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law,' and the common-law punishment follows. Or, if such a statute prescribes no mode of prosecution, the common-law indictment lies. In like manner,

$ 250a. Private statutory interest.- Where a statute creates a private interest, but is silent as to the remedy, any person within the benefit conferred, or injured by the prohibited wrong, may sue. Or, as otherwise expressed, “ when any statute requires an act to be done for the benefit of another, or to forbear the doing of an act which may be to his injury, though no action be given in express terms by that statute, for the omission or commission, the general rule of law in all such cases is that the party injured shall have an action.”5 But a new statutory remedy for an existing right does not take away the former remedy, and either may be pursued. So, as in the case of a criminal statute,' where the act which confers a civil right prescribes the remedy, it only is permissible. Or, if a


1 Rex v. Robinson, 2 Bur. 799, 803; Greenl. 401; Fryeburgh Canal v. Rex v. Smith, 2 Doug. 441; Rex v. Frye, 5 Greenl. 38; Baltimore v. HowHarris, 4 T. R. 202.

ard, 6 Har. & J. 383; Booker v. McAnte, $ 138; Reg. v. Price, 11 A. Roberts, 1 Call, 243; P. v. Craycroft, & E. 727; Reg. v. Walker, Law R. 2 Cal. 243, [56 Am. D. 331;] Adams v. 10 Q. B. 355, 13 Cox, C. C. 94.

Richardson, 43 N. H. 212; Bruce v. 3 Colburn v. Swett, 1 Met. 232; Elder Delaware & Hudson Canal, 19 Barb. v. Bemis, 2 Met. 599; S. v. Meyer, 1 371; Sharp v. Warren, 6 Price, 131. Speers, 305; 8. v. Helgen, 1 Speers, ? Ante, S 250. 310; and the cases in the last two 8 Stevens v. Evans, 2 Bur. 1152, notes.

1157; S. v. Stewart, 26 Ohio St. 216; * Ante, SS 134, 138, 144; Crim. Law, Lang v. Scott, 1 Blackf. 405. [12 Am. I, SS 237, 238; Ewer v. Jones, 2 Ld. D. 257;] Rochester v. Bridges, 1 B. & Raym. 934, 937; Privilege of Priests, Ad. 847, 859; Ward v. Severance, 7 12 Co. 100; Arundel v. Duckett, 20 Cal. 126; Roberts V. Landecker, 9 Md. 468; Shepherd v. Hills, 11 Exch. Cal. 262; Thurston v. Prentiss, 1 Mich. 55, 67; Hightower v. Fitzpatrick, 42 193; Almy v. Harris, 5 Johns. 175; Ala. 597; Dudley v. Mayhew, 3 Comst. Renwick v. Morris, 7 Hill (N. Y.), 9. And see Steamship Co. v. Joliffe, 575; Fuller v. Edings, 11 Rich. 239; 2 Wall. 450.

Butler v. S., 6 Ind. 165; Victory v. 5 Ashby v. White, 14 How. St. Tr. Fitzpatrick, 8 Ind. 281; Cole v. Mus. 695, 785; Pickering v. James, Law R. catine, 14 Iowa, 296; Hazen v. Essex, 8 C. P. 489; Hitchins v. Kilkenny, 12 Cush. 475; Camden v. Allen, 2 etc. Ry. Co., 9 C. B. 536; The Wav. Dutcher, 398; Weller v. Weyand, 2 erly, 7 Bis. 465.

Grant (Pa.), 103; Brown v. White Deer, 6 Coxe v. Robbins, 4 Halst. 384; 27 Pa St. 109; Babb v. Mackey, 10 Wis. Almy v. Harris, 5 Johns. 175; Colden 371; Wolverhampton New Waterv. Eldred, 15 Johns. 220; Farmers' works v. Hawkesford, 6 C. B. (N. S.) Turnpike v. Coventry, 10 Johns. 389; 336, 356; Stevens v. Jeacocke, 11 Q. B. Bearcamp River Co. v. Woodman, 2 731; Marshall v. Nicholls, 18 Q. B. 882;


statute authorizes the doing of a thing which was before unlawful, and prescribes the remedy for the injured party, it only can be pursued;' or, if it provides for a part of the injury, its rule prevails as to the part, while the common-law remedy is available for the rest.?

$ 250b. Civil and criminal or penal.- As private and public wrongs and redress are separate and concurrent, provisions for the procedure as to the one have no relation to the same as to the other. So that, for example, if a statute creates a new offense and imposes a penalty, the remedy by injunction is nevertheless, in a proper case, available.' So also, in a proper case, not as of course in every one, an action at common law may be maintained by the private party in such circumstances.

