they were at the time, or should afterwards be filed. Those relating to the quartermaster general's department were filed, and were directed to be filed. He was the person who in the ordinary course of the exercise of his authority would be best acquainted with the merits of that description of claims, while he could not reasonably be expected to be familiar with the other class, including only the claims of the officers and soldiers in the militia. Those

the province of the paymaster general, and it was to his audit and allowance that they were committed by the Act,

The Act further provided that when the claims subjected to the commission of which the quartermaster general was a member should be allowed, that they should be certified by a certificate authenticated in the form consistent with that allowance, by the acting quartermaster general of the State. He had no duty whatever to perform, concerning the claims made for the services rendered by the officers and soldiers of the militia, and could not be familiar with them, as he would be with the other class of claims; and it would not reasonably be expected that he should certify, as correct claims, those he was not required to examine or investigate and of which he could practical

had been presented to the United States Government, and the amount allowed had been by it paid to the State, and then only for the actual amount received from the United States Government. This was an evidence of debt, or engagement for the payment of money upon a contingency, the forging and uttering of which was made a crime under the statute of the State upon which the indictment was found. 3 R. S. 6th ed. 944, § 33, subd. 1. That the contingency was a remote one, up-claims appertain to, and were especially within on which the payment was to be made, did not exclude the certificate from the operation and effect of this statute. It was still an engagement for the payment of money upon a future contingency. The statute of the State of Missouri, under which it was issued, provided for the auditing and allowance of two classes of claims: the first included claims on file in the office of the quartermaster general, or which should be there filed up to the first of August, 1874, and were denominated irregular claims, including generally quartermaster's supplies The other provisions of the statute included claims of officers and soldiers of the enrolled Missouri militia and the Missouri militia, for services rendered during the war; and the claim, for which the certificate set forth in the indictment and for the uttering of which the defendant was convicted was issued, was of this descrip-ly have no knowledge. tion. The statute, by its tenth section, authorized and empowered the acting paymaster general to examine such claims on file in his office, and provided when he should find them correct and just that he should allow the same, and indorse his allowance on the claims; and by the thirteenth section of the Act it was further provided that a duplicate of each claim allowed should be filed in the office of the paymaster general. And it was then directed that "He shall issue a certificate of state indebted ness for the amount allowed thereon, which certificate shall be signed by the Governor, and countersigned by the acting paymaster general, and shall read as follows:" A form of the certificate was then given which at its foot contained on the left side the word "counter-ignation, and in place of it inserting the word signed," followed by a space for the name, and that, in completing the line, is further followed by the words "Acting Quartermaster General of Missouri.”

But what the Legislature designed by the Act was that the claims of each class should be certified by the officer knowing the fact of the truth of the certificate required to be made. And that intention is further disclosed by the thirteenth section of the Act directing the acting paymaster general to issue the certificates of state indebtedness for the amounts allowed for the services of the officers and soldiers; and he could not do that without authenticating them, as the law intended that to be done; and from that fact, as well as the general scope and tenor of the Act, it is quite manifest that in giving the form of the certificate in the Act, to be issued by the acting paymaster general, a mistake was made in omitting his official des

"quartermaster.' And as this was evidently a mistake it is required to be rejected, for the intent of the Act is clearly to that effect, and that intent is required to be followed in its construction.

As the statute was enacted, therefore, it in its language directed the certificate to be issued by That has not only been manifested by its genthe acting paymaster general; while the formeral object and purpose, but in addition to that prescribed dispensed with his authentication of by the explicit direction that the paymaster the certificate and provided for that being done general should be the officer who with the Govby the quartermaster general. In this manner ernor should issue the certificate. This certifia direct conflict was created between the man- cate must, accordingly, be held to have been datory provision of the Act, and the form pre-issued in compliance with the authority conscribed for carrying it into effect; and the question presented on this part of the case is, Which was the paramount authority? And its solution depends upon the intent and design of the Act as that has been disclosed; and that seems to be consistent only with the construction that the certificate should be signed and authenticated by the officer whose duty it was made to examine the claim upon which it should be issued.

