
    Commonwealth versus John C. Carey.
    in an indictment for uttering a counterfeit bank bill, such bill may be set forth as a forged promissory note 5 and where a design to defraud an individual is set fc rth, it is not necessary to allege the existence of the bank of which it purports to be a bill.
    Where the bank was out of the State, although within 40 miles of the place of trial, the forgery was allowed to be proved by two witnesses who had very frequently received and paid out bills purporting to be made by such bank, and one of whom had once carried a large number of such bills to the bank, which were all paid by the bank as genuine, but neither of whom liad ever seen the president or cashier write.
    The indictment m this case set forth, that the defendant, “ on &c., at &c., had in his custody and possession a certain false, forged and counterfeit promissory note for the payment of money, which said false &c. note is to the following purport and effect, to wit, &c., [setting forth a bank bill purporting to be issued by the Merchants’ Bank in Providence, Rhode Island,] and that the said John C. Carey, on &c., with force and arms, at &c., the aforesaid false &c. note did utter and publish as true, to one John A. Newcomb, with intent the said Newcomb then and there to injure and defraud, he the said John C. Carey then and there well knowing the same promissory note to be false, forged and counterfeit; against the peace &c., and contrary to the form of the statute &c.”
    At the trial, which was before Jackson J. at the last February term, two witnesses were produced to prove that the note was forged. One of them testified, that he had very frequently received and paid notes purporting to be made by the Merchants’ Bank, and to be signed by the two persons whose names were set, as president and cashier, to the note in question, and had in that way become well acquainted with the signatures of those two officers, and with the appearance of the genuine notes of that bank ; that he never saw either of those persons write, but that he once carried to the bank a large number of the bills which he had received as genuine, and they were all taken by the bank and paid for as genuine. The other witness testified to the like facts, excepting that he had never been at the bank. Both of these witnesses were officers in the Dedham Bank, or connected with it in such a manner as to have frequent occasion to receive and pay the notes of other banks. They both testified that the note in question was forged and counterfeited.
    The defendant was convicted, but the judgment was respited for the opinion of the whole Court on the question, whether the evidence above stated was admissible and competent to prove that the note was forged and counterfeited.
    
      D. A. Simmons now contended that the judgment ought to be arrested for defects in the indictment. The charge should have been for uttering a bank bill, and no.t a promissory note Banks issue drafts and bills of exchange which have the character of promissory notes, but those are different from what are usually denominated bank bills. The distinction contended for is recognised by our statutes. St. 1804, c. 120, (upon which this indictment is founded,) § 1, 2, 3, 4, 9 ; 1801, c. 71 ; 1805, c. 24 ; 1818, c. 106. The indictment is further defective, in not alleging that the counterfeit bill was in the similitude of bills issued by any bank established in any of the United States. The existence of a corporation is not to be presumed. It must appear that there is a bank having authority to issue true bills, before a person can be convicted of uttering counterfeit bills of such bank. If it should be said that this bill was in the similitude of a bill of a bank not existing, we answer that the statute makes no provision in regard to such a bank bill. Commonwealth v. Morse, 2 Mass. R. 138.
    The St. 1818, c. 110, provides, that in prosecutions for uttering counterfeit bills of any of the banks described in the 2d, 3d and 4th sections of St. 1804, c. 120, the testimony of the president or cashier may be dispensed with, if the place of residence of the president or cashier shall exceed the distance of forty miles from the place of trial. Here the distance was less than forty miles, and the testimony of the president or cashier was therefore indispensable. But, without this statute, the best evidence of which the nature of the case admitted, ought to have been produced. The witnesses testified that they never saw the president or cashier write. Such witnesses would have been inadmissible in the case of a note, purporting to have been made by an individual.
    Morton, Attorney-General, contrà,
    said it had been decided by this Court, in the case of one Sarah Simmons, that there was no difference between a bank bill and a promissory note ; and that it had been so adjudged in England. Willoughby’s Case, 2 East’s P. C. 581, 944 ; Rex v. J. Sheppard, Leach, 265 ; Grant v. Vaughan, 1 W. Bl. 485. It is said the existence of a bank duly established should have been averred in the indictment. But it is immaterial whether there was such a bank or not. The indictment alleges that the uttering of the forged note was with an intent to defraud an individual, and that is sufficient.
    
      
       This 4th section mentions bills and notes of “ any bank or banking company, which is or shall be established within this State, or in any other part of the United States.” Reporter.
      
    
   Parker C. J.,

in giving the opinion of the Court, said, it is objected in arrest of judgment, that the indictment does not allege the note to be a bank bill. But we consider it to have been expressly decided, that the note of a bank is a promissory note, as much as the note of an individual. , It is also said, that there should have been an allegation that the bank was duly incorporated; but that was not necessary, as the indictment states a design to defraud an individual.

In regard to the point, that neither the president nor cashier of the bank was a witness, but that persons, acquainted with their signatures from seeing many bank bills were admitted to prove the forgery, it is said that this was not the best evidence of which the nature of the case admitted. These witnesses were admitted, because the government has no authority to compel the attendance of witnesses living out of the State ; and it is not to be expected that the officers of a bank will come here from courtesy and leave the business of the bank. Suppose the bank to be situated in one of the Western States, and it would be impossible to procure the testimony required. It may be said that this is the misfortune of the government; but when it is impossible for the government to obtain the best evidence, the Court must consider what is the next best within its power to produce. It has been the practice here to admit such evidence as was received in this case. With respect to the banks in this State, the objection of want of power to compel the attendance of their officers did not apply ; but it was found inconvenient to require it in all cases, and the legislature authorized this same kind of evidence to be used, when the bank should be more than forty miles distant from the place of trial; thus recognising the law which the Court had adopted in relation to banks out of the State.

Motion in arrest of judgment overruled. 
      
       See Brown v. Commonwealth, 8 Mass. R. 64. Reporter.
      
     
      
       See 3 Chitty’s Crim. Law, (2d ed.) 947, 948, 1048,1049
     
      
      
        Arnold, v. Cast, 3 Gill & Johns. 219; Rex v. Crooke, Str. 901. But Spangler v. Commonwealth, 3 Binn. 533, semb, contra.
      
     
      
      
        State v. Carr, 5 N. Hamp. R. 373 ; United States v. Holtsclaw, 2 Hayw. 379; Furber v. Hilliard, 2 N. Hamp. R. 480 ; The State v. Ravelin, 1 Chipman’s R. 295; Johnson v. Davern, 19 Johns. R. 134; Tharpe v. Gisburne, 2 Car. & Payne, 21; Duncan v. Beard, 2 Nott & M'Cord, 400; Bank Prosecutions, Russ. & Ry. 378; Martin v. Commonwealth, 2 Leigh, 745; 3 Chitty’s Crim. Law, (2d. ed.) 1044; Commonwealth v. Smith, 6 Serg. & Rawle, 568; State v. Allen, 1 Ruffin’s R. 6; Greaves v. Hunter, 2 Car. &. Payne, 477. But see State v. Petty, 1 Harper’s (S. C.) R. 61, semb. contra.
      
     