
    * Commonwealth versus Lewis Hill.
    A procuring a counterfeit bank note to be passed by an ignorant boy as a true one, was holden a sufficient passing, within the statute of 1804, c. 120, § 3.
    This was an indictment for passing a counterfeit bank note to one Joseph Bradbury.
    
    A trial was had before Thatcher, J., October term, 1812, at Alfred, in this county; when the evidence was that Hill, at the time alleged in the indictment, delivered the note therein mentioned to a boy by the name of Aaron Smith, and desired him to go, and, if he could, to pass it'away, agreeing to give him one half if he should so pass it; and if he could not pass it, then the note was to be returned to Hill. Smith passed the note as true to the said Bradbury, in the purchase of a waistcoat pattern, for which he allowed three dollars, and received" of Bradbury three dollars in change, which he returned to Hill. It appeared that the boy was innocent, and ignorant that the note was counterfeit.
    A verdict was taken that the said Hill was guilty, subject, to tliu opinion of the Court on the question whether the foregoing evidence proved a passing of the bill to Bradbury, as charged in the indictment, no- question being made by the defendant’s counsel as to the scienter.
    
    The indictment was continued to the last May term for argument upon the judges’ report, when it was argued by Morton (Attorney-General) for the commonwealth, and Holmes for the defendant.
    
      Holmes.
    
    There is no evidence that Hill ever passed the note at all. The delivery of a note to be passed is not passing it, more than delivering money to be paid to a creditor is payment. The fact charged in the indictment is made a misdemeanor by statute. But the evidence does not bring the case within the statute.
    Nor did the defendant deliver the note to Smith as true. The whole transaction negatives such a supposition.
    But, at any rate, he did not pass the note, nor direct it to be passed, to Bradbury, as charged in the indictment. If he were to be indicted for passing it to Smith, neither an ac- [ * 137 ] qui.ttal * nor a conviction on this indictment would be a bar to such prosecution. An averment that the of-fences were the same would be directly against the record.
   The Court

took time in the vacation to consider the question, and being agreed that the evidence was sufficient, the defendant was sentenced by Thatcher, J., at the last term at Alfred, 
      
      
        Com Dig., Abatement, E, 4. — 1 Lord Raym. 282. — Foster's Crown Law, disc. 3, c. 1. — 1 Hale's Hist. P. C. 514, 617.— Dalt. Just. c. 108.
     