This construction is sustained by the general purposes and objects of the Act; for the officers who were to examine, audit and allow the claims provided for were those in whose offices

tained in the Act, inasmuch as it was certified by the Governor and by the acting paymaster general. Upon its face, therefore, it was not a void instrument issued under the statute, and accordingly incapable of being the subject of a forgery within the principle supported by the cases of Cunningham v. People, 4 Hun, 455; and Fadner v. People, 2 N. Y. Crim. Rep. 553, and by 2 Bish. Crim. Laws, 553.

Neither was it invalidated by anything contained in section 52 of article 4 of the Constitution of the State of Missouri adopted in 1875; for that merely prohibited an appropriation of money by the Legislature of the State to pay

these certificates until after the claims audited had been presented to and paid by the Government of the United States to the State of Missouri. This section of the Constitution leaves the certificates precisely as they were allowed to be made and issued under the Act of 1874. The obligation expressed in them, as that was provided for by the Act, was in no manner changed or intended to be changed by the Constitution, and indeed it could not have been, as the Constitution of the United States restrained the State of Missouri from passing any Act impairing the obligation of its contracts. But it left the certificates as they had been issued, creating an obligation against the State to pay over the money whenever it should be received from the Government of the United States.

These instruments, being merely certificates of indebtedness to be paid by the State when the money should be received from the Federal Government, were not designed to be used or circulated in any form as money, but only to exhibit the obligation incurred by the State to the person named in each certificate; and they were accordingly not bills of credit, which the State was forbidden to issue by the Federal Constitution.

It has no legal efficacy, real or apparent,' and is not "the foundation of a legal liability." Bish. Crim. Law, § 523.

The certificate in question is invalid on its face, because it does not conform to the requirements of the statute.

"A writing invalid on its face cannot be the subject of forgery, because it has no legal tendency to effect a fraud."

"If a statute authorizes an instrument not known to the common law, and so prescribes its form as to render any other form null, forgery cannot be committed by making a false statutory one in a form not provided for by the statute, even though it is so like the genuine as to deceive most persons.

Bish. Crim. Law, § 538; Cunningham v. People, 4 Hun, 455.

There is a fatal variance between the statutory form and the alleged forgery, and the certificate is, therefore, invalid.

Cunningham v. People, 4 Hun, 455; People v. Shall, 9 Cow. 778; People v. Wilson, 6 Johns. 320; People v. Harrison, 8 Barb. 560; People v. Galloway, 17 Wend. 540; People v. Stearns, 21 Wend. 409.

Mr. DeLancey Nicoll, Asst. Dist.-Atty., for the People, respondents.

That was held in Craig v. Missouri, 4 Pet. 410-432 [29 U. S. bk. 7, L. ed. 903], not to include "contracts by which a State binds itself to pay money at a future day for services actually received or for money borrowed for present uses." And as a certificate of indebtedness it was capable of being sold and transferred by the person to whom it is stated to have been issued for evidence of an indebtedness, not restricted in the right to transfer it, may be assigned by the holder to any other person or persons, and a delivery of the instrument intending to pass the title to it is in judgment of law equivalent to its formal assignment, giving Clandius SHATTUCK et al., by Guardian, the assignee the right to demand and receive the money mentioned in it.

Upon neither of the grounds which have been considered, nor for any other reason presented by the case, does the conviction appear to have been unwarranted. It was, on the contrary, legal and regular, and the judgment should be affirmed.

Messrs. Alexander S. Bacon and Abraham Suydam, for appellant:

An instrument, to be the subject of forgery, must have upon its face some legal validity or efficacy. If it be legally null, void or invalid, it cannot be the subject of forgery.

Bish. Crim. Law, $ 523; People v. Harrison, 8 Barb. 560; Moffat's Case, 2 East, P. C. 954; Cunningham v. People, 4 Hun. 455; People v. Shall, 9 Cow. 788; People v. Wilson, 6 Johns. 320; People v. Galloway, 17 Wend. 540; People v. Stearns, 21 Wend. 409; Brown v. People, 86 Ill. 239; Fadner v. People, 2 N. Y. Crim. Rep. 558.

