APRIL TERM, 1774.

#### William Miller *against*The Lord Proprietary.

THIS was a writ of error to the County Court of *Prime George’s,*to remove the record of a judgment in a criminal prosecution in that Court, against the appellant. The record states that *Miller*was prosecuted.at *November*term, *5441770, “ for throwing his ballast into the channel of the “ eastern branch of *Potomac*river.” And, at the same term, he appeared in proper person, and submitted himself to the grace of the Court, (under a protestation of innocence.) The Court fined him 50/. for the offence, according to the act of Assembly.

Cooke, for the appellant.

I do not know whether it will be insisted that the appellant, by submitting to the judgment of the Court, in the manner he did, or by any other means, has precluded himself from taking advantage of those errors in the judgment which he proposes to insist on. If it should, I answer, the protestation excludes, in this case, any admission of his being guilty of the fact. lie offers nothing in his defence, because he has no witnesses ; but submits, that is, does not object to the Court’s proceeding in what manner they think proper. In *Plow.*276. *Heath's Max.*26. *Reg.. Plac.*70, 71. 18 *Fin.*tit. Protestation, and in *Co.*Lilt. 124. b. 126. a. it is said a protestation amounts to a plea.

Suppose the appellant had suffered judgment to go ágainst him in the Court below, by default, (and these proceedings are very similar to judgments of that nature,) he might have moved in arrest of judgment; *Cro. Eliz.*914. 636. or he might have brought a writ of error. 2 *Bac. Abr..*189. 191. *Fin. út. Error,*599.

To put the case still stronger: Suppose in the Court below he had confessed the fact, it would not have cured the errors ; for the confession of the party only goes to what is alleged; 1 *Burr.*613, 614. and a writ of error lies after judgment by confession. *Fin. út. Error,*508. 526. 480. pi. 1. 3 pi. 15.

If then a writ of error will lie in this case, the effect of it is, in point of law, a commission to the Judges to examine the errors in the record ; and the Court cannot depart from the record to take into their consideration matters which do not appear on the proceedings. 1 *Salk.*368. *545370. 3 *Dam. Abr.*88. pi. 2. 4. 6. And in all proseentions by indictment, particularly those founded on penal laws, (as this case is,) nothing material can be taken by intendment. *lRaijrn.*1. 2 *ilatvk.*227. 2 *Sira.*999.

The proceedings do not set forth the presentment upon which the judgment was founded, but only by way of recital. They do not set forth at what time the offence was committed, if it was beyond three years, the act of limitations would bar the Proprietor ; if within one year, the Proprietor could not prosecute alone ; because half the penalty, by the act of Assembly, is given to the informer, and the statute 31 Eliz. c. 5. gives all informers one year to prosecute, after the offence committed, within which, time the crown cannot.

They do not set forth where the offence was committed, and, for any thing that appears, the eastern branch of *Potomac*may not lie in the Province, or may lie in Frederick, qr any other County than *Prince George’s,*in w'hich case, neither the Justices or Jury of that County could take cognisance of it. 3 *Dam. Abr. 72.*And nothing shall be intended within the jurisdiction of an inferior Court, which is not expressly alleged to be so. 1 *Saund.*74. Ld* *Raym.*211. 797. 1040. 1310. 1 *Wils.*16. *Garth.*12.

The record does not set forth the authority of the Justices *; 2 Hale,*43, 44. nor for what purpose the Jury were ímpannelled ; or that they were good and lawful men, &c. 2 *Hale,*167. 2 *Hawk.*254, 255. or that they found the presentment on oath. 1 *Mod.*26. In short, the whole record is rather a history than such a state of the proceedings as the law requires, to give that information to the Court upon which they are to found their judgment. It is in the preterperfect instead of the present tense, which is error. 2 *Saund.*393. *Went. Í70. 2Raym. 1370.*It is said, in 1 *Raym.*15. 17. 148. 2 *V/ils.*16, 17. that all judgments ought to be formal, and in their proper stile *;*but this record does not set forth any judgment at all. Judgments must not only be formal, but have certainty. It is not said, here, how much the judgment was for, hut only for the *546fine and fees, without alleging how much the fees amounted to, which ought to be precisely ascertained. *3 Dane.*68. pi. 3. Fees must here be understood to mean costs. The st£,tute of 33 *lien.*VIII. c. 39. s. 54. gives costs to the King when he'sues for debts on specialties to his own use, but in no other case can he recover costs, as he does not pay any. It is the same thing with the Proprietary ; and if, iii any case, costs are given, or more costs than the party is entitled t.o, it is error. 2 *Stra.*934.

