« ForrigeFortsett »
The Solicitor-General, Wood, and Abbot?, now shewed cause. "The word penalty here means merely pecuniary penalty, and cannot mean all penalties; for if the defendant commits an offence which is indictable at common law, it would be very improper to relieve him from all penalty, excepting the forfeiture of 1001. when he might have collected by fraud a sum of 5001."
Lord Ellen Borough, C. J. "The word penalty ia capable of a construction large enough to extend to all penalties. For, acts are sometimes passed making void all penalties in certain felonies; and, in those cases, it is held, that they remove the former penalty, though it extends to death. He is amenable to the criminal jurisdiction of the country: if he offends against any part of the statute, whether the penalty is general or pecuuiary."'
The Solicitor-general. "Penalty, incommon parlance, means more emphatically pecuniary penalty; and this statute means only that no popular action or other proceeding shall be instituted against him for more than the penalty of lOOh; but if he was liable to any other punishment he may be liable still at common law. This must be the intention of the legislature."
Lord Ellen Borough, C. J. " We are very often arguing from the intention of the legislature, when we ought only to consider the words which the person who drew the act used, without considering
employed in the execution of any such act or acts herein-mentioned, or of this act, shall be liable for or by reason of such execution to any penalty or penalties other than such a« by thi» act or the said act or acts are or may be inflicted." the extent of the words which he uses. These acts 1806. must of necessity be drawn by some one particular Tj^kino person, and are not the words of the legislature. We will put the best construction which we can upon the and Another, act; but yet we must put the sense which the words naturally bear, and no other."
The Solicitor-general. "The act must be construed as the deliberate act of the legislature itself. It could not mean to commit an absurdity, which would be most palpable, if this does not mean pecuniary penalty."
Lawrence, J. "Then, you must contend that they may proceed either way ; either for the penalty under the act, or for some other punishment at common law. The difficulty will then be, in my mind, what cases the law was meant to apply to'"
The Solicitor-general. "Perhaps,I am notquile driven to that; supposing you can only proceed for this pecuniary penalty, you may proceed against a man by indictment as atcommon haw; and then you may convict him on the indictment, and punish him by inflicting this penalty. It is true, the statute A3 Geo. III. ss. l>2 and G.S, directs how penalties shall be recovered,*
* 43 Geo. III. c. 99, ss. 62, 63; "One moiety of all pecuniary penalties and forfeitures imposed by this act, or any act or acts for granting duties to be assessed under the regulations of this act, may, if sued for within the splice of twelve calendar months from the time of such penalties being incurred in manner herein next mentioned, be to his majesty, his heirs and successors, and the other moiety thereof, with full costs of suit, to the person or persons who shall inform or sue for the same within the time aforesaid, except where any penalty is or shall be directed to be paid to the use of the the noor of any parish; and all such penalties may be sued for in his majesty's court of Exclieqver at IVtttminsUr, for offences committed in England or Bcrukk.upon-'l\ic.d, or in
KO. XXX. N. S. Ff
but the words are " such penalties may he sued for in kit
the courts of great sessions in Wales, for offences committed
formation;" yet notwithstanding this the offence being 1W6'
fin offence at common law, the proceeding may be The Kn»a
by indictment.* And although it be a new offence «•»«»*
and the statute give a recovery by action of debt, bill, »nd Anothrt plaint, or information or otherwise, it authorizes a proceeding by way of indictment."
Lawrence, J. "In that case jou must conclude contra J'ormam statuti."
The Solicitor-general. " I submit not; because it is an offence independently of the statute."
Law Rence, J. "But you proceed for the penalty under the statute, and your proceeding is to let in the penalty; it must, therefore, be contraJdrmam statuti,"
The SouctToit-G&NEHAL. "By the statute 11 Geo. I. c. 30, s. 2, if" any person obstruct officers of excise in the execution of a justice's warrant to search for spirits, he shall forfeit 1001. ; and reasoning upon principle, if I proceed against him by declaration, 1 must declare of a plea that he render 1001. and must conclude coutra forniam statuti ; but, if by indictment, the proceeding is not for the penalty, but upon the offence, for the punishment of it; and the court will .award the fine of lOOl."
Lord Elleneorough, C.J. Penalty' means everything whernby an act may be punished, particularly where the statute uses in other clauses the words pecuniary penaltt/, by way of distinction, and'all penalties' must mean something more than pecuniary penalty."
The Solicitor-genhiiai.. " In every part of this act the word penalty is used in the sense of pecuniary
1806. penalty only, and w here there is any other punishment /The King l'le word penalty is not used.
Duesov As to the second point, these persons were not ac
anil Anoltier. . ,, e . rlS.
tually collectors of the rate. There was no assessment signed by the commissioners. The book never had been signed as the statute requires, and they could not be convicted oil the counts charging them as collectors. The}' were charged as collectors in other counts and acquitted."
Lord Ellrnborough,c. J. "As to that point, thej are not convicted as collectors, but because they took the money under the pretence of being collectors."
Heywooo, Serj. after stating the clauses of the statute, and that in Hussey and Wife v. Moore* junong penalties are mentioned peena pecuniaria, puna corporalis, puna exilii, was stopped by the court.
Lord Eli.exborough, C. J. "Upon considering this case, it appears to us that the conviction cannot be sustained. It is clear that' under pretence' must import that the party was conscious that the pretence was untrue; now here it does not appear 'but that he thought himself a-c ollector. If he has the burthens he must have the privileges of the office. If so, he could not be guilty upon these counts. He was a collector for tl^e purposes of the act; they considered bim so, and he considered himself so; the proper finding would have been on the first, counts, stating him to be a collector."
i Grose J. and Lawrence, J. of the same opinion.
Le Blanc. " It is impossible to sustain this verdict. It is taken on two counts on which the evidence is not before the court; but the 19th section of the statute