#### STATE vs. BANK OF FAYETTEVILLE.

The Ctli sec. ch. 36, of the Revised Code, making it a misdemeanor to “ pass and receive” bank notes under the denomination of three dollars, does not apply to the bank.

The punishment intended against a bank, is a penalty of fifty dollars for making and issuing notes of less denomination than three dollars, under 3rd section of the Act.

This was an indictment, tried before his Honor, Judge Caldwell, at the Spring Term, 1856,. of Cumberland Superior Court.

The first count on the bill, charged that the Bank “ unlawfully did issue a certain note for the payment of money for a less sum than three dollars, to wit, of one dollar.”

The second count is to the same effect, with a change in the phraseology.

The third count charges that the bank “ did pass as the representative of, and as the substitute for, money, a bank bill of a sum less than three dollars, to wit, of the sum of one dollar.” These several counts concluded against the form of the statute, &c.

It was agreed that the Bank of Fayetteville, on 10th day of February, 1856, in the county of Cumberland, did issue a note for a sum less than three dollars in manner and form as charged in the bill of indictment; upon which case agreed the solicitor for the State moved for judgment, but it was insisted that no judgment could be pronounced, upon the ground, *451that the facts did not amount to an indictable offense. But his Honor being of opinion with the State, rendered judgment accordingly, from which the defendant appealed.

Attorney General, for State.

Badger and Shepherd, for defendant.

Pearson, J.

The 6th section, ch. 36, of Bev. Code, title “ currency” making it a misdemeanor to “ pass or receive” bank notes under the denomination of three dollars, does not apply to the bank; the punishment intended for it is imposed by the 3rd section, to wit: a penalty of fifty dollars for making and issuing such notes. There is nothing by which an indictment for a misdemeanor is superadded. Indeed the bank is bound by its eonhracts, to receive and redeem its notes, and the Legislature had no power to forbid it.

Whether the Legislature had power, besides imposing a penalty, to denounce the “ pain” of being deemed to have violated its charter for making and issuing such notes, may be questioned. Conditions by which an estate is defeated, must be made at the time of its creation. This principle would seem to be applicable to the grant of a franchise ; but we express no opinion in regard to it.

Per Curiam.

Judgment reversed, and judgment for defendant.