
    [Philadelphia,
    Saturday, March 28, 1812.]
    *White against the Commonwealth.
    In Error.
    Notwithstanding the expiration of the corporate powers of the late Bank of the United States, it is still an indictable offence, and punishable within the act of 22d April 1794, to pass a counterfeit note of that bank, knowing it to be such; and any forged note, counterfeiting a genuine note of that bank issued during the existence of its corporate powers, is a counterfeit note of that bank.
    This was a writ of error to the Quarter Sessions of Chester county, to bring up the record of an indictment and conviction of the plaintiff in error.
    The indictment contained three counts. The 1st charged that on the seventh day of January 1812, with force and arms, &e., he did falsely print and sign, forge and counterfeit, and was concerned in the falsely printing, signing, &c., a certain false and counterfeit note, commonly called a bank note, purporting to have been made and drawn by the President, Directors and Company of the Bank of the Bnited States at Philadelphia, and to have been signed by D. Lenox, president, and to have been countersigned by G. Simpson, cashier, whereby the said president, &c., promised to pay to W. Jones or bearer on demand twenty dollars, and to be dated the second day of November in the year 1809, in the words and figures following, &c., with intent to defraud John B. Remington, against the form of the act of assembly, &c.
    The 2d charged him with falsely and unlawfully passing, and being concerned in the passing, as true, on the 7th of January 1812, a certain false, forged and counterfeit note, commonly called a bank note, describing it as before, with intent to defraud the same person, (he the said Joseph White at the time, &c., then and there well knowing the same to be false, forged and counterfeited) against the form of the act, &c.
    The 3d count alleged that on the said 7th day of January 1812 he did falsely and unlawfully utter and publish as true and genuine, a certain false, forged and counterfeited note purporting to be a promissory note made by the president, &c., of the Bank of the United States, dated Philadelphia, November the second in the year 1809, signed by D. Lenox, president, and countersigned by G. Simpson, cashier, whereby the said president, &e., promised to pay to W. Jones or bearer on demand twenty dollars, with intention to defraud *the aforesaid John B. Remington, (he the said White at the time, &c., then and there well knowing the same to be false, forged and counterfeited) against the statute and acts of in such case made and
    The jury found him guilty on the 2d and 3d counts, and not guilty on the first: and he was sentenced to pay a fine of twenty dollars, and to be imprisoned at hard labor, &c., seven years. The plaintiff assigned the general errors.
    
      Phillips for the plaintiff in error.
    The second count is in the words of the fifth section of the act of 22d April 1794, 3 St. Laws 600, which provides for the crime of printing, signing or passing any counterfeit notes of the banks of Pennsylvania, North America, or the United States. This act was passed in aid of the act of congress of the 25th February 1791, incorporating the subscribers to that bauk; and as that act has expired, all penal auxiliary acts, though not limited, expire with the original act. U. States v. Passmore, 4 Dall. 373 ; 1 Hale H. P. C. 291. ch. 24.; 1 Hawk. P. C. bk. 1 ch. 40 s. 10.; 1 Hale 705. On the 7th of January 1812, there was no such person as the Bank of the United States, and of course no note of such a bank on that day; it follows that there could be no counterfeit note of such a bank on that day, which it would be an offence to pass. The alleged date of the note is not material ; it would not follow from that, that it was not issued after the expiration of the charter, and therefore not a bank note.
    The third count, if maintainable at all, must be supported at common law, because there is no act of assembly against uttering and publishing; the difference between uttering and publishing, and the offence in the act of 1794, 'passing, was settled by this Court in The Commonwealth v. Searle, 2 Binn. 332. But uttering and publishing such a note is no offence at common law, because from the dissolution of the charter of the Bank of the United States, it became an unincorporated company or association, and under the first and third sections of the act of 19th March 1810, it was unlawful either to issue, or to circulate such notes. Hence under the principle adjudged in Spangler v. The Commonwealth, 3 Binn. 35, it is not *indictable to counterfeit them. There is another objection to this count, that it does not set out the note in words and figures, agreeably to all the precedents. It ought to be so spread upon the record that the defendant may plead it in bar to a second indictment. 2 East Or. Law 856 to 996.
    
      Frazer and the attorney general (Ingersoll) for the commonwealth.
    1. The act of 1794 is neither in aid of, nor engrafted upon the act of congress incorporating the subscribers to the bank; but it is a perpetual law, intended to suppress a mischief that might, and does, outlive the charter, and therefore even if the act of congress had expired, the existence of the state law could not be affected. It is also a general law applying to several objects, and it would be extraordinary if it has expired as to one class of objects, and not to the others. The cases cited, are of the repeal of the very acts constituting the offence, or of supplemental statutes which fall upon the expiration or repeal of the principal statute. But in fact nothing but the corporate powers of the bank are extinct. Many of the sections of the law are and must for ever continue in force. Their notes are still receivable in payment of duties to the United States, as has recently been decided by Chief Justice Marshall, and the forgery of them, though committed before, may according to a decision of Judge Johnson, be prosecuted since the dissolution, under the act of congress of 27 June 1798, 4 U. S. Laws 152. No doubt there are genuine notes of that bank in circulation. The forged note in question purports to be one of that sort. What the case would be if the note bore a date subsequent to the expiration of the charter, it is unnecessary to decide.
    2. The third count is good at common law. To say that it is against the act of March 1810, to accept a note of the Bank of the United States, is absurd. That law was designed to prevent unincorporated companies from issuing notes, not to render unlawful the circulation of a bank, which had once been incorporated. Their notes are not notes of an unincorporated association, but notes deriving their validity entirely from a charter. As to the description of the note, it is sufficiently set out to identify it, and nothing more is requisite. The conclusion against the statute and acts, is *surpl usage. Indeed no objection has been taken on that ground.
   Tilghman C. J.

