1806.

The KING

versus DOBSON

The SOLICITOR GENERAL, WOOD, and ABBOTT, now shewed cause. "The word penalty here means merely pecuniary penalty, and cannot mean all penaland Another. ties; 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 is 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 pecuniary."

The SOLICITOR-GENERAL. "Penalty, in common 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 1001.; 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 ELLENBOROUGH, 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 as by this act or the said act or acts are or may be inflicted."

1806.

versus

DOBSON

the extent of the words which he uses. These acts must of necessity be drawn by some one particular The KING 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 con-. strued 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 not quite driven to that; supposing you can only proceed for this pecuniary penalty, you may proceed against a man by indictment as at common law; and then you may convict him on the indictment, and punish him by inflicting this penalty. It is true, the statute 43 Geo. III. ss. 62 and 65, 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 space 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 poor of any parish; and all such penalties may be sued for in his majesty's court of Exchequer at Westminster, for of-fences committed in England or Berwick-upon-Tweed, or in

1806.

versus

DOBSON

and Another.

but the words are " such penalties may be sued for in his majesty's courts of record, &c. by action of debt or in

the courts of great sessions in Wales, for offences committed in Wales, by action of debt or information, wherein no essoign, wager of law, nor more than one imparlance, shall be allowed; but nevertheless, it shall be lawful for his majesty's Attorney-General, in case it shall appear to his satisfaction, that any penalty or forfeiture was incurred without intention of fraud, to stay all further proceedings in such suits or prosecutions, by entering a noli prosequi, or otherwise with respect as well as to the share of such penalty or forfeiture claimed by such informer or informers, as to the share thereof be longing to his majesty; provided always and be it further enacted, that any such penalty or forfeiture shall be recoverable in the name of his majesty's Attorney-General on the part of his majesty by information in the court of Exchequer at Westminster, and in default of prosecution within the time herein-before limited, no such penalty or forfei ture shall be afterwards recoverable in any other manner; in all which cases (except where the same is directed to be paid to the use of the poor of any parish or place) the whole of such penalty or forfeiture shall belong to his ma jesty, his heirs and successors, and that all penalties and forfeitures, and shares of penalties and forfeitures, incurred as aforesaid, belonging to his majesty, his heirs and successors, shall be paid into the hands of the proper Receiver-General or his deputy, to the use of his majesty; and that in all cases where the whole of such pecuniary penalty or forfei-ture shall be recovered for the use of his majesty, his heirs or successors, it shall be lawful for the commissioners for the affairs of taxes to cause such reward as they shall think fit, not exceeding one moiety of such penalty or forfeiture so recovered, after deducting all charges and expences incurred in recovering the same, to be paid thereout, to or amongst any person or persons who shall appear to them entitled thereto, as informer or informers, in respect of such penalties, for forfeitures so recovered, any thing herein contained to contrary notwithstanding."

formation;" yet notwithstanding this the offence being

1806.

an offence at common law, the proceeding may be The Kro by indictment. And although it be a new offence

versus DOBSON

and the statute give a recovery by action of debt, bill, and Another. plaint, or information or otherwise, it authorizes a proceeding by way of indictment."

LAWRENCE, J. "In that case you must conclude contra formam statuti.”

The SOLICITOR-GENERAL. "I submit not; because it is an offence independently of the statute."

LAWRENCE, J. "But you proceed for the penalty under the statute, and your proceeding is to let in the penalty; it must, therefore, be contra formam statuti,”

The SOLICITOR-GENERAL. 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, I must declare of a plea that he render 1001. and must conclude contra formam 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 1001."

Lord ELLENBOROUGH, C. J. Penalty' means every thing whereby an act may be punished, particularly where the statute uses in other clauses the words pecuniary penalty, by way of distinction, and all penalties' must mean something more than pecuniary penalty."

The SOLICITOR-GENERAL. " In every part of this act the word penalty is used in the sense of pecuniary

*Hawkins, P. C. b. 2, c. 25, s. 4.

1806.

The KING

versus

DOBSON

and Another.

penalty only, and where there is any other punishment the word penalty is not used.

As to the second point, these persons were not actually 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 on the counts charging them as collectors. They were charged as collectors in other counts and acquitted."

Lord ELLENBOROUGH,C. J. "As to that point, they are not convicted as collectors, but because they took the money under the pretence of being collectors."

HEYWOOD, Serj. after stating the clauses of the statute, and that in Hussey and Wife v. Moore,* among penalties are mentioned pæna pecuniaria, pœna corporalis, pana exilii, was stopped by the court.

Lord ELLENBOROUGH, 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 collector. 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 the purposes of the act; they considered him so, and he considered himself so; the proper finding would have been on the first counts, stating him to be a collector."

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

Cro. Jac. 113.