
    CONSTITUTIONAL COURT, COLUMBIA,
    NOV., 1807.
    State v. Houseal.
    Ah indictment for “ counterfeiting a’note of hand, commonly called a'promissory note, for the payment of money,” is good, if the note be set forth in haiec verba.
    
    The indictment, as above, did not set forth that the person intended to be defrauded, was residing, or being within some one of the United States, yet it was adjudged sufficient,' under the act of assembly of 1736-7, although not so under the act of assembly of 1801.
    The same indictment, in one count, charged the indictee with forging, and assisting in forging, and causing, and procuring, to be forged ; yet it was adjudged well enough, being conformable to the act of assembly, and the precedents.
    The same indictment set forth, that the forged note purported to he a note of hand for one hundred and fifty dojars, and to have been made by one Nathaniel Durkie, and then set forth the tenor of the note, from which it did not appear that the note was made to Nathaniel Durkie, but to N. Durkie. This repugnancy was heldiatal to the indictment.
    In Lexington district, before Bay, J., the defendant was indicted, for that he did feloniously, and falsely, make, forge, and counterfeit, and cause, and procure, to be falsely made, forged,-and counterfeited, and did wilfully act and assist in the falsely making, forging, anti counterfeiting, a certain note of hand commonly called a promissory note for the payment of money, purporting to be a note of band for $150, and to have been made by one Nathaniel Durkie, payable, &c. ; which said note, so falsely made, is as follows, that is to say : ‘* $150. Two months after date, I promise to pay William F. Houseal and John Summer, or bearer, the sum of one hundred and fifty dollars, value received, this 18th day of June, 1807. N. Durkie,” With intent to defraud the said Nathaniel Burble. Other counts were added, differing in no respect from the above, except as to the intent to defraud. Also, other counts were added in the indictment, charging the defendant with uttering a counterfeit, note, describing the same as above. The defendant was found guilty; and the following exceptions were taken to the indictment in arrest of judgment, which were urged by Nott, and Hooker, for the prisoner. 1. That the indictment does not state the note in question to be a promissory note, for the payment of money, but a note commonly called a promissory note for the payment of money ; and, therefore, it is uncertain. Penal laws ought to be construed strictly in favor of life. It may possibly be, that a thing, which may be commonly called by a certain name, may not be the thing properly so called. 2. The indictment does not state the persons intended to bo defrauded, to be residing, or being within this State, or the United States, as the act of assembly requires. It is enacted by act of assembly, A. D. 1801, that if any one shall falsely make, &c., as the indictment charges, or willingly act, or assist in falsely making, any deed, or promissory note for the payment of money, with intention to defraud any person, or persons, residing, or being within this State, or any of the United States, every such person, on conviction in due course of law, shall be deemed guilty of felony, and shall suffer death ; and for uttering and publishing as true, any note, the same terms are used The indictment is founded on this act, and ought to have conformed strictly to it. The criminal charges in the indictment are not within the scope or design of the act. If the intention to defraud does not appear to be directed agafeist some person within the United States, it is not an offence within the meaning of the act. The indictment ought to aver positively that the intention was to defraud some person, or persons, residing, or being within the United States. For the omission, in this respect, the indictment is faulty, and the judgment ought to be arrested. 3. The indictment charges differ, ent offences in the same counts, as making, and causing to be made, which are distinct offences, and ought to be distinctly and separately charged; for it is inconsistent, that the defendant should be convicted of both, upon one substantive charge. 4. The indictment alleges that the note, so falsely made, purported to be a note made by one Nathaniel Durkie, and then immediately sets forth the tenor of the note, which expressly contradicts this allegation, and shews 1 J a i that the note does not purport to be made'by Nathaniel Durkie, but by N. Durkie, which letter N may purport any other Christian name beginning with that letter, as well as Nathaniel. The purport of a writing is what appears on the face of it;'it is the tenor of the writing, or what it signifies by itself, not what it may be explain, ed to mean by evidence dehors. Doug. 309, 287. The King v. Jones, is in point, and so is the case of the King v. Gibbs. 1 East. Rep. 173, 179. Nothing can be introduced, under the word pur. porting, but what is apparent on the face of the paper writing in question ; and it is not apparent on the face of the note, that N. means Nathaniel. No man, by looking on the paper only, can tell what name is meant* See East’s Pleas of the Crown, 2 vol. p. 980. 1 Raym. 1.
    Stahke, solicitor, contra,
    
