interest, it shall go to the person injured. But where it is given for a crime, the king shall have the forfeiture, though he be not named. a The words "shall forfeit," vests only a right or title and not the freehold, in deed, or in law, without an office to find the certainty of the land. Where a statute gives a forfeiture "of all inheritances," it does not extend to an estate tail; but where it is "of all manner of inheritances," estates tail are comprehended. c The stat. 8 Anne, c. 7, s. 17, imposing a penalty of treble the value on the importation of foreign goods prohibited to be imported into this country, extends to all such goods as have been, or may be, prohibited subsequently to that statute; as much as if they had been prohibited at the time of making that statute.d 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 these are the courts in which the king's attorney general is supposed to attend. e It was held in the case of Partridge v. Naylor, that if an action upon a statute giving a penalty, be brought against several defendants, only one penalty can be recovered. But where a conviction of two persons had taken place on a statute giving a forfeiture for deer stealing, and judgment was given that each defendant should pay the forfeiture; the conviction being removed, it was objected that there ought to be but one 301. forfeited, and the last mentioned case was cited; sed non allocatur, for the words of the act are that they shall "respectively forfeit 301." And this penalty is not in the nature of a satisfaction to the party grieved, but a punishment of the offender; and crimes are several, though debts are joint: "which," said Powell, J., "distinguishes this from the case of Partridge v. Naylor." The rule seems to be laid down with great clearness and good sense in the case of R. v. Clark, that where an offence created or made fraud by statute, is in its nature single, one single penalty only can be recovered, though several join in committing it; but if the offence be in its nature several, each offender is separately liable to the penalty.g On the question whether two penalties can be incurred in the same day, the determinations have in like manner properly depended on the nature of the offence. The cases of Marriott v. Show h and R. v. Mathews, i in which it was held that only one a Vin. Abr. Tit. Statute: Forfeiture. c Jenk. 287, pl. 21; Hob. 354. b Pl. Com. 486. d Atty. Gon. v. Saggers, 1 Price 182 e R. v. Hymon, 7 T. R. 536. Walwyn v. Smith, 1 Salk. 178; Cro. Eliz. 480 Noy. 62. f The Queen v. King and Another, 1 Salk. 182. g Cowp. 610. h Com. 274. i 10 Mod. 26, S. P. Hardman & Whitacre, Bull. N. P. 189. R. v. Bleasdale, 4 T. R. 809. penalty could be forfeited in one day, were upon the 5 Ann. c. 14. s. 4, for keeping or using greyhounds for the destruction of game, which was only a continuation of the same act. So in the case of Cripps v. Durden, on the 29 Car. 2, c. 7, for exercising a trade on Sunday, Lord Mansfield said: "There can be but one entire offence on one and the same day." That case was one continued exercising of the trade, one Sunday. But in the case of Brooke qui tam v. Milliken, on the 12 Geo. 2, c. 36, for selling books originally written and published here, and afterwards reprinted in another country and imported into this, the court held that where there had been two distinct acts of sale on the same day, this constituted two different offences, for which two penalties were recoverable. a Immediately on filing an information, the right to the penalty vests in the informer, and therefore though the King may pardon the offence, so as to discharge his own share, he cannot deprive the informer of his. b Where a statute (as Westm. 2, cap. 47,) says offenders shall be punished for the first trespass, in a given manner, (there, by burning their nets,) this ought to be by indictment at the suit of the King, and the punishment cannot be inflicted upon the delinquent, before, upon due conviction secundum legem et consuctudinem Anglice, judgment is given. And where there are degrees of punishment inflicted in an increasing ratio, for the first, second, and third offences, there must be several convictions and judgments given upon legal proceeding for each offence, and an offender cannot be convicted of the third before he is convicted of the second, or of the second before he is convicted of the first. For though "ex frequenti delicto augetur pœna," yet quod non apparet, non est, in law; et non apparet judicialiter, ante judicium.c It has been held that statutes that give costs are to be taken strictly, as being a kind of penalty. d And the authority of Cone and Bowles was recognized in another case by Lord Hardwicke, C. J., who stated it to be a settled rule that statutes which give costs are to be construed strictly.e Costs are only due by act of Parliament, none being recoverable at common law; and the statute of Gloucester, which gives them, is only applicable to those cases where damages could be recovered before it passed. Thus in sundry actions; in an action of waste against tenant for life or years,-in quare impedit (which was considered as a mere matter of spiritual concern,)— and in an action of debt for not setting out tithes (which could not be recovered in the temporal Courts before the reign of Ed. 6,) the party recovers no costs, because he had no right of action a 3 T. R. 509. c 2 Inst. 468, 478. b Grosset v. Ogilvie (in error,) 5 Bro. P. C. 527. d Cone and Bowles, 1 Salk. 205. e R. v. Inhabitants of Glastonry, Rep. Temp. Hard. 357. f Pilford's case, 10 Rep. 116, b. before the statute of Gloucester. Lord Coke indeed, in his second Institute, lays down a rule apparently different from that in Pilford's case; for he says, "this clause (in the statute of Gloucester) doth extend to give costs where damages are given to any defendant or plaintiff by any statute made after this Parliament." In Witham and Hill, Lord C. J. Willesa was strongly inclined to overrule Pilford's case; but would not, though he thought it a very extraordinary one, because he considered the case before him distinguishable from it; and the constant endeavor has been, without contradicting that case, to take other cases out of the rule. The decision in subsequent cases has been said to depend entirely, upon whether the new statute created the damages. Wherever a party has sustained damage, and a new act gives another remedy, such a party may recover costs as well as damages. This is laid down by Lord Kenyon, as the correct rule, in Creswell and Hoghton. b There it was said, "where an act of Parliament imposes a duty, and any person is prejudiced by its non-performance, the party injured may recover damages and his costs.' In the case of penalties, a distinction was taken c between those cases where the penalty is given to the party grieved, and those where it is given to a common informer. The Court said the instant the thing was done which occasioned the penalty, it was a debt at common law; and the action upon the statute for the penalty is similar to that upon a bond to recover a debt already due. So, it was established by a variety of cases, that where an action is given to the party grieved, (as in two cases against the hundred,) he is entitled to costs if he succeed, though he had no remedy before the statute of Gloucester, d except as by construction, he gets a debt at common law, and so damages. Being a duty to the party vested before action brought, he shall have costs; but in tam quam or other popular actions where the duty is not vested till the suit brought, and not a debt vested before, he shall not have costs. e In the College of Physicians v. Harrison, Lord Tenterden said, "Where a right is vested in a particular person or corporation, the withholding of that right, and thereby compelling the party to sue for it, is an injury for which damages may be recovered: and if damages, then costs will follow." In that case, the defendant having succeeded, was consequently entitled to costs under the stat. 4 Jac. 1, cap. 3. Thus, though the distinction be fine in the case under the subsequent acts, is the doctrine supported and the authorities reconciled. A justice of the peace, who has prosecuted a gaoler to conviction, for suffering a prisoner to escape, committed by him on a c In Ward and Snell, 1 H. Bl. 10. Jackson v. Colesworth, 1 T. R. 71. Woodgate and Knatchbull, 2 T. R. 254. Tyte v. Glowden, 7 T. R. 268. e Per Holt, C. J., Skinner, 363. f 9 B. &. C. 524. charge of felony, is not entitled to the costs of the conviction under 5 W. and M. c. 11, s. 3, as being "a public officer prosecuting for the benefit of the public."a Per Buller, J., "The Court has always put a strict construction on this act." The stat. 7 Geo. 4, c. 74, s. 23, which provides for the allowance of costs to prosecutors and witnesses in certain cases of misdemeanor, does not apply where the indictment has been removed into the King's Bench by certiorari. b Wherever a statute imposes terms, and prescribes a thing to be done within a certain time, the lapse of even a day is fatal, because no court can admit of any terms, but such as directly and precisely satisfy the law.c In the construction of a penal statute, "near" is not equivalent to "next;" as where the expression "next market town" is used.d Acts of Parliament which take away the trial by jury, or abridge the liberty