is certain, and its value fixed by the terms of the lease, so that there needs to be no sacrifice of the debtor's property to the injury of other creditors. But very different is the remainder or reversion of a live chattel; it is a pure contingency, a bare possibility, whether it will ever exist or not. On the part of the purchaser it is a perfect hazard; the thing acquired may be of some value, or it may be of no value, for the data by which this may be discovered is not given to man to know. In this absence of all knowledge on the subject, a sale would, in its principle, be quite a gaming transaction, subversive of good morals, and ruinous in its consequences, and would be a great injury to the rights of other creditors, by the sacrifice of that fund, which in proper time might be competent to the satisfaction of all their claims.

The injurious consequences resulting from an extension of the subject-matter of an execution to interests like the present, although not furnishing ground to a court to withhold its assent, were it established by clear and certain adjudication, yet they deservedly will have their influence in the formation of a precedent, the operation of which may have considerable effect in future cases.

Judgment of the circuit court affirmed.

HAYWOOD, J., dissented.

Although an interest in remainder in a live chattel can not be levied upon by execution at law, in Tennessee it may be reached by a creditor's bill in equity: Lockwood v. Nye, 2 Swan, 515; Bank of Tennessee v. Nelson, 3 Head, 634, citing principal case: Perkins v. Clack, Id. 734; Puryear v. Edmondson, 4 Heisk. 43,

SALE OF VESTED REMAINDER ON EXECUTION.—In Harrison v. Maxwell, 10 Am. Dec. 611, it was held that a vested remainder may be levied on and sold during the continuance of a preceding life estate, and while the tenant for life is in possession.

GILBERT V. ANTHONY.

[1 YERGER, 69.]

BLANK PIECE OF PAPER SIGNED AND SEALED by a party, and subsquently filled up, pursuant to his direction given at the time of signing and sealing, is not his bond, there being no subsequent delivery or acknowledg. ment.

THE facts appear in the opinion.

By Court, EMMERSON, J. The question to be decided in this cause, is, whether a paper signed and sealed while blank, on

which (pursuant to the directions of the party sealing it, given at the time of signature) a bond for keeping the prison bounds is afterwards written, be the deed of the party without any subsequent delivery or recognition.

Deeds are evidence of a higher nature than parol contracts, and there are great and important distinctions between the operation and effect of these different species of contracts. The reason of which is that, the first are supposed to be made upon greater deliberation and with greater solemnity; they are first to be written, by which they are exempted from that uncertainty arising from the imperfection of memory, to which unwritten contracts must always be exposed; they are then to be sealed by the party to be bound, and lastly to be delivered by him, which is the consummation of his resolution; none of this deliberation, and little of this solemnity, is to be found in the signing and sealing of a blank piece of paper, on which anything may afterwards be written, and whether with or without the consent of the person who signed it, must depend entirely on oral testimony, subject not only to the uncertainty arising from the imperfection of human memory, but exempted from those checks on perjury which would exist in the case of a deed regularly executed, which could only be altered by erasure or interlineation: Vide 1 Com. Dig. 157; Plowd. 308; Co. Lit. 171.

The case referred to in support of the bond, in 5 Mass. 538, is far from supporting the position contended for by the defendant in error. The court in this case decide that the filling a blank in the bond with the name of the obligor will not vitiate it, and they intimate that the filling the blank was unnecessary, and that the bond would have been good without it, which is believed to be correct; but neither the point decided, nor the reasoning of the court, justifies a belief that if the bond had been wholly written after the signature and delivery, it would have been supported.

But it is said that it has become a very common practice for clerks, sheriffs, and other officers to take bonds in this way. If such a practice had generally prevailed, and no injurious consequences were to be apprehended from its continuance, it might perhaps be countenanced; but it is not only an illegal but a dangerous practice, and there will not be a more favorable time to correct it than the present. All officers, and especially those concerned in the administration of justice, would do well to perform their duties in the manner which the law has prescribed, instead of endeavoring to discover one more con

venient and eligible in their opinion; by so doing much litigation would be prevented, much unnecessary consumption of the time of the courts avoided, and the officers themselves exempted from liabilities to which they will be always otherwise exposed.

The judgment must be reversed, and judgment entered for the plaintiff in error.

Judgment reversed.

In Mosby v. State of Arkansas, 4 Sneed, 327, the principal case was cited and approved, and an instrument under seal for the payment of money, which was delivered without the amount thereof being inserted, but with a parol authorization by the obligor to a person to fill the amount in, was held invalid, there being no subsequent ratification or redelivery: See Cain v. Heard, 1 Coldw. 166.

BOND SIGNED IN BLANK, VALIDITY OF.-See Sigfried v. Levan, 9 Am. Dec. 427; and Wiley v. Moor, 17 Id. 696.

HILL V. STATE.

[1 YERGER, 76.]

JUDGMENT OF CONVICTION of a felony will be reversed, unless the record shows a plea or issue, notwithstanding the defendant was personally present at the trial.

FORGERY AT THE COMMON LAW was the false making of a note or other instrument with intent to defraud.

