Commonwealth v. Davies , 1 Binn. 97 ( 1804 )

ShiRpen C. J.

There is abundantly more reason for a power in the court to moderate or remit a forfeiture of this kind than hi those cases which come expressly within the law; for, as it was argued upon the trial, if a publication in the newspaper may be a breach, and upon such a breach the whole recognisanee is forfeited, every justice of the peace may indirectly put a restraint upon the press. I certainly told the jury that we had an act of Assembly by which we might prevent the injury; and I was probably misled by recollecting that in declaring upon such a recognisance I always stated that it was filed of record in the court, and so are the forms. But I am now persuaded from an examination of the act that I was mistaken, and that the relief is confined to forfeitures in court. It is to be regretted that it is too late to afford the parties a new trial. The relief at present lies only with the executive. The opinion of the court is that the petitions must be dismissed.

Smith J.

I do not go merely by recollection in stating that I did say upon the trial I had doubts as to its not being a restraint upon the press; and then the Chief Justice said we had power by the act to prevent injury. It was clearly a mistake, for the act does not extend to such' a forfeiture.

Per Curiam. Petitions dismissed.