$ 250c. Indictment — is the common, yet not the only, form for prosecuting crimes. When, therefore, a statute creates a crime, whether it fixes the punishment or not, an indictment will lie against the violator, unless it provides some other form of procedure. So,

$ 2500. Penal action.— Though a penal action is not properly criminal, if a statute provides a penalty for a wrong of a public nature,lo to be recovered by action, the plaintiff should be not the informer, though he is to receive a part of the pen. St. Pancras v. Batterbury, 2C.B. (N.S.) 6 Crim. Pro., L. & 130 et seq. 477; Bassett v. Carleton, 32 Me. 553, ? Ante, $ 250; 2 Hale, P. C. 171; 2 [54 Am. D. 605.]

Hawk. P. C., ch. 25, § 4; Rex v. 1 Henniker v. Contoocook Valley Wright, 1 Bur. 543, 544; Reg. v. BuR. R. Co., 9 Fost. (N. H.) 146; Best v. chanan, 8 Q. B. 883; S. v. Pate, BusGholson, 89 Ill. 465; In re Washing- bee, 244; Blackwell v. Old Colony R. ton Park, 52 N. Y. 131; In re Towns. R. Co., 122 Mass. 1; U. S. v. Ebner, 4 end, 4 Hun, 31; McKinney v. Monon- Bis. 117; Burnet v. Davidson, 10 Ire. gahela Nav. Co., 14 Pa. St. 65, (53 Am. 94. See S. v. Carr, 6 Oreg. 133. D. 517;] Sudbury Meadows v. Middle- 8 Rex v. Wright, supra; Rex v. Mar. sex Canal, 23 Pick. 36; Dodgev. Essex, riot, 4 Mod. 144. 3 Met. 380.

9 Crim. Law, I, § 32; Webster v. P., 2 Troy v. Cheshire R. R. Co., 3 Fost. 14 III. 365; Canfield v. Mitchell, 43 (N. H.) 83, [55 Am. D. 177.]

Conn. 169. 3 Crim. Law, I, § 264 et seq.

10 See Ordway v. Central National 4 Cooper v. Whittingham, 15 Ch. D. Bank, 47 Md. 217, [28 Am. R. 455;] 501.

Gilmore v. Dawson, 64 Mo. 310. 5 Hayes v. Porter, 22 Me. 371; Couch 11 2 Hawk. P. C., ch. 25, S 4. See v. Steel, 3 Ellis & B. 402; Atkinson v. Carle v. P., 12 Ill. 285. Newcastle, etc. Waterworks, 2 Ex. D. 441.





alty, but the state.! Yet it is common, by express provision, to allow qui tam actions, in which an informer sues in his own name for a penalty, as well on behalf of himself as the state.? But even then, if the private person has not commenced such action, the state may sue. While his action is pending, no other person can maintain a suit. Now,

$ 251, Complications less obvious. While the doctrines of this sub-title are thus far plain, both in reason and authority, there may be complications of facts the legal consequences whereof are less obvious. Thus,

Different date or different part of statute. — Plainly, if a statute of to-day creates an offense, and, prescribing no remedy, leaves it to be proceeded against under the common law, a statute of to-morrow defining the procedure will be cumulative, the same as if the offense had been originally at the common law. Then, will it make a difference should the statutes be simultaneously enacted ? There are cases which hold not, and that, if one section of an act creates an offense, and another prescribes the remedy, the remedy is cumulative. And a much-esteemed book lays down the doctrine that, “where an offense is not so at the common law, but made an offense by act of parliament, an indictment will lie where there is a substantive prohibitory clause in such act of parliament, though there be afterwards a particular provision and a particular remedy given.”? Within this doctrine, if by one clause of a stat

.7 ute an offense is created “and a penalty is annexed to it by a separate and subsequent clause," a violation of it need not be pursued by a suit for the penalty, but an indictment will lie “on

1 Rex v. Hymen, 7 T. R. 536; Smith 3 S. v. Bishop, 7 Conn. 181; Com. v. v. Look, 108 Mass. 139, 141; Caroon Howard, 13 Mass. 221, 222. v. Rogers, 6 Jones (N. C.), 240. Under 4 Dozier v. Williams, 47 Miss. 605. the Missouri statute, see Hudson v. 01 Russ. Crimes (3d Eng. ed.), 50. St. Louis, etc. Ry. Co., 53 Mo. 525; 6 Attorney-General v. White, 2 Co Fickle v. St. Louis, etc. Ry. Co., 54 myns, 433, 456. But see Crofton's Mo. 219; Seaton v. Chicago, etc. R. R. Case, 1 Vent. 63, 1 Mod. 34. Co., 55 Mo. 416.

