delivered the opinion of the court.
The defendant has been indicted and found guilty, of uttering and publishing as true and genuine, a forged note of the Bank of North America, knowing the same to be forged, with intent to defraud Joseph Simmons. A motion has been made in arrest of judgment, because the indictment does not conclude “ against the form of the act of assembly &c„” His counsel contend, that the offence charged in the indictment, is not indictable at common law; and that even if it was, no judgment inflicting the common law punishment can be given, because by the act of 21st March 1806, in cases where punishment is prescribed by act of assembly, no punishment shall be inflicted agreeably to the provisions of the common law. It is said, that for the offence charged in the indictment, there is a punishment provided by act of assembly; yet that punishment cannot be inflicted, because the' indictment makes no mention of the act of ..ssembly. Hence it is.inferred that no judgment can be given on the indictment. It will be necessary therefore to consider, 1st, Whether the offence is indictable at comm'on law. 2d, Whether it is punishable by any act of assembly. And 3d, Whether judgment for the punishment prescribed by act of assembly, can be rendered on this indictment.
1. It seems to have been the opinion of the old writers on criminal law, that forgery at common law could not be committed with respect to any writing of a private nature, unless the same was under seal. But this point was fully investigated, and decided to the contrary, in the case of The King v. Ward (2 Ld. Ray. 1461: 13 Geo. 1.); since which the law has been considered as settled. In that case, the indictment contained two counts; the 1st, for forging an unsealed writing, with intent to defraud the Duke of Buckingham, and the 2d, for publishing the same writing with the same intént. The court did not decide on the second count,because there was no occasion; but I can see-no reason, why the publication should not be indictable, as well as the forgery: every *338mischief that might be produced by one, might also be pro-duced by the other. One point decided by the court \vas, that it was immaterial whether the Duke of Buckingham was .actually injured by the forgery or not. In giving their opinion they say, it may be inferred from the statute 5 Eliz. chap. 14. that the forgery of writings without seal, was an offence at common law, because the preamble of the statute recites, that the wicked practice of making,forging, and publishing, deeds, writings, &c. hath increased, chiefly because the punishments limited by the laws and statutes were too mild. Now this argument has as much weight to prove that the publication was punishable, as that the forgery itself was, because both are mentioned. But what I chiefly rely on is, that the publication is in its nature as dangerous to society as the forgery, and therefore there is no good reason, why the common law should punish one, and not the other. There have been so many statutes in England inflicting severe punishments on forgery, and the uttering and publishing of forged writings, within the last century, that we are not to expect many precedents of indictments at common law in that country. But no authority, or even dictum has been produced, to shew tjiat publication was not an offence. We may safely conclude therefore, from the reason of the thing, that it is.
2, We have no act of assembly expressly prohibiting the forging, or uttering of forged notes of the Bank of North America, But the act of 22d April 17"94, sect. 5, enacts, that every person who shall be convicted of having falsely Uttered,paid, or tendered in payment, any counterfeit or forged gold or silver coin, knowing the same to be forged or counterfeit, or shall be concerned in' printing, forging, or passing any counterfeit notes of the Banks of Pennsylvania, North America, or the United States, knowing them to be such, or altering any genuine notes of any of the said banks, shall be sentenced to a confinement in the gaol and penitentiary house, for any term not Jess than four, nor more than fifteen years §cc; The offence laid in the indictment does not come within this act, for the plaintiff- is not charged with passing, but only uttering and publishing, which is a different thing. The different expressions in this act, with respect to gold and silver coin, and bank notes, shew that the legislature *339Intended a difference; and there is really a difference in the nature of the things. To utter and publish is to declare or assert directly or indirectly, by words or actions, that a note is good. To offer it in payment would be an uttering or pub-Fishing; but it is not passed, until it is received by the person to whom it is offered. It is unnecessary to decide whether it would be passed, if the person to whom it is offered, receives it for the purpose of having it examined. The indictment only charges the uttering and publishing it as true and genuine. But there is another act of assembly, passed the 5th of April 1790, which provides for the offence set forth in this indictment. By the 4th section of that act, persons convicted of any offence not capital, for which by the laws in force before the 15lh September 1786, burning in the hand, cutting off the ears, nailing the ears to the pillory, seting in the pillory, whipping, or imprisonment for life was inflicted, shall instead of such punishment, be fined and sentenced to undergo a confinement at hard labour &c. for any term not exceeding two years at the discretion of the court. And by the act of the 4th of April 1807, this time is increased to any term not exceeding seven years at the discretion of the court. There is no doubt but this offence might have been punished by setting in the pillory. It is therefore within the act.
S. It remains to be considered, whether under this indictment we can give judgment for the punishment prescribed by the act of assembly. I take the law to be, that where a statute creates or expressly prohibits an offence, and inflicts a punishment, the indictment must conclude against the form of the statute. But where a statute only inflicts a punishment on that which was an 'offence before, there is no necessity of mentioning the statute. When an indictment charges a person with having done a thing against the form of the statute &c., the obvious meaning is that the offence was committed against the form of the statute, without any reference to the punishment. This seems to be Lord Hale's idea,, who says, “ if an offence be at common lazo and also ‘•‘■prohibited by statute, with a corporal or other penalty, yet “ it seems, the party may be indicted at common law; “ and then though it concludes not 'contra formam statute it “ stands as an indictment at common law, and can receive *340“ only the penalty hat the common law inflicts in that case.” 2 Hale 191. The expressions of Hawkins are more general, and less accurate. He says, “ it seems to be taken as a com* “ mon ground, that a judgment by statute shall never be “ given on an indictment at common law, as every indict- “ ment which doth not conclude contra formam statuti shall “ be taken to be.” I presume his meaning was the same as Hale's; but if his opinion was, that judgment for the punishment prescribed by statute, could in no case be given on an indictment not concluding contra formam statuti, he was mistaken, as may be proved by the highest authority. By the statute 25 Geo. 2. c. 37, the judgment in murder is altered; the day of the execution is mentioned, and the body of the criminal is ordered to be dissected and anatomized; yet the indictments since that statute do not conclude contra formam statuti. This may be seen in the precedent of an indictment and judgment for murder in the appendix to 4th Blackstone’s Commentaries; also in the trial of the Earl of Ferrars convicted and executed for murder, State Trials in the year 1760; and in many other cases. It may be proper to mention an instance establishing the same principle in England, though not an authority here, because it is since our revolution. By stat. 30 Geo. 3. ch. 48, the judgments against women convicted of treason or petty treason are altered; yet the indictments continue to be drawn at common law. I do not know that the point has ever before been brought before the courts of this state for decision; but the precedents as far as they have been searched, are to be found in both ways. I make no doubt but in a vast many cases, judgments under acts of assembly have been given on indictments at common law.
Upon the fullest deliberation, the court are satisfied, that the judgment ought not to be arrested.
Motion overruled.
The defendant was afterwards sentenced to three years* imprisonment at hard labour.