A forgery may be "of any writing which, if genuine, might apparently be of legal efficacy or the foundation of a legal liability."

Bish. Crim. Law, § 523.

"It is not alone sufficient that there be a writing and that the writing be false; it must also be such as, if true, would be of some legal efficacy, real or apparent, since otherwise it has no legal tendency to defraud."

Per Curiam:

Judgment affirmed on prevailing opinion below.

Respts.,

v.

George BASCOM, Appt

1. After land had been sold for taxes and the comptroller's deed given therefor, the original owner executed to a third person an instrument which purported to be a deed of the land but which was in reality a mortgage, and the grantee therein sued the holder of the comptroller's deed to remove the same as a cloud on title, which suit resulted in a judgment in favor of the holder of the . comptroller's deed; thereafter the plaintiff in that suit reconveyed the land to the original owner. Held, that the original owner was not estopped by said judgment in the suit brought by his mortgagee, from afterwards questioning the validity of the comptroller's deed, in an action against him by the holder of such deed.

real estate has been changed by reason Carr v. Carr, 52 N. Y. 251; Stoddard v. Whitof proof produced before us" in the as-ing, 46 N. Y. 627; Genet v. Davenport, 56 N. sessors' oath prescribed by chapter 176 Y. 676; Decker v. Leonard, 6 Lans. 264; Payne of the Laws of 1851, will render an as- v. Wilson, 74 N. Y. 348; Morris v. Budlong, 78 sessment under that Act wholly void. N. Y. 543; Murray v. Walker, 31 N. Y. 399; 4. When a tax sale is for the aggregate Ford v. Belmont, 3 Jones & S. 135. taxes of several years, the entire sale will be rendered illegal and invalid and the comptroller's deed void, if the tax for any one of the years included is invalid.

(Decided March 8, 1887.)

APPEAL from a judgment of the Supreme

The plaintiffs not being bona fide purchasers under Colman, the mistaken action of Colman v. Shattuck cannot operate as an estoppel upon Bascom, who was not a party to it or a privy in any manner.

Murray v. Walker, 31 N. Y. 401.

For this reason the defendant's exception to the direction of the verdict was well taken. Adams v. Filer, 7 Wis. 306; Carney v. EmCourt at General Term in the Fifth De-mons, 9 Wis. 114; 1 Buller, N. P. 232; Chicago partment, affirming a judgment of the Catta- v. Robbins, 4 Wall. 657 (71 U. S. bk. 18, L. ed. raugus Circuit on a verdict directed for plaintiffs 427); Campbell v. Hall, 16 N. Y. 575. in an action to recover for hemlock bark cut A mortgage is not an estate in lands. and peeled from trees on premises alleged to be Power v Lester, 23 N. Y. 533. owned by plaintiffs. Reversed. This action of replevin was improperly brought and cannot be maintained.

The facts and questions appear from the opinion.

Mr. E. D. Northrup, for appellant:
Every person may peaceably take possession

of his own real estate.

Bliss v. Johnson, 73 N. Y. 529; Johnson v. Elwood, 53 N. Y. 431; Wood v. Phillips, 43 N. Y. 152; Benson v. Bolles, 8 Wend. 75.

The acts of the defendant amounted to actual possession and occupation at the time the taxes were assessed and levied, and also at the time the bark was taken.

Thompson v. Burhans, 79 N. Y. 99, 100; Miller v. Long Island R. R. Co. 71 N. Y. 383, 384. The defendant was not a party to the action of Colman v. Shattuck.

The fact that Colman mistook his remedy and assumed to own the title under the mortgage, because it was in form a quitclaim deed, cannot prejudice the rights of the defendant, who was then a powerless debtor in the hands of Col

man.

Otis v. Williams, 70 N. Y. 211.

The cases of bona fide purchasers for value of the mortgagee, whose mortgage is in form an absolute deed, do not apply to this case. Berdell v. Berdell, 20 N. Y. Week. Dig. 81; McBurney v. Wellman, 42 Barb. 390.

