
    The State against David Gustin.
    An índíct^^mus^sét out the tenor ment forced. of the instru 
    
    Form of re*Uln oer^° rari. 
    
    Form of record. 
    
    AN indictment, for forgery, was found against the defendant, in the Oyer and Terminer of Essex county, at 
      September sessions 1813. At April 1814, the defendant not guilty, and before trial was had, a certiorari was presented, to remove the indictment to this court. When the writ was returned, Halsey, for defendant, prayed leave to withdraw his plea of not guilty, that he might move to quash the indictment. Leave was granted, the plea withdrawn, and motion made; and argued November term *1819. The material part of the indictment was as follows. The jurors &c., present, that heretofore &c., one David Gustin and Daniel Harker, &c. both of the county of Sussex, drew their joint promissory note, bearing date on the day and year aforesaid, and made payable to John Gustin, esquire, or order, at the New-Brunswick Bank, ninety days after date, for the sum of five hundred dollars, without defalcation or discount, for value received ; which said promissory note, was endorsed by the said John Gustin, esquire, and one John Ogden, esquire, and delivered to the said David Gustin, for the purpose of enabling him, the said David Gustin, to get the said note discounted, at the said New-Brunswick Bank. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said David Gustin, late of the township of Elizabethan, the county of Essex, afterwards, to wit: on the fifth day of October, in the year aforesaid, had the said note in his possession, and that he, the said David Gustin, on the same fifth day of October, in the year aforesaid, at the township of Elizabeth, in the county of Essex, and within the jurisdiction of this court, did falsely, wilfully and knowingly, alter and cause and procure to be altered, and act and assist in altering the said promissory note,before mentioned and described, by altering the sum to be paid by the said note, from five hundred dollars, to five thousand dollars, so that the said promissory note, might purport to be for the payment of the false sum of five thousand dollars, instead of the sum of five hundred dollars, for which sum, the same was drawn payable; which said alteration, was made without the knowledge or consent of the said Daniel Harker, John Gustin and John Ogden, or either of them, and with intent to'defraud the said Daniel Harker, John Gustin, and John Ogden, contrary to the statute, &c.
    
      
      Halsey.
    
    The tenor is not set out, nor any fact to show, that it was impossible to set it out. 8 Mass. 107-11. Davis 304. 1 Star. 98.
    
      Chetwoocl.
    
    There is no case or form to be found, in which the loss or destruction of the instrument is set out. It is sufficient, if the indictment shew that it is an instrument, of which forgery may be committed, as that it is a promissory note. Pat. 215. 3 Mass. 85. 1 Star. 66-7, 227-8-9. Com. Dig. Ind. G. 5, and G. 1. 2 Star. 904. Leach 79, 92. 2 Bl. R. 790.
    
      
       See State vs. Gustin, post 749. State vs. Potts, 4 Hal. 26. State vs. Farrand, 3 Hal. 333. State vs. Robinson, 1 Har. 507. Stone vs. The State, Spen. 401, 404. The State vs. Weller, Spen. 522. Berrian vs. The State, 2 Zab. 9, 679
    
    
      
      
         See State vs. Hunt, Coxe 287. State vs. Webster, 5 Hal. 295. Mann vs. Drost. 3 Har. 336.
      
    
    
      
      
        State vs. Jones, 4 Hal. 371. State vs. Price, 6 Hal. 209.
      
    
   *Southard J.

This indictment charges, that on the 28th September, 1812, David Gustin and Daniel Marker, made a joint promissory note, payable, ninety days after date, at the New-Brunswick Bank, to John Gustin, or order, for §500, which was endorsed by the said John Gustin, and by John Ogden, and delivered to David Gustin, to be discounted; and on the 5th October, he altered it, by making it promise to pay $5000, instead of §500, &c. The objection to it is, that the tenor of the note is not sot out, nor any circumstances, shewing, that it was not in the power of the jury to set it out. And the objection is well taken. The instrument must be shewn, that the court may see whether it be an instrument, of which there jan be forgery, by the statute. There is a distinction between the indictment itself, and the proof necessary to sustain it. If the tenor be set out, proof that the instrument is not within the power of the prosecutor, is sufficient to authorize other proof as to its contents; and proof, which will justify conviction. I think the motion must prevail.

The Court.

Let the indictment be quashed.

As difficulty has frequently arisen from the manner in which the record of judgments upon indictments are made up; and also from the manner in which returns are made to certiorari to remove indictments : the reporter subjoins the form of a return and judgment, in the fore-which were and have been sanctioned by the court; and which, with the alterations adapted to the particular cases, may serve to prevent error and difficulty hereafter.

Form of record to be returned with certiorari.

Essex, to wit: Be it remembered, that at a court of Oyer and Terminer and General Gaol Delivery, holdeD at Newark, in and for the said county of Essex, on the third Tuesday in September, in the year of our Lord one thousand eight hundred and thirteen, before the honourable William S. Pennington, esq., third justice of the Supréme Court of Judicature, and John Lindsley and Aaron Munn, esqrs., and others, their fellows, judges of the Inferior Court of Common Pleas, in and for the said county, according to the form of the statute in that case made and provided, by the oath of William Steele, (name the whole grand jury) good and lawful men of the said county, sworn and charged *to inquire for the state, in and for the body of the said county, It is presented in manner and form following, that is to say, New-Jersey, Essex county, to wit: the jurors, (&c. to the end of the indictment.) Whereupon the said David Gustin, being publicly called cometh not, and therefore it is commanded to the sheriff of the said county, that he take the said David Gustin, and have him here to answer, &c., if &c., and if not, then, &c.

Afterwards, that is to say, at a court of Oyer and Terminer and General Gaol Delivery, holden at Newark aforesaid, in the county aforesaid, on the second Tuesday in April, in the year of our Lord one thousand eight hundred and fourteen, before the honourable esq., justice of the said Supreme Court, and esqrs., and others, their fellows, judges of the said Inferior Court of Common Pleas, in and for the said county cometh the said David Gustin, in his proper person, according to the condition of the recognizance, by himself, and his pledge in that behalf heretofore made, and now here touching the .premises in the said indictment above specified and charged upon him, being asked in what manner he will acquit himself thereof, he says, he is not guilty thereof, and of this he puts himself upon the country. And William Chetwood, esq., who prosecutes for the state in this behalf, does likewise the same.

Form of record in the Supreme Court.

Pleas before the justices of the Supreme Court of Judicature of the state of New-Jersey, at Trenton, of the term of May, in the year of our Lord, one thousand eight hundred and sixteen.

Essex, to wit: The state of New-Jersey, sent to the commissioners of the Courts of Oyer and Terminer and General Gaol Delivery, holden at Newark, in and for the said county of Essex, their writ of certiorari, in these words, to wit: “ The state of New-Jersey,” (to the end of the writ, closing with the word sixteen); which said writ of certiorari unto the justices aforesaid, at Trenton aforesaid, on the said second Tuesday in May, in this same term, the said commissioners of the said Courts of Oyer and Terminer and General Gaol Delivery, in and for the said county of Essex, that is to say, Samuel L. Southard, David D. Grane, and James Hedden, esquires, according to the command of the said writ, under their seals, do return, in the words following, to wit: “ The indictment of David Gustin, whereof men*tion is within made, and all things touching and concerning the same, to the justices of our Supreme Court, at Ikenton, within specified, at the day and place within mentioned, We, the judges of the Court of Oyer and Terminer and General Gaol Delivery, within mentioned, under our seals, and hereunto annexed, as within we are commanded, do send.” Which said indictment, with all things touching and concerning the same, had and done in the said Court of Oyer and Terminer and General Goal Delivery, in and for the said county of Essex, in the record thereof, certified and sent, annexed to the said writ, is contained in these words, to wit: ..Essex, to wit: Be it remembered, (&c. as per record, to the end thereof.)

And the said David Gustin, before the justices, aforesaid, at Trenton, aforesaid, on the return of the said writ, cometh in his own proper person, according to the condition of the recognizance, by himself and his pledges, in that behalf heretofore made, and prayeth liberty to withdraw ‘the plea aforesaid, by him, in form aforeskid, pleaded-, because he says the same was unadvisedly pleaded; and it is granted to him, upon condition, &c. And thereupon the said David allegeth, that the said indictment doth not contain matter, to which he ought to be put to the expense and delay of making answer, and therefore prayeth that the said indictment may be quashed, vacated, and holden for none, and thereof submitteth himself to the advice of the justices, aforesaid. And because the justices aforesaid, will further advise themselves of and upon the premises, day is given to the said David Gustin here, until the first Tuesday in September next, &e.

And now at this day, that is to say, on the last Tuesday in February, in the term of February, in the year of our Lord one thousand eight hundred and twenty, until which day, the said cause was continued from term to term, before the justices, aforesaid, for further advisement, cometh the said David Gustin, according to the condition of the recognizance, by himself and his pledges in that behalf, heretofore made; and the said indictment, by the said justices now here, being carefully inspected, and due deliberation being thereupon had, It is considered, that the said indictment, for the cause aforesaid, be quashed, vacated, and for none holden; and that the said David go thereof without day, &c.  