Penal Action Designated by Statute. A criminal prosecution by indictment will not lie where the form of penal action which shall be pursued is designated by the statute." Criminal Prosecution Allowed by Implication. - If the statute, in addition to giving a form of action, uses general words which show that no proper proceeding is intended to be excluded, an indictment as well as a penal action will lie. 2 Where No Form of Action Is Prescribed and no appropriation is made of the penalty, the right to recover the penalty being in the state, some authorities have held that an indictment as well as a penal action will lie.3 This seems, however, to be incorrect; and a fixed sum of money, whether given by a penal statute or otherwise, can be recovered only by action of debt or civil action under the code. 4 England. Rex v. Wright, I Burr. 543; Rex v. Harris, 4 T. R. 202; Ex p. Hartt, 8 New Bruns. 122; Atty.-Gen. v. Radloff, 10 Exch. 84; Reg. v. Crawshaw, Bell C. C. 303. - In Act Not Offense at Common Law. People v. Brown, 16 Wend. (N. Y.) 561, it was said: "It was admitted that where an act is not an offense at common law, but is made so by statute, an indictment will lie, where there is a substantive prohibitory clause, but that it is otherwise where the statute is not prohibitory, and only inflicts a forfeiture for the doing of a specified act, and provides for the remedy." "I always took it that where new created offenses are only prohibited by the general prohibitory clause of an Act of Parliament, an indictment will lie; but where there is a prohibitory particular clause specifying only par. ticular remedies, there such particular remedy must be pursued. For otherwise the defendant would be liable to a double prosecution; one upon the general prohibition and the other upon the particular specific remedy.' Per Lord Mansfield, in Rex v. Wright, I Burr. 543. 1. Chitty's Crim. L. 162; State v. Huffschmidt, 47 Mo. 73; State v. Dougher, 49 Mo. 409; State v. Snider, 49 Mo. 409; State v. Snuggs, 85 N. Car. 541; Rawlings v. State, 39 Tex. 200; State v. Garcia, 38 Tex. 543; U. S. v. Ellis, 1 Cranch (C. C.) 125; Castle's Case, Cro. Jac. 643. 2. People v. Stevens, 13 Wend. (N. Y.) 341; Behan v. People, 17 N. Y. 516; Com. v. Richards, 1 Va. Cas. 133; U. S. v. Morin, 4 Biss. (U. S.) 93; U. S. v. Craft, 43 Fed. Rep. 374; U. S. v. Moore, 11 Fed. Rep. 249; U. S. v. Fene lon, 35 Fed. Cas. No. 15,085; U. S. v. Abbott, 24 Fed. Cas. No. 14,416; Atty.Gen. v. Radloff, 10 Exch. 84; Collinson v. Newcastle, etc., R. Co., 1 C. & K. 546, 47 E. C. L. 546. 3. Chitty's Crim. L. 163 [cited in State v. Meyer, 1 Spears L. (S. Car.) 306]; Ransdell v. Patterson, I App. Cas. (D. C.) 489; U. S. v. Hoskins, 5 Mackey (D. C.) 478; State v. Williams, 7 Rob. (La.) 252, per Morphy, J.; State v. Sinnott, 15 Neb. 472; Hilton v. Morse, 2 West. L. M. (Ohio) 317, 2 Ohio Dec. (Reprint) 292; Com. v. Betts, 76 Pa. St. 465 [citing Wood ». Com., 12 S. & R. (Pa.) 214; Gearhart v. Dixon, I Pa. St. 228]; Hatch v. Robinson, 26 Vt. 737; U. S. v. Laescki, 29 Fed. Rep. 699. See also Com. v. Walters, 6 Dana (Ky.) 291. 4. Indiana. - Davis Ind. 555. 119 v. State, Louisiana. State v. Williams, 7 Rob. (La.) 252, per Martin, J. New York. People v. Bennett, 5 Abb. Pr. (N. Y. Supreme Ct.) 384, affirmed 6 Abb. Pr. (N. Y.) 343; People v. Page, 3 Park. Cr. Rep. (N. Y. Supreme Ct.) 600; Van Zant v. People, 2 Park. Crim. Rep. (N. Y. Supreme Ct.) 168; Buffalo v. Schliefer, 25 Hun (N. Y.) 275; Foote v. People, 56 N. Y. 321; People v. Hislop, 77 N. Y. 331, 16 Hun (N. Y.) 577, distinguishing Behan . People, 17 N. Y. 516, and Hill v. People, 20 N. Y. 363. Tennessee.