White was indicted for passing on the 7th January 1812, a counterfeit note of the Bank of the United States, for twenty dollars. The note is particularly described in the indictment, and purports to have been dated the 2d November 1809. The objection to the indictment is, that at the time the offence is alleged to have been committed, the Bank of the United States was not in existence, the period for which the stockholders were incorporated having expired. This indictment is founded on the act of 22d April 1794, sec. 5, by which it is made penal for any person to pass a counterfeit note of the Bank of the United States, knowing it to be such. The defendant’s case is within the words of the law, for he is charged with passing a counterfeit note of the Bank of the United States, knowing it to be such ; and it falls within the spirit of the law, and is one of the mischiefs intended to be prevented by it. Although the corporation was not in existence when this counterfeit note was passed,-yet the genuine note represented by it had a legal existence. The notes of that bank are still in circulation, and the trustees in whom the stock was vested after the dissolution of the corporation, are bound to pay them. It is objected, that if a crime is created by law, and the law is repealed, no punishmeut can be inflicted on a person who was guilty of an offence during the continuance of the law. It was so decided in Passmore’s case, 4 Hall. 373, and passages in Hale and Hawkins were cited to the same purpose. But how does that principle bear on the present case? The act of assembly on which this indictment is founded is in full force. And even the act of congress to incorporate the subscribers to the Bank of the United States, is for some purposes in force, although the corporation expired on the 4th of March 1811. By the tenth section of that act, the notes of the bank payable on demand are receivable in all payments to the United States. It was decided by Chief Justice Marshall, that this provision survived the corporation. Perhaps it may be at this moment repealed, as a bill for that purpose was lately before congress. It was in force however when the defendant was convicted. But I do n°f rely on fhaf '^circumstance, for whether the notes were receivable in payments to the United States or not, yet having been lawfully issued, they had a lawful existence until paid and cancelled. Our law punishes the act of passing a counterfeit note of the Bank of the United States, which is as much as to say, a forged note counterfeiting a genuine note of the Bank of the United States. Now the genuineness of the notes issued during the existence of the corporation, is not affected by its dissolution. These notes may still with propriety be called notes of the Bank of the United States, and the counterfeits may with equal propriety be called counterfeit notes of the Bank of the United States. It has been contended that by virtue of the act of 19th March 1810, it became unlawful to offer or accept in payment, notes of the Bank of the United States; but it appears to me that the meaning of this act has beén entirely mistaken. Its object was, to prevent the issuing of notes by companies not lawfully incorporated. It begins with prohibiting the issuing of notes, of the nature of bank notes, by any association of persons not incorporated by law. The third section makes it unlawful to offer or accept in payment, “ any note or notes issued from any unincorporated bank or banks knowing it to be such.” But these prohibitions have no relation to notes issued by banks which were incorporated when the notes were issued. And that is the case of the notes of the Bank of the United States. Upon the whole, I am of opinion, that the second count of this indictment is good, and therefore the judgment should be affirmed. On the third count I give no opinion.

Yeates J.

The plaintiff in error has been convicted on two counts charged in the indictment. If either of those counts is good in law, and the judgment rendered thereon in the Sessions can be supported, it must be affirmed. The second count charges the prisoner with being concerned in passing a counterfeit twenty dollar note of the late Bank of the United States, knowing the same to be counterfeit, pursuing the words of the fifth section of the act of assembly of 22d April 1794, and on his conviction he has been sentenced to pay a fine of twenty dollars and be imprisoned fur seven years.

The taken hereto, is that this law is virtually ■^repealed as far as it respects the notes of the Bank of the United the act of of the 25th February 1791 incorporating that bank being of a temporary nature, and that the present case is the same in point of principle as that of Passmore in 4 Dallas 373; and that where one statute is engrafted upon another, the operation of the latter act ceases with the former.

The act of congress of February 1791 is not a temporary act. The third section creates the incorporation of the Bank of the United States, but limits the exercise of their corporate rights until the 4th March 1811. The tenth section makes their notes receivable in all payments to the United States. This clause is now in full operation, and has been so decided in the federal courts in two cases cited upon the argument. The forged note passed by the prisoner purports to have been issued on the 2d of November 1809, while the President, Directors and Company of the Bank of the United States lawfully exercised their corporate powers. Individuals holding their genuine notes, brought them in to be exchanged as they thought proper. Many of them are still in circulation, and the holders of them are legally entitled to demand from the trustees of the former company their full value in gold or silver, to be paid out of the funds of the late institution. The law of this state protects these notes, equally with the notes of the banks of Pennsylvania and North America, in the same general clause. And no one can doubt the impolicy of suffering frauds to be practised upon the public with impunity. The punishments prescribed by our law did not depend on the act of the Union, nor were its provisions engrafted thereon.

Our act of assembly supplementary to the act “ relating to associations of individuals for the purpose of banking” can have no influence whatever on the present question. Its plain words go to prevent unincorporated companies from issuing bills or notes in the nature of bank notes; and declares it to be unlawful for any person to offer or accept in payment any such notes knowing them to be such. But no expressions therein will justify the construction, that it would be an offence to pay or receive in payment genuine notes of the late Bank of the United States to such persons as would be willing to accept them. The object of the legislature was of a very different nature.

*Upon the whole, I am of opinion that the fifth section of our law of 22d April 1794 is in full force, and that the judgment rendered on this indictment by the justices of the Court of General Quarter Sessions of the Peace of Chester county be affirmed.

BRACKENRiDfiE J. concurred.

Judgment affirmed.

[Cited in 3 S. & R. 181; 15 S. 409.]  