5 N.H. 367 | Superior Court of New Hampshire | 1831
delivered the opinion of the court.
It is contended, that there ought to be a new trial in this case, because the copy of the charter of the Me-chatxick’s Bank, which was offered in evidence to the jury, was not properly authenticated.
A statute of the United States, passed May 36, 1790, enacts, that <£ the acts of the legislatures of the several states shall be authenticated by having the seal of their respective states affixed thereto.” And it has been decided in the circuit court, for one of the circuits in the United States, that where the seal of the state is affixed to an exemplification of an act of the legislature, the attestation of a public officer is not required. 4 Dallas, 413, The United States v. Johns. And it seems, that a copy of a statute of a state, under the seal of such state, has the same authenticity under the statute of the United States
The seal of the state is of itself the highest test of authenticity. But other modes of proof are not excluded on this ground. Gil. Ev. 15, and it seems that the acts of states may be pfoved otherwise than by a copy under the seal of the state. 1 Starkie’s Ev. 163, note 2.
In this case it was not disputed, that the seal of the state of Connecticut was affixed to the copy, and we are of opinion that the copy was properly admitted in evidence.
It is also urged, that there ought to be a new trial in this case, because it did not appear that $50,000 of the capital stock of the Mechanick’s Bank had been paid into the bank, as required by the charter. To sustain this ground we must decide, that although the corporation may have been organized, under the charter, and have had its bills in circulation for years, yet it is competent for us in this case, it not appearing that the members of the corporation have complied with one of the requisitions of the charter, to hold it not to be a corporation lawfully established as a bank within the meaning of the statute upon which this indictment is founded. But we are of opinion, that the right to exercise corporate franchises cannot be thus collaterally called in question. Indeed, it has been decided, that an information to sieze the franchises of a corporation, cannot be ordered on the motion of an individual. 5 Mass. Rep. 230, Commonwealth v. The U. F. & M. Insurance Company in Newburyport.
The state alone can prosecute such an information. And although a corporation may forfeit its charter by an abuse or neglect of its franchises, yet such forfeiture must be ascertained and declared by regular process and
And we hold, that in cases of this kind, it is enough to show that there was a charter under which the corporation was acting ; and that it was wholly immaterial whether the corporation had complied with the requisitions of the charter or not. That is a matter to be settled in a suit between the government, which created the corporation and the corporators, and not collaterally, in a prosecution by another state against a stranger to the corporation.
It is further insisted, that there was not competent evidence to show, that the corporation had been duly organized. But as a charter was produced, and it was shown that bills of the corporation had been in circulation, and currently received as money for several years, the jury were well warranted in finding, upon this evidence, that the corporation had been duly organized.
Another objection is, that it was not shown that the bank had ever issued bills for the sum of twenty dollars, like that described in the indictment. This objection is well founded in fact, but the question is, whether it was necessary, in order to sustain the indictment, to show that the bank had issued such bills ? To settle this question we must examine the statute. In the 14th section of the statute of January 2, 1828, 1 Laws, 138, it is enacted, u that if any person shall falsely make, forge, or counterfeit — any bank bill or note, in imitation of, or purporting to be, a bank bill or note, which has been, or may hereafter be issued by any corporation, which is, or may hereafter be lawfully established as a bank, in this state or in any place within the United States — such person, so offending, shall be punished, &c.”
In the 15th section of the same statute it is enacted, “ that if any person shall utter, publish, pass or tender
Now, admitting that in order to sustain the indictment, it was necessary to show that the forged bill was in imitation of bills which had been issued by the bank, the question then arises, how far the imitation must go to bring the forged bill within the statute.
Upon this question, common sense must at once pronounce that the imitation need not be perfect. If the imitation must agree with the true bills in every particular, those who forge bills may, by very slight deviations, evade the statute without any injury to the circulation of their false paper. The true rule is, that if the imitation be so exact as to be sufficieni to impose upon persons of ordinary observation, and the instrument he prima facie fitted to pass as a true one, the imitation is to be considered as within the meaning of the statute. 2 Starkie’s Ev. 579 ; East’s C. L. 952 ; 1 Leach, C. L. 218.
In this case it is not pretended that the forged bill was not in imitation of bills which had been issued by the Me-chaniek’s Bank with respect to the form of the contract, the signatures of the president and cashier and the paper upon which it was forged. And although the bank may never have issued bills for the sum of twenty dollars, yet still the forged bill may have been in imitation of bills which had been issued by the bank so far as to be calculated to deceive persons of ordinary observation. It was a question for the jury, whether the counterfeit bill in this case was a counterfeit of the kind of instrument, the passing of which was charged in the indictment. And we think that they have decided it correctly-
Another ground, on which a new trial is claimed in this case, is, that there is a variance between the bill described in the indictment, and the bill proved to have been passed by Carr. The variance upon which conn-
This ground is] clearly not tenable. It is clear that' the figures omitted in the indictment are no essential part of the bill. 2 Mass. Rep. 397, Comw. v. Ward; 2 Binney, 332, Comw. v. Searle; 1 Mass. Rep. 62 and 203.
One other objection to the conviction is, that the forgery was not proved by competent evidence. But we entertain no doubt that the testimony of witnesses who are acquainted with the signatures of the president and cashier of a bank, from having seen bills of the bank in circulation, is competent to be submitted to a jury, to prove that a bill which purports to be a bill of such a bank, is a forgery. 2 Pick. 47, Comw. v. Carey.
A motion has been made in arrest of judgment in this case, on the ground that the indictment is insufficient, it not being averred in what state and county New-Haven is, where the bank is alleged to have been established. But it is averred in the indictment, in the language of the statute, that New-Haven is a “ place within the United States,” and no reason has been' suggested, nor has any occurred to us, why this should not be adjudged sufficient.
We are, therefore, of opinion, that the conviction is right, and the indictment sufficient.