UNITED STATES v. NOBLE, 27 F. Cas. 179

CRANCH, Chief Judge. It is contended that the first count of the indictments for uttering the forged notes, is not good under the eighteenth

section of the charter of the bank, of the 10th of April, 1816, because it does not aver that the note purported to be a bill or note issued by order of the president, directors, and company of the Bank of the United States; and because, neither on the 14th of March, 1830. the date of the note, nor on the 10th of July, 1837, when the offence was committed, had the Bank of the United States any legal existence; its charter having been limited to the 3d of March, 1836; nor had the bank, then, any right or authority to issue any such note.

And that it is not a good count under the penitentiary act for the District of Columbia, because the bank, having no legal existence, could neither be prejudiced nor injured. I am of opinion that the first count is bad under the eighteenth

section of the charter, because it does not aver that the forged note purported to be-a bill or note issued by order of the president, directors, and company of the said bank. But I think it a good count under the penitentiary act; because I consider the bank as still in existence for this purpose; that is, to protect itself during the period of two years from the 3d of March, 1836, given by the twenty-first

section of the charter, which declares, that “notwithstanding the expiration of the term for which the said corporation is created, it shall be lawful to use the corporate name, style, and capacity, for the purpose of suits; for the final settlement and liquidation of the affairs and accounts of the corporation; and for the sale and disposition of their estate, real, personal, and mixed.” It is not said by whom the corporate capacity may be used for those purposes. The use is not confined to the corporation. Their capacity to sue, and to be sued, continues.

The United States may use it for the puipose of vindicating the laws of the United States, and for the punishment of offenders. The corporation may use it for all purposes necessary to the final settlement and liquidation of their affairs. In order that such settlement should be justly made, it is necessary that they should be protected from forgeries, by which they may unquestionably be injured.

They have still the capacity to be injured; and. therefore, it was right and correct in this count, to aver that the passing of the forged note was to the prejudice of the right of, and with intent to defraud the president. directors, and company of the Bank of the United States. 2. The second count is not good under the eighteenth

section of the bank charter, and, T presume, was not framed in reference to that section. Nor is it good under the penitentiary act, because it does not aver that tlie act was done to the prejudice of the right of any person or body politic. I am inclined, however, to think that it may be supported as a count at common law; but I shall be willing to hear a motion in arrest of judgment if the verdict should be against the defendant upon that count only. There is another indictment (No. 146), against this defendant, the two first counts of which are framed upon the nineteenth

section of the bank charter, for having in his possession blank notes engraved and printed after the similitude of notes issued by the corporation of the Bank of the United States with intent to use them in forging and counterfeiting notes issued by that corporation; the first count says with intent to defraud the said corporation; the second count says, with intent to defraud the person or persons to whom the same should be uttered and passed. I do not see any valid objection to these two counts.

The third and fourth are for having in his possession three fox-ged and counterfeited engraved papers purporting to be bank notes of the president, directors, and company of the Bank of the United States for the payment of ten dollars each, after the similitude of the notes of the said corporation, with intent to utter and pass them as true with intent (in the third count) to defraud the Bank of the United States; and (in the fourth count) with intent to defraud the person or persons to whom the same should be passed, contrary to the form of the statute. &c.

I do not know under what statute these third and fourth counts have been framed. They are not good at common law.