
    The State against Jones.
    Forging a 31 bill of the pa» per medium, of the state, with two of the commissioners’names only to I fcj> does not constitute a capital offence, under the act of assembly giving curren» cv to such hills,
    FORGERY of a three pound bill of the paper medium of South-Gar olma* The indictment contained two counts : 1st. For counterfeiting the bill in question. 2ch For uttering the same, knowing it to be counterfeited, with an intent to defraud.
    After several witnesses were examined, which brought the fact of passing the bill fraudulently, home to the prisoner ; Mr. Thomas Jones, one of the signers of the paper medium, - bills, was examined. He deposed that the bill in question was not signed by him 5 that it was a counterfeit bill ; and that all the true bills were signed by three commissioners 5 whereas the one on which the prisoner was indicted, had only two of the commissioners5 names to it s the name of the third was omitted. Upon this
    Holmes, for the prisoner,
    took an exception to the indictment, upon the ground that the bill or instrument charged to have been forged, in the indictment, was not such a bill as was authorised by the act of assembly for issuing the paper medium 3 but a different bill, having but two of the commissioners5 names signed to it: whereas the act referred to, required that those bills should all be signed fay three commissioners. And that therefore, as this was a different bill from those authorised by the act, it could not be the subject of forgery, so as to bring the offence under the penal clause of the act, which made it felony to forge or counterfeit the bills issued in pursuance of that law. And. in support of this doctrine, cited Moffat’s case, in LeadHs Gro. Cases, 3^2.
    Harper, on the same side,
    contended, that to constitute a forgery, the instrument forged must, upon the face of it, purport to be good in itself, otherwise, it is only a misdemeanor ; that it was evident the bill in the present case, did not purport to be a good one 5 that is, such a one aq the act directed and prescribed. Of course, the prisoner could not come under the penal clause of the act, however he might be liable to an indictment for a misdemeanor» That the principles laid down in Ann Lewis’s case, Foster, q, ancj John Stirling’s case, Leach, 368. both confirmed this doctrine. Ann Lewis’s case was for forging a letter of attorney Irom one Elizabeth Tingle, a person that never existed, a mere fictitious person, but who was supposed to be the daughter of one Robert Tingle., with intent to de» fraud one Echvard Mason. But this deed purported upon the face of it, to be a good one ; it contained every re» quisite, and appeared to have been made by some person really existing, whose deed, by possibility might have been forged, and being uttered with intent to deceive, it came-under the act of Geo. II. upon which that indictment was framed. John Moffat’s case was for forging a bill of exchange for 3/. 3s. sterling, payable to himself or order, signed Walter Stirling, and an acceptance by G. Petiers, of the bank of England; and for uttering the same, knowing it to have been forged, with intent to defraud, 1st, William Bell, and 2d, G. Petiers.
    
    By two acts of parliament, of the 15th and 17th Geo. III. it is enacted, that all promissory notes and bills of exchange, in England, for any sum above twenty shillings and under five pounds, shall be drawn and indorsed in the manner and form prescribed by those acts, (which form is inserted in the body of the acts,) and there is a clause in the acts, which says, that all bills, notes, or indorsements, for 20s. and under 5l. drawn otherwise than directed by these acts, shall be utterly null and void. The bill in question, in that case, not being in the form prescribed by those statutes, the question was, whether it could be the subject of a capital forgery? In February, 1787, this matter was referred to all the judges for consideration, and, being a matter of much consequence, they took time for consideration ; and, in May session following, Mr. Justice Ashhnrst delivered their unanimous opinion : that as the forgery was committed before die expiration of the statutes of the 15th and 17th Geo. Ill. the bill of exchange, if real, would not have been valid or negotiable, and therefore the forging of it was not a capital offence. So, on the same principle and reasoning, this not being such a paper medium bill as the act of the legislature authorised and prescribed, he contended that it could not, upon the authority of these cases, be the subject of a capital for» gery.
    
      The Attorney-General., in reply,
    said that there was a distinction between Moffat's case, just alluded to, and the pre - sent. There, it was true that the two acts of parliament of Geo. III. prescribed the forms of bills and notes of certain denominations ; but it went one step further, and declared that all notes and bills, &c. which were not drawn in the form prescribed by those statutes, should be null and void. In the paper medium act there was no such negative clause, and therefore the reasoning-in Moffats case did not apply, That law does not say if these bills were signed only by two commissioners they should be void. If it had, the case would have been otherwise ; the offence would not have-been a capital one.
   Bay, J.

Penal laws ought to be construed strictly, and not by construction or implication ; and more especially where the life of a citizen is at stake. In such a case, every thing shall be presumed in his favour, which is not proved by the clearest evidence and reasoning to the contrary; and which does not bring the case under some express law, that in clear and explicit terms, affects the life of the prisoner. The indictment, in the present case, is framed on a clause in the paper medium act, which makes it felony to counterfeit any of the bills thereby authorised to be issued. This act creates, in the first place, a new species of paper currency; prescribes the manner and form particularly in which they shall be issued and signed ; and makes them receivable at the treasury (when thus issued) in payment of debts, duties and taxes. After the form is prescribed in the act, it directs the manner in which they shall be signed, which is worthy of remark, as the initials of three names are expressly an* nexed to the form : “ A. B. C. D. E. F. commissioners.” The following clause expressly enacts, that as soon as they are struck off, they shall be numbered and signed by the three commissioners, to be appointed as by that act directed. There is no clause in this law, it is true, which says that bills issued in any other form than that prescribed by the law, and signed as thereby required, shall be null and void, as in Moffat’s case, on which the Attorney-General laid so much stress. But it is evident that any bills not signed by the three commissioners, as the law directs, that is, such as are signed by one or two commissioners only, would not have been receivable at the treasury, because they were not such as the act required and makes receivable there. And although there is no negative clause which makes such bills void, yet they would have been void in law, for expressio unius est exclusio alterius ; and such a negative clause, if it had been inserted, would only have been declaratory of what the common law was before ; for, wherever a law makes and prescribes a particular form for any particular purpose, in that case, no other kind of form shall be received and taken for a true and proper one. In the present case, then, it is clear that the bill stated in the indictment upon which the prisoner is charged, is not such a one as the paper medium law directs, having but two of the commissioners’ names to it. It does not purport to be a true bill upon the face of it; (as in Ann Lewis’s case, Foster,-116.) and if it is not such a one as that law requires, then the forging of it cannot be punished by that law. It cannot be the subject of a forgery, so as to make it a capital offence under the penal clause of that act. Moffat’s case is' directly in point ; and there it is expressly laid down as the unanimous opinion of all the judges, after great deliberation, that the bill of exchange, in that case, not being agreeable to the statutes, if real, it would not have been negotiable or valid, and therefore the counterfeiting it was not a capital offence, So that, in the present case, if one of the commissioners had accidentally omitted to have signed his name to any of these bills, they would not have been receivable or valid -at the treasury, not being issued as the law directs ; a for-iiori, therefore, the making of a bill not agreeable to the form directed in the act, cannot be a capital offence under it.

Let the indictment be quashed, and the prisoner discharged. 
      
       See Gutridgtfs case, where the same point -was determined when all tlier judges were present
     