1805.

BARNARD

2.

GOSTLING.

sum of 401. forfeited by the Defendants jointly, Lord Mansfield thus lays down the rule: "Where the offence 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 continues but one offence. But where the offence is in its nature several, and where every person concerned may be separately guilty of it, there each offender is separately liable to the penalty; because the crime of each is distinct from the offence of the others, and each is punishable for his own crime." Now if several partners act as proctors without obtaining or entering their respective certificates, the joint act makes each of them liable to a several penalty. In The King v. Clarke, Lord Mansfield mentions the of fences of impounding a distress in a wrong place, under the 1 & 2 Ph. & M. c. 12., and of destroying the game contrary to 5 Ann. c. 14., both of which he admits to be in their nature joint, though several concur in the offence. It was held in Brookes' case, 2 Roll. Abr. 81. tit. Indictment, pl. 6. and recognized in Regina v. Atkinson & al. 1 Salk. 382.by Holt Ch. J. that two could not be indicted jointly for exercising a trade not being educated in it as apprentices, because the forfeitures are distinct. So in this case the forfeitures of the two Defendants are distinct. 2dly, The counts in this declaration charge the Defendants with two offences, viz. the not having obtained and entered their certificate,and yet claim only one penalty,not distinguishing whether they have offended in not having obtained or not having entered their certificates. It so happens that the penalties for not having obtained and for not having entered the certificate,are created by the same act.But suppose them to have been created by different acts and to have been penalties of different amounts, viz. one of 57. and the other of 501., how could it have been ascertained on those counts for which offence and for which penalty the action was commenced? The counts, there

fore, are altogether uncertain, and cannot be sustained on this ground.

Lawes for the Plaintiff in error. When this case was before the Court of King's Bench, Mr. Justice Lawrence said, if it were necessary to decide the point as to whether the Defendants could be charged jointly for the recovery of the penalties, it was governed by the case of Hardyman v. Whitaker, of which he then read a MS. note. Indeed the objection, if available at all, is not available in this stage of the proceedings, but is cured by the finding of the jury, by which the act complained of appears to have been the joint act of the two Defendants. But the pe nalty attaches on the act done by the Defendants, and if both have done but one act, both are liable to one penalty only. In The King v. Bleasdale, 4 Term Rep. 809. it was held, that two persons could not be convicted in separate penalties for using a greyhound to destroy game. And in The King v. Clarke, Cowp. 612. Lord Mansfield admitted that two, three, or four persons might be joined in an indictment for impounding a distress in a wrong place, it being but one offence, though several were concerned. How then do those cases differ from this? Here though the two Defendants as partners were concerned in each act for which a penalty is claimed, yet each act constitutes but one offence,and consequently subjects the two to one penalty only.

Sir James MANSFIELD Ch. J. This action is founded on the 37 G. 3. c. 90., and the words of the 30th section by which the penalty is created, are, " if any person shall in his own name, or in the name of any other person or persons, sue out any writ or process, or commence, prosecute, carry on, or defend any action or suit, or any proceedings in any of the courts for or in expectation of any gain, &c., or shall do any act in any of the said courts VOL. I. N. R.

T

as

1805.

BARNARD

v.

GOSTLING.

1805.

BARNARD

บ.

GOSTLING.

as an attorney, &c., proctor, &c., without obtaining a certificate in the manner herein before directed, or without entering the same in one of the courts aforesaid, &c. every such person shall for every such offence forfeit and pay the sum of 50l. &c." The first thing to be considered in this case is, whether if any given number of persons unite in partnership as proctors or attornies, the act of each partner is not the act of all the partners? If so, and of that there can be no doubt whatever, the 37 G. 3. c. 90. makes "every such person" liable to a penalty. The counts in this declaration upon which the Plaintiff obtained his verdict state, that the Defendants did in their own names as proctors of the Prerogative Court extract the probate of a will, and it must now be taken to have been proved that they did so. Ifthen these Defendants are both proved to have acted as proctors without having obtained and entered their certificates, can it be doubted that each is liable to a penalty of 501.? Indeed it is very doubtful how far the counts in this declaration can be sustained,as not having alleged distinctly

whether the offence was committed when neither of the Defendants had obtained and entered a certificate, or when one only had omitted to obtain and enter his certificate. Nothing however is more clear than that no person can by law be convicted of an offence, but with this consequence also, that he may be enabled to plead the record of such conviction in case he should be again impleaded for the same offence. Now let us suppose either of these Defendants to be again impleaded separately for the same offence, for which both have now been sued jointly by the Plaintiff, how would it be possible for such person to plead the recovery in this suit? If indeed only one penalty can be recovered for the joint act of both Defendants, then such recovery would protect both; but the consequence of such a rule would be, that 16 persons might be joined in a suit as Defendants, in order to save

15 penalties by the payment of one penalty for the joint act of all. The absurdity of such a consequence is sufficient to sustain the objection made to the mode of declaring adopted in this case, and to induce the Court to affirm the judgment. In the Court of King's Bench this objection was not fully considered, and the only opinion thrown out there upon it was founded upon the cases decided on the game laws. There, though several persons join in using a greyhound or killing a hare, still there is but one act done by all. In this case, though several partners may do but one act, yet each of those persons acts as a proctor, and for so acting as a proctor, without obtaining and entering his certificate, each is separately liable to a penalty. The decisions on the game laws therefore do not govern this case.

FORSYTH. MARRIOTT and GROVER, Bail of

CLARK.

HIS was a rule to shew cause why the return of non THE est inventus, made by the sheriffs of London against the Defendant in the original action, and all proceedings against the bail subsequent to such return, should not be set aside, and the money levied under the execution against the bail restored.

It appeared that a writ of ca: sa. had been sued out by the Plaintiff against the original Defendant, and left at the sheriffs' office with directions to return non est inventus, though the Defendant was at that time actually in the custody of the sheriffs in the prison of Ludgate; that such return having been made, an action was brought

May 9th.

If the principal be actually in the custody of the

sheriff at the time when the latter, at the instance of the Plaintiff, returns non est inventus to a

ca. sa.; the Court will set aside such

return, together

with all subsequent proceedings against the bail, and order the money levied under an execution

to be returned to them.

1805.

FORSYTH

v.

MARRIOTT and Another.

against the bail, judgment entered up, execution sued out, and the money levied.

Best Serjt. shewed cause and insisted that the return was made at the peril of the sheriff, who was liable to an action if it proved to be false, and that the Court therefore ought not to interfere upon motion.

Bayley Serjt. contrà observed, that in this case the return was the act of the Plaintiff, by whose directions it was made; and that he was not entitled therefore to take advantage of it as the act of the sheriff.

Per Curiam. It is the common practice, when a Plaintiff intends to proceed against the bail, to carry the ca. sa. to the sheriffs' office, and give directions to have it returned non est inventus, without knowing whether the Defendant be in custody or not. But as it now appears that the Defendant was actually in custody at the time when this return was made, the bail have been injured, and the return must be set aside.

Rule absolute (a).

(a) Vid. Tidd's Pr. vol. 2. p. 998. ed. 3. n. q.

May 13th.

A note or memorandum in writing of a contract for the sale of goods, signed by the seller only, is not a suf

TH

CHAMPION and Another . PLUMMER.

HIS was an action against the Defendant for not de. livering to the Plaintiffs 20 puncheons of treacle bought of him by the Plaintiffs at 37s. per cwt., to be

delivered on the 10 of December; 20 puncheons at 36s.

ficient momorandum within the meaning of the statute of frauds.