    cited 2 Hawk. 352, 339. 1. The words, “ commonly called,” may be rejected as surplusage. The note being set forth in the indictment, in hceec verba, appears to be a promissory note within the act. 2. The act is subsiaotially pursued. It is immaterial where the person resides, or is, who was meant to be defrauded. 3. The indictment is agreeable to the precedents, and to the act of assembly on which the indictment is framed. 4. The authorities, quoted in support of this exception, do not strictly apply. The note being set forth in so many words, shews what it imports; and the word “purporting" may be rejected as surplusage.
   Bkkvaud, J.,

delivered the determination of the whole court, except Tkezevant, J., sick. 1. We are of opinion that the first excep. tion ought not to prevail, because a note, which is commonly called a promissory note, for the payment of money, must be in the nature of the thing a promissory note within the meaning of the act; and the note being set forth verbatim, in the indictment, removes every possible doubt. 2. The offences charged in the indictment are not pursuant to the act of assembly of 1801, and are not within the scope or intent of that act, because the persons intended to be defrauded, are not stated to be within any of the United States. But the offences, as charged, are within an act of assembly of 1736-7, P. L. 146, which following the expressions of the statutes of Geo. 2, against forgery, and which are adopted by the act of assembly of 1801, enacts, that if any person shall falsely make, or cause, or Procure to 'ie freely made, or willingly act, any deed, or promissory note for payment of money, or shall uller, with intention to defraud amJ person whatsoever, he shall on conviction suffer deaih. Il does not appear to us that these two acts are repugnant or contradictory, . . , . ,, , dr so inconsistent as that they may not stand well together. 1 he latter, to be sure, is more limited and confined in its operation than the former ; but there does riot seem to lie any necessity for construing the latter so as to operate the repeal of the former; nor would there be arty propriety in doing so. 3. We are of opinion the charges are properly set forth, according to the words and intention of the act, and agreeably to the precedents ; and that this exception is not good. See Cr. Circ. Comp. 377. 4. This exception, we think, is fatal. The indictment avers that the forged note purported to be made by Nathaniel Durkie, and afterwards sets forth the tenor of the note, by which it appears that the note purports to be made by N. Durkie, which is absurd and repugnant. It is very true that the form of the instrument being set forth, it does appear to be such a one as is within the act of assembly; and it was not necessary to state that it purported to be made by the person whose name is signed to it; but all tlie authorities cited to this point, shew, that this sort of re-pugnancy has always been regarded as a fatal defect in an indict, meat for forgery ; and we ought to be as cautious in cases of this sort, where the life of a fellow mortal is at stake, as the judges in England. On this ground the judgment is arrested.- But the prisoner may be again indicted for the same offence.

Note. Where one material part of an indictment is repugnant to another, the whole is void: as in an indictment against A. for forging a writing, whereby B. is bound to C., winch is impossible if the writing be forged. 2 Haw. 228, 229, 6th ed. 325. An indictment charging a man disjunctively is void; as that A. forged such a deed, or caused to be forged. 2 Haw. 225 6th ed. 321.

Every affirmative act is a repeal, by implication, of a precedent affirmative one so far as it is contrary thereto, although there are no negative words in it; lor leges posteriores priores abrogant Bac. Abr. tit. “ statute,” D. But where a statute before perpetual, is continued by an affirmative statute for a limited time, this does not amount to a repeal of it, at the end of that timo. Ib. Repeals by-implication are not favored in law, nor are they allowed except the inconsistency or repugnancy is plain; for they carry with them a reflection upon the wisdom of the legislature; for such repeals have ever been confined to the repealing a» little of the preceding laws as is possible. Ib. 11 Co. 63.  