
    Commonwealth versus Tilley Houghton.
    In an indictment on the statute of 1804, c. 120, § 2, for having in possession more than ten counterfeit bank bills, it is necessary to describe the bills in the indictment, or to set forth therein a sufficient reason why they are not so described.
    The defendant was indicted for “ that at, &c., on, &c., he had in his custody and possession more than ten, viz., twenty-five, false, forged, and counterfeit bank bills or promissory notes, payable to the bearer thereof, purporting to be twenty-five bank bills or promissory notes, signed in behalf of the Union Bank, for the sum of five dollars each, the said Union Bank being a corporation by law licensed and authorized as a bank within this .commonwealth ; and that he, the said Houghton, having knowledge that the aforesaid bills or notes, and each and every one of them, were false, forged, and counterfeit, did then and there willingly aid and assist in rendering the aforesaid false, forged, and counterfeit bills or notes, and each of them, current as true; and for that purpose did, then and there, and at one time, have and possess each and every one of the aforesaid false, forged, and counterfeit bills or notes, knowing the same to be false, forged, and counterfeit, with intent to utter and pass the same, and thereby to injure and defraud the president, directors, and company of the Said Union Bank, — against the peace of the said commonwealth, and against the form of the statute in such case made and provided.”
    *The defendant, being tried and convicted before Sedgwick, J., at the last April term in this county, moved in arrest of judgment, assigning the following reasons, viz.
    
    1. “That the said indictment does not contain any precise or sufficient description of the bills or notes alleged. to have been in the possession of the defendant, either according to the tenor or purport- of the same; nor is any reason alleged why they are not so described.
    2. “ That it is no where alleged or averred in said indictment, by whom the said bills or notes were signed, or what were the dates of the same.
    3. “ That it is averred in said indictment, that the said bills or notes were signed in behalf of the Union Bank, the said bank being a corporation by law licensed and authorized as a bank within this commonwealth ; whereas, in truth, no such corporation exists within this commonwealth.
    4. “ That it is alleged in said indictment, that the defendant was possessed of the said bills, with an intent to defraud the president, directors and company of the Union Bank; whereas, in truth, there is no body politic or corporate, or any person or persons, known by that name within this commonwealth.
    5. “ That there is no allegation in the said indictment of the defendant’s having knowledge of the false making, &c., of the said bills or notes.
    6. “ That it is not alleged in the said indictment that the said bills or notes were similar.”
    The cause stood continued to this term upon the said motion; and. now '
    
      
      Smith, for the defendant,
    contended that the indictment ought to set forth the tenor of the bills supposed to be counterfeit, that it may appear that they were issued by a duly-authorized corporation, and that the defendant may be able to plead the conviction in bar .of a second indictment for the same offence. 
    
    The fourth exception to the indictment is very material. East lays it down, that the intent to defraud must be stated *in the indictment, and pointed at the particular person or persons against whom it is meditated, and the proof must tally with such averment, otherwise the prisoner will be entitled to an acquittal. The indictment in the case at bar alleges the intent to defraud the president, directors, and company of the Union Bank. Now, the real name of that corporation — and a cor poration can be known or described only by its name — is, the president and directors of the Union Bank. If an intent to injure some person or corporation is not alleged and proved, there is no offence within the statute, on which the indictment is predicated. 
    
    The misnomer of the corporation is also relied on in support of the third exception to the indictment. If there is no corporation, whose name is forged, there can be no forgery.
    
      Davis, solicitor-general,
    (being called on by the Court,) observed that he had uniformly drawn indictments for this offence in the manner here used, and objected to by the defendant in his first cause alleged in arrest of the judgment; and that every judge of this Court had severally sentenced convicts thereon at nisi prius.
    
    As to the name of the bank, it is sufficient. It is not necessary to describe the corporate name with the same strictness as where corporations are parties to civil actions. Especially are such niceties to be disregarded after conviction.  It may be worthy of notice here, that by the statute of 1808, c. 99, § 2, all the banks in the commonwealth are thereafter required to use the corporate name of “ the president, directors, and company,” whatever may have been their original names of incorporation.
    
      
       2 East’s C. L. 975
    
    
      
       2 East,. 988.
    
    
      
      
        Ibid. 990 Rex vs. Lovell. 1 Leach’s C. L. 282, S. C.
      
    
   The cause was continued for advisement, and at the following April term, the prisoner being brought into Court, and set to the bar, his honor, Judge Sedgwick, by whom the Court was'holden, addressed him as follows: —

Tilley Houghton,

Your motion in arrest of judgment has been deliberately considered by all the judges, and their unanimous opinion is that it must prevail.

* There are many objections made to the indictment in this case, all of which, except, the first, might be got over, as the Court has unanimously determined in the case of the writ of "error brought by Murray Brown to reverse a judgment against him. Upon these therefore it is not necessary to give an opinion.

The objection is, that the indictment does not give any precise or sufficient description of the bills or notes alleged to have been in the prisoner’s possession; nor is any reason alleged why they are not so described.

The description given of the bills is, “ that they were false, forged, and counterfeit bank bills or promissory notes, signed in behalf of the Union Bank, for the sum of five dollars each,” and that they purported to be payable “ to the bearers thereof; ” but the indictment does not set forth the tenor or substance of the bill's, either as to their form, dates, or the person or persons to whom they were payable.

East lays it down as a general rule, that “ it is essentially necessary to an indictment for forgery, that the instrument alleged to be forged should be set forth in words and figures ; though there be .no technical form of words for expressing that it is so set forth.” And he cites two cases (one of them determined as long ago as the year 1767) in which it was so decided by all the twelve judges of England; and a like determination is reported to have been made in Lyon’s case.

But there are cases which will form just and necessary exceptions to this rule; as where the forged instrument has been destroyed by the prisoner, or has remained in his possession; and perhaps in other cases, where the instrument cannot be produced, and there are no loches on the part of the government or prosecutor. But in every such instance, that the exception may be admitted, it must appear in the indictment what is the cause of the non-description of the instrument. From the record in this case we do not know that the forged bills were not with * the grand jury at the time the indictment was found; nor do we Know that they were not produced at the trial.

It would be difficult, if not impossible, to discover any good or satisfactory reason in support of many of the niceties which are ' established in criminal proceedings, and which may not be relaxed. In the instance under consideration, however, the reason is very obvious. A particular description of the instrument may enable the party charged more effectually to prepare for his defence, and thus may become a shield to innocence.

On the whole, we are satisfied that judgment must be arrested, but as there is great reason from the conviction to hold the prisoner, until it be known whether another bill will not be preferred against him, — if that be not done, when the grand jury shall be discharged, he will be released, unless some sufficient legal cause of detention shall be shown. 
      
      
        Vide ante, page 59
     
      
      
        C.L. 975.
     
      
      . 2 Leach. 696.
     