7. N. 3. saith then as well the person so doing as also every other person receiving thm to that intent shall incurre a Praemunire so that then only when the person delivering them so doth that is delivers them to be worn or used the person receiving them to that intent shall incurre a Praemunire But yet there needs not any such concurence of intentions in the giver and receiver to make the giver an offender and therefore if a man brings into the Realm such superstitious things and delivers them to be worne or used tho the party receive them not to the intent to use or wear them but defaces burns or otherwise destroyes yet he that gave or delivered them incurrs a Praemunire for the words in the act 13 Eliz. 2. § 7. N. 2. relating to the offerer or deliverer are intire in themselves and have no dependence on the subsequent words 13 Eliz. 2. § 7. N. 3. relating to the receiver but generally make all offenders who bring them in and either offer or deliver them to a superstitious intent without any respect to the intent of the party who receives or is offered them LVI Justices Page 54. Upon 13 Eliz. 2. § 8. N. 1. If the person to whom such Agnus Dei c. Is offered do bring the offender to any Justice of Peace of the County where the offer is made altho he be not the next Justice yet it is good enough and satisfieth the intent of this act for the word next is put in such cases into acts of Parliament but for conveniency and the more speedy Execution of Justice Styles 246. pl. Maine and Sergeants Case LXVII Justices Page 54. The Statute 13 Eliz. 2. § 8. N. 1. provides for the discovery of the offender in order to his punishment in three Cases 1. If any such superstitious thing be offered and the party be able to apprehend him that offers it he must bring him to the next Justice of Peace of the County where the offer is made 2. But if he cannot apprehend him he is to disclose his name and place of abode or resort to the Ordinary of that Diocese or a Justice of Peace of that County where the person to whom the offer was made is resident and that within three dayes after such offer made 3. But 13 Eliz. 2. § 8. N. 2. If he receives the thing offered then he is not to apply to the Ordinary but is strictly tyed to deliver it within a day after to some Justice of Peace of that County where he who received it shall then be Resident or happen to be and in this last Case if he receives it with an intent to use or wear it and keeps it above a day or delivers it to any other person or Justice of Peace or any other County he incurrs a Praemunire But these Justices of Peace are strangely confounded as well in Dalt 229. cap. 89 tit high Treason as in Wingate Crown 37 Lambert 194. 195. Page 56. LXVIII Upon 13 Eliz. 2. § 10. N. 1. As is aforesaid So that if the offence be not declared as is aforesaid that is to such Justice of Peace as is appointed in 13 Eliz. 2. § 8. N. 1. but it shall be declared to any oother Justice of Peace of a wrong County that other Justice of Peace shall not incurre a Praemunire if he doth not signifie or declare it to a Privy Counsellor Here 13 Eliz. 2. § 10. N. 1. 'T is plain that any one Privy Counsellor sufficeth and the Justice of Peace is not bound to signifie the offence to the Privy Council as Wingate Crown 138. misrecites the Statute 23 Eliz. 1. Of CHVRCHES PAge 58. Upon 23 Eliz. 1. § 2. N. 1. LXXIX Conspiracy It was held Mich. 12 Jac. in Loult and Faulklands Case 2 Cro. 357.358 and 2 Bulstrode 271. 253. and 1 Rol. 209. pl. 49. that if a man were indicted for endeavouring and practising voluntarie felonice proditorie to perswade and withdraw any of the Kings Subjects from his obedience unto the Romish Religion and was afterwards debito modo acquietatus yet an Action upon the Case in Nature of a Conspiracy would not lie a-against the party who procured him to be Indicted and the main reason given was that sorasmuch as every man is bound to discover Treason and 't is dangerous to conceal any thing which may tend to Treason therefore the procuring one to be Indicted concerning it was no Cause of Action And Coke Chief Justice said that such an Action was never brought before that time But later Resolutions have been to the contrary of this opinion and 't is held for Law at this day that if a man procures another to be Indicted of High Treason an Action upon the Case in nature of a Conspiricy lieth against him that procures it as well as if it were for Felony the first leading Case of this nature which was resolved upon solemn argument or debate was that of Hil. 1. Car. 1. of Smith and Crashaw c. addition to Bendloes 152. Latch 79.80 Jones 93.94.95 Where it was adjudged upon great deliberation by all the four Judges of B. R. that an Action in nature of a Conspiracy doth well lie in such Case and that not only in Case of acquital upon Tryal but upon the Exhibiting a Bill of Indictment for High Treason to the Court or Jury if the Jury bring in Ignoramus altho in this last Case a Writ of Conspiracy lyeth not and Lovets Case was denyed to be Law and Justice Dodderidge who concurred 2 Bulstrode 271 253 changed his opinion in Smiths Cas◠and held the Action maintainable so that whosoever of meer malice without probable cause causeth any to be Indicted on 23 Eliz. 1. § 2. N. 1. or on 3 Jac. 4. § 22. N. 1. for endeavouring or practiceing so to perswade or withdraw any Subject or prefers a Bill to the Court or Jury for that purpose is lyable to an Action upon the Case for so doing if the party be acquitted or the Jury bring in Ignoramus as in other Cases of Felony LX. Accessory Page 59. These words And shall not within twenty dayes c. disclose the same 23 Eliz. 1. § 3. N. 1. have no reference to those who are aiders and maintainers of the offender but only to those who have barely a knowledge of the offence without aiding or maintaining the party And therefore if such as are aiders or maintainers of the person offending discover the offence within twenty daies yet such discovery shall not free them from the guilt of Imprisonment of Treason as Wingate Crown 42. mistakes but if they once aid or maintaine the party knowing him to be an offendor they are guilty whither they disclose or conceal the offence and shall have no benefit of the twenty dayes LXI Enfant Page 60. Upon 23 Eliz. 1. § 5. N. 1. Moor 606. pl. 838. Talbot was Indicted quod existens aetatis 16
and the authority hereby given them to go and seck the party 12 Co. 130. But the Constable cannot by vertue of such Warrant break the House where the party is for he is no Offender before he refuse the Oath or commit some contempt to the King Page 246. If any Person or Persons of or above the said Age and Degree CCLXI 7 Jac. 6. § 26 N. 3. that is of the said Age and above the said Degree of a Baron or Baroness for so the words must be taken viz conjunctively and not of such who are of the Degree of a Baron or Baroness and no more For the precedent words 7 Jac. 6. § 26. N. 1. appointed that the Oath may be tendered to such by any Privy Counsellour or the Bishop of the Diocess in all Cases altho they were never Convicted Indicted or Presented but to such Noblemen or Noblewomen as are above that Degree it cannot be tendered by vertue of this Act 7 Jac. 6. § 26. N. 3. unless they have been before convicted indicted or presented for not coming to Church or not receiving the Sacrament and in those Cases no less than three Privy Counsellours Quorum nuus c. can tender it 12 Co. 130 131. CCLXII Dignity Page 247. If any Person or Persons whatsoever c. under the said Degree 7 Iac. 6. § 26. N. 4. A Baroness or any Woman above that degree who is not of noble birth but only by Marriage becomes a Widow and takes a second Husband under the Degree of Nobility and is convicted indicted or presented of Recusancy or complained of by the Minister c. to a Justice of Peace who finds cause of Superstition the Justