against all gifts whatever.] It was a common pretext that gifts within the mischief contemplated by the former statute were received for the use of the King; and the object of this statute was to defeat this or any other similar pretext. To effect this object, the Legislature has undoubtedly used language which may include innocent gifts to a relation: but it would have been impossible to reach every description of gifts within the spirit of the statute by less general language.

It is said that the information should have alleged that the gift was taken colore officii or extorsively. But how can a gift be extorsively taken? The form suggested would have been contradictory. [MAULe, J.-*As you argue, the statute makes the fact of the gift conclusive of the offence, and therefore it is unnecessary to allege extortion.]

*91]

It was unnecessary to allege whose money was received; and the cases cited are inapplicable. In indictments for larceny, or obtaining money by false pretences, or for embezzlement, it must be alleged to whom the money belonged. A man may steal, or obtain by false pretences, his own money; and embezzlement has been put on the same footing as larceny. But the word "gift" imports that the present was not the property of the receiver: and, even if an officer chose to accept his own property as a gift, because its restitution could not be obtained on any other terms from a person wrongfully withholding it, the case would be within the statute.

The information is at all events good after verdict by stat. 7 G. 4, c. 64, s. 21. [PARKE, B.-There are two points on which the Court desire further argument. My brother PLATT doubts whether the information should not have excluded the supposition that the gift was taken for the use of the Queen; and there is a difficulty on the mode in which the judgment has been entered on the record.]

If section 62 did not expressly speak of a receipt for the use of said Company, or of any other person whatsoever, a gift for the use of the Queen would be included. But the words in question are introduced as words not of qualification, but of extension. Although the Crown is not bound, unless expressly mentioned, by a statute passed in derogation of its rights, it is bound by a statute passed to suppress wrong; 19 Vin. Abr. 533, tit. Statutes (E 10) pl. 10. But this section is *92] no restraint *on the Queen. Gifts may be made to the Queen; but the prohibited persons may not be the channel of such gifts.

With regard to the judgment, the defendant has not the option to forfeit either the gift or the value; and it is unnecessary to consider whether the Crown or this Court has an option. The judgment in detinue, giving the option to the plaintiff, is for his benefit, because the goods detained may be destroyed; it furnishes no analogy to the judgment in a criminal prosecution, of which the object is the punishment of the offender. It is said that this construction leads to the absurdity

that perpetual imprisonment may be the consequence. But the defendant's construction involves an equal absurdity; for the consequence may be that an offender will exercise his option by returning the gift after it has ceased to be of any value. This information might have been tried in the East Indies, where the rupees were the current money of the country, and not specific chattels. There the defendant might have discharged the forfeiture by payment of an equivalent sum of money. Is the procedure to be varied, because the information is tried in England? [ALDERSON, B.-The offence is rightly described according to its aspect at the time of the offence; the gift was then Indian money.] Therefore, another objection to the judgment, that the value of the gift is estimated at the time of its receipt, cannot prevail.

The Court has power to imprison the defendant until payment of the forfeiture. Forfeiture under this statute is not forfeiture in the sense in which the term is used in statutes as to offences against the revenue laws, nor in the sense in which it is used as the consequence *of a [*93 conviction for felony. Forfeiture under this statute is part of the punishment inflicted; it is a statutory fine, being a fixed fine in addition to the discretionary fine imposed by the Court." And, wherever the judgment is for a fine, it "is quod capiatur," that is, to be imprisoned until he doth pay his fine;" 3 Inst. 218. (He also referred to Rex v. Woolf, 1 Chitt. Rep. 401 (E. C. L. R. vol. 18).) (a)

Peacock replied.

Cur. adv. vult. PARKE, B., in Trinity vacation (June 24th), 1848, delivered the judgment of the Court. After stating the nature of the case, his Lordship said:

In the arguments before us, the objections taken on the part of the defendant are both to the form of the information and also to the form of the judgment.

With respect to the objections to the form of the information, we concur entirely in the judgment of the Court of Queen's Bench.

These objections were, first, that, in an indictment or information founded on a statute, it is not enough to follow the words of it; but an offence must be brought by proper averments within the meaning of the And Mr. Peacock contended that the meaning of the statute was, to prohibit presents being received by officers in the East Indies, only where they were extorsively received or received under the colour of the office. Now, supposing that was so, and that the statute applied only to such cases, we are all of opinion that the information would be good in that respect by virtue of stat. 7 G. 4, c. 64, s. 21; and [*94 that statute *applies as well to informations preferred for offences abroad tried in England as for offences committed in England. Therefore, supposing that, by the true construction of the statute, such offences

(a) See pp. 437, 439, 441. Also, as to offences by which the forfeiture may be incurred under stat. 33 G. 3, c. 52, see s. 141 of that act.

only were punishable, the information is good. But we also concur in the opinion of the Court of Queen's Bench, that the meaning of the statute is not to be so limited, and that the object of the Legislature was to prevent a person receiving any gift or present or sum of money in the East Indies (he being an officer of the Government or of the East India Company) absolutely, whatever the reason for that gift might be; the object of the Legislature being to put an end to a practice that was considered derogatory to the character of the Government of the East Indies. And, though that object might not be effected possibly without implicating some innocent persons, as in the case which was stated by Mr. Peacock of a person receiving a present from a friend or a relative, still the Legislature, on the balance of convenience and inconvenience, thought it more beneficial to prohibit the practice altogether, leaving it to the discretion of the Crown to prevent the enactment doing injustice in particular cases to innocent individuals, by entering a nolle prosequi. We entirely concur in the reasons given by Lord DENMAN in his judgment upon that part of the case.

Then it is contended that this information was defective because it does not follow the words of the statute, and also that it is defective in substance, because it does not state for whose use the money was received. We think that the answer given to that objection by Sir Frederick Thesiger is quite satisfactory. Those words are introduced for the purpose of excluding *any possible excuse that may be *95] made for receiving a present, the substance of the offence being the act of demanding or receiving a present. Upon this part of the case, my brother PLATT feels some doubt: but the rest of the Court are clearly of opinion that this is the true construction of the statute. Consequently we think that, if a person receives a present under the colour of being a present to the Queen, he would be guilty of an offence within its meaning.

The objections to the form of the information, we think, are untenable, and agree entirely on this part of the case also with the Court of Queen's Bench.

The next objection was one which occupied much more time. It was that the judgment itself was erroneous. The jury are stated to have found that the value of a rupee, at the time of the receipt, was 18. 11d.; and the Court, in proceeding to give judgment, after imposing a fine for each misdemeanor in each count, proceeded to give judgment also for the value of the forfeiture, taking the value, as the jury found it, at the time of the receipt; and proceeded to pass sentence of imprisonment till the fine was paid, and until the forfeiture was paid. Mr. Peacock's objection is, that there is an alternative in this case, which alternative ought to be exercised by the Court; or that, at all events, sentence of imprisonment ought to be limited by what he assumed to be the alternative, namely, the forfeiture or payment of money instead, as the value of the

gift forfeited; and that it is erroneous in the Court to pass judgment of imprisonment till the money was paid.

First of all, with respect to the alternative. The words of the 62d section, and the rest of the statute indeed, are not clear. But we think it perfectly clear *that in this case there is no alternative, because [*96 the gift received was itself money, rupees being the currency of the East Indies: and, whatever question there may be in the case of gifts not being money, there is no question with regard to money: in the case of money it is a forfeiture of the money; and no alternative at all presents itself for the Crown to exercise an option in framing the information, or for the Court to exercise an option in case the party is convicted. This is a forfeiture of money; and we need not embarrass ourselves with those nice questions raised by Mr. Peacock with respect to the alternative where there is one.

