private, and the only question was, whether the act was public or private. The court held, as the bank was established for public purposes, as an important aid in conducting the fiscal concerns of the nation, the United States owned a large portion of its funds, and its bills were receivable in payment of revenues; that although if the statute was of a private nature, or if it concerned a particular trade, yet if a forfeiture thereby be given to the king or government, it was a public statute. That the twelfth and thirteenth sections of the act provided penalties of different amounts for violations of certain parts of the act, and a moiety or less portion was given to the United States, and sections eighteen and nineteen provided punishments to be inflicted on those convicted of counterfeiting, that such provisions were only generally to be found in the public and general statutes; that for these reasons the act was a public act. Upon the same principle it has been held in Massachusetts, that the statute of 1829, c. 2, to regulate the pilotage in the harbor of Boston, is a public act. Shaw, Ch. J., says: "The last objection is, that the statate is a private act and ought to have been recited in the declaration. Without going minutely into this subject, which sometimes involves distinctions of much nicety and difficulty, there is one consideration which renders it decisive that this is a public act, which is, that the first section in terms imposes a penalty upon every person who shall violate its provisions. It is therefore binding upon every citizen of the commonwealth, and upon every stranger who, coming within its jurisdiction, owes a temporary allegiance and is bound by its laws."(a)

§ 806. Where the preamble of a statute recited divers mischiefs to the public which arose from want of proper

(a) Heridia v. Ayres, 12 Pick. 344.

regulations concerning the poor, and it was enacted, for the redress of the mischiefs intended to be remedied, a work-house should be erected in Middlesex, this statute was holden to be a public statute, because it concerned the king's person and the public peace; that a stop should be put to such mischiefs: and the clause for erecting a work-house was holden to be public, because it referred to the mischiefs mentioned in the preamble; a remedy was thereby provided for such mischiefs in the county of Middlesex. (a)

§ 807. In Jones v. Axen,(b) in an action of debt on a bond, the defendant plead the statute 22 and 23 Car. 2, c. 20, for discharge of poor prisoners. On demurrer it was objected, that the statute should have been pleaded, as it did not extend to all poor prisoners, but to such only as were in prison at the time mentioned; but it was held a public statute, because all the people of England might be interested as creditors of the prisoners; and it was a charitable act, and ought to receive a favorable construction-and was long and difficult to be pleaded, and poor prisoners could not bear the expense of pleading it specially.

§ 808. The reason why statutes which concern the king are deemed public acts, is, as we have seen, that every subject has an interest in the king or governmental head, who is regarded, and in fact is, the head of the body politic, and consequently every one belonging to that government ought to be sensible of that which affects the crown, just as much as a member of the natural body is of what the head at any time feels or suffers. The same rule, for the same reason, applies with equal force to the government of the United States or to the government of the respective states, and has been adopt

(a) Sid. 209; Rex v. Paulding, Bacon Ab. Stat. F. (b) 1 Ld. Raymond, 120.

ed and thus applied in this country. A turnpike act incorporating a company, with a clause vesting the road, on a certain event, in the people, is a public act.(a) In the case last cited, Lansing, Chancellor, says: "Amongst the English legal maxims, we find that every statute that concerns the king, and every statute that relates to all the subjects of the realm, are public statutes. All highways, as contradistinguished from private ways, are common to all the people of the state, and concern them generally. A new creation of a highway, or a new modification of an ancient way, as in the case of a turnpike, does not affect the mode of using it generally. It is still a highway, in the preservation of which all citizens are interested. It contributes essentially to their convenience. The toll is merely exactable for its construction, maintenance and repair. In all other respects, the right of using it as a highway is unimpaired. The people of the state, who, in their collective capacity, have succeeded to the right of sovereignty, are also entitled to the reservation after the sums charged on the turnpike are satisfied. These considerations rather incline us to think that this statute ought to be considered as a public act."

§ 809. In one case(b) it was urged, that there was no public law establishing an office of the Bank of Utica at Canandaigua, and that the act of 10th April, 1815, authorizing the bank to establish an office at Canandaigua, was a private act. The chancellor said: "The act incorporating the Bank of Utica is declared to be a public act, and the action is against this bank. But I am not prepared to admit that a law incorporating a bank, without declaring the law to be a public law, is a private act, which must be recited in every suit against a corpo

(a) Jenkins v. Union Turnpike Co. 1 Caines' Cas. 86. (b) The Bank of Utica v. Smeeds, 3 Cow. R. 684.

ration. These institutions are public in their nature and character, and their operations affect the whole community." Neither the chancellor or the court did, however, in this case, decide upon the point that this was a public act. It is, however, now provided by statute 2 R. S. 374, sec. 3, in all suits brought by a corporation created by or under any statute of this state, it shall not be necessary to prove, on the trial of the cause, the existence of such corporation, unless the defendant shall have pleaded in abatement or in bar, that the plaintiffs are not a corporation. And it is also provided, in actions by or against any corporation created by or under any law of this state, it shall not be necessary to recite the act or acts of incorporation, or the proceeding by which such corporation was created, or to set forth the substance; but the same may be pleaded by the reciting the title of such act and the date of its passage.(a) In Missouri it has been held, that the act of the legislature incorporating the Bank of Missouri is a public act, and that, although not signed by the president of the legislative council.(b) In Massachusetts, acts creating public corporations, whether sole or aggregate, are public statutes of which the courts are judicially informed.(c) The act of Virginia incorporating the Bank of Alexandria was held to be a public law. (d)

§ 810. If a private act be recognized as existing by a public statute, in unequivocal language, it thereby makes such private act a public one.(e) Thus in Rogers' case, the defendant had been convicted of uttering, as true,

(a) 2 R. S. 375, sec. 13.

(b) Douglass v. Bank of Missouri, 1 Mis. R. 24.

(c) Portsmouth Livery Co. v. Watson, 10 Mass. 91, 92.

(d) Young v. Bank of Alexandria, 4 Cranch R. 384.

(e) Rogers' case, 2 Greenl. R. 301; Samuel v. Evans, 2 D. & E. 569; Buller's N. P. 224; 7 Bacon Abr. Stat. F. note.

certain false and counterfeit bills of the Kennebeck

Bank. A new trial was moved, on the ground that the judge allowed to be read in evidence the printed statute incorporating the bank, which, it was contended, was a private act. The court admitted the act was a private one, but said, "It was a principle of law, that if a public statute, in its language, recognizes the existence of a private statute, it thereby made such private act a public one, which courts of justice may afterwards regard as such. The statute of 1821, ch. 143, had in it, certain provisions relative to any incorporated bank within the state, imposing a penalty for not paying bills on demand, and chap. 144 imposed further duties on the several banks of this state, that, according to the principles of law before stated, the courts were bound to take notice that there were banks established and incorporated in the state, all of which, being recognized by the statutes quoted, must be considered acts by a legislature authorized to enact them,-which acts, by such recognition, had become public statutes. That it was well known and admitted, that courts of law and all persons were bound to take notice of public statutes, whether published or not. That by looking at the constitution, they learned that all laws enacted by the legislature of Massachusetts, and in force on 15th March, 1820, should remain, and be in force in this state, until altered or repealed by the legislature of Maine. That the repealing act of 1821 did not repeal any act of Massachusetts incorporating this bank, and hence the printed copy of the act was competent evidence."

§ 811. In Samuel v. Evans, the action was debt upon a bail bond. The defence set up was, that the bond was void under the statute 23 Hen. 6, c. 9, because it appeared to be taken after the return of the writ as stated in the condition; and the question was, whether that act was a private one, so that it should have been plead