CONTRA FORMAM STATUTI
(bouvier) | CONTRA FORMAM STATUTI. Contrary to the form of the statute.
2.-1. When one statute prohibits a thing and another gives the
penalty, in an action for the penalty, the declaration should conclude
contra fornam statutorum. Plowd. 206; 2 East, R. 333; Esp. on Pen. Act. 111;
1 Gallis. R. 268. The same rule applies to informations and indictments. 2
Hale, P. C. 172; 2 Hawk. c. 25, Sec. 117 Owen, 135.
3.-2. But where a statute refers to a former one, and adopts and,
continues the provisions of it, the declaration or indictment should
conclude contraformam statuti. Hale, P. C, 172; 1 Lutw. 212.
4.-3. Where a thing is prohibited by several statutes, if one only
gives the action, and the others are explanatory and restrictive, the
conclusion should be contra formam statuti. Yelv. 116; Cro. Jac. 187 Noy,
125, S. C.; Rep. temp. Hard. 409 Andr. 115, S. C.; 2 Saund. 377.
5.-4. When the act prohibited was not an offence or ground of action
at common law, it is necessary both in criminal and civil cases to conclude
against the form of the statute or statutes. 1 Saund, 135, c.; 2 East, 333;
1 Chit. Pl. 358; 1 Saund. 249; 7 East, 516; 2 Mass. 116; 7 Mass. 9; 11 Mass.
280; 10 Mass. 36; 1 M'Cord, 121; 1 Gallis. 30.
6.-5. But if the act prohibited by the statute is an offence or
ground of action at common law, the indictment or action may be in the
common law form, and the statute need not be noticed, even though it
prescribe a form of prosecution or of action - the statute remedy being
merely
cumulative. 2 Inst. 200; 2 Burr. 803; 4 Burr. 2351; 3 Burr. 1418; 2 Wils.
146; 3 Mass. 515.
7.-6. When a statute only inflicts a punishment on that which was an
offence at common law, the offence prescribed may be inflicted, though the
statute is not noticed in the indictment. 2 Binn. 332.
8.-7. If an indictment for an offence at common law only, conclude
"against the form of the statute in such case made and provided;" or "the
form of the statute" generally, the conclusion will be rejected as
surplusage, and the indictment maintained as at common. law. 1 Saund. 135,
3.
9.-8. But it will be otherwise if it conclude against the form of
"the statute aforesaid," when a statute has been previously recited. 1 Chit.
Cr. Law, 266, 289. See further, Com. Dig. Pleader C 76; 5 Vin. Abr. 552, 556
1 Gallis. 26, 257; 9 Pick. 162 5 Pick. 128 2 Yerg. 390; 1 Hawks. 192; 3
Conn. 1 11 Mass. 280; 5 Greenl. 79.
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