WRITING A NOTE FOR A PERSON, inserting a larger sum than the real amount due, and falsely and fraudulently reading it over to him, as for the latter amount, with a view to defraud and injure him, is not forgery.

THE facts are stated in the opinion.

By Court, PECK, J. It is charged in the indictment, "that Jonathan Hill, a certain bond, writing obligatory, bill of exchange, and promissory note, for the payment of money, falsely purporting to be genuine from a certain Daniel Ireland, then and there did feloniously cause and procure to be made, altered, forged, and counterfeited "—here the note is set out and the indictment proceeds-" did feloniously and falsely make, alter, forge, and counterfeit; and feloniously and falsely then and there did cause and procure the said bond, writing obligatory, bill of exchange, and promissory note, for the payment of money, etc., against the form of the statute."

There is no plea or issue on the record, though it appears that the defendant was present in court, and a jury sworn, who found this special verdict: "That on the third day of April,

1822, in the county of Williamson, the accused sold land to Daniel Ireland for four hundred and sixty-five dollars, to be paid in installments at stated periods. That the note, on which the indictment is founded, was executed at the time and place aforesaid, in part payment for the land. That Ireland was an illiterate man; that the accused wrote the note with the other notes for the consideration money in presence of the said Ireland and the subscribing witness, and read it, together with the other notes, over to the prosecutor in the hearing of the subscribing witness. That he, the accused, had written the note in question for one hundred dollars, when it should have been written for sixty-five dollars, and it was, by the accused, falsely and fraudulently read over as a note for sixty-five dollars, when, in fact, it was written for one hundred dollars, and that it was done with a view to defraud and injure the said Daniel, etc."

On this special finding the circuit court gave judgment against the prisoner, from which judgment this writ of error is prosecuted. Waiving for the present the form of the indictment, and want of plea and issue, let us inquire if the facts found constitute the offense of forgery.

Forgery, at the common law, is the falsely making a note or other instrument with intent to defraud. The definition implies that there must be an act done, or procured to be done, to constitute this offense. The above definition is taken from 2 Leach Cr. L. 785, where the author says: "A note or other instrument may be falsely made, either by putting on it the name of a person who does not exist, or by putting on it the name of one in existence without his consent, or by altering it, etc." Here the accused has put no name to the instrument, but it is found by the special verdict that he wrote the note for the wrong sum, and then induced the signing by a false reading; still it was the real signature of the person; and all that can be said is that he was cheated by a false representation of the accused. This, though a cheat, was not a forgery.

In Woodward's case, Leach Cr. L. 783, [where] a soldier was induced to sign his own name to a fabricated country bank note, though done knowingly, and for the purpose of fraud, it was held no forgery; and the court, immediately on hearing that it was the real signature of the prisoner, said that he must, of necessity, be acquitted, for that being signed by his own name it could not be a false instrument, and therefore not a forgery.

The case relied upon is that in 3 Inst. 170, margin: "If any

person writeth the will of a sick man, inserting a clause concerning the devise of any lands and tenements which he had in fee simple, falsely without any warrant or direction of the devisor, albeit he did not forge or falsely make the whole will; yet he is punishable by the statute 5 Eliz., etc., às has often been held in the star chamber." There is evidently an ambiguity in the language used by Lord Coke in this place, for it is not expressed where the insertion of the clause was made. But this is explained in 3 Dyer, 288, a, in Sir John Marvin's case: "It was moved for a doubt, if one who writes the will of a man lying mortally sick, insert a clause or article in the will, after the testator is speechless, and without memory, and he did not command the writer beforehand to put in the article or clause, whether this be forgery under the statute, etc., and it was agreed and resolved by the best opinion then that it was not, nor was it the intention of the makers of said law."

I quote this at large to show that it must be a making or an alteration of the instrument, without the consent of him who would purport to have made it.

But it can not be pretended that any false bond uttered to induce a real signing of an instrument, can make a forgery under our statute: see East, 850, sec. 5; because the party himself signed this deed, prima facie, it is his bond; and to avoid it from the facts found, he must, under the law, plead a special non est factum, to wit, must confess that he did seal the instrument, but that he was induced to do it by the false reading, and therefore not his deed.

I am of opinion that the facts found make out nothing more than a cheat, for which the party might have been and yet ought to be indicted. For these reasons and the want of an issue in the case, the judgment must be reversed.

WHYTE, J., Concurred.

HAYWOOD, contra on the first point; accord on the second.
Judgment reversed.

By section 5242, subd. 1, of the code of Tennessee, adopted subsequently to the decision in Hill v. State, it is provided that a defendant in a criminal case shall not be entitled to a new trial or to an arrest of judgment, or to a reversal of the judgment, after a trial on the merits, "because the clerk of the court omitted to file or enter his plea of record."

FORGERY.-In the notes to Arnold v. Cost, 22 Am. Dec. 302, and Hess v. State, Id. 776, the nature of the crime of forgery and the writings which may be the subject thereof, are considered at length.