The point raised by the defendant’s counsel, that the obtaining an indorsement of a promissory note by false pretences, is not within the statute, cannot be maintained. The act made criminal by the statute, is by false tokens or pretences to “ obtain the signature of any person to any written instrument.” An indorsement to a negotiable promissory note is a signature to a written instrument, within the meaning of the statute. This precise question has not, that I am aware of, been ever formally passed upon by this court. It is one, however, which might have been raised in a large share of the cases which have been prosecuted under the section of the statute in relation to obtaining signatures by false pretences. (2 R. S., 677, § 53.)
The other ground taken by the defendant’s counsel, in relation to the sufficiency of the indictment, is a much more serious one. The note set forth in the indictment is prima facie an instrument in writing evidencing an indebtedness to the amount expressed, by the defendant Chapman to Board- . man, the prosecutor. It is payable to his order, and the presumption is, until the contrary appears, that it was the property *59of Boardman. Unless, therefore, it sufficiently appears by proper averments, that the note was made by the defendant for his own benefit, and that he obtained the indorsement of Board-man with intent afterwards to negotiate it on his own account, and that Boardman, after indorsing the note, delivered it to the defendant, and that the defendant received it for that purpose— in other words, that it was an accommodation indorsement— the case made by the indictment is, that Boardman having taken the note in question, payable to his own order, for a debt due to himself from the defendant, was induced by the representations set forth, to indorse and deliver it back to Chapman.
It is contended, however, in behalf of the people, that the indictment does show that the indorsement was made for the accommodation of the defendant; that the allegation, that by means of the representations stated, the defendant did obtain from Boardman his indorsement of the note, implies a delivery of it by Boardman to the defendant with the indorsement of the former upon it. The case of Fenton v. The People (4 Hill, 126), is regarded by the counsel for the people as conclusive in support of this proposition. In that case, Fenton was indicted for obtaining the signature of one Bich to a bond and mortgage by false pretences. The bond and mortgage were charged to have been payable to one Wyckoff, and the indictment did not expressly aver their delivery to Fenton, the defendant; but it charged that the defendant did obtain the signatures of Bich to them. The court held the indictment sufficient. Nelson, Ch. J., in delivering the opinion of the court, said: “ There can be no doubt that, to constitute the offence aimed at by this indictment, there must be'not only a signing but a delivery of the instrument. The one without the other would harm nobody; but I am of opinion that the averment here made comprehends both. It is difficult to see how the signatures to the bond and mortgage could have been obtained by the prisoner, unless they were delivered to him. If kept by Bich after the signing, clearly they were not obtained. The word imports a delivery.”
*60TMs authority proves, only, that where the averments in the indictment show a case in all other respects within the spirit and object of the statute, the allegation that the defendant obtained the signature, &c., is a sufficient averment of its delivery to him. But does it overthrow the presumption of law arising from the form of thfe note, that it was evidence of an indebtedness from the maker to the payee ? It seems to me that it does not; There is no reason why the prosecution should be excused from a direct averment of the facts necessary to constitute the case one of an accommodation indorsement, or that the court should give to the word obtain an efficiency beyond what it necessarily possesses. The utmost that can be claimed for it in the present case is, that the note in question, with the legal presumption attached to it, was delivered by Boardman to the defendant. The legal inference from the transaction, as thus modified, is, that Boardman, holding the note of the defendant, payable to his, Boardman’s, order, for a debt due to him from the maker, indorsed and delivered it, without payment, to the maker. Stopping here— and the indictment carries the case no further—the transaction, in my judgment, was not one contemplated by the statute. When the defendant was thus possessed of the note, it was of no efficacy in his hands, and it is impossible to see how Board-man, or any one else could, in a legal sense, be injured by it. If it should be said that although the note was of no validity in the hands of the defendant, or in the hands of any one else with notice, against Boardman, yet if the defendant had, under pretence that it was an accommodation indorsement, negotiated the note to a bona fide purchaser for value, the answer is, that the crime would consist, in that case, in the representation made by the defendant upon negotiating the note. Until then no harm, in a legal sense, would have been done. The note, as between the defendant and Boardman, would have been in fact canceled, and in every respect inoperative, and the mischief, if any had followed, would have been in the defendant’s fraudulently giving it vitality by passing it off before its apparent maturity to a bona fide purchaser with*61out notice. But that would be a very different case from the one made by this indictment. If it was a case of an accommodation indorsement, as the counsel for the people contends” and as the evidence shows, it was easy to set it forth in that aspect by proper averments." The theory of the case on the part of the people, should be distinctly and unequivocally put forth in the indictment, and not Be left to uncertain inferences.
If the foregoing view is correct, it is unnecessary to consider the other questions raised by the bill of exceptions and discussed upon the argument.
In my opinion, the conviction should be reversed and the proceedings remitted.
Ordered accordingly.