7 Conn. 181 | Conn. | 1828
The case before us involves no manner of difficulty.
To the sufficiency of the grand-juror’s information, it has been objected, that it does not appear, that it was made to a justice of the peace residing in the town where the offence was committed ; and that there is no allegation, shewing the time or place of its commission.
In respect of the forum, the defendant should have pleaded to the jurisdiction of the court. By the plea of not guilty, the jurisdiction was admitted. Co. Litt. 303. 1 Chitt. Plead 425. Archb Plead. 290. Besides, the place of the justice’s residence is apparent, not only by legal implication, but on the record. The offender was ordered to be arrested, and in fact was ai'-rested, and brought before the justice, at his dwelling-house in Branford.
The remaining objection is unsupported by the fact. It is explicitly averred, that “ Bishop is miller of a certain gristmill, situate in said Branford,” at which place the offence was committed ; and that the time of its perpetration was on or about the 27th day of November, 1824.
The residue of the case will briefly be disposed of, by the statement and application of a few established principles.
It is a well settled principle, that wherever a new offence is created by statute, and in the clause creating it, a special remedy is prescribed, such remedy is exclusive and must be followed. To this rule there is a qualification equally well established. Where a new created offence is prohibited, by a substantive clause in a statute, and in another section a special remedy is given, an indictment or information will lie on the prohibitory clause. Com Dig. tit. Information. B. The King v. Moor, 2 Mod. 128. Rex v. Wright, 1 Burr. 544, 5. 1 Show. 402.
It is likewise indisputably established, without the aid of statute law on this subject, that where a statute prohibits an act under a penalty, and gives one moiety to the public, and the other to a common informer, the state may prosecute for the whole, unless a common informer has commenced a qui tam suit for the penalty. Com. Dig. tit. Information. A. 3. Rex v. Clark & al. Cowp 610. Rex v. Hymen, 7 Term Rep. 536.
The application of these principles is obvious.
By the 1st section of the statute, the taking of certain toll is prescribed, and all excess prohibited; and no special remedy was designated. Of consequence, under this section the prohibited act was made criminal, and it was the duty of every grand-juror to prosecute for any breach of this provision. The 2nd section giving a moiety of the penalty to a common informer, to insure an enforcement of the law, did not take away the right of prosecution for the crime, founded on the prior clause. Besides, if the special remedy had accompanied the 1st section of the act, the state might prosecute for the offence, were it not anticipated, by a previous suit, brought by a common informer ; and no such anticipation is pretended.
Judgment reversed.