71 Saund., Wms. ed. (6th) 135, note. 2 Smith v. Look, supra; Wheeler v. And see Lichfield v. Simpson, 8 Q. B. Goulding, 13 Gray, 539; Moore v. 65; Collinson v. Newcastle, etc. Ry. Jones, 23 Vt. 739; Chicago, etc. R. R. Co., 1 Car. & K. 546; Rochdale Canal Co. v. Howard, 38 Ill. 414; Megargell v. King, 14 Q. B. 122. v. Hazelton Coal Co., 8 Watts & S. 342.



the prior clause, on the ground of its being a misdemeanor." I Now, to take another step in the argument, can it make a difference that the prohibition and remedy are in different clauses or sections ? If we make the natural answer that it cannot, we come to a doctrine directly contrary to what we have seen to be established. The logical course would be to deny that provisions enacted at the same date have, in this class of cases, the same effect as if established at different dates. But the English decisions appear to have gone too far otherwise to admit of reconciliation by logic; so the distinction in England seems to be that, where the same section both creates the offense and affixes the consequence, only the statutory direction can be followed;' but, where the offense is created in one section and penalties are prescribed in a subsequent section, the subsequent one is cumulative, and the common-law method may be followed. But,

$ 252. With us,- this particular distinction has probably not been very much considered. And it is doubtful whether anything relating to it can be set down as established in American law. Said a learned Massachusetts judge: “The distinction to be taken is, where a statute does not vest a right in a person, but only prohibits the doing of some act under a penalty; in such a case the party violating the statute is liable to the penalty only; but, where a right of property is vested in consequence of the statute, it is to be vindicated by the common law unless the statute confines the remedy to the penalty.”6 Should we apply this distinction in the criminal law, it might possibly subject to indictment one who violated a statute creating a crime and prescribing a summary procedure, without words negativing any other procedure; though this consequence does not seem to be inevitable.? A statute making a thing a public

1 Ashurst, J., in Rex v. Harris, 4 T. Law J. (N. S.) Q. B. 227, 10 Jur. 736; R. 202, 205. See also 1 Russ. Crimes 1 Russ. Crimes (3d Eng. ed.), 50, 51. (3d Eng. ed.), 49 et seq.; ante, SS 134, 6 Putnam, J., in Barden v. Crocker, 136, 138.

10 Pick. 383, 389. 2 Ante, SS 63, 65, 66.

? And see, to this point, S. v. ThompAnte, SS 250, 250a.

son, 2 Strob. 12, which is, however, Attorney-General v. Radloff, 10 consistent with the English distincExch. 84, 23 Law J. (N. S.) Exch. 240, tion as stated in the last section. 18 Jur. 555, 26 Eng. L & Eq. 413. And to the point of the text is Croft5 Reg. v. Buchanan, 8 Q. B. 883, 15 on's Case, 1 Mod. 34, which has per

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nuisance, and in the same section directing how it shall be punished, doubtless leaves it subject to the common-law abatement."

§ 253. In conclusion of this topic.- Under the present unsatisfactory condition of the authorities, true wisdom would seem to indicate that, in each individual instance, special regard be paid to those considerations which point to the actual legislative intent. The practitioner, obliged to adapt his course nicely to the shades of distinction taken by the courts heretofore, will consult the cases carefully as to points presenting special difficulties. But judges, seeking the truth more in the line of legal reason than of precise authority, will consider whether, looking at the whole law, the new remedy for the new offense was intended by the legislature to supersede the common-law remedies, which attach as of course to all offenses.


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$ 254. Mandatory, defined. A statute is called mandatory when, if not all its provisions are complied with according to their terms, the thing done is, as to it, void.

In general. Most statutes are mandatory;? and, for example, their terms must be all and strictly pursued to render proceedings under them good, or rights claimed under them valid. Even,

Agreements contrary to statute.- As we have seen,' agreements in contravention of a statute or its policy are, in general, void.5 And

Thing done contrary, etc.— Penalty.— The same rule applies to a thing done contrary to a statute; it is commonly void. Or, if the enactment merely imposes a penalty or a forfeiture, this is usually, not always, equivalent to a prohibition. haps been overruled. See also People ville, Minor, 23; Crawford v. S., Minor, v. Stevens, 13 Wend. 341; Renwick 143; Hale v. Burton, Dudley (Ga.). v. Morris, 7 Hill (N. Y.), 575.

105; Fitch v. Kirkland, 22 Wend. 132. 1 See Renwick v. Morris, 7 Hill 4 Ante, & 138a. (N. Y.), 575; Rex v. Gregory, 2 Nev. 6 Peck v. Burr, 6 Seld. 294; Miller & M. 478, 5 B. & Ad. 555.

v. Post, 1 Allen, 434; Hathaway v. 2 Koch v. Bridges, 45 Miss. 247. Moran, 44 Me. 67. As to marriage see

3 Ante, $ 119; Fitzpatrick v. Turner, 1 Bishop, Mar., Div. & S., ES 287–291; 14 Fla. 382; Hammons v. S., 8 Tex. Parton v. Hervey, 1 Gray, 119; Illi272; District Township, etc. v. Du- nois Land & Loan Co. v. Bonner, 75 buque, 7 Iowa, 262; Corbett v. Brad. II. 315. ley, 7 Nev. 106; Logwood v. Hunts- 6 Hallet v. Novion, 14 Johns. 273,

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