Many other imperfections might be pointed out on the face of this record ; but it may, perhaps, be urged, this summary proceeding below saves expense ; the merits may be tried with equal fairness, and, therefore, is beneficial to the subject. The argument is plausible, not legal; some degree of form is necessary, and it is no objection to the' assignment of error, th,at the error is for the party’s advantage. 2 *Stra.*973.

Throwing ballast in the river was no offence at common law ; it is made so by the act of Assembly of 1734, c. 16. which does *not prohibit*the doing of it at this day, but only inflicts a penalty to be recovered by action of debt, bill, plaint, or information ; the one half thereof to the inform» er, the other to the Proprietary, for the support of government. When an act of Parliament creates an offence which was not so at common law, and prescribes a particular method of proceeding, (if there is no prohibitory clause,) such particular remedy must be pursued, 1 *Burr.*543. 2 Hale, 171. 1 *Stra.*679. 2 *Stra.*828. 2 *Raym.*991. 1 *Raym.*347. 3 *Salk.*25, 26.

Further, this act of Assembly never intended to give the Proprietary *alone*a power to prosecute. It gives one half ef the penalty to the Proprietary, for the support of government, the other half to him, or them, who shall sue for the same. If an informer should prosecute without foundation, the party would have his costs. 2 *Raym.*1333. 1 *Salk.*30. 1 *Wils.*177. But if the Proprietary can prosecute alone, it might subject the party to great inconvenience, and the danger of being harassed by such prose*547®Ution, without a chance of redress. *Fid.*1 *Burr.*545. *Denison’s*opinion. The statute of 21 *Tien.*VIIL c. 13, s. 1. upon which that case arose, is worded exactly as the act of Assembly in the present instance.

Again, if it should be argued that the presentment in this case shall be considered as the information, or bill, of the Attorney-General, to satisfy the words of the act, the ease in *Burr.*543. is directly contrary ; but, if the argument could be thus extended,‘it would not avail on this occasion. Certainty is undoubtedly requisite, and a bill, information, or declaration, in the form of this presentment, would not be good ; for upon all prosecutions upon penal statutes, (as this case is,) the offence must be shewn So be precisely within the statute. 2 *Hale’s Pl.*Crown, 170, 171. 2 Hawk. 249.

But I apprehend this case must be considered as *it really*is, a conviction on a presentment; and considering it in that light, it is not within the words of the act; yet, if the Court should think that objection immaterial, the uncertainty of the charge would make it erroneous, and even a verdict would not aid it. 1 Salk. 375. 3 *Salk.*186. Upon the whole, I contend, on behalf of the appellant, that this judgment ought to be reversed, for the reasons before alleged, and that the Court have no power to aid any of the defects aforesaid j the record of an indictment being removed into the King’s Bench, from an inferior Court, is not amendable. 2 *Hawk.*244. 2 *Hale’s PL*Crown, 168.

*The Attorney-General.*(Jenings.)

The act of Assembly imposes a penalty of 50/. reto verable by bill, plaint or information. The party submitted, and was fined a sum not exceeding the penalty. The objection urged is, that the act, pointing out the recovery to be by bill, plaint or information, excludes every other mode of proceeding, and, therefore, the recovery on the presentment was erroneoiis.

*548Two questions will arise. 1st. Whether these proceedings are regular, under the act of Assembly ? 2d. Whether they are not supportable at common law ?

