case walter GROSSET plaintiff in error William Ogilvie defendant in error that  February Mews dig ten see Bradlaugh v clarke a c Huntington v Attrill a c a  information be exhibit by a officer of the custom against a for the penalty of  private relanding certificate good contrary to the statute Ann c some time  afterward a act pass Geo indemnifying all person from the penalty of run land  etcetera any prohibit good the defendant plead this act in bar but it be hold  that the offence lie in the information be not release or discharge by the act  of indemnity it be a know rule in law that on fill a information the informer  have a right to the penalty vest in he and that though the king may pardon the  offence so as to discharge his own share yet he can discharge the share of the  informer for that will be to punish the officer instead of the offender  judgement of the court of exchequer in Scotland reverse a act be make that Ann  c for continue several imposition additional imposition and duty upon good  import and for better prevent fraud in the drawback upon certificate good the  that section of which act be as follow and whereas by the law of this realm  every person export tobacco and other foreign good from any part of great  Britain be entitle to a drawback of part of the duty pay or secure at the  importation thereof and it have be find by experience that great quantity of  such tobacco and other foreign good after they have be ship for exportation  have be private reland in this realm and the remedy already provide by law  have not be sufficient to obviate a practice so very prejudicial to her  majesty revenue and to all fair and honest trader in such good for the better  prevention whereof for the future be it further enact by the authority  aforesaid that from and after the that day of march in case any tobacco or  other foreign good contain or specify in any certificate whereupon any such  drawback be brown to be make or whereupon any debenture be to be make four for  any such drawback shall not be real and good fide ship and export the danger  of the sea and enemy except or shall be land again in any part of great  Britain unless in case of distress to save the good from perish which shall be  present make know to the person or person which be or shall be appoint by her  majesty to manage her custom or principal officer of the port then not only  all such tobacco and other certificate good shall be forfeit and lose but also  the person or person be the exporter or any other who shall bring back or  cause or procure to be reland such tobacco or other certificate good or any of  they in any part of great Britain or be assist or otherwise concern in the  unship the same or to who hand the same shall know come after the unship  thereof or by who privity knowledge or direction the say tobacco and other  good or any part thereof shall be so reland shall forfeit double the amount  brown er p of the say drawback for such good together with the vessel and  boast and all the horse or other cattle and carriage whatsoever make use of in  the land remove carriage or conveyance of the same one moiety of all which  penalty or forfeiture shall be to the use of her majesty and the other moiety  to he or they that shall inform seize or sue for the same to be recover by  bill plaint or information in any of her majesty court of record at  Westminster or in the court of exchequer in Scotland at any time or time  within five year after the offence shall be commit wherein no essoin  protection or wager of law shall be allow by the that section of the same  statute any officer of the custom connive at any fraud relative to such  certificate good as aforesaid over and above any other penalty to which he may  be liable by that or any other act forfeit his office be incapacitate and be  to suffer six month imprisonment without bail and any master or other person  belong to any ship assist in or connive at the fraudulent land any such  certificate good over and above all other penalty by that and other act be  likewise to suffer six month imprisonment without bail By section that for  prevent the run of tobacco into this kingdom under pretence of export the same  to Ireland it be enact that no debenture shall be pay or allow for any tobacco  exporter from great Britain to Ireland till a certificate be produce under the  hand and seal of the collector and comptroller or surveyor of the custom of  any port in Ireland or any two of they where such good shall be land testify  the land thereof the danger of the sea and enemy except which certificate the  collector and searcher of the custom of each port in Ireland be require to  deliver upon the discharge of such tobacco And as a further security for her  majesty revenue both in England and Ireland the that section enact that the  brown master of every ship carry such certificate good to Ireland shall take  from the collector of every respectable port of great Britain a duplicate of  his consent in write certify under the hand and seal of the collector and  comptroller of such port and shall deliver such duplicate to the officer of  the custom in Ireland on his arrival before he be permit to land such good  there several indirect practice have be