-State v. Maze, 6 Humph. (Tenn.) 17; Moore v. State, 9 Yerg. (Tenn.) 353. United States. Matthews v. Offley, 3 Sumn. (U. S.) 115; Ex p. Marquand, 2 Gall. (U. S.) 552; The Lewellen, 4 Biss. (U. S.) 156; U. S. v. Tilden, 28 Fed. Cas. No. 16,523. c. PENAL AND OTHER CIVIL ACTIONS -(1) New Offenses. Where the statute creates a new public offense an action at common law will not usually lie at the suit of the party aggrieved, but the penal action is exclusive. It is otherwise, however, if the purpose of the enactment is to confer a private right in addition to inflicting punishment.1 In Stockwell v. U. S., 13 Wall. (U. S.) 531, the court, per Strong, J., supports this view of the law in the following language: "Nor is it doubted that when a statute gives to a private person a right to recover a penalty for a violation of law, he may maintain an action of debt, but it is insisted that when the government proceeds for a penalty based on an offense against law, it must be by indictment or by information. No authority has been adduced in support of this position, and it is believed that none exists. It cannot be that whether an action of debt is maintainable or not depends upon the question who is the plaintiff. Debt lies whenever a sum certain is due to the plaintiff, or a sum which can readily be reduced to a certainty - a sum requiring no future valuation to settle its amount. It is not necessarily founded upon contract. It is immaterial in what manner the obligation was incurred, or by what it is evidenced, if the sum owing is capable of being definitely ascertained. The Act of 1823 fixes the amount of the liability at double the value of the goods received, concealed, or purchased, and the only party injured by the illegal acts, which subject the perpetrators to the liability, is the United States. It would seem, therefore, that whether the liability incurred is to be regarded as a penalty, or as liquidated damages for an injury done to the United States, it is a debt. and as such it must be recoverable in a civil action." Reason of Rule." As anything that we should call a contract was not its [action of debt's] essence, we soon find that it can be used whenever a fixed sum, a sum certain,' is due from one man to another. Statutory penalties and forfeitures under police laws, amercements inflicted by inferior courts, money adjudged by any court to be due, can be recovered by it. This was never forgotten in England so long as the old system of common-law pleading was retained." 2 Pol. & Mait. Hist. Eng. Law 208. be applied in determining whether the party injured may have an action at common law is stated by Cooley, J., in the following language: "The nature of the duty and the benefits to be accomplished through its performance must generally determine whether it is a duty to the public in part or exclusively, or whether individuals may claim that it is a duty imposed wholly or in part for their especial benefit.' Taylor v. Lake Shore, etc., R. Co., 45 Mich. 74, quoted with approval in Hayes v. Michigan Cent. R. Co., III U. S. 228, followed in Cook v. Johnston, 58 Mich. 437, and Joslyn v. Detroit, 74 Mich. 458. See also, for a good discussion of the rule, Gorris v. Scott, L. R. 9 Exch. 125. Application of Rule. For various applications of the rule, see the following 1. Rule of Construction. · - The test to Pennsylvania. - Schott v. Harvey, 105 Pa. St. 222; Mack v. Wright, 180 Pa. St. 472. - Ordinances. This rule is applicable to ordinances inflicting penalties, but they are usually held not to create a duty enforceable at