majority">Gilchrist, J.

Tho first count in the indictment is founded on § 2, ch. 216, II. S. which prescribes tho punishment for passing or using any counterfeited promissory note. But the case of the State vs. Ward, 6 N. H. Rep. 529, is an authority against *358sustaining tbe indictment on this count. In that case, tbe forged instrument was laid in the indictment as a promissory note, but it appeared to be in tbe form of a bank bill. Tbe fifteenth section of 'the statute under which tbe indictment was found, provided that pubhshing as true a counterfeited bank bill, should be punished by confinement to bard labor for a term not less than two nor more than five years. Tbe eighteenth section enacted that publishing as true any counterfeited promissory note, should be punished by confinement to bard labor for a term not less than three nor more than seven years. Tbe court held that tbe objection to tbe conviction was, that tbe statute having provided a punishment for passing counterfeited bank bills different from that for passing counterfeited promissory notes," there was no evidence that tbe prisoner bad committed tbe crime laid in tbe indictment. Tbe same objection exists here. Tbe fust count charges tbe prisoner with passing a counterfeited promissory note. It is set out in tbe indictment, and is in form a bank bill. Tbe two offences, of passing a counterfeited bank bill, and of passing a counterfeited promissory note, subject tbe offender, by tbe second and fifth sections of cb. 216, to different penalties, and upon this count we think tbe indictment cannot be sustained.

By tbe second count in the indictment tbe prisoner is charged with passing and using as true, a false, forged and counterfeited writing, purporting to contain evidence of a debt, contract and promise, and tbe writing is described as issued by tbe Globe Bank, of New-York. This count is founded upon § 1, cb. 216, R. S., wbicb imposes a penalty for falsely making, &c., any writing purporting to contain evidence of tbe existence of any debt, &c. Tbe fourth section provides for tbe punishment of any person who shall falsely make or counterfeit any bank bill, or note purporting to be issued by any bank. If tbe offence be mcluded in tbe provision of tbe fourth section, tbe prisoner cannot be punished for an offence under tbe first section; for tbo act considers tbe offences as .distinct, and imposes upon them different punishments.

Tbe penalty imposed by tbe first section is confinement to hard labor for a term not less than three nor more than seven *359years, while the penalty inflicted by the fourth section is confinement for a period extending from five years to twenty years. Now this instrument clearly purported to be a bill issued by a hank. We cannot infer, from the fourth and fifth sections of this chapter, that there must have been a bank actually in existence, in order that the offence might have been committed, for the statute specifies a bill purporting to be issued by any bank.

The revised statutes of New-York provided for the punishment of any person who should have in his possession any counterfeit bill, &c., “ issued or purporting to be issued by any corporation or company,” &c. It was held that the statute did not require the existence of a corporation from which the counterfeit bill purported to have been issued, in order to bring a case within it, and that it was sufficient if the bill purported on its face to have been issued by an authorized company, the word purporting being intended to qualify the whole of the succeeding clause. The People vs. Davis, 21 Wend. 309. To the same effect is the decision in the case of the People vs. Peabody, 25 Wend. 472. Reason is also in favor of such a view of the law. The public and individuals may be defrauded, as well by notes purporting to be issued by a bank which does not really exist, as by the bills of an incorporated institution; and there is as much reason for legislation in one case as in the other. Wo are of opinion that there is no evidence of the commission of the offence charged, and that there should be a now trial. The indictment should have been under the fourth and fifth sections of ch. 216. But it is founded on the provisions of the first and second sections, and cannot be maintained.

Verdict set aside.

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