
    Tait vs. The State of Tennessee.
    The indictment charged the defendant with fraudulently sing a counterfeit note; the note was in these words: “This note of seventy five cents, is payable to the bearer at the treasury of North Carolina, agreeably to the act of assembly of 1823, ch. 7. Raleigh, 20th July 1824. J. Haywood, public treasurer.” Held, that the indictment should have averred the existence of the act referred to in the note, and that by the terms of that act, the treasury of North Carolina was bound to pay the note.
    This was an indictment against the plaintiff in error, for passing a counterfeit change ticket, for seventy-five cents, payable at the treasury of the State of North Carolina. The count in the indictment, upon which he was convicted in the circuit court of Knox county, charges him “with having fraudulently and feloniously passed a certain fo»ged paper in payment of a debt due, &c. knowing it to be forged, which paper purported to be a note of seventy-five cents, payable at the treasury of North Carolina, falsely purporting to be signed by John Haywood, public treasurer, which note is in substance and to the effect following;” the note is here set out, and is as follows: “This note of seventy-five cents is payable to the bearer at the treasury of North Carolina, agreeably to the act of assembly of1823, ch. 7. Raleigh, 20th July 1824. John Haywood, public treasurer.”
    After the jury had returned their verdict of guilty, the defendant, Tait, moved the court to arrest the judgment, and filed his reasons, which were overruled by the court, and judgment pronounced upon the verdict. From this judgment he prayed and obtained a writ of error to this court.
    
      3amagan and Churchwell, for the plaintiff in error.
    
      J. R. Nelson, (Attorney General) for the State.
   Green, J.

delivered the opinion of the court.

T^e indictment alleges that the forged paper in question, Purported to be a note of seventy-five cents, payable at the treasury of North Carolina. A note for seventy-five cents, is a promise to pay that sum. Is the paper set out in the indictment such a promise or undertaking? It is not. This paper (which in the indictment is called a note) is simply a statement, that the sum mentioned in it, is payable at the treasury of North Carolina to the bearer, agreeably to the act of assembly of 1823, ch. 7. The paper ex vi termini, does not contain any promise, or purport to create any obligation per se. It refers to the act of assembly as containing the promise or obligation. If A in writing state, that B by virtue of a promise or agreement, is bound to pay to the bearer seventy-five cents, this does not purport to be an obligation or promise to pay by A.

The indictment, it is believed, ought to have averred the existence of the act of assembly, authorizing the issuing of this paper, as that which creates the promise or obligation to pay. The note upon- its face, not purporting to create any promise or obligation to pay, but-referring to the act of assembly as containing the promise, or authority, the existence, and to some extent, the terms of that act of assembly, ought to have been made the subject of a distinct averment in the indictment, so as to show that the treasury of North Carolina was bound to pay, and that therefore its rights and liabilities are a fit subject for the commission of a forgery, and that it might thereby be defrauded.

The judgment in this case must be arrested, and the defendant bound over to answer another indictment which may be preferred against him.

Judgment arrested.  