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Recovery of penalties.
The word "misdemeanor" includes crime and offence in Scotland, and the word "court" includes any sheriff or sheriff substitute: sect. I.
The offences made misdemeanors by the Act are defined in sects. 2, 3, and 13.
As to the meaning of "person," see sect. I.
15. In every case in which any person shall have committed or done any offence or act whereby he shall have forfeited or become liable to pay to her Majesty any of the penalties or sums of money mentioned in the provisions of this Act, every such penalty or sum of money shall or may be recovered in England, Wales, or Ireland in an action of debt, which any person may as plaintiff for and on behalf of her Majesty commence and prosecute to judgment in any court of record, and the amount of every such penalty or sum of money to be recovered in any such action shall or may be determined by the jury (if any) sworn to try any issue in such action, and if there shall be no such jury then by the court or some other jury, as the court shall think fit, or instead of any such action being commenced such penalty or sum of money shall or may in England or Wales be recovered by a summary proceeding before two justices of the peace having jurisdiction in the county or place where the party offending shall reside or have any place of business, or in the county or place in which the offence shall have been committed; and shall or may in Ireland be recovered in like manner by civil bill in the civil bill court of the county or place in which the offence was committed, or in which the
offender shall reside or have any place of business; and SECT. 15. shall or may in Scotland be recovered by action before the Court of Session in ordinary form or by summary action before the sheriff of the county where the offence shall have been committed or the offender may reside or have any place of business, which sheriff, upon proof of the offence, either by the confession of the person offending or by the oath or affirmation of one or more credible witnesses, shall convict the offender, and find him liable in the penalty or penalties aforesaid, as also in expenses; and it shall be lawful for the sheriff in pronouncing such judgment for the penalty or penalties and costs to insert in such judgment a warrant in the event of such penalty or penalties and costs not being paid to levy and recover the amount of the same by poinding provided always, that it shall be lawful to the sheriff, in the event of his dismissing the action and assoilzing the defender, to find the complainer liable in expenses; and any judgment so to be pronounced by the sheriff in such summary action shall be final and conclusive, and not subject to review by advocation, suspension, reduction, or otherwise.
Penalties may be recovered, it will be noticed, either by a qui tam action or summarily before justices at petty sessions under the Summary Jurisdiction Acts (11 & 12 Vict., c. 43, as amended by 42 & 43 Vict., c. 49): see next section.
The plaintiff obtaining judgment in an action will, as a rule, be entitled to a full indemnity for all costs and charges: sect. 17. But he may be compelled to find security sect. 24.
As to the costs in a summary proceeding, see 11 & 12 Vict., c. 43, sect. 18.
SECTS. 16, 17.
Summary proceedings before jus
tices to be within
11 & 12 Vict.,
And as to the costs of a defendant in an action if he obtain judgment, see sect. 23.
16. In every case in which any such penalty or sum of money forfeited to her Majesty as herein before mentioned shall be sought to be recovered by a summary proceeding before two justices of the peace, the offence or act by the committing or doing of which such penalty or sum of money shall have been so forfeited shall be and be deemed to be an offence and act within the meaning of a statute passed in the twelfth year of the reign of her present Majesty, intituled An Act to facilitate the performance of the duties of justices of the peace out of sessions within England and Wales with respect to summary convictions and orders; and the information, conviction of the offender, and other proceedings for the recovery of the penalty or sum so forfeited shall be had according to the provisions of the said Act.
The Act 11 & 12 Vict., c. 43, has been amended by the
17. In every case in which judgment shall be obtained be account- in any such action as aforesaid for the amount of any such penalty or sum of money forfeited to her Majesty, monies pay the amount thereof shall be paid by the defendant to
ed for in like
manner as other
able to the
plaintiffs to the sheriff or the officer of the court, who shall account costs of suit. for the same in like manner as other monies payable to
her Majesty, and, if it be not paid, may be recovered, or the amount thereof levied, or the payment thereof
enforced, by execution or other proper proceeding, as SECT. 18. money due to her Majesty; and the plaintiff suing on behalf of her Majesty, upon obtaining judgment, shall be entitled to recover and have execution for all his costs of suit, which shall include a full indemnity for all costs and charges which he shall or may have expended or incurred in, about, or for the purposes of the action, unless the court, or a judge thereof, shall direct that costs of the ordinary amount only shall be allowed.
As to the costs of the defendant if he obtain judgment, see sect. 23. The plaintiff may be compelled to give security :
It is questionable whether this section and sect. 23, relating to the costs of actions, have not been impliedly repealed by Order lxv. of the Rules of the Supreme Court, 1883, which leaves the costs of all proceedings to the discretion of the court or judge; for although, as a general rule, an Act directed to a special object or a special class of objects will not be repealed by a subsequent general Act embracing in its generality those particular objects, unless some reference be made directly or by necessary inference to the preceding special Act, yet if under the circumstances it can be shown that the Legislature intended to repeal the special Act, such repeal must be taken to have been effected by implication: Garnett v. Bradley, H. L. 1878, 3 App. Cas. 944; 48 L. J. Ex. 186; 39 L. T. N. S. 261; 26 W. R. 698.
The term "court" includes any sheriff or sheriff substitute in Scotland: sect. I.
18. No person shall commence any action or pro- Limitations ceeding for the recovery of any penalty, or procuring &c. the conviction of any offender in manner herein before provided, after the expiration of three years next after the committing of the offence, or one year next after the first discovery thereof by the person proceeding.
See Summary Jurisdiction Act, 1848 (11 & 12 Vict., c. 43):
19. In every case in which at any time after the 1863 vendor thirty-first day of December one thousand eight hundred with a trade and sixty-three any person shall sell or contract to sell
of an article
mark to be
deemed to contract that the
mark is genuine.
(whether by writing or not) to any other person any chattel or article with any trade mark thereon, or upon any cask, bottle, stopper, vessel, case, cover, wrapper, band, reel, ticket, label, or other thing together with which such chattel or article shall be sold or contracted to be sold, the sale or contract to sell shall in every such case be deemed to have been made with a warranty or contract by the vendor to or with the vendee that every trade mark upon such chattel or article, or upon any such cask, bottle, stopper, vessel, case, cover, wrapper, band, reel, ticket, label, or other thing as aforesaid, was genuine and true, and not forged or counterfeit, and not wrongfully used, unless the contrary shall be expressed in some writing signed by or on behalf of the vendor, and delivered to and accepted by the vendee.
As to what is a trade mark, see sect. I.
Prior to this enactment, a vendor who sold an article with a trade mark to his knowledge improperly affixed thereto was undoubtedly liable to a common law action for deceit on the part of a purchaser induced by the misrepresentation to purchase: Pasley v. Freeman, K. B. 1789, 3 T. R. 51; see 2 Smith's, L. C. 64; Behn v. Kemble, C. P. 1859, 7 C. B. N. S. 260.
And possibly also an action would lie if the vendor, knowing that the purchaser relied upon the trade mark, sold the article recklessly, in ignorance whether the trade mark were or were not