The opinion of the court was delivered by
Bennett, J.The county court, upon a demurrer to this- indictment, held it sufficient; and the case comes before this court upon exceptions to such decision.
The demurrant insists, that the indictment is bad for sundry reasons. It is said, that there is no allegation in it of the existence of thebank. If this was so, the objection would have been well taken. The allegation is, that the respondent did pass, &c., one *155certain false, forged and counterfeit banlc note, which said note was made in imitation of, and did purport to be, a banlc note, issued by the President, Directors & Co. of the Bank of Cumberland by and under the authority of the Legislature of the State of Maine, one of the United States of America. The statute of 1818, Slade’s Ed. 261, provides, that, if any person shall counterfeit, &c., any bill, or- note, issued by the President, Directors &' Co. of the Bank of the United States, or by the Directors of any other bank, by or under the legislature of any of the United States of America, he shall, on conviction, be confined, &c. In the Revised Statutes, p. 434, the form of the expression is somewhat changed, and prohibits the counterfeiting any banlc bill or promissory note, issued by any banking company, incorpor ated by the Congress of the United States, or by the legislature of any State or Territory of the United States. No doubt, under the Revised Statutes, the Bank must be an incorporated institution, and it must, in substance, be so alleged in the indictment. So I conceive, that, under the statute of 1818, the bill must have been counterfeited upon an incorporated institution, and that the Revised Statutes were not designed to introduce any new rule. The expressions, a Banlc note, or bill, issued by and under the authority of the Legislature of one of the United States of America, imply, by necessary implication, that it was issued by an incorporated institution, and consequently such an averment in an indictment must be held sufficient. This indictment is conformable to the precedent furnished by Judge Aikens, in his book of forms, as applicable to the statute of 1818, and which, I believe, was introduced into general use. If the Revised Statutes introduced, in this particular, no new rule of law, ■then an indictment under the old statute would be good under the Revised Statutes.
It is said, that, as the indictment charges the offence to consist in uttering and giving in payment a certain counterfeit banlc note, and as the statute creating the offence makes it to consist in uttering and giving in payment any counterfeit banlc bill or promissory note, the offence in the statute is not well described in the indictment. The words of the statute, in the description of the subject matter of the -offence, must be substantially followed, it is true, and the of-*156fence be brought within all the material words of it. We think that the words bank bill or promissory note, as used in the statute, are synonymous. The words used in the indictment, bank note, are also synonymous with banVbill. Bank pote, bank bill, and promissory note, issued by the directors of a bank incorporated by and under the legislature of this state, mean the same thing. The expression, bank bill or promissory note, in the statute, is an evident tautology; and had the term, or bank note, been also added, it would, none the less, have been a tautology. See Brown v. Commonwealth, in error, 8 Mass. 59, and also Commonwealth v. Carey, 2 Pick. 47.
It is farther objected to this indictment, that it is not alleged that the bill was passed as a true bill. In an indictment upon a penal statute the prosecutor must set forth every fact, that is necessary to bring the case within the statute. The indictment in this case has four counts; the 1st and 3rd are for uttering, passing and giving in payment. The 2nd and 4th are for having in possession counterfeit bills with an intention to utter, pass and give in payment. The statute of 15 Geo. II provided, that, if a person should utter, or tender in payment, any false or counterfeit money, knowing the same to be false or counterfeit, he should, on conviction, be subject to certain penalties. In the case of The King v Franks, 2 Leach Cr. L. 644, the indictment charged the respondent simply with uttering a piece of false and counterfeit money ; and it was held that the offence was complete, even though it was uttered as base coin. In that case the indictment did not state the uttering to have been in payment, as and for a piece of good money ; and if it had, the evidence in the case would have rebutted the charge. It was considered, in that case, that, as the statute was in the disjunctive, the uttering and tendering in payment constituted two independent and distinct acts. So I think our statute, providing against uttering, passing, or giving in payment any false and counterfeit bill, makes the acts distinct and independent, and that either the uttering, passing, or giving in payment, would constitute an offence against the statute, provided the respondent had a knowledge that the money was counterfeit.
Whether, if this had been an indictment simply upon the last *157clause, that is, for giving in payment a false and counterfeit bank bill, it would have been necessary to have alleged that it was given in payment, as and for a true bill, it is not now necessary to decide. In the case State v. Randall, 2 Aik. 89, we have the form of an indictment like the present, under the statute of 1818; and it was held sufficient. Neither in that statute, nor in the Revised Statutes, is it made a part of the description of the offence, that the counterfeit bill shall have been uttered, passed, or given in payment, as and for a true bill; and it is unnecessary for us to decide what would have been necessary, if this had been a part of the description of the offence. The offence of disposing and putting away forged bank note was held to be complete, though the per-: son, to whom they were disposed of, was an agent for the bank to detect utterers, and applied to the prisoner to purchase forged bank notes, and had them delivered to him as forged notes, for the purpose of disposing of them. Russ. & Ry. C. C. 154.
It is said, also, that the indictment is bad, because there is a re-pugnancy between the purport and tenor of the bill, as alleged in the indictment. We think there is no ground for this objection. The indictment set forth the counterfeit bills in their words and' figures, as it was proper it should do; and the allegation, that the bill, charged to be forged in each count, was made in imitation 'of, and did purport to be, a bank note, issued by the Bank of Cumberland, is nothing more than an allegation that the bill was a fiction, and it is no attempt to set forth the forged bill according to its purport. It may be true, that, where the pleader first sets out the bill according to what he claims to be the legal purport, and afterwards sets it out according to its tenor, and there is a repugnancy, it may be fatal; but that principle does not apply to this indictment.
The result to which the court have come is that the indictment is sufficient.
After the decision of the court was pronounced, the prisoner was permitted to plead over, — the court considering it a matter in their discretion to allow it, or not; and the case was remanded to the county court to be tried upon a plea of not guilty.