As to the first, that these proceedings are regular under the act of Assembly. The rule, that where statutes point-out a particular mode of proceeding, such mode of proceeding must be followed, is to be thus expounded ; that the party shall not be compelled to answer in any other manner *xuithoul his consent;*but if he thinks proper to waive it, he has an undoubted right so to do ; for cvery inan may renounce a law introduced for his benefit, (admitting this law to be construed so as to point out the most beneficial proceedings for the party.) The rule is : *quisquís potest renunciare juri pro se introducto.*

Many decisions, in more momentous cases, have been had on the same principles. By *Magna diaria*a man is not to be condemned but by the judgment of his peers ; yet he may waive the privilege by pleading guilt}-. An accessary cannot be tried before conviction of the principal, but the trial is good if he submits to it. A man’s consenting to a particular determination makes it good. *Hob. 93. A*statute pointing out a particular mode does not exclude others, provided the part}-is not convicted on less evidence. 1 *Sir a.*546. This case, indeed, does not apply to the mode of proceeding, but only to the evidence offered in support of *it;*hut it shews that statutes are not to be expounded in the strict manner contended for on the other side. The result upon this head is, that if the party, as contended, was entitled to any particular benefit under the statute, he had a right to waive it, though he could not be compelled so to do ; and, therefore, by his submission, he is precluded from making this objection. *Foster's Rep.*26. If considered in the contrary light, that the statute directs a more expensive proceeding than has been had in this instance, and the appellant has received a benefit by this proceeding, it is clear it cannot be assigned for error This was a more expeditious method of proceeding, and attended with less expense than a trial by Jury. It was *549done with the consent of the appellant, and it is a rule that no man shall assign a matter for error which was for his benefit. *5 Co.*38. *Teifs*case. *Fitz. N. B.*48. *Fost. Rep.*26. and a number of other cases, which may be found in the abridgments ; so that *quacunque via data*the proceeding is regular.

Second: That this proceeding is supportable at common law.

It is a rule, that where a statute directs a penalty for the commission of an offence at common law, the party may be proceeded against either way ; and even if an indictment concludes *contra formam*statuti, and is not drawn so as to bring it within the statute, the party may be convicted, on this indictment, as for a common law offence. It would be impertinent to cite cases on this point. It is laid down expressly by Hawkins, and almost every other writer on the crown law. The presentment is general, and may be taken for a proceeding at common law ; if, therefore, this was an offence at common law, the fine is properly imposed.

That it was not a nuisance cannot be contended. Rivers are considered as highways, and any thing tending to obstruct the passage of the one, or navigation of the other, is punishable, by fine, at the suit of the King. This was a presentment for throwing the ballast of a ship into apart of the *Potomac*river, called the eastern branch. The pernicious tendency of this practice was considered by the Legislature, and a penalty of *SOL*was imposed, to prevent Judges from imposing only a small fine for such offences as they might have done under a proceeding at common law. In 1 Hawk. 201. it is said, that by the books of the best authorities it appears a river was a highway. If this, then, be considered in either light, the judgment should not be reversed. Because, 1st. The party has a right to waive the benefit under the act. 2d. As this proceeding "was consented to by him, for his benefit, it cannot be assigned for error. 3d. It is a proceeding at common law, which the directions of the act does not affect. 4th» The *550invariable practice is in support of the proceedings, and a number of judgments must be set aside should this objection prevail.

In the case of Bewdley, 1 *P. Wms.*223. also cited in *Stra.*102. a practice was held to prevail against an act of Parliament.

In 1 *Bac. Abr.*194. it is said, that a conviction before Justices, on proof or confession, may be reversed without a writ of error. Perhaps this case may be cited on the other side ; but the meaning of it is no more than this: that in these summary proceedings there is no occasion for a writ of error ; but it by no means proves the case erroneous, for there is scarce any other way to convict persons but by proof or confession; 2 Jones, 167. and it is evident that all convictions before Justices of the Peace, in a summary way, are on proof or on confession.

The Provincial Court reversed the judgment.