[Schee v. Hassinger.] received could be supported by so forced a presumption as is contended for in this case, it would be a complete surprise on the defendant. TILGHMAN C. J. delivered judgment. After the evidence in this cause had been closed, the defendant's counsel requested the Court of Common Pleas to give their opinion, that "under the facts and circumstances of the case, an action on the case would not lie." I take it that by asking the court's opinion in this manner, the defendant intended to give the plaintiff all the advantage of a demurrer to the evidence. He could not have meant to take the opinion of the court upon matters of fact; because it was not the office of the court to give such opinion; nor if they had given an erroneous opinion, could there have been any redress by writ of error. What we have to consider then, is whether there was any evidence from which the jury might draw an inference to support the action. Two points arise out of the evidence, 1st, Whether when goods are delivered to an agent to sell and remit the proceeds to his principal, the law raises a promise to account by implication, so that an action on the case will not lie for not rendering an account, although no express promise was made. 2d, Whether there was anything in the evidence, from which the jury might infer that money had come to the hands of the defendant from the sale of the plaintiff's goods. On the 1st point, the plaintiff's counsel cited the case of Wilkyns v. Wilkyns, reported by Carthew, Salkeld and Shower. As the reports do not exactly agree in what was said by the judges, I consider this case as no further an authority than on the point adjudged, which was, that an action on the case would lie against a bailiff on his express promise to account. No authority on either side has been cited directly in point, nor shall I give an opinion on this question. It is unnecessary, because I am satisfied that the judgment should be affirmed on the second point in this cause. It appears from the bill of exceptions, that sixty-four barrels of pork, the property of the plaintiff, were by him *delivered to the defendant and one French, (who was included in the original writ as one of the defendants, [*331 and as to whom the sheriff returned non est inventus) to be sold on account of the plaintiff. Thirty barrels of this pork were sold to the government at Cape François, the net proceeds whereof were 514 dollars 65 cents payable in coffee, as [Schee v. Hassinger.] appears by the account of sales; but it is not said when payable. The account sales is dated 1st January 1806, and in March 1806, the defendant shipped from the Cape to the plaintiff in Philadelphia, two hogsheads and eight barrels of sugar, amounting by the invoice to 300 dollars 63 cents. I will not say whether if I had been on the jury, I should have thought myself warranted in finding that money had come to the hands of the defendant, for the use of the plaintiff. But it is certain that the matter given in evidence was worthy of their consideration, as applied to the count for money had and received. Although the account of sales showed that the pork was sold for coffee, and not for money, yet the remittance of sugar proved that a payment had been made to the defendant, which had enabled him to procure the sugar. It might have been expected too that he should have shown at what time the coffee was payable, and why payment had not been made, and what had become of the rest of the pork. There was proof that some of it had been lost, but the rest was unaccounted for. These things, I say, were worthy of the jury's consideration; and if so, we cannot say what inference they might have drawn. In Longchamp v. Kenny, (Doug. 132) the plaintiff recovered on a count for money had and received, although there was no evidence that the defendant had received any money, but only that a masquerade ticket, the property of the plaintiff, had come to his hands, which he had not returned, nor given any account of. We have considered the principle of this case as law in Pennsylvania, and therefore there is no necessity of positive proof that money came to the hands of the defendant. Upon the whole, the record shows, that there was evidence applicable to one count of the declaration. Of this evidence the jury were judges. If they found against the weight of evidence, the defendant's remedy was by motion for a new trial. I see no error on the record, and am therefore of opinion that the judgment be affirmed. 302 Judgment affirmed. [Commonwealth v. Searle.] [Philadelphia, Wednesday, March 21, 1810.] *THE COMMONWEALTH against SEARLE. [*332 The publishing a forged note of hand, or any other writing of private nature, though not under seal, as a genuine note or writing, with intent to defraud, is indictable at common law. The publishing a counterfeit note of the Bank of North America, with intent to defraud, is indictable at common law, and is punishable by imprisonment at hard labor under the acts of 5th April 1790, and 4th April 1807. Where a statute creates or expressly prohibits an offence, and inflicts a punishment, the statute punishment cannot be inflicted unless the indictment concludes contra formam statuti. Otherwise, where the statute only inflicts a punishment on that which was an offence before. In an indictment for forging a bank note, it is not necessary to set forth the ornamental parts of the bill, as the devices, mottos, &c. The defendant was indicted at an(a) Oyer and Terminer holden by the judges of the Supreme Court after the December term, for forging, and for uttering and publishing as true, a counterfeit ten dollar note of the Bank of North America. The indictment contained two counts. The 1st was for forging, and procuring to be forged, the note in question. The 2d charged that "the said John Searle on the same day and year aforesaid at the county aforesaid, with force and arms, having in 'his custody and possession a certain other false forged and counterfeited paper writing, partly written and partly printed, purporting to be a true and genuine promissory note for the payment of money, called a bank note of the Bank of North America, and purporting to be signed by J. Nixon, president, and also by the cashier of the said bank, the tenor of which said last mentioned false forged and counterfeited paper writing, partly written and partly printed, purporting to be a true and genuine promissory note for the payment of money, called a bank note of the Bank of North America, is as follows, that is to say I promise to pay to D. Catwell or bearer (a) The importance of this case it is presumed will justify the reporter in inserting it in this place, although it is not in strictness a decision in the Supreme Court. 66 [Commonwealth v. Searle.] falsely illegally knowingly fraudulently and deceitfully did utter and publish as a true and genuine promissory note for the payment of money, called a bank note of the Bank of North America, the said last mentioned false forged and counterfeited paper writing, partly written and partly *333] *printed, purporting to be a true and genuine promissory note for the payment of money, called a bank note of the Bank of North America, he the said John Searle, at the time of uttering and publishing the same, then and there well knowing the same to be false forged and counterfeited, with intent to defraud Joseph Simmons, to the evil example of others in like case offending, and against the peace and dignity of the commonwealth of Pennsylvania." The defendant was found not guilty upon the first, and guilty upon the second count; and his counsel moved in arrest of judgment for the following reasons: 1. Because the uttering a note of the Bank of North America knowing the same to be counterfeit, is not indictable at common law, but is an offence created by act of assembly, and therefore the indictment should have concluded "against the form of the act of assembly." Or if it is an offence at common law, still, as it is punishable only by act of assembly, no punishment can be inflicted, because the indictment does not conclude against the form of the act, &c. 2. Because the note as described in the indictment differs from the note proved to be uttered, as the words "ten" and "cavendo tutus," (a) which were in the note proved to be ut tered, are not mentioned in the description of the note laid in the indictment. 3. Because the indictment states that the note purported to be signed by the cashier, without naming him, and the note produced is signed by H. Drinker j Cash. Phillips for the defendant. 1. Publishing a counterfeit note is no offence at common law. It was a long time questionable, whether even the forgery of a private unsealed instrument was indictable at common law except as a cheat; but although that point may have been settled, the uttering of such a forgery stands upon a different ground; the former being distinct from every other offence, and consisting in the fabrication of the instrument, the latter being merely an attempt at cheating, by a false token. The statute of 2 Geo. 2, ch. 25, was the first that punished the uttering of a forged (a) The words "cavendo tutus," were the motto to an ornamental de vice on the bill, in the centre of which was the word “ten.” [Commonwealth v. Searle.] *note as a felony; and it recited in the preamble that [*334 it was found necessary to remedy the defects in the existing law. So, the common law not being adequate to the mischief, the legislature by an act of the 18th March 1782, made the uttering forged notes of the Bank of North America a felony. This act was repealed on the 13th September 1785, when the incorporation of that bank was overthrown; and when by the law of 17th March 1787, 2 St. Laws 499, the corporation was revived, nothing was said as to the revival of the provision against forging and uttering forged notes of that bank, and of course it was at an end. The first act for the reform of the penal code, passed the 5th April 1790, 2 St. Laws 801, contains no punishment for this offence; but in the act of 22d April 1794, 3 St. Laws 600, it is declared that if any person shall be concerned in printing, signing, or passing a counterfeit note of this bank, he shall be punished by fine and imprisonment at hard labor. It is this act which creates the offence for which the defendant is indicted; and therefore the indictment is bad, as it does not conclude contra formam statuti. If an offence be newly enacted or made an offence of a higher nature, the indictment must conclude contra formam statuti. 2 Hale's H. P. C. 189. But if this is an offence at common law indictable in this form, no punishment can be inflicted; not the common law punishment, because where there is a punishment by act of assembly, the common law punishment is taken away by the act of 21st March 1806, 7 St. Laws 569; nor the punishment by act of assembly, because not concluding contra formam statuti, it stands as an indictment at common law, and can only receive the penalty that the common law inflicts. 2 Hale's H. P. C. 191. The precedents conclude against the form of the statute. 2 East Cr. Law 874. 2 and 3. The variance between the note laid and the note proved is fatal. The utmost strictness is required in setting out the tenor. The words "purporting to be a bank note, imply that the paper on its face has the appearance of a bank note; The King v. Jones, 1 Leach 243; and the instrument charged to be forged, must be set out. The King v. Lyon, 2 Leach, 681. The instrument here charged to be forged, omits certain words and devices contained in the [*335 genuine bill, so that it does not purport as is alleged, and it is not completely set out. A variance in the name, as King instead of Ring, defeats the indictment. The King v. Reading, 2 Leach 672. So an indictment for forging a note purporting to be signed by Christopher Olier, is not VOL. II.-20 305 |
