Contrary to the form of the statute.
When one statute prohibits a thing and another gives the penalty, in an action for the penalty, the declaration should conclude contra fornam statutorum. The same rule applies to informations and indictments.
- 2. But where a statute refers to a former one, and adopts and continues the provisions of it, the declaration or indictment should conclude contra formam statuti.
- 3. Where a thing is prohibited by several statutes, if one only gives the action, and the others are explanatory and restrictive, the conclusion should be contra formam statuti.
- 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.
- 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 prosecution or of action, the statute remedy is merely cumulative.
- 6. When a statute only inflicts a punishment on that which was an offence at common law, the offence prescribed may be inflicted though the statute is not noticed in the indictment.