common law, but only to give a penalty for a public offense recoverable by penal action.1 (2) Common-law Injuries. - On the other hand, if an offense is made of an injury for which the party aggrieved may sue at common law, the penal action is cumulative, even though the statute gives the penalty to him instead of to the state or a common informer.2 England. - Atkinson v. New Castle, etc., Waterworks Co., 2 Exch. Div. 441, reversing L. R. 6 Exch. 404; Couch v. Steel, 3 El. & Bl. 402, 77 E. C. L. 402; Millar v. Taylor, 4 Burr. 2323; Beckford. Hood, 7 T. R. 616; Novello v. Sudlow, 12 C. B. 177, 74 E. C. L. 177; Blamires v. Lancashire, etc., R. Co., L. R. 8 Exch. 283: Stevens v. Jeacocke, 11 Q. B 731, 63 E. C. L. 731; Vallance v. Falle, 13 Q. B. Div. 109. See also General Steam Nav. Co. v. Morrison, 13 C. B. 581, 76 E. C. L. 581 [cited in Hoffman v. Union Ferry Co., 47 N. Y. 176]; Lyme Regis v. Henley I Bing. N. Cas. 222, 27 E. C. L. 366, 3 B. & Ad. 77, 23 E. C. L. 32; Anne Arundel County v. Duckett, 20 Md. 468; Thayer v. Boston, 19 Pick. (Mass.) 516; Stetson v. Faxon, 19 Pick. (Mass.) 153. In the leading case of Atkinson v. Newcastle, etc., Waterworks Co., 2 Exch. Div. 441, reversing L. R. 6 Exch. 404, and criticising Couch v. Steel, 3 El. & Bl. 402, 77 E. C. L. 402, Brett, L. J., said: "I entertain the strongest doubt whether the broad rule there enunciated can be maintained, the rule, that is to say, that where a new duty is created by statute, and a penalty is imposed for its breach, which penalty is to go to the person injured by such breach, the penalty, however small and inadequate a compensation it may be, is in such a case to be regarded as indicating an intention on the part of the legislature that there should be no action by such person for damages, but that, where a similar duty is created, and a similar penalty imposed which is not to go to the person injured, then the intention is that he is to have a right of action. I do not think that that proposition can be supported.' Cited in Hayes v. Michigan Cent. R. Co., 111 U. S. 228. 1. Vandyke v. Cincinnati, I Disney (Ohio) 532; Chambers v. Ohio L. Ins., etc., Co., I Disney (Ohio) 327; Hart ford v. Talcott, 48 Conn. 525; Miles v. Craig, 6 La. Ann. 753: Flynn v. Canton Co., 40 Md. 312; Philadelphia, etc., R. Co. v. Ervin, 89 Pa. St. 71; Heeney v. Sprague, 11 R. I. 456; Grant v. Slater Mill, etc., Co., 14 R. I. 380 [criticising Aldrich v. Howard, 7 R. I. 87]; Brown v. Buffalo, etc., R. Co., 22 N. Y. 191, three judges dissenting [criticised in Jetter v. New York, etc., R. Co., 2 Keyes (N. Y.) 154, 2 Abb. App. Dec. (N. Y.) 458, but approved in Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488, reversing 23 Hun (N. Y.) 159]; Fillo v. Jones, 4 Keyes (N. Y.) 328; Charleston v. Ashley Phosphate Co., 34 S. Car. 541, distinguishing Information Against Oliver, 21 S. Car. 323. Compare State v. Poulterer, 16 Cal. 515; Bott v. Pratt, 33 Minn. 323, 53 Am. Rep. 47; Osborne v. McMasters, 40 Minn. 103; Salisbury v. Herchenroder, 106 Mass. 458; Kirby v. Boylston Market Assoc., 14 Gray (Mass.) 249. See also Massoth v. Delaware, etc., Canal Co., 64 N. Y. 524. Virginia. Code Va. 1873, c. 145, 5 (Code 1887, 2900), provides that any person injured by the violation of any statute may recover from the offender such damages as he may sustain by reason of the violation, although a penalty or forfeiture for such violation be thereby imposed, unless the same be expressly mentioned to be in lieu of such damages. Norfolk, etc.. R. Co. v. Irvine, 84 Va. 553, citing Western Union Tel. Co. v. Reynolds, 77 Va. 178. 2. Maine. 371. Hayes v. Porter, 22 Me. - Massachusetts. Salem Turnpike, etc., Corp. . Hayes, 5 Cush. (Mass.) 458; Heridia v. Ayres, 12 Pick. (Mass.) 335: Barden v. Crocker, 10 Pick. (Mass.) 383. Missouri. Iba v. Hannibal, etc., R. Co., 45 Mo. 469. New York. Susquehannah, etc.. Turnpike Road Co. v. People, 15 Wend. (N. Y.) 267; Almy v. Harris, 5 Johns. (N. Y.) 176; Scidmore v. Smith, 13 1 Actions for Double Damages. Where statutes give double or treble damages to the party aggrieved for a common-law injury, he may sue either at common law or upon the statute, at his discretion." d. INJUNCTION AND MANDAMUS. The fact that a penal action lies for a breach of the statute will not exclude relief by injunction or mandamus in a proper case.2 5. Trial by Jury - As in Civil Cases. Parties to a penal action are usually entitled to a trial by jury only when such a trial may be demanded in other civil cases. United States. Hatch v. The Steam Boat Boston, 3 Fed. Rep. 807; Jones v. Vanzandt, 2 McLean (U. S.) 611. England. - Ashby v. White, 2 Ld. Raym. 938; Rowning v. Goodchild, 2 W. Bl. 907, cited in Barnes v. Foley, 5 Burr. 2716, 3 Wils. 443: Caswell v. Worth, 5 El. & Bl. 849, 85 E. C. L. 849; Millar. Taylor, 4 Burr. 2323; Williams v. Golding, L. R. 1 C. P. 69. "The rule stated in Com. Dig., Action upon Statute, C. is: If a statute gives a remedy in the affirmative (without a negative expressed or implied) for a matter which was actionable by the common law, the party may sue at the common law, as well as upon the statute; for this does not take away the common law.' Barden v. Crocker, 10 Pick. (Mass.) 383, citing Com. v. Chapin, 5 Pick. (Mass.) 199. To the same effect, see Susquehannah, etc., Turnpike Road Co. v. People, 15 Wend. (N. Y.) 267. 1. Connecticut. 59 Conn. I. Illinois. - Amend v. Murphy, 69 Ill. 337; Cornelia v. Ellis, 11 Ill. 584; Pace v. Vaughn, 6 Ill. 30; Cushing v. Dill, 3 Ill. 460; Camp v. Ganley, 6 Ill. App. 499. Broschart v. Tuttle, Iowa. · Heiserman v. Burlington, 2. Cooper v. Whittingham, 15 Ch. Div. 501; Rex v. Clear, 4 B. & C. 899. 10 E. C. L. 466. See also Tonson v. Collins, 1 W. Bl. 301, 322; Livingston v. Van Ingen, 9 Johns. (N. Y.) 507; Wallack v. Society, etc., 67 N. Y. 23; Powell v. Redfield, 4 Blatchf. (U. S.) 45, 19 Fed. Cas. No. 11,359. 3. Reagh v. Spann, 3 Stew. (Ala.) 100; Floyd v. Eatonton, 14 Ga. 354; Williams v. Augusta, 4 Ga. 509; Garnett v. Jennings, (Ky. 1898) 44 S. W. Rep. 382; People v. Hoffman, 3 Mich. 249; Ex p. Kiburg, 10 Mo. App. 442; Charleston v. Stelges, 10 Rich. L. (S. Car.) 438, distinguishing Anderson v. Fowler, 1 Hill L. (S. Car.) 226. Actions for Double or Treble Damages. In such cases the party subject to the penalty is as much interested in the assessment of the damages, and has the same right to a hearing on the question of damages, and to the same mode of trial, as where he is sued in a civil action sounding in damages; and the amount of the damages is determined by the jury who try the general question of the defendant's liability for the penalty." East Kingston v. Towle, 48 N. H. 57. See also Hines v. Darling, 99 Mich. 47. - Trial by Jury on Appeal. In penal actions in which the defendant is en titled to a trial by jury it will be sufficient if provision is made for such a In Actions for Forfeiture of Property. In penal actions for the forfeiture of property, trial by jury is ordinarily regulated by the rules applicable to civil actions rather than those which govern criminal prosecutions.1 Violations Considered as Misdemeanors. In some instances it has been held that jurisdiction may be conferred on magistrates to try penal actions without a jury, on the theory that the violations of the statutes are misdemeanors.2 6. Control over Suit- a. ACTION BY INFORMER. - Where the action is brought by an informer he is entitled to absolute control over the proceedings although the state or another may be entitled to share in the penalty." trial on appeal from a lower court. It is not necessary that the trial take place in the first instance. Colon v. Lisk, 13 N. Y. App. Div. 203; Com. v. McCann, 174 Pa. St. 19, wherein the court said: Regulating the method by which the judgment of an inferior court may be brought into a superior court for trial, so that a jury may be reached and their verdict upon any question of fact in dispute obtained, is not a denial of trial by jury. It is, on the contrary, a 'casting up of the highway' over which, in the judgment of the people as expressed in their fundamental law, suitors should go in order to reach a trial by jury in a certain class of cases." Action for Failure to Discharge Mortgage. - In a penal action brought by a mortgagor for a failure to discharge his mortgage of record, either of the parties to the suit has an absolute right to a trial by jury. Stevens v. Homes Sav., etc., Assoc., (Idaho 1898) 51 Pac. Rep. 779. New York. In this state it is said that it is a matter of public notoriety that suits for penalties, whether in personam or in rem for the forfeiture of property, have generally been tried before a jury. Wood v. Brooklyn, 14 Barb. (N. Y.) 425; Colon v. Lisk, 13 N. Y. App. Div. 203; Fire Department v. Harrison, 2 Hilt. (N. Y.) 455, 17 How. Pr. (N. Y.) 273, 18 How. Pr. (N. Y.) 181, 9 Abb. Pr. (N. Y.) 1. Qualifications of Jurors. - Penal actions are included in the statute 4 and 5 Anne, c. 16, and amendatory acts, and the venire must come from the body of the county and not merely from the vicinage as under the early law. Wynne v. Middleton, I Wils. 125; French v. Wiltshire, 2 Stra. 1085, Andr. 99, 67. In an action to recover a penalty given by a by-law, the freemen of a corporation are not competent to act as jurors, because of their interest. Hesketh v. Braddock, 3 Burr. 1847. 1. Haney v. Compton, 36 N. J. L. 507; Day v. Compton, 37 N. J. L. 514. This Rule Applies in United States Courts Only to Cases in which the seizure is made on land; otherwise it is a cause of admiralty and maritime jurisdiction, and the trial must be to the court. Morris's Cotton, 8 Wall. (U. S.) 507; The Sarah, 8 Wheat. (U. S.) 391; U. S. v. The Schooner Betsey, 4 Cranch (U. S.) 443; U. S. v. La Vengeance, 3 Dall. (U. S.) 297; Clark v. U. S., 2 Wash. (U. S.) 519, 5 Fed. Cas. No. 2,837: U. S. v. The Steamship The Queen, 4 Ben. (U.S.) 237; U. S. v. The Steamer Missouri, 3 Ben. (U. S.) 508, 9 Blatchf. (U. S.) 433; A Quantity of Manufactured Tobacco, 10 Ben. (U. S.) 447; The Meteor, 17 Fed. Cas. No. 9,498; The Paolinas, 11 Fed. Rep. 171. Where Such Actions Are Criminal in Their Nature, the defendant is entitled to a trial by jury as in other criminal prosecutions. Com. 7. Reed, 162 Mass. 215; Fisher v. McGirr, 1 Gray (Mass.) 1; Greene v. Briggs, 1 Curt. (U. S.) 311. 2. McGear v. Woodruff, 33 N. J. L. 213; Howe v. Plainfield, 37 N. J. L. 145; Sparks v. Stokes, 40 N. J. L. 487; Greeley v. Passaic, 42 N. J. L. 87; Carter v. Camden Dist. Ct., 49 N. J. L. 600; Shivers z. Newton, 45 N. J. L. 469; Wendt v. Craig, 67 Pa. St. 427. following Van Swartow v. Com., 24 Pa. St. 131. See also State v. Zeigler, 32 N. J. L. 262; Com. v. Avery, 14 Bush (Ky.) 625; Ex p. Kiburg, 10 Mo. App. 442. 3. Canfield v. Mitchell, 43 Conn. 169; Burnham v. Barker, 2 Root (Conn.) |