The next question remaining is, as to the time when the estimate of the value of that money is to be taken, whether it is to be at the time of the conviction or at the time of the receipt of the money. And we are all of opinion that the true time at which to estimate the value is the time of the receipt. For, if it had been the gift of a chattel, and the chattel had perished or diminished in value before the conviction, or become of no value at all, then, if we took the estimate of it at the time of the conviction, there would be no forfeiture. And we think that the true meaning of the statute is that he forfeits the sum of money received, and that the sum of money is to be estimated as of the value at the time of the receipt. If this had been an indictment which had been tried in the East Indies, the sum forfeited would be no doubt the precise amount of rupees, which is the currency of the East Indies: and it is presumed that that currency does not vary in value: but, as the sentence is to be passed in England, it becomes necessary to estimate the money in England: and we think that the true mode of estimating that is by [*97 *taking the value at the time of the receipt. That the jury have found; and the Court, in giving judgment for the amount of that forfeiture, properly valued the money at the time of the receipt; and for that forfeiture the Crown might maintain on this record an action of debt.

The only remaining question is, whether the Court can also pass sentence of imprisonment until that debt be paid. We think that the true meaning of this clause is, that they may superadd the amount of the forfeiture to the fine: it is not a fine arbitrarily imposed by the Court, but a fine fixed; and, being imposed by the Court for that offence, the Court have consequently a right to pronounce judgment for the non-payment of the fixed fine as well as for the arbitrary fine. We think, therefore, that the judgment is good: and it is satisfactory to find that we are not without a precedent in this case; Rex v. Stevens & Agnew, 5 East, 244, 4 Chitt. Crim. L. 372, 3 Smith's Rep. 366. F 2

VOL. XIII.-9

And the result is, that the judgment of the Court of Queen's Bench must be affirmed.

PLATT, B.-The only doubt that I entertained at the time, and entertain now, is with reference to the goodness of these counts.

The section of the act of parliament upon which they are framed enacts: "That the demanding or receiving any sum of money, or other valuable thing, as a gift or present, or under colour thereof, whether it be for the use of the party receiving the same, or for, or pretended to be for the use of the said Company, or of any other person whatsoever, by any British subject, *holding or exercising any office or employ*98] ment under His Majesty, or the said United Company, in the East Indies, shall be deemed and taken to be extortion and a misdemeanor at law." Now I own that, in construing that section of the act, I cannot bring myself to imagine that the word "person" included His Majesty of that day. And, therefore, inasmuch as there are two cases which would not be within this section, and still would be consistent with the words of these counts, it seems to me, I own, though I ought to speak very doubtfully of my own opinion, that these counts ought not to be maintained: because, if the section is looked to, and it was intended by that section to include His Majesty, surely this would have been the form of the section: "To be for the use of the party receiving the same, or for the use, or pretended to be for the use, of His Majesty," that would stand first," or of any other person whatever." But, instead of that, "person" here is used after "the Company;" which I take, according to the ordinary rules of construction, must be persons ejusdem generis; that is to say, they must be a portion of the subjects of Her Majesty. Therefore it seems to me that there are two cases, where a present is actually received for the use of Her Majesty, or where it is pretended to be received for the use of Her Majesty, which do not fall within the clause of this section. And, if that be correct, then the statement upon these counts is quite consistent with either the one case or the other; in either of which cases the party is not within the object of the act of parliament. Undoubtedly, in the second case, the pretence of its being received for Her Majesty would be within the *99] *mischief sought to be prevented by the act of parliament. But I cannot conceive, where a present has been actually received bonâ fide for the use of Her Majesty, and has been brought here for the purpose of her receiving it, that it was the meaning of the act of parliament to prevent that. And, therefore (though, as I said before, speaking with much hesitation on this point, notwithstanding that the impression on my own mind has been strengthened), with regard to that part of the case, and that alone, I entertain considerable doubt.

Judgment affirmed.