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3. Who May Appeal. The Plaintiff as Well as the Defendant may appeal in all penal actions, the verdict of the jury in favor of the latter not being conclusive, as in prosecutions for crime.1

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4. Trial De Novo. Where the Judgment of a Justice of the Peace goes first to an inferior trial court for review, the trial there is generally de novo, and not a mere examination of the record.2

XVIII. COSTS-1. At Common Law. At common law no costs were recoverable in any action by either plaintiff or defendant, and penal actions were within the rule. Early statutes giving the right to recover costs were held not applicable to penal actions unless they were expressly mentioned therein.4

v. U. S., 6 Wall. (U. S.) 759; U. S. v. Hart, 6 Wall. (U. S.) 770; U. S. v. Huckabee, 16 Wall. (U. S.) 414; U. S. v. Winchester, 99 U. S. 372.

Forfeitures Imposed by the Postmaster General on mail contractors are matters within his discretion and are not subject to review. Allman v. U. S., 131 U. S. 31, citing Chicago, etc., R. Co. v. U. S., 127 U. S. 406, and Eastern R. Co. v. U. S., 129 U. S. 391.

1. Huntley v. Davis, I Conn. 391; State v. Hayden, 32 Wis. 663; State v. Smith, 52 Wis. 134; Platteville v. Bell, 43 Wis. 488, distinguishing Boscobel v. Bugbee, 41 Wis. 59; Milwaukee "'. Weiss, 93 Wis. 653; Baldwin v. Chicago, 68 Ill. 418; Webster v. People, 14 Ill. 366; State v. Eves, (Idaho 1898) 53 Pac. Rep. 543.

Judgment on Default. - In Wisconsin an appeal may be taken by the defendant in a penal action from the judgment of a justice of the peace, although the judgment was rendered on default. State v. Ives, 15 Wis. 445.

Appeal After Acquittal. — Under early laws in Connecticut a qui tam action would lie for the punishment of certain criminal offenses, such as theft. In such a case, if the defendant was acquitted no appeal would lie in favor of the plaintiff. Coit v. Geer, Kirby (Conn.) 269; Hannaball v. Spalding, I Root (Conn.) 86. See also Houghton v. Havens, 6 Conn. 305. But see Burnham v. Barker, 2 Root (Conn.) 526.

2. Chicago v. Kenney, 35 Ill. App. 57; Rice. Chicago, etc., R. Co., 30 Ill. App. 481; Canoe Creek v. McEniry, 23 Ill. App. 227; Alton . Kirsch, 68 Ill. 261; Webster v. People, 14 Ill. 365: Vaughan v. Thompson, 15 Ill. 39: Megargell v. Hazleton Coal Co.. 8 W. & S. (Pa.) 342; Washington v. Eaton, 4 Cranch (C. C.) 352; Two Hundred and Fifty Barrels of Molasses

v. U. S., Chase's Dec. (U. S.) 502, 24 Fed. Cas. No. 14,293; Roeber v. Society, etc., 47 N. J. L. 237; Bayles v. Newton, 50 N. J. L. 549.

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North Carolina. Under the old Constitution, art. 4, § 33, a judgment of a justice went on appeal to the Superior Court, but if the amount involved was twenty-five dollars or less, the case could be tried there only upon matters of law, and not by a re-examination of the merits. London v. Headen, 76 N. Car. 72.

3. Kirkham v. Wheeley, I Salk. 30; Heard v. Faris, 1 Litt. (Ky.) 246. See also article COSTS, vol. 5, p. 100.

4. Heard v. Faris, 1 Litt. (Ky.) 245, in which case it was said: "At common law costs were never recoverable, and the statute giving costs to plaintiffs never has been construed, and we suppose ought not to be construed, to authorize costs to be recovered by a plaintiff, in an action brought to recover a penalty given by statute, when, by the statute creating the penalty, no costs are given, and when, too, the right to sue for the penalty is given by the statute, as in this case, to any person who may think proper to prosecute the suit."

Statute of Gloucester. The statute of 6 Edward I., c. I, and other early statutes relating to costs in different civil actions, were held to extend to actions on statutes giving the right to sue to the person injured. Norris v. Pilmore, 1 Yeates (Pa.) 405; Ward v. Snell, i H. Bl. 10; Eaton v. Barker, 1 Vent. 133; Plymouth 2. Werring, Willes 440; Tyte v. Glode, 7 T. R. 263; Creswell v. Hoghton, 6 T. R. 355: Witham v. Hill, 2 Wils. 91; Jackson v. Calesworth, 1 T. R. 71; Shore & Madisten, 1 Salk. 206; Cutlers Co. v. Buskin, 12 Mod. 46; Bellasis v. Burbriche, 1 Ld. Raym. 170; Greetham v. Hundred of Theale, 3

2. By Statute. By the statute 18 Eliz., c. 5, costs were given against an informer plaintiff who failed to substantiate his claim.1 In Modern Times Costs in penal actions are generally recoverable either by express statutory provision, or, in the absence of such, under laws applicable to civil suits generally, but statutes regulating costs in criminal prosecutions are not applicable to penal actions.3

3. Security for Costs. Where the plaintiff is liable for costs, security for them may be required in a proper case.1

Burr. 1723; Cutlers Co. v. Ruslin, Skin. 363; North v. Wingate, Cro. Car. 559. 66 Where the Statute Gives a Penalty to the Party Grieved, to be recovered by action, bill, plaint, etc., this being a duty to the party vested before action brought, he shall have costs against the defendant, because he is put by the defendant to the cost and trouble of a suit; but in a tam quam or other popular action where the duty is not vested till the suit or information brought, then, his interest commencing by the suit, and not being a debt vested before, he shall not have costs against the defendant." Per Holt, C. J.. in Cutlers Co. v. Ruslin, Skin. 363, quoted in College of Physic v. Harrison, 9 B. & C. 524, 17 E. C. L. 433, 4 M. & R. 404.

1. Wilkinson v. Allot, 1 Cowp. 366; Dover v. Hodgson, 1 Wils. 139; Kirkham v. Wheeley, 1 Salk. 30; Williams v. Drewe, Willes 392; Plymouth v. Werring, Willes 440.

2. Connecticut -Reynolds v. Stevens. 2 Root (Conn.) 136; Blydenburgh v. Miles, 39 Conn. 484.

Maine. "The practice of imposing costs in addition to the penalty has ripened into a principle, now in legal force." Per Tenney, J., in Ricker, Petitioner, 32 Me. 37.

Massachusetts. - Burnham v. Webster, 5 Mass. 266.

New York. Record v. Messenger, 8 Hun (N. Y.) 283.

Pennsylvania.-Kensington v. Glenat, 1 Phila. (Pa.) 393, 9 Leg. Int. (Pa.) 138. Wisconsin. Oshkosh v. Schwartz, 55 Wis. 483. Canada. Miles v. Roe, 10 Ont. Pr. Rep. 218; Rex v. Ives, Draper (U.C.) 440. Actions Brought by Public Officials. Where the penal action is brought by an officer in his official capacity, he is frequently exempted from costs by statute, although unsuccessful in the suit. Carter v. Hawley, Wright (Ohio) 332, 74: Bittle v. Hay, 5 Ohio 270. See also U. S. v. The Steamboat Planter, Newb. (Adm.) 262, 27 Fed.

Cas. No. 16,054; Rapp v. Le Blanc, I Dall. (Pa.) 63.

Dismissal of Action for Want of Affidavit of Good Faith. Where the prosecutor in a popular or qui tam action is required to file an affidavit of good faith, and the action is dismissed for want of such affidavit, no costs will be charged against him. Lavoie v. Racine, 5 Quebec L. Rep. 319.

3. State v. Smith, 52 Wis. 134: Ives v. Jefferson County, 18 Wis. 167; In re Green, 40 Mo. App. 491. Under

Fees of Prosecuting Attorneys. a statute which provides that prosecuting attorneys shall be allowed fees in proceedings of a criminal nature brought otherwise than by indictment or information, such fees are properly allowed in penal actions brought in the name of the state. State v. Hannibal, etc., R. Co., 30 Mo. App. 494: People v. Nedrow, 122 Ill. 363. See also Indianapolis, etc., R. Co. v. People, 91 Ill. 452.

4. Richards v. People, 100 Ill. 390; Montgomery v. Odell, 73 Hun (N. Ý.) 424; Excise Com'rs v. Purdy, 36 Barb. (N. Y.) 266, 13 Abb. Pr. (N. Y.) 434, 22 How. Pr. (N. Y.) 506; Budworth v. Bell, 10 Ont. Pr. Rep. 544; Martin v. Consolidated Bank, 45 U. C. Q. B. 163; Vat v. Green, 1 Stra. 697. See also Samuell v. Sherman, 170 Ill. 265.

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PENDING SUIT.

See article ANOTHER SUIT PENDING.

PENSIONS.

I. IN GENERAL, 309.

II. FEES OF PENSION AGENTS, 309.

III. UNLAWFUL RETENTION OF MONEY BY AGENT, 310.

IV. FRAUDULENT CLAIMS, 310.

I. IN GENERAL. - Questions of practice in suits involving pensions chiefly arise in regard to the compensation claimed by pension agents for their services, the unlawful retention by such agents of pension money received, or the presentation of fraudulent claims to the pension office.1

II. FEES OF PENSION AGENTS— In General. The compensation which a pension agent may receive for prosecuting a claim is regulated by statute,2 and the recovery of a larger amount, on a quantum meruit, is not permitted. Agreements to pay fees larger than those allowed by statute will be disregarded in equity, and

1. Action on Agent's Bond. A pensioner cannot maintain an action in his own name on the bond of a United States pension agent, since there is no covenant in such a bond for his benefit. Hughes v. Cotton, 13 Bush (Ky.) 596.

Subpoenas Issued by United States Courts. The Act of July 25, 1882, authorizes judges and clerks of the federal courts to issue subpoenas, upon application of the commissioners of pensions, for the examination of witnesses concerning pension claims. Under this act the application for a subpoena should be drawn with reasonable certainty and precision, so that it may appear on its face to be in accordance with the act; and the pension claim in which the testimony is required should be reasonably identified. And the subpoena issued under such an application must be drawn with equal certainty, and must follow the require

ment of the application. In re Gross, 78 Fed. Rep. 107.

In an Action of Assumpsit Brought Against a Soldiers' Home by an inmate thereof, to recover money which the plaintiff alleged that he had been compelled to pay to the home out of his pension, an affidavit of defense was held sufficient which averred that a rule of the home required the inmates to turn over eighty per cent. of their pension money to the treasury of the institution, that upon the admission of the plaintiff he signed an agreement in writing to comply with the rules of the home of which he knew this to be one, and that the payments were made voluntarily in accordance with this agreement. Bryson v. Home for Disabled, etc., Soldiers, etc., 168 Pa. St. 352.

2. U. S. Rev. Stat., § 5485.
3. Morgan v. Davis, 47 Vt. 610.
4. Trimble v. Ford, 5 Dana (Ky.) 517.

where excessive fees have been received by the agent, they may be recovered by the pensioner in an action of assumpsit.'

Indictments for Receiving Excessive Compensation. An indictment of a pension agent for taking compensation in excess of that fixed by statute will be held sufficient if it follows the language of the statute creating the offense.2

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III. UNLAWFUL RETENTION OF MONEY BY AGENT. - A pension agent may also be indicted for unlawfully withholding from a pensioner money received from the government in payment of a pension claim. 3

IV. FRAUDULENT CLAIMS. -The transmission or procuring the transmission to the pension office of false or fraudulent instruments, in support of a pension claim, is an indictable offense. It is not necessary, however, to charge in the indictment that the act was committed feloniously or with felonious intent.♣

1. Powell v. Jennings, 3 Jones L. (N. Car.) 547.

Money paid to a pension agent in excess of the amount allowed by statute may be recovered by the pensioner as money received to his use; and in an action by an agent to recover further illegal compensation, the defendant may recover the amount illegally taken, under a plea of set-off. Such a claim being illegal under the statute, it cannot be made the subject of arbitration. Hall v. Kimmer, 61 Mich. 269. 2. U. S. v. Wilson, 29 Fed. Rep. 286. Arrears of Pension. Where an agent who has prosecuted a claim for arrears of pension is indicted for receiving a larger fee for his services than that allowed by law, the indictment need not state whether or not the arrears were procured after the allowance of an original pension. U. S. v. Reynolds, 48 Fed. Rep. 215.

Allegations Not Necessary. It is not necessary to allege expressly that the amount received by the agent was in excess of that legally chargeable, or to negative the existence of a contract in regard to compensation. Nor need it be charged that the applicant for the pension has been in the military or naval service of the United States. U. S. v. Van Leuven, 62 Fed. Rep. 52.

The indictment need not describe the defendant as an agent or attorney. To describe him as a lawyer is sufficient. When the amount of the excess is unknown to the grand jury it should be so alleged in the indictment. It is not necessary to aver a demand for the return of the money unlawfully taken. Frisbie v. U. S., 157 U. S. 160.

Where it is averred generally that the accused was instrumental in procuring a pension, the indictment need not show how he was instrumental. And since the intent of the person receiving the excessive fee is immaterial, it is not necessary to allege that he committed the offense wilfully, wrongfully, or unlawfully. U. S. v. Koch, 21 Fed. Rep. 873: U. S. v. Reynolds, 48 Fed. Rep. 215.

3. U. S. v. Benecke, 98 U. S. 447; U. S. v. Mason, 8 Fed. Rep. 412; U. S. v. Irvine, 98 U. S. 450.

An Indictment charging an agent with wrongfully withholding pension money alleged in substance as follows: That the accused had been employed to act as the agent of V., the guardian of certain minors, to collect a pension; that the pension was paid to said agent, and that he refused to pay the same to the guardian. Since it appeared from other allegations in the indictment that the minors were the pensioners, and since the indictment alleged that the money was wrongfully withheld from the guardian, and did not charge that it was withheld from the minors, it was held to be defective. U. S. v. Chaffee, 4 Ben. (U. S.) 330.

4. U. S. v. Staats, 8 How. (U. S.) 41; U. S. v. Kessel, 62 Fed. Rep. 59; U. S. v. Bickford, 4 Blatchf. (U. S.) 337; U. S. v. Adler, 49 Fed. Rep. 733.

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Allegations Requisite to an Indictment for This Offense. Where a makes it a felony to transmit or present any deed or other writing to any office or officer of the government in support of or in relation to any account or claim, with intent to defraud the

United States, knowing the same to be false, a felonious intent is no part of the description, and the offense is complete without it. An indictment, therefore, in a prosecution for the transmission to the commissioner of pensions of a false affidavit, which charges the act to have been done "with intent to defraud the United States," is sufficient. U. S. v. Staats, 8 How. (U. S.) 41.

An indictment which merely charges that the defendant transmitted to the commissioner of pensions a falsely altered certificate made by a board of surgeons in relation to a claim for a pension is not sufficient under section 5421 U. S. Rev. Stat. Such an indictment must also allege how or to whom the certificate was published, and that it was published to obtain, or to aid another person to obtain, money fraudulently from the United States. U. S. v. Kessel, 62 Fed. Rep. 59.

An indictment for transmitting false papers to the pension office, with intent fraudulently to procure a bounty, contained a large number of counts, each count charging a distinct felony, and some of them charging subornation of perjury. On a motion to quash the indictment on the ground that it charged distinct felonies, and also felonies of different grades, it was held to be good under the Act of Feb. 26, 1853, but that the counts for subornation of perjury must be stricken out. U.S. . Bickford, 4 Blatchf. (U. S.) 337.

311

An indictment for knowingly procuring the presentation of a false affidavit concerning a pension claim charged the offense in substance as follows: That the defendant on a certain day, at the county of W. in the southern district of Iowa, did then and there present to the commissioner of pensions at Washington, District of Columbia, etc. And in conclusion it further charged that at the time and place aforesaid, at the county of W., state of Iowa, the defendant did then and there present and cause to be presented to the commissioner of pensions aforesaid, etc. It was held that this indictment charged the presentation of the affidavit at Wapello, Iowa, and not at Washington, D. C. And in the same case it was also held that an indictment which alleged that the affidavit was false because of the false and forged signature thereto was sufficient, and that it need not further allege that the pension claim itself was false. U. S. v. Adler, 49 Fed. Rep. 733.

The Verdict. - Where an indictment for defrauding the government by the presentation of a false pension claim charges that the claim was for a certain amount, it is not necessary for the jury to find that the whole amount charged was fraudulently obtained by the conspirators. It is sufficient to find that any part of it was paid by the government. U. S. v. Frisbie, 28 Fed. Rep. 808.

Volume XVI.

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