
    *JUNE TERM, 1819.
    JUDGES PRESENT.
    
      Holmes, Randolph, .
    
      Brockenbrough, Dade,
    
    
      Johnston,
      
       G. Parker,
    
    
      Smith, Semple,
    
    
      R. E. Parker.
    
    The Commonwealth v. Stephen Hensley.
    Criminal Law — Uttering Forged Note of Another State —Statute.—The false uttering of a forged bank note of another State or District, may be prosecuted as the false uttering of a “ promissory note for the payment of money,” under the Statute of 1794.
    
      
      Except in Vance’s Case.
    
    
      
       Tlie principal case is cited and followed in Murry v. Com., 5 Leigh 784 [723].
    
   This was an adjourned Case from the Superior Court of Eaw for Monroe county. The prisoner was indicted of the crimes hereafter mentioned. The Indictment consisted of various Counts, of which the first charged that he did, on the 24th September, 1818, feloniously utter and publish as true, and did pass in payment to one John Spangler, a certain false, forged and counterfeited paper writing, partly printed, and .partly written, purporting to be a promissory note for the payment of money, commonly called a bank note, and'signed by one John Bolton, President ; (it then sets forth the tenor of the said promissory note, by marks, numbers, figures and words, shewing it to be a bank note of the Planters’ Bank of the State of Georgia, for twenty dollars,) with intention to defraud the said John Spangler, the said prisoner well knowing the same to be false, forged, and counterfeited. The second Count charges the false uttering, &c. of another bank note of $20, which it describes as a certain false, &c. paper writing, *purporting to be a bank note for the payment of money, on the Planters’ Bank of the State of Georgia. The third Count charges the false uttering. &c. of another note of $10, which it describes as in the first Count; this was a note of the Bank of Augusta, signed by Thomas Cummings, President. The fourth Count charges the false uttering, &c. of' another note of $5, which it describes as in the first Count; this was a note of the Union Bank of Georgetown, signed by Abraham Bradley, jr. President. The fifth Count charges the false uttering, &c. four notes, two of twenty dollars, purporting to be bank notes-for the payment of money, on the Planters’ Bank of the State of Georgia, and signed, &c. ; one of ten dollars, purporting to be a bank note for payment of money, on the Bank of Augusta, Georgia, and another of $5, purporting to be a bank note for payment of money, on the Union Bank of Georgetown, (District of Columbia:) it did not set forth the tenor of either of them. Each Count concluded against the form of the Statute in such case made and provided.

The prisoner was convicted, and moved in arrest of judgment for the following reasons : 1. Because it is not felony by the Statute Eaws of Virginia, to utter, publish, and tender in payment, any false, forged, and counterfeit bank notes, except the notes of the several Chartered Banks of Virginia, the Bank of Alexandria, and the Bank of the United States. 2. Because the bank notes in the Indictment mentioned, are not such promissory notes as are contemplated by the Act of the General Assembly, entitled, “An Act to amend the Act entitled, ‘An Act for reducing into one the several Acts for punishing persons guilty of certain thefts and forgeries,’ ” passed the 8th December, 1794. 3. Because uttering and publishing the bank notes in the said Indictment mentioned, is not uttering and publishing such false, forged, and counterfeit promissory notes as are contemplated by the aforesaid Act of Assembly. 4. Because there is not any Eaw in this Commonwealth making it felony to utter, publish, and tender in payment as true, the false, forged, and counterfeit bank notes in the said Indictment mentioned, knowing them to be forged and counterfeited at the time of the passing thereof.

The Superior Court adjourned to this Court, all the matters of Eaw arising on the foregoing reasons assigned for arresting the judgment.

*Mr. Eeig'h, on behalf of the prisoner, in the first place, referred the Court to the several Acts of Assembly which might bear on this subject: the question being, whether the passing a forged bank note of another State, or Foreign Country, is punishable under the Eaw of Virginia. 1 Rev. Code, (PI. and P’s. edit, of the Code of 1792,) ch. 200, § 9, makes it felony to utter or publish any bank note of the Bank of the U. States, or of the Bank of Alexandria. That Act cannot be extended further, either in its letter or spirit, than to protect the notes of these two Banks. He asked why it was necessary to pass this Eaw, if the notes of these two Banks were already protested by punishing the uttering of forged notes of their Banks, as promissory notes ?

