chipman. The goods were in the store of Goodrich; the assignment was made in a bed-room above the store; and the delivery, which was relied upon, was made at the same time as the assignment, by delivering to plaintiff the keys of the store, and by the plaintiff taking the books, notes and accounts from the store, to his office in the same village. The debtor, the assignor, dismissed his clerk, and the plaintiff, the assignee, hired him to remain, and requested him to keep the assignment secret, until the assignor and the assignee, who were going to New York, should return. The store was kept open, with Goodrich's sign up, until the plaintiff's return, about ten days after the assignment.

The defendants justified the seizure as judgment creditors of Goodrich, claiming that the assignment was fraudulent and void, and that the property belonged to him.

After the evidence was all introduced, the defendants moved for a nonsuit, on the ground that there had been no actual delivery or change of possession of the assigned property. The court denied the motion, and submitted the case to the jury, who found a verdict for the plaintiff.

The supreme court, on appeal from an order of the special

N. Y. 564; Wright . Hunter, 47 Id. 409; Downing v. Kelly, 48 Id. 433; Randolph v. Loughlin, Id. 456.