(III.) For ENGROSSING.

Shropshire. {present, that H M, late of the parish of Oswestry. The jurors for our lord the king upon their oath in the county of Salop, yeoman, on the ninth day of Dec. in the first year of the reign of our sovereign lord George the Third, king of Great Britain, &c. at the parish aforesaid, in the coun ty aforesaid, did engross and get into his hands, by buying of and from one R G, fifty quarters of wheat, to the intent to in hance the price of wheat within the said parish,and to sell the same again at a great and enormous profit, to the evil example of all others in the like case offending, against the peace of our said lord the king, his crown and dignity.

Forfeitures.-See ATTAINDER and SEIZURE of FELON'S GOODS,

FORFEITURES ON PENAL STATUTES.

IN all cases where a penalty or forfeiture is given by act of

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parliament, without saying to whom it shall be, whether it be for a non-feasance or mis-feasance, it belongs to the king; for every unappropriated penalty is in the nature of a debt to the crown, and recoverable by action in a court of revenue. Levinz, 290. 4 Comyns's Dig. 8vo. edit. 237. 2 Strange, 828. But where a statute giveth a forfeiture or penalty, against him who wrongfully detaineth or dispossesseth another of his duty or interest, he that hath the wrong shall have the for. feiture or penalty, and shall have an action therefore upon the statute at the common law; for the king shall not have the forfeiture in such case; and so it was adjudged in the exchequer upon conference with the other judges, in an information for not having set out tithes under the stat. Ed. 6. Co. Lit. 159. 3 Levinz, 290.

And as every statute made against an injury, mischief, or grievance, does impliedly give a remedy, the party injured, if no remedy be expressly given, may have an action upon the statute. 2 Inst. 55, 74. 10 Rep. 75.

So if a statute command or prohibit thing for the advantage of a particular person, that person shall have an action upon the statute, to recover satisfaction, for an injury done him contrary thereto. 9 Mod. 26.

And if a penalty be given by a statute, but no action for the recovery thereof be given, an action of debt will lie for the penalty; and it can be recovered in no other manner, Poph. 175. 1 Strange, 50.

And if a thing be prohibited by a statute under a certain penalty, and the penalty or any part of it to be given to him who will sue for the same, any person may bring an action or information for the penalty. 2 And. 128. 2 Hawk. c. 26. s. 17.

And if the penalty given by a statute is to be recovered in a court of record, this can only be recovered in one of the superior courts at Westminster; for being a penal law it ought to be construed strictly, and those are the courts in which the king's attorney general is supposed to attend. Salkeld, 178.

If an action upon a statute giving a penalty be brought against several defendants, for one and the same offence, only one penalty can be recovered. Cro. Eliz. 480.

For where an offence created or made penal by statute is in its nature single, and cannot be severed, there the penalty shall be only single; because though several persons join in committing it it still constitutes but one offence. Cowper,

612.

Thus the offence created by 1 & 2 Phil, & Mar. c. 12*, of impounding a distress in a wrong place, though done by many, is still but one act of impounding; it cannot be severed; it is but one offence, and therefore shall be satisfied by one forfeiture. Cro. Eliz. 480. Moore, 453. Noy, 62. Cowper, 612.

So under the stat. 5 inn. c. 14, for the preservation of the game; killing a "hare is but one offence of its nature; whether one or twenty kill it, it cannot be killed more than once;

partridges are netted by night, two, three, or more may draw the net; but still it constitutes only one offence. Cowper,

612.

And the same rule applies to summary convictions before justices; for in The King v. Bleasdale and another, where the justice had convicted the defendants in 57. each on 5 Ann. c. 14. s. 4. for using a greyhound to destroy game, not being qualified, the court without argument quashed the conviction, on the authority of the above cases, and said that the magistrate could not convict each in the penalty of 56. as it was but one offence. 4 Term Rep. 809. Nolan's Rep. 139.

But where the offence is in its nature severul, and where every person concerned may be separately guilty of it, there each of fender is separately liable to the penalty; because the crime of each is distinct from the offence of the others, and each is pu. nishable for his own crime. Cowper, 612.

Thus the offence of obstructing a custom-house officer contrary to stat. 8 Geo. 1. c. 18. s. 25†, is an offence in its nature several: a several offence at common law; and the statute

* See title DISTRESS.

+ See title SMUGGLING.

adds a further sanction against that, which each man must com. init severally; one may break the officer's arm, another put out his eye. All these are distinct acts; and every one's offence entire and complete in its nature; and therefore, each person is liable to a penalty for his own separate offence. Cowper, 612.

So also if the words of the act are, that the offenders shall respectively forfeit, it makes the forfeiture several upon each offender. Salkeld, 182.

Where a statute commands or prohibits a thing of public concern, the person guilty of disobedience to that statute, besides being answerable in an action to the party injured, is likewise liable to be indicted for the disobedience.

635. 2 Inst. 131, 163.

Cro. Eliz.

Thus the act 26 Geo. 2. c. 6. s. 1, respecting quarantine, having enacted, that all persons going on board ships coming from infected places shall obey such orders as the king in council shall make, without annexing any particular punishment, the disobedience of such an order is an indictable offence, and punishable as a misdemeanor at common law. 4 Term Rep. 202.

But if the thing commanded or prohibited by a statute, be only of a private nature, and can only be prejudicial to one or two persons, as if it be to repair the bank of a river, for want A of having done which the ground of a certain person hath been overflowed, no indictment lies; the remedy being by an action upon the case. 2 Sider. 209.

