Barnard against Gostling and Another
| Jurisdiction | England & Wales |
| Judgment Date | 05 July 1802 |
| Date | 05 July 1802 |
| Court | Court of the King's Bench |
English Reports Citation: 102 E.R. 487
IN THE COURT OF KING'S BENCH.
baenaed against gostling and anothee. Monday, July 5th, 1802. The stat. 37 G. 3, c. 90, s, 26, requiring a proctor to take out a certificate for practising, under a certain penalty, gives no action to a common informer for the recovery of it; the 6th sect, of that Act incorporating the power of suing, &c. given by former statutes only referring to penalties in respect of duties created by prior sections of that Act. It seems that two proctors may be sued together for-not obtaining and entering their certificates, and that one may be acquitted and the other convicted. ,- . - In debt for certain penalties, the third count charged that the defendants not regarding the statutes in such case made, &c. on, &c. at, &c. did in their own names as proctors of the Prerogative Court, &c. and for and in expectation of gain, fee, and reward in the said Court, &e. extract the probate of a certain will and codicil of one J.'K. deceased, without having obtained and entered any such certificate or certificates, as in and by the statutes in such case made is directed, contrary to the form of the statutes, &c. whereby and by force of the statutes, &c. the defendants then and there forfeited for their said last-mentioned offence 501., &c. and an action hath accrued to the plaintiff, &c. A verdict was taken for the plaintiff on this, and on the 12th and 488 BABNARD V. GOSILING 2 EAST,570. 15th counts, which were in a similar form, for other acts done by the defendants as proctors. [570] The cause was tried at-Guildhall before Le Blanc J. at the sittings in Hilary term last, when a verdict was given for the plaintiff on the 3d, 12th, and 15th counts. A motion was made on a former day in arrest of judgment, and a rule nisi granted on these objections; 1. That the not having obtained and entered a certificate are two distinct offences under the stats. 25 Geo, 3, c. 80, and 37 Geo. 3, c. 90, s. 27, and not chargeable as one. 2. That the offence, if entire, is several in its nature, and the defendants cannot be sued jointly for the penalty. 3. That the stat. 37 Geo. 3, c. 90, s. 30, creating the penalty, gives no such action as the present to a common informer; but the penalty can only be recovered by information on the part of the Crown. Erskine, Gibbs, and Espinasse, shewed cause against the rule. As to the first objection, it is answered by the words of the Act; the...
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