of the subject, ought to receive the strictest construction. e It is a well settled rule of law, that every charge upon the subject must be imposed by clear and unambiguous language. Acts of Parliament which impose a duty upon the public, will be critically construed with reference to the particular language in which they are expressed. When there is any ambiguity found, the construction must be in favour of the public; because it is a general rule, that where the public are to be charged with a burden, the intention of the Legislature to impose that burden, must be explicitly and distinctly shown." Hence a gift of an estate upon conditions, was held not "a sale" within the meaning of the 48 Geo. 3, c. 149, and that the conveyance was not subject to the ad valorem stamp duty.f As to the Stamp Acts in general, Lord Tenterden observed in Tomkins v. Ashby: "Acts of Parliament imposing duties are so to be construed, as not to make any instrument liable to them, unless manifestly within the intention of the Legislature." g And see the rule laid down by Lord Ellenborough in Warrington v. Turbert.h So, in the cases of tolls for repairing turnpike roads, where the toll was imposed on "the horses drawing a carriage," but persons a R. v. Sharpness, 2 T. R. 47. b R. v. Richards and Others, 8 B. & C. 420. d 1 W. Bl. 20. c 5 Bro P. C. 438. e Looker v. Halcome, 4 Bing. 184. h 8 East, 242. f Denn dem. Manifold v. Diamond, 4 B. &. C. 248. 9 6 B. & C. 541. NOTE 39.-Upon sound principles of construction, a reference to a term used in a statute must be in its direct and primary sense, as expressly defined, and not in an assimilated interpretation, and this is more especially so when the express meaning will accomplish all that was designed by the framers of the law. Cruger v. Cruger, 5 Barb. 267. repassing with the same, during the same day, were to be toll free; a second toll is payable in respect of a different carriage passing the same day with the same horses; a for the word carriage" is introduced to limit the exemption, and you must otherwise, instead of giving effect to every word in an act of parliament, strike it out of the clause. But where the toll is imposed on the "carriage drawn by so many horses," it makes no difference in the exemption, whether drawn by the same or different horses. b And where the words of an exemption clause were, that "every person having paid the said tolls, shall pass and repass with the same horses, cattle, beasts, and carriages, toll free," &c., the court held that the same stage coach repassing with the same coachman, but with different horses and passengers, was not chargeable with the second toll. Bayley, J., said, "As a separate and distinct duty is previously imposed upon horses, upon cattle, upon calves, hogs, sheep, or lambs, which are properly denominated beasts, Í think, reddendo singula singulis, that the exemption applies to every separate thing on which the toll was previously imposed. The fair construction of the clause is, that the word 'and' is not to be taken conjunctively, but disjunctively or distributively, and then the consequence will be, that if you return with the same horses, drawing the same carriage, you are to pay no toll; if you return with the same horses, mares, mules, or asses, laden or unladen, you are to pay no toll, &c.; and if you return with the same carriage, you are to pay no toll." c In an action for dock dues, Lord Ellenborough said, "If the words will fairly admit of different meanings, it will be right to adopt that which is more favorable to the interest of the public, and against that of the company, because the company, in bargaining with the public, ought to take care to express distinctly what payments they are to receive, and because the public ought not to be charged, unless it be clear that it was so intended." d In the Dock Company at Kingston upon Hull v. Browne, e Lord Tenterden said, "These rates are a tax upon the subject, and it is a general rule that a tax shall not be considered to be imposed without a plain declaration of the intent of the legislature to impose it." In Parker v. The Great Western Railway Company,f Tindal, C. J., said: "Acts passed conferring great privileges upon companies, for which they profess to give the public certain advantages in return, should be construed strictly against the parties obtaining them, but liberally in favor of the public." a Loaring v. Stone, 2 B. & C. 515. c Waterhouse v. Kean, 4 B. & C. 200. b Williams v. Sangar, 10 East, 66; and Gray v. Shilling, 2 B. & B. 30. d Gildwit v. Gladstone, 11 East, 675. e 2 B. & Ad. 58. And see 1 B. & C. 424; 3 B. & A. 141; 6 Scott, N. R. 823; 8 M. & G. 175. fL J. 1844, C. P. 105. |