So also, if a statute, although it extend to all persons, do chiefly concern disputes of a private nature, as those relating to distresses between lords and tenants, an offence against the statute is not indictable. 1 Mod. 71, 288.

But if a statute inflict a new punishment upon the person guilty of an offence, which was before punishable at the common law, the offence is still punishable as it was before the making of the statute. Fitzg, 66. 10 Mod. 337.

But where a statute creates a new offence giving a penalty, and directs how it shall be recovered, as if it appoint a particular method of proceeding against an offender, by commitment,orinformation, without mentioning an indictment, no indictment lies: and the offence cannot be punished in any other way than that directed by the statute, because as other methods of proceeding are expressly mentioned, that by indictment seems to be impliedly excluded. Cro. Jac. 643. Shower, 398, 399,

And the above doctrine was recognized and established in the cases of The K. v. Wright, and The K. x. Robinson, where lord Mansfield laid it down as a rule certain, that where sesta tute creates a new offence, by prohibiting and making unlawful any thing which was lawful betore, and appoints a specific remedy against such new offence, there that particular method by

such act prescribed, must be specifically pursued, and not the common law method of an indictment. 1 Burrows, 514. 2 Burrows, 803.

But where the offence was antecedently punishable by a common law proceeding, and a statute prescribes a particular remedy by a summary proceeding; there either method may be pursued, and the prosecutor is at liberty to proceed either at common law, or in the method prescribed by the statute; be cause there the particular remedy is cumulative, and does not exclude the common law punishment. 2 Burrows, 803.

And it has been holden, that if a statute creating a new of. fence, and inflicting a penalty, provides that the penalty may be recovered by action, bill, plaint, information, or otherwise, an indictment will lie upon the statute. 2 Hawk. c. 25. s. 4.

If a statute having created penalties of 50%. and of 10%. enacts that all penalties amounting to 50l. shall be sued for in any of the courts at Westminster; but in a subsequent clause provides that it shall be lawful for any justice to hear and determine any offence against that act, which subjects the offender to any pe cuniary penalty not amounting to 50l. with a power to him to mitigate the penalties (as is the case under 25 Geo. 3. c. 51. s. 57, 59, respecting post-horses,) such proviso ousts the jurisdiction of the superior courts as to the inferior penalties, and they can only be recovered before a magistrate, for it is clear that the intention of the legislature is, that the greater penalties shall be sued for in the superior courts, and that the smaller offences may be inquired into by a justice of the peace: and this distinction is reasonable; for the justice having the power to mitigate the penalties, and the superior courts not, it would be absurd to say that the jurisdiction was concurrent; for if it were, the prosecutor might sue where he pleased, and he would of course institute his suit before that jurisdiction, by whom the penalties could not be mitigated; which would frustrate the intention of the legislature, who inserted the proviso to prevent the party being saddled with the unmerciful costs of a merciless prosecutor. Cales qui tam v. Knight, M. SO G. 3. 3 Term Rep. 443.

Forfeitures are also to be construed favourably; thus, under the statute 8 Geo. 3. c. 38, which enacts that the masters, &c. of every boat, &c. navigating the Birmingham Canal,shall give a just account in writing, to the collectors, &c. of what quantities of goods shall be in the boat; and in case they refuse orneglect to give such account, or shall give a false account, that they shall forfeit 10s. for every ton of goods which shall be in such boat, of which account shall be refused to be given, or of which such false account shall be so given, it has been determined that the penalty of 10s, shall not be calculated on the whole of the goods in the boat, but on the difference between the quantity really

in the boat, and the quantity specified in the account. Cowper, 585, 588.

And if an act inflicts a penalty for doing a thing upon a particular day, the committing of like offences upon the same day incurs but one penalty; thus a person can commit but one offence on the same day by exercising his ordinary calling on a Sunday, contrary to the stat. 29 Car. 2. c. 7. And if a justice of peace proceed to convict him in more than one penalty for the same day, it is an excess of jurisdiction for which an action will lie, before the convictions are quashed. Cowper, 640.

And upon the same principle it would be irregular for a magistrate to convict a person in more than one penalty under the 13 Geo. 3. c. 80, for destroying the game on Christmas day or a Sunday, although the party might go out several times on the same day, and destroy different kinds of game.

Also if the recovery of a forfeiture under a penal statute, or the time of imprisonment for non-payment thereof, be limited to one or more months, without expressing that the same shall be calendar months, the time so limited must be computed according to lunar months of 28 days each, and not according to the calendar months in our common almanack. 6 Ter. Rep. 226. Therefore, if a statute limits either a prosecution, or term of imprisonment to twelve months, in the plural number, this is to be intended only 48 weeks; but if it expresses a twelvemonth in the singular number, this is to be considered a whole year; it being generally understood, that by the space of time called thus in the singular number a twelvemonth, is meant a whole calendar year. 6 Ter. Rep. 226.

FORGERY

FORGERY.

ORGERY is an offence at the common law, and also by the statute. Britt. 16. Fleta, 2. c. 22. 1 Hawk. c. 70.

And forgery by the common law seemeth to be an offence in falsely and fraudulently making or altering any matter of record; or any other authentic matter of a public nature as a parish register, or any deed or will, punishable by fine and imprisonment, and such other corporal punishment as the court in discretion shall think proper. 1 Hawk. c. 70. s. 1.

But no indictment will lie b.fore justices of peace* for for

• Nevertheless, it seems that a justice of the peace may take an information thereof, bind over the informers, examine the offender, certify his examination to the proper judges, and commit him to prison in order to abide his trial. Barlow, 244.