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1806.

CARR versus JONES.

to amend). “If parties choose to take upon themselves to publish the proceedings of courts of justice, and either do not justify, or do not justify in the best manner which they can, the court will not help them.”

JUDGMENT for the PLAINTIFF.

Pleading.

Stot

Ann, c 14. 2 Geo. III. c. 19.

Lord ClaNRICARD against Stokes.-June 13th. Declaration in debt that the defendant kept å snare for killing 3. hares, contra formam statuti, whereby and by force of the

statute, an action hath accrued to demand 5l., held good, in arrest of judgment; the offence being created by one statute, and the action for the whole penalty to the informer being given by several subsequent statutes incorporated in the statute 2 Geo. III. c. 19. The first clause refers to

the first statute, the second to the last. Qu. Whether vigore statuti may be omitted in such a declaration.

CLAN RICARD

versus STOKES,

HE plaintiff declared, in debt, for a penalty upon a

statute, that the defendant did keep a snare for the destruction of the game, the said snare being then and there an engine to kill and destroy the game, contrary to the form of the statute in that case made and provided, the said defendant not being in any wise qualified or having any lawful authority so to do; by reason whereof, and by force of the statute, in such case made and provided, an action hath accrued to the said plaintiff to demand and have of defendant 51. &c." The defendant being found guilty, it was moved in arrest of judgment, that it should have been contrary to the form of the statutes, in the plural number, and whereby and by force of the statutes ; for that the of: fence is created by one or more statutes, and the remedy to the informer is given by another, if not by two; viz. the offencee is created by statute 5 Ann, £. 14, s. 4, that statute is constructed by a subsequent

LANRICAR

versus

stalule, and gives half the penalty, to be recovered 1806. by summary proceeding, to the informer; by statute cu 8 Geo. I. c. 19, an action is given to the common

within Limited STOK E8. informer to recover half the penalty within a limited time, and lastly the statute 2 Geo. III. c. 19, s. 5, gives the whole penalty to the informer; so that there are two statutes by which the offence is created and two which enable the party to bring his action.*

* 5 Ann, c 14, s. 4, if any person not qualified by the laws of this realm shall keep or use any greyhounds, setting dogs, bayes, durokes, tunnels, - — , or any other engines to kill and destroy the game, and shall be thereof convicted upon the oath of one or two credible witnesses, by the justice or justices of the peace where such offence is committed, the person or persons so convicted shall forfeit the sum of 51. one half to be paid to the informer, and the other half to the poor of the parish. This act shall remain in force for the space of three years, from '1st of May, 1707, to the end of the next session of parliament. The 9 Ann. c. 25, made the. 5 Ann, c. 14, perpetual,subject nevertheless to the additions or alterations after-mentioned, viz. whereas by the former act a lord of a manor might appoint more than one gamekeeper for one manor : it is enacted he shall appoint only one for one manor. 8 Geo. I. c. 19, entitled an act for the better recovery of penalties inflicted upon persons who destroy game. For rendering more effectual the laws' now in being for the better preservation of the game, be it enacted, that, wherever any person shall for any offence to be hereafter committed against any law now in being for the better preservation of game be liable or subject to pay any pecuniary 'penalty or sum of money upon conviction before a justice of the peace, It shall be lawful for any other person whomsoerer, either to proceed to recover the said penalty, by information and conviction before a justice of the peace, or to sue for the same by action of debt. Sect. 2. The action is to be brought before the end of the next term after the said offence. 26 Geo. II. c. 2, recites the last act, and enacts that all ae

3

1806.

CLANRICARD

versus

" BURROUGII and GASELEE shewed cause. « The ARD offence and the penalty are created by one statute,

bamely, by the statute 5 Ann, C. 14, although the Srok.3.

mode of recovery is altered by the subsequent statutes; in that case it is not necessary to allege the offence to be contra forman statutorum ; but, where the offence is created by one stalute, and the penalty is given by another statute, there, being so much connected together, in order to enable the plaintiff to maintain his action, the offence must be laid contra formam statutorum. If an act is made forbidding one to do such a thing and another act gives the penalty, the declaration should conclude contra formam statutorum, but where the statute is only revived it is otherwise, Stradling v. Morgan :* so in Rex v. Iest,t cited in Les v. Clarke. I In Broughton v. Moore,s by the 1 Eliz. c. 2, every one is to go to his own church, upon pain of 12d. to be levied by the churchwardens; then the 23d Eliz. c. 1, gives a further penalty of 201. per month; and the 29th Eliz, c. 6, gives the third part

tions brought by virtue of that act shall and may be brought before the end of the second term after the said offence. 2 Geo. III. c. 20, recites 8 Geo. I. c. 19, the part above transcribed, and that, by several acts, a moiety of the penalty goes to the poor of the parish where the offence committed, by reason whereof the inhabitants bave been disallowed te give evidence; and whereas suits by action of debt or case, bill, plaint or information are often attended with great costs, be it enacted that, after the passing of this act, it shall be lawful for any person to sue for the whole of the penalties to lais own use by action of debt or on the case, bill, plaint or information in any of his majesty's courts of record. S. 6. No action to be brought but within the 6 months.

* Pl. 206.

+ Owen, 135. I 2 East. 339.

Jac. 142.

§ Cro.

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of the forfeiture to the poor, for all who offend against
tbat statute: this must necessarily be contra formam C
statutorum ; for it is in truth pro tanto, a repeal of the
penalty of the first act.* In Dingly v. Moore,t there
was an information for buying worsted yarn, within
the county of Norfolk, not being a weaver, on the 33
H. VIII. c.-16, and the 1 Edw. VI. c. 6, the latter
whereof made the former perpetual; and it was laid
contra formam statuti, 33 H. VIII. c. 16, but there
was this variance between the statules; viz. by the
statute 33 H. VIII. c. 16, no person from thence-
forth shall bring within the city of Norwich worsted
yarn, but only weavers, upon a penalty, half to the
king and half to the informer; then the latter statute
instead of barely continuing the first, introduces new
matter, and therefore it was necessary to say contra for.
mam statutorum. Here the 5 Ann creates the offence and
gives a certain penalty to be recovered summarily; a
subsequent statute requires the action to be brought
within the next term, and another within six months;
but the 2 Geo. III. contains all that is necessary to
give the action, in its present form, to the plaintiff. It
gives in terms an action of debt to the informer lawi
fully to sue for the penalty to his own use. The
court need, therefore, in order to found their authority,
only to resort to the 5 Ann and the statute 2 Geo.
III. The 5th of Ann. was a temporary statute, which
was never suffered to expire, and there was formerly
a distinction taken as to this point between acts which
had expired, and those which had not; but, by the
later cases, this distinction is denied, and by the 9
Ann, c. 25, the 5 Ann, c. 14, is made perpetual. The
statute 9 Ann, c. 25, makes no alteration as to this
particular offence, but only as to the appointment of

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1806.

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CLARINCARD

versus STOK ES,

à game-keeper. Yet though the second actshould make some alteration, contra formam statuti, would be sufficient. Then the 12 Geo. II. in order to render niore effectual all the laws for preservation of game, instead of making the penalty recoverable before the justices, directs that an action shall be brought for the whole penalty, by any person, for the informer and the poor of the parish, if brought within the next term. The next statute 22d Geo. II. c. 2, extends the time so that it may be brought before the end of the second term, and the last act 2 Geo. III. c. 2, recites the statute of Ann, and enables the informer lo sue for the whole penalty by action of debt, bill, plaint, &c.; and by s. 6, no action shall be brought but within six months after the offence shall be committed. Here then are two statutes only to be referred to, and the declaration states' contrary to the form of the statute,' which refers to the statute of Ann, and then follows,

wbereby and by force of the statute an action hath accrued,' which latter words must refer to the statute 2 Geo. Ill. But there are many precedents in the books wherein vigore statuti is wholly omitted, and it is sufficient to conclude contrary to the form of the statute, per quod actio accrerit, and therefore the allegation may, after verdict, be rejected as surplusage.* Barnby v. Mandykent Bennet v. Taibois. I And if it is said there is any uncertainty which statute is meant, now after verdict that cannot be alleged in arrest of judgment, and the court are bound to take notice of the statute law." They observed that in Lee v. Clarke, it was held to be unnecessary to notice the statutes which create the limitation as to time. They contended also that, if it was necessary to look to two

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. * Lutw. 132. + Lutw. 208. Lilly's Entries, 175,

| 1 Lord Raym. 145. .

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