Kenrick v. United States

14 F. Cas. 338, 1 Gall. 268

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: October 15, 1812
• Status: Published

Opinion

STORY, Circuit Justice.

The first error assigned is argued to be fatal, because it in effect concludes against the form, of the statutes, when the offence is created by a single statute. The principle seems to be well settled, that when an offence depends on several statutes, a conclusion against the form of a single statute would be bad. Lee v. Clarke, 2 East, 333; 2 Hawk. P. C. bk. 2, c. 25, § 117; Cro. Jac. 142; Lutw. 212; Owen, 134; Com. Dig. "Action on Statute,” H. The reason of this seems to be, that, by the general rule, a declaration for an offence created by statute must show a conclusion against the statute, that the party may be prepared to answer to it, and anciently the statute itself was recited in the declaration. But if a statute were recited, on which alone no action could be founded, no sufficient notice of the offence would be given, and the declaration would not contain a complete description of the offence, or a perfect title to a penalty. It is probable, therefore, that the doctrine grew up in early times, before the general conclusion, without reciting the statute, was admitted to be good. See 2 Hawk. P. C. bk. 2. c. 25, § 100, and the authorities there cited. But it by no means follows from this, that a conclusion against statutes, where the action is founded on a statute, would be bad. In the former case, the declaration would contain too little; in the latter the presence of mere surplusage ought not to vitiate. If, according to the ancient course, the whole statutes on the subject before the court had been literally recited, I am at a loss to know how the recital of more than was necessary would of itself have destroyed the effect of that, which was well recited. If upon the whole, a good title appear on the record, it seems difficult to admit that the judgment ought to be reversed, because it sets up unnecessary allegations.

But it is contended, that this point is well settled by authority. If it be so, I will not be the first to disturb it; but I shall require full evidence of the assertion. The doctrine is found laid down by Lord Chief Baron Co-myns, Com. Dig. “Action on Statute,” H; 5 Com. Dig. “Pleader” (S 2, 10), and by Ser-jeant Williams in 2 Saund. 377b, note 12, and by Hawkins in his Pleas of the Crown (book 2, c. 25, § 117). The position as stated by them, is supported by a reference to the case of Andrew v. Hundred of Lewkner, Yel. 116, and is not asserted upon their own independent authority, respectable as it must be admitted to be. On examining the cases referred to, it appears to have been an action on the statute of Winton (13 Edw. 1), and concluded “contra formam statuti pre-dieti.” It was contended at the bar, that the action was not founded exclusively on the statute of Winton, but also on the statute, 27 Eliz., and so the conclusion ought to have been “contra formam statutorum.” The court were of opinion that the conclusion was right because the action was founded on the statute of Winton only, and are reported further to have said, “If the plaintiff had concluded ‘contra formam statutor-um,’ it had not been good, because the statute, 27 Eliz., does not enable the party to sue.” It is apparent, upon this statement, that the language attributed to the court was gratuitous and wholly unnecessary to the decision of the case. The principal point decided has been held good law ever since. Cas. Hardw. 390; Cro. Jac. 187. Yet in Cro. Jac. 187, the court strongly intimated, that the conclusion either way would have been good, and said that the precedents were both.» ways. The same doctrine seems incidentally admitted by Lord Hale (2 Hale, P. C. 173), where, after stating that, if a temporary statute be made perpetual or revived by another, an indictment on it may conclude “contra formam statuti,” he seems to admit that “contra' formam statutorum” would also be good; and Hawkins (P. C. bk. 2, c. 25, § 117), speaking of cases where the same act is prohibited by divers independent statutes, says, “also where such an indictment concludes ‘contra formam statuti,’ without showing what statute is intended, why may it not be said, that such statute shall be taken, as is most for the king’s advantage, as well as where the indictment concludes ‘contra formam statutorum,’ in which case it seems to be admitted, that it shall be so taken?” Dyer, 155. Now if it be considered, that a single statute is sufficient to support the action in these cases; and that it is admitted, that a conclusion against statutes is not bad, I would ask, if it does not form a very strong presumption against the correctness of the doctrine assumed by the court in the case in Yelverton. At all events, I cannot consider that case as an authority for more than the point directly decided by it. See Earl of Clanricarde v. Stokes, 7 East, 517. Considering then that the argument on this point is not supported by authority, or by analogous reasoning, I have no hesitation in declaring, that it ought not to prevail. It is often-times a matter of serious difficulty, to decide whether an of-fence rests on one or many statutes; and I can perceive no reason for holding the party to this strictness. If he show any one statute sufficient to maintain his action, it is enough for the court; and the recital of the titles of all the other acts in the statute books ought not to deprive him of the protection of the law, if he bring himself within any one of them. If superfluous matter be inserted, to the oppression or injury of tlie defendant, the court will, on a proper case shown, animadvert on it with becoming severity. As to the other errors assigned, they have all in effect been disposed of by the previous decisions of the court. On the whole, I affirm the judgment of the district court with costs.