for some time carry on at the port of  Leith by private relanding tobacco and other foreign good after the same have  be ship for exportation upon certificate obtain from the officer of his  majesty custom at that port and the drawback make thereon and the defendant  have be principal assist or otherwise concern in unship and land again a large  quantity of tobacco after the same have be ship out for exportation into part  beyond the sea by virtue of certificate obtain from the proper officer of the  custom upon which a drawback have be make of the whole duty the plaintiff as  be a officer of the custom at that port exhibit a information as well for his  majesty as himself before the baron of the court of exchequer in Scotland in  Hilary term find upon the say statute of the that of queen whether against the  defendant thereby charge that hogshead contain ib weight of British plantation  tobacco be import by certain merchant unknown from person beyond the sea into  great Britain to wit at Leith in the county of Edinburgh within the port of  Leith for which good certain duty due to his majesty be pay or secure to be  pay to his say majesty and that the say merchant who name be then unknown to  the plaintiff do between the saint of march then last and the day of exhibit  that information at Leith aforesaid procure proper certificate in write from  the officer of his majesty custom who have sufficient authority for that  purpose within the say port for the exportation into part beyond the sea of  the say several parcel of British plantation tobacco upon which certificate  certain drawback be to be make or debenture to be make forth for such drawback  or several sum of money amount to pound S d of lawful money of great Britain  be the whole of the duty pay or secure to his say majesty for the say several  parcel of tobacco upon the importation thereof and that the say several parcel  of tobacco by virtue of the certificate be within the time aforesaid at Leith  aforesaid by the say merchant unknown ship out in a certain ship or vessel  call the Jean of Alloa for exportation into part beyond the sea and that the  say several parcel of tobacco be afterward to wit within the time aforesaid at  Leith aforesaid and within the say port of Leith unship and land again the say  unship or land again of the say several parcel of brown er p tobacco not be do  in case of distress to save the say tobacco from perish nor any such distress  make know to any person or person appoint by his say majesty to manage his  custom brown or to the principal officer of the port aforesaid contrary to the  tenor of the statute in that behalf make and provide by reason whereof the say  several parcel of tobacco become and be forfeit and be so forfeit the  defendant at the time of the unship and land again of the say several parcel  of tobacco be assist or concern in the unship of the same or by his privity  knowledge or direction the say several parcel of tobacco be so reland and  within the say port he the say defendant at the time of unship and land again  of the say tobacco well know that the same be ship out for exportation into  part beyond the sea by virtue of the say certificate and be unship and land  again the say unship or land again of the say tobacco not be make in case of  distress to save the say tobacco from perish nor any such distress make know  to any person appoint by his majesty to manage his custom or to the principal  officer of the port aforesaid contrary to the form of the say statute by  reason whereof the defendant have forfeit pound S d of lawful money of great  Britain be double the amount of the say drawback for the say several parcel of  tobacco wherefore the plaintiff as well for his majesty as himself pray the  consideration of the court in the premise and that the say several parcel of  tobacco and the sum of pound S d be double the amount of the say drawback for  the say several parcel of tobacco may for the reason aforesaid remain forfeit  and that the plaintiff may have one moiety thereof accord to the form of the  say statute the defendant appear and plead to this information on the saint of  June but instead of plead the general issue and deny the several charge in the  information he insist that by a act make in the parliament hold at Westminster  in the that year of his present majesty reign entitle a act to indemnify  person who have be guilty of the unlawful import land or run of prohibit and  uncustomd or other good and merchandise it be inter alian enact that all and  every his majesty subject of this his majesty realm of great Britain who  before the saint day of may have incur any penalty or forfeiture in by or for  the clandestine run land unship conceal or receive any prohibit good ware or  merchandise or any foreign good liable to the payment of the duty of custom  and excise or either of they or who be or may be subject to any information or  other prosecution whatsoever for the penalty for the run land unship conceal  or receive thereof or for land any good without the presence of a officer  shall be and be by the authority of the say act acquit indemnified release and  discharge against his say majesty his heir and successor and all and every  other person and person body politic and corporate and any officer or officer  of the custom and excise and brown every of they of and from all the say  offence not except in the say act and of and from all penalty forfeiture  indictment outlawry conviction and judgement not therein after except incur  have or give or that may arise or accrue for or by reason or mean of any the  say offence or other matter or thing in the say act mention or express the  defendant further plead that he be a subject of his majesty realm of great  Britain and that it appear by the information that the offence therein mention  and allege to be by he do contrary to the form of the statute in that case  make and provide be one of the offence in the say act mention and not therein  except and that the say offence be by the say information allege to be do and  commit by he before the say saint of may wherefore he pray the benefit of the  say act and that he may be acquit indemnified release and discharge of and  from the say offence penalty and forfeiture in the say information mention by  virtue of the say act the offence of the defendant relanding the certificate  good as charge by the information be accord to the know course of plead admit  and establish by this plea his majesty advocate general who prosecute for his  majesty in order to take the judgement of the court upon the point of law  arise from the construction of the act of indemnity and which only remain to  be determine between the party demurrer general to this plea in behalf of his  majesty insist that the say plea and the matter therein contain be brown er p  insufficient in law to acquit indemnity release or discharge the defendant  from the say offence or from the say forfeiture incur thereby in the say  information mention whereupon he pray judgement for the insufficiency of the  say plea and that the say pound S d in the say information mention may for the  reason therein contain remain forfeit the defendant join in demurrer insist  that his plea be sufficient for the purpose aforesaid to discharge he from his  say offence and the forfeiture thereby incur the information have stand three  year for judgement on this plea and demurrer at last come on to be argue  before the chief baron and other three baron of the court of exchequer in  Scotland on the saint of February when the court be divide in opinion two of  the baron be of opinion to allow the demurrer and the other two baron to  overrule the same and the chief baron be of the latter opinion judgement be  accord give by his cast voice that the defendant plea be sufficient in law to  discharge he from the offence and forfeiture thereby incur in the information  mention by virtue of the say act and the demurrer be accord overrule by a act  of the that of Ann c a court of exchequer be erect in Scotland and establish  upon the same plan and brown principle as the court of exchequer in England  and by the that section of that act a writ of error be give from any judgement  of the say court returnable into the parliament of great Britain upon which  the like proceed be to he have as upon writ of error in parliament on any  judgement in any of the court in England the prosecutor therefore in the  present case bring a writ of error to reverse this judgement and on his behalf  it be insist d rider W Murray that the defendant by plead the act of indemnity  have admit the several charge in the information videlicet that he be concern  in the land of lb weight of tobacco after the proper certificate have be  obtain for export the same that upon these certificate a drawback have be make  of the whole duty Payable upon the importation amount to pound S d that the  relanding be not know to the officer of the custom nor occasion by distress  and consequent that he be become liable to all the penalty impose by the act  of the that of queen whether unless those penalty shall appear to have be  release by the indemnity act of the that George that the several offence of  land uncustomd or prohibit good and the relanding certificate good be all  separate and distinct offence within the purview and provision of the revenue  law and as the denomination of customable prohibit and certificate good be  different so the term of land and relanding be different apply the term land  be use to express the offence of unship customable or prohibit good and  relanding be apply only to certificate good nor be this distinction verbal  only the offence of relanding certificate good beside the forfeiture of the  commodity vessel etcetera in common with the other species of good illicit  land be attend with a additional forfeiture of double the amount of the  drawback and the several penal law have give different process and different  period for prosecute the same accord to the different offence many of those  law which have specify offence of the first sort have be silent as to the  latter and vice line certificate good have be frequent the object of the  provision of law which have not extend either to prohibit or uncustomd good  that the act of the that George pardon all forfeiture and penalty for the run  land and unship of prohibit good or good liable to the payment of duty upon  importation but certificate good be neither prohibit good nor good liable to  the payment of duty they have be once legal import and land and consequent be  not prohibit they have pay the duty and therefore be no long liable to the  payment of duty but they may be reland which be a different species of offence  from the former and as be the great offence be not pardon either by the letter  or spirit of the above act which extend only to the lesser offence neither  will the indemnity grant by this act in respect of good not land in the  presence of a officer brown extend to the case of certificate good because  they can never be land in the presence of a officer for the certificate which  give a title to the drawback be obtain upon the express condition that the  good shall not be reland upon any term except in distress and then it will be  absurd brown er p to require the presence of a officer as the vessel may  perish before a officer can be call and the law in that case require no more  than a notification of the distress to a officer as soon as may be but do not  prohibit the land of the good till a officer come down to the shore which will  be high unreasonable but it be object that admit it to be doubtful whether the  act comprehend the good specify in the information yet it be a act of  indemnity ought to be construe most beneficial for the subject to this it may  be answer that notwithstanding there be clause insert in all the act of  general pardon since the restoration direct judge to construe those act most  beneficial for the subject yet this clause be omit in the act for indemnifying  runner a plain indication that the legislature be not so solicitous to extend  their bounty to the runner as to the whole body of the nation that the  plaintiff information be exhibit a year before the act pass and it be a know  rule in law that on fill a information the informer have a right to the  penalty invest in he to which the statute ought not to be extend as be a  private interest and though the king may still pardon the offence so as to  discharge his own share yet he can discharge the share of the informer who  have put himself to great expense in prosecute his information as that will be  to punish the officer instead of the smuggler that if the king can not and yet  the legislature have by this particular act discharge offence touch which  information be exhibit even before it take place the act as it derogate from  the commonlaw ought at least to be construe strict and therefore if  certificate good be not clear within the word of the act they ought to be so  adjudge and the indemnity of the act not extend to the offence in the  information which be no way within the purview or provision of it it be  therefore hope that the judgement allow the defendant demurrer will be reverse  and that his majesty and the plaintiff will have judgement for the penalty sue  for accord to the plaintiff information on the other side it be say a Hume  Campbell king Evans that the offence charge in the information be the  importation or land and unship of tobacco which have be once duly import the  duty pay and afterward enter for exportation with a certificate be contrary to  and prohibit by law the tobacco therefore on the case state by the information  be a prohibit commodity and by the land it in the manner state and charge the  defendant incur a heavy penalty and become subject to a information for land  and unship of prohibit good contrary to act of parliament and it be from such  penalty and brown forfeiture as well as from all prosecution on account  thereof that person be express indemnified acquit release and discharge by the  act which the defendant have plead that if the land of tobacco export by  certificate be not within the word of the statute yet it wide within the  intent and meaning of the legislature smuggle in the strict sense of the word  be not the only object but every land and unship of good prohibit to the  prejudice of the public revenue contrary to any of the law relate to the  custom or excise be within the view of parliament the evil be general the  inducement to reform be intend to be equal extensive and if every commodity  unlawful land be require to be express the statute will be nugatory and it  will be equal so if construe not to extend to offence which be not precise  describe in all the circumstance attend they last that the statute be for  pardon and indemnity as well for the benefit of the kingdom in general as of  the offend subject in particular it ought to receive a liberal large and  beneficial construction after hear counsel on this writ of error it be propose  that the judge shall be direct to deliver their opinion upon the follow  question videlicet whether the offence of be assist or concern in the unship  and relanding of the tobacco charge in the information in this cause be  release or discharge by the act of parliament that George and the Lord chief  justice of the common plea have deliver the opinion of the judge that the  offence be not release or discharge by the say act it be thereupon order and  adjudge that the judgement give in the court of exchequer in Scotland shall be  reverse and that judgement shall be give in this cause for the king and the  informer jour vol p brown er p