The rules that apply to any other mortgage apply to the one in this case.

Barrett v. Warren, 3 Hill, 348.

Trespass (and therefore replevin) cannot be maintained for an injury to land committed by a person in actual possession, except for the original trespass (if any) of his entry.

Stockwell v. Phelps, 34 N. Y. 363; Wohler v. Buffalo etc. R. R. Co. 46 N. Y. 686; Wood v. La Fayette, 68 N. Y. 181, 190; Beals v. Stewart, 6 Lans. 408; Rich v. Baker, 3 Denio, 79; Holmes v. Seely, 19 Wend. 507; Houghtailing v. Houghtailing, 56 Barb. 194.

The plaintiffs' title being, as we shall see, void, the oldest possession would control; and the defendant was in actual possession as early as 1854, and has ever since remained in possession as fully as such premises can be possessed, claiming under the original title thereto.

Wood v. La Fayette, supra; Kellogg v. Vollentine, 21 How. Pr. 226; Rowland v. Fuller, How. App. Cas. 629; Haley v. Wheeler, 8 Hun. 569; Edwards v. Noyes, 65 N. Y. 125.

In order to recover, the plaintiffs must show title to the land in controversy, under the comptroller's tax sale of 1866. The said tax sale and consequently said tax deed are void. The land was sold for the accumulated taxes of three different years.

Thatcher v. Powell, 6 Wheat. 119 (19 U. S. bk. 5, L. ed. 221); Nat. Fire Ins. Co. v. McKay,

Clark v. Angell, 17 N. Y. Week. Dig. 29; Pardee v. Treat, 82 N. Y. 385; Miller v. Mc-5 Abb. Pr. N. S. 445. Guckin, 20 N. Y. Week. Dig. 429; Dodd v. Neilson, 90 N. Y. 243; Bond v. Collins, 18 N. Y. Week. Dig. 90; Gross v. Wellwood, 90 N. Y. 638. The subsequent payment of this mortgage by the defendant left the full unincumbered title in the defendant.

Bond v. Collins, supra.

No instrument of any kind was needed, to accomplish this, and the quitclaim deeds from Colman to the defendant were in effect only satisfaction pieces made for the purpose of formally clearing up the record in the clerk's office.

Becker v. Howard, 47 How. Pr. 428; Same v. Same, 66 N. Y. 5; Pardee v. Treat, 82 N. Y. 385; 4 Hun, 359.

The following cases also show the law to be well settled that there is no distinction between the mortgage in the case at bar and any other mortgage.

The case of Colman v. Shattuck, 62 N. Y. 348, does not in any manner decide this point. That case only decided that section 33, chapter 427, Laws of 1855, was directory as to the time that the comptroller should proceed to advertise and sell.

One erroneous tax vitiates the whole sale.

Blackwell, Tax Titles, 160, 161, et seq. and cases cited; Hayden v. Foster, 13 Pick. 492; Re Willis, 30 Hun, 13; Hall v. Kellogg, 16 Mich. 135.

The evasion of the plain command of the statute in making a proper oath to the assessment roll of 1856 is a fatal error.

Van Rensselaer v. Witbeck, 7 N. Y. 517; Westfall v. Preston, 49 N. Y. 349; People v. Fowler, 55 N. Y. 252.

Where the interest of another is to be affected by an order which a statute says shall be drawn up in certain words, giving the form,

by a schedule, this must be exactly pursued, or | fendant was bound and estopped by that judgthe order is void.

That action was tried and resulted in a judgment in favor of the defendant therein, which was finally affirmed in this court. Colman v. Shattuck, 2 Hun, 497, affirmed in 62 N. Y. 348. Subsequently to the entry of that judgment, and before the commencement of this action, Colman reconveyed the land to this defendant; "We, the undersigned, do severally depose and upon the trial of this action it was undis- and swear that we have set down in the foreputed that the deed by this defendant to Col-going assessment roll all the real estate situated man was given as security and was in fact a mortgage.