#### The People *vs.*Peabody.

To constitute the offence of *forgery,*in counterfeiting the notes of a bank, it is not necessary that such bank as the notes purport to have been issued by, should have a legal existence; it is enough that the notes *purport*to have been issued by a corporation or company duly authorized to issue notes.

Where, however, the *intent*is charged to have been *to defraud the lank purporting to have*issued_ *the notes,*the bank must be shewn to be a real body, capable of being defrauded. In the case of an association under the *general hanking law,*it is enough for that purpose to prove the articles of association.

The prisoner was convicted of *forgery,*at the Tomkins oyer and terminer, in September, 1840, before the Hon. Robert Mosell, one of the circuit judges, and his associates. The *fourth count*of the indictment charged, that Peabody, on, *&c., at, &c., *feloniously had in his*[ *478 ] *possession*a large number, to wit, twenty of forged altered and counterfeit negotiable notes for the payment of money, commonly called bank notes, *issued, or purporting to have been issued*by *a company duly authorized for that purpose,*to wit: The Bank of Warsaw; which said forged, altered and counterfeit notes are in the words, figures and letters foL lowing: that is to say, (particularly describing a note purporting to have been issued by th'e bank of Warsaw;) he, the said De Witt C. Peabody, then and there, knowing the same to be forged, altered and counterfeited, with intention to utter the same as false, or to cause the same to be uttered, *with intent to injure and defraud the said bank of Warsaw,*George Howell, Walter Durkee and others. The district attorney produced an exemplified copy of *articles of association*of the *Bank of Warsaw,*bearing date 28th December, 1838, and filed in the secretary’s office, entered into in pursuance of the *act to authorize thebusiness of banking,*passed April 18, 1838, and proved that a large quantity of bills similar to that set forth in the indictment were found in the possession of the prisoner. The *Bank of Warsaw*had never- commenced operations, or issued bills. The counsel for the prisoner requested the court to charge the jury that the prisoner could not be convicted, because, 1st. It had appeared, from the evidence, that there was no such institution as the Bank of Warsaw; and 2nd. That if there was *362such an institution, it was not an *incorporated*bank, or institution. The circuit judge charged the jury, that it was *immaterial*whether there was or was not such a bank in existence as the *Bank of Warsaiv ;*and that the offence for which the prisoner stood indicted came within the provisions of the Revised Statutes. The counsel for the prisoner excepted to the charge. The jury found the defendant guilty in the second degree ; whereupon the sentence of the court was suspended, and the indictment and bill of exceptions were removed into this court by *certiorari.*

*C. Humphrey,*for the prisoner.

*Willis Hall,*Attorney-Greneral, for the people.

[ *474 J **By the Court,*

Nelson, C. J.

There'can be no doubt but that the prisoner has been properly convicted under the fourth count of the indictment.

The principle of the case of *The People*v. *Davis,*21 *Wendell,*309, * settles that it was not material to show that in point of fact the *Bank of Warsaw*had a legal existence ; it is enough, if the forged instrument *purported*to have been issued by a *corporation*or *company*duly authorized for that purpose, &c.

Now, were we to admit that the banks, under the general banking law, by one of which the forged notes in question *purported*to have been issued, are not *corporations ;*at least, they are *companies*au thorized by law to issue notes. But we do not doubt they are to be regarded as corporations at common law, and under the Revised Statutes, 1 *R. S.*602.

Then as to the intent to defraud. The offence is laid to be to defraud the Rank of Warsaw, by which the notes purported to have been issued. For this purpose I concede the bank must be shewn to be- a real body capable of being defrauded. 2 *Russell, on Cr.*353 *and*367. This was shewn by the articles of association creating the institution, under the general bank law. It was not important to prove that the bank had commenced business ; it is enough that it was in a condition in which it might be prejudiced by this act of the prisoner. The proceedings must be remitted to the oyer and terminer of Tompkins, with directions to proceed and render judgment.

Ordered accordingly.