SEPTEMBER TERM, 1774

#### Daniel Jenifer *against*the Lord Proprietary.

THIS was an appeal from *Charles*County. By the record transmitted, it appears the appellant was indicted 44 for charg'44 ing,claiming,andreceivinggreaterandlargerfees, as sheriff, from *John Burgess ',*junior, contrary to the act of As-"44 sembly,” &c. At *March*Court, 1769, he submitted to the Court, and was fined l,763lbs. *tobacco,*taken by him from the said *Burgess,*contrary to law, and 5,000lbs. *tobacco*penalty, according to the act of Assembly, the whole to be paid to the said *Burgess,*who claimed the same as the party grieved.

Upon the submission before the Court, it was proved that the said *Jenifer,*during the time he was Sheriff of *Charles*County, charged the said *Burgess*with fees, commonly called grazing fees, and delivered him accounts thereof, to the amount of 2,777lbs. *of'tobacco,*as due from the said *Burgess*to the said *Jenifer,*as Sheriff, aforesaid, *536for tbe imprisonment of the said Burgess, on sundry executions against him.; that the said fees were often demanded *tíí*the said Burgess, by *George*Tubman, then deputy sheriff to the said Jenifer, and a bond taken from him by the said deputy, payable to the said Jenifer, including the said fees; that the said bond was executed willingly by the said *Burgess,*andduringthe sheriffalty of the said *Jenifer,*the said Burgess, having his whole sheriff’s account then read to him ; that the said *Burgess*never was actually in prison under any of the said executions, though taken upon them by the said sheriff. That an action was brought by the said Jenifer, after his sheriffalty in *Charles*County expired, on the said bond, anda judgment was confessed therein by the said Burgess, and the said *Burgess t*taken upon an execution on the said judgment, and that the said Burgess, upon the said execution, paid to the said *Jenifer*the sum of l,763lbs. tobacco, part of the said imprisonment fees, and that the said *Jenifer*took a bond from the said *Burgess*for the residue of the tobacco, due on the execution aforesaid, and afterwards offered to deliver, and did deliver up, on the argument of this case, the said bond to the said Burgess, but it was not proved that the said *Burgess*actually paid any part of the said imprisonment fees to the said Jenifer, during his sheriffalty aforesaid. That the said *Jenifer*ceased to be sheriff of *Charles*County in *October, 1765.*

*The*Court, upon this evidence, gave judgment against the said *Jenifer.*From which judgment he appealed, and prayed the Court to sign his appeal, &c.

The cause came on for argument in the Provincial Court, at *April*term, 1770, when,

The *Attorney*General, ([Jenings,) (short notes,) objected to the proceedings, alleging that no appeal lay in criminal cases. That by the statute of *Westm.*2. c. 31. it is enacted, that “ when one impleaded before any of “ the Justices, alleges an exception, praying they will “ allow it, and if they will not, if he that alleges the ex-*53744 ception writesthe same, and requires the Justices willpui *u*to it their seals, the Justices shall do so, and if one will “ not, another shall; and if upon complaint made of the Jus- “ tices, the ICinp; cause the record to- come before him, and 50 _ ’ 64 the exception be not found in the roll, and the plaintiff 44 shew the written exception, with the seal of the Justices “ thereto put, the Justice shall be commanded to appear 44 at a certain day, either to confess or deny his seal; and 44 if he cannot deny his seal, they shall proceed to judg44 rnent according to the exception, as it ought to be allow-44 ed or disallowed.” 2 *Inst.*426, 427. 1 *Bac. Abr.*325. That in 1 *Sid.*85. pi. 13. resolution the 3d. it is resolved by the stat. of *West.*2. c. 31. which gives a bill of exception, does not extend to any case where the prisoners arc indicted at the suit of the King; for the statute intends to remedy the overruling the evidence in civil pleas between party and party only. Same case, 1 *Lev. 68.*Kelyng, 15. *State*Trials, vol. 4. 277. 310. 8 *Mod.*206. 2 *Stra.*1040. 2 *Hawk.*428. c. 46. s. 1. *Burr. Settlement*Cases, 77.

That where a statute speaks only as between party and party, it extends not to the King. *Cro. Eliz.*413. And, as to what was extortion, cited 1 *Hawk.*170. c. 68. s. 1. 10 Co. 101. *Co. Lit.*368. *Crown Circuit Comp.*221, 222. 227. 229, 230, 231.234. See the act of Assembly, 1763, c. 18. s. 109, 110. If an appeal is allowable in this case it ought to be mutual for the crown as well as the prisoner. 2 *Hawk.*209. s. 1. 3, 4. No appeal will lie at common law for the King, therefore there is none for the offender, unless it be by the act of 1713, c. 4. By which act the bond to be given is conditioned, that the *party*appellant shall pay to the said party, his executors, administrators or assigns, the debt, damages and costs.

By the stat. of *Edw.*III. c. 6. the amendment is to be made as soon as the thing is perceived, 44 by the challenge 44 of the party.” 1 *Bac. Abr. 90.*But this does not extend to criminal cases, or in any case where the King is a party, because of the words.44 *by the challenge ofthe*party,” *538in which expressions the King cannot be concluded. *Í*2?«c. *Abr. 95. Gilb. Hist. C. P.*93. 1 *Bac. Abr.*96. 2 *Raym.*1061. 1472. The King’s counsel is not compelíable'to join in demurrer. *5 Co.*104. *Co. Littt*72. a.

Where a Judge admits for evidence what is not evidence, if the party demurs he admits the evidence to be good, but denieth the effects of it; in such case, he must bring his bills of exceptions. 3 *Salk.*155. pi. 10. *Vin.~*Evidence, 262. pi. 15. A good case to shew the defendant was guilty, by charging whilst he was sheriff, and receiving afterwards. *Cro. Jac.*418.- *S. C. Bridg.*89.

That if the meaning of an act of Parliament is doubtful, the consequences are to be considered in the construction thereof; but where it is plain, no consequences are to be regarded, for that would be assuming a legislative authority. 10 *Mod.*344. 4 *Bac. Abr.*tit. Statute, 653, 654. *Vid-Parre sly,*40. *Salk.*55.

Stone, for the Appellant.

In this case there are two points to be considered. 1st,, Whether any appeal lies. 2d. Whether the County Court, erred in their judgment. A writ of error lies in all cases,, except in treason and felony. 1 *Bac. Abr.*614. *Salk.*504. *Act of*Assemb» 1713, c. 4. Where the penalty is given by law to the party after the judgment, itbecomes a debt due. Under the act of 1713, c. 4. an appeal will lie wherever a writ of error lies. The appeal under that act is in the nature of a writ of error; the act is for the ease of the subject. By the act of 1715, c. 48. s._ 2. no appeal or writ of error is allowed to the Clerk of Indictments, when convicted of an offence for which he becomes subject to a penalty. This particular exception of the Clerk of Indictments, shews that the appeal and writ of error lies in other cases. What is meant by a criminal prosecution is where public justice is coupled with it. Where the penálty is given to the party grieved, it cannot be considered a criminal prosecution. 3 *Bac. Abr.*92. (A). 2 *Harvk.*278. s. 73* *539^¡*his matter then cannot be considered as a criminal prosecu'tion,but only a dispute between party and party. The King cannot release a suit where the penalty goes to the party grieved. 2 *Hawk.*276. s. 64. 1 Salk. 266. Where particular errors are assigned, it does not preclude the Court from examining any others which may appear on the face of the record. *Vin.*Error, 25. pi. 8. There is no injury in receiving what a man parts with willingly, *volente non fit injuria.*The record shews by the judgment that it is not a criminal prosecution. *Burgess*was to have obtained the whole benefit of the judgment, and could have released it; hence it is evident the Lord Proprietary is not a *■party.*It is admitted the King is not included under the *v? ord party.*

*S. Chase*argued, that a writ of error was proper in criminal cases, and admitted that by the late resolutions a writ of error will lie in all cases as well of treason as felony ; but that an appeal was the proper mode of proceeding in civil suits, and that this was the meaning of the terms of the act of Assembly. That a criminal prosecution became so, not by reason of the mode of proceeding, but on account of the offence, and if this proceeding was allowed, a sheriff or other officer might always by submitting make his case of the nature of a civil controversy.

The late *Thomas*fenings, Esq. in his note of this case,, says, that at the request of the Court, the counsel argued that no appeal would lie, without considering whether a bill of exceptions was proper.

This case was continued under a *Curia ad. milt*till *Sep-, iember*term, *1774,*when it was struck off the docket.