
    The People against John Wilson. The same against Ezra Osborn.
    ALBANY,
    August, 1810.
    Since the act ot the oOtii sess. c. 173. sect. i. it is not -a felony, in this state, to litter and publish a forged otherr's°ate^ for ahsum5iess than ITa person posnote^ntlfintent to utter it, indictable, under the act of the Slstsess. c. 155, sbci» 7»
    
    THE prisoner, Wilson, was, convicted, at the last oyer e e and terminer, held m Washington county, of uttering, as - - true, knowing it to be false, &c. a forged promissory r ,, - , , , note, for the payment of money, purporting to be a bank note of the Vermont state bank, for 75 cents, payable to t^ie bearer, at their office of discount and deposit, at Woodstock, &c. with intent to defraud one James Watson, ^c"5 anc* also, for feloniously having the same note in his possession, with intent to pass it, and to defraud r ’ , some person, or body politic unknown. (See act, sess. . , n-*1 , \ 24» c* 54« oess» 31* c«
    The prisoner, Osborn, was convicted, at the same court, for feloniously aiding and assisting Wilson to escape, while he was confined in the gaol, by virtue of a warrant issued against him, on a charge of having, knowingly, uttered, &c. the same forged bill, for 75-cents.
    
      Crary moved,
    in arrest of judgment, that the offence , charged in the indictment was not forgery.
    Savage, District-Attorney, contra.
   Per Curiam.

The act of the 21st of March, 1801, (Laws, vol. 1. p. 251. sess. 24. c. 54.) makes it felony to forge or utter and publish any promissory note, for the payment of money. This was, undoubtedly, a. promissory note, on the face of it, and purported to be good and valid. Notes of this description are not absolutely void, for they may be collected of the bank of Vermont. But, for the purposes of circulation, they are void, in this state; for the act, (Laws, vol. 5. p. 224. sess. 30. c. 173.) , , , ,, in. . •declares that “ no person shall give or receive in payment of any debt or demand whatsoever, or in any way attempt or offer to circulate any bank bill, or promissory note of any banking company, within this state, or elsewhere, for the payment of money, which shall be for less than the nominal value of one dollar; and every person offending against the act, shall forfeit and pay the amount or value of such bank bill or note, with the costs of suit.”

It cannot, therefore, be a felony, to utter and publish, in this state, such a forged bill; because no person can be defrauded, as every person is bound to know, that it is unlawful to accept in payment, or circulate such a bill. The fraudulent intentjstiie^M'i of the charge, and that intent cannot _be inferr e d from uttering the bill, when every person knows that it is unlawful,to ^receive it, and. that it is void, as to the purposes of payment and circulation. The opinion of all the judges, in England, in Moffat's case, (Leach, 337.) was, that the forging a bill of exchange, which, if real, would not have been valid or negotiable, but void, under the statute, was not a capital offence. We do not mean to say that it would not be felony to forge such a bill, or larceny to steal it, but only, that offering it for circulation, is not felony; because, it is declared to be incapable of any such use.

The prisoner, Wilson, has been convicted of possessing the forged bill, with intent to pass it, under the 7th section of the act of the 8th of April, 1808. (Laws, vol. 5. p. 336. sess. 31. c. 155.) But if it is not felony to utter it, it cannot be felony to possess it, with intent to utter xt. As he is not in custody under a charge of felony, for the facts are especially stated, in the warrant of commitment, we are of opinion, that the judgment, in each case, must be arrested, and the prisoners discharged.

Prisoners discharged.  