The next Eaw for the protection of bank notes, was to be found in 2 Rev. Code of 1808, ch. 55, § 5, p. 80. That Act applies exclusively to the forgery of, and uttering as true, false and forged notes of the Bank of Virginia , which Bank had then been but recently established. A similar Eaw was passed in the Session of 1814,.ch. 21, for the protection of the Farmers’ Bank of Virginia. These were all the Acts which relate to bank notes. There were other Acts which punish the forgery of, and uttering as true, false and forged promissory notes. 1 Rev. Code of 1792, ch. 133, p. 249; lb. ch. 171, p. 320. The first of these Acts applies to promissory notes for payment of money ; the second, for payment of money, tobacco, “or other valuable thing;,” with intent to defraud any person'or Corporation.

He argued, that the bank notes described in this Indictment, were not such promissory notes as are within the meaning of these Acts of Assembly. At the time of the passage of these Acts, there were no Banks in Virginia, except a Branch of the Old U. States Bank, and the Bank of Alexandria, and the only promissory notes known to us, were such as bind individuals to pay individuals for a debt due. It is different in England ; their Act of Geo. 2, does apply to the notes of the Bank of England ; for at the time of its passage, the notes of the Bank of England were well known, and therefore that Statute applies to such bank notes. But our Eaw cannot be supposed to apply to bank notes which were not then in existence, but which might thereafter be called into existence. These Laws did not then apply to bank notes then well known, (as those of Alexandria, and of the Bank of the U. States,) as may be *fairly inferred from the subsequent Laws protecting them ; a fortiori then, they did not apply to such as were not in being.

But, even if he should be wrong in this, he contended that these Acts could not, by any means, be applied to protect the notes issued by a Banking Corporation of another State : such Corporations are not recognized by our Laws, nor could the Court Judicially take notice that there is such a Corporation as is here alleged. On this point he referred the Court to 1 Leach, 68 ; as strongly in point.

Robertson, Attorney General, for the Commonwealth.

He referred to 2 Bl. Com. 467, and 2 Leach, 705, for a definition of a promissory note, and to prove that bank notes were strictly to be considered as promissory notes. And to shew that under prosecutions for forgery, or larceny of bank notes, in England, they charge the offence as a forgery, or larceny of promissory notes, he referred to 2 Leach, 564, 610, and especially to the Case of Rex v. Elliott, 1 Leach, 175.

He argued that at the time of the passage of the Act,, the Legislature knew the operation of their Law, and that bank notes were promissory notes. It was prospective, and applied as well to notes thereafter to be made, as to individuals thereafter to be born.

He said, that the promissory note of an individual out of the State, may be forged, and uttered as true, and the forgery and uttering thereof are clearly punishable by our Act; then, of course, the forging and uttering the notes of more individuals than one, of a mercantile company, or of a banking company, out of the State, are so punishable.

He said, that the Case in 1 Leach, 68, was decided on the saving clause of the Act of Parliament, which provided that the Act should not extend to Scotland: that the punishment of the forgery, and uttering of promissory notes, is different from that of forging, &c. United States’ bank notes, and Alexandria bank notes ; and this was probably the reason why these last Laws were made.

Leigh said, that he had admitted that bank notes were promissory notes, but he contended they were not such as come within this Law : and as this is a Penal Law, the prisoner was entitled to the most restricted construction. He said he might be allowed to doubt whether it is the policy* of the State of Virginia to punish the forgery of foreign notes, because it has not been her policy to encourage the circulation of foreign genuine notes.

This Court, after a full conference, rendered the following judgment:

“A majority of the Court is of opinion, and doth decide, that the reasons in arrest of judgment, upon the verdict of the jury finding the prisoner guilty of uttering, publishing, and passing in payment the counterfeit bank notes in all the Counts, as in the Indictment against him is charged, and ascertaining the term of his imprisonment in the Jail and Penitentiary-house of this Commonwealth, to be five years and six months, are insufficient to arrest the said judgment, because they do consider that the bank notes in the said Counts set forth and described, are promissory notes, within the true intent and meaning of the Act of General Assembly entitled, “An Act to amend the Act, entitled, ‘an Act reducing into one, the several Acts for punishing persons guilty of certain thefts and forgeries,’ passed the 8th December, 1794. Which is ordered to be certified.” 
      
       1792, ch. 171, § 1; which enacts, inter alia, “that if any person, &c. shall utter or publish, as true, any false, forged or counterfeited promissory note, for the payment of money or tobacco, or other valuable thing, &c. with intention to defrand any person or persons whatsoever, or any corporation, knowing the same to be false, forged or counterfeited, then every such person. &c. shall be deemed guilty of felony,” &c. &c.
     