CONTRA FORMAM STATUTI. Contrary to the form of the statute1.
2.- 1. When one statute prohibits a thing and another gives the penalty, i n 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 indictments3. 2 Hale, P. C. 172; 2 Hawk4. c. 25, 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 indictment2 should conclude contraformam statuti. Hale, P. C, 172; 1 Lutw. 212.
4. - 3. Where a thing is prohibited by several statutes5, 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 prosecution6 or of action-the statute remedy being merely cumulative8. 2 Inst. 200; 2 Burr.-803; 4 Burr. 2351; 3 Burr. 1418; 2 Wils. 146; 3 Mass. 515.
7. - 6. When a statute only inflicts9 a punishment on that which was an offence at common law, the offence prescribed may be inflicted10, 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 previously11 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 Hawks12. 192; 3 Conn. 1 11 Mass. 280; 5 Greenl. 79.
CONTRA PACEM, pleadings. Against the peace.
2. In actions of trespass13, the words contra pacem should uniformly accompany the allegation of the injury; in some cases they are material to the foundation of the action. Trespass to lands in a foreign country cannot be sustained. 4 T. R. 503 2 Bl. Rep.. 1O58.
3. The conclusion of the declaration, in trespass or ejectment, should be contra pacem , though these are now mere7 words of form, and not traversable, and the omission14 of that allegation will be aided, if not specially15 demurred16 to. 1 Chit. Pl. 375, 6 vide Arch. Civ. Pl. 169; 5 Vin. Ab. 557 Com. Dig. Action upon the case, C 4 Pleader, 3, M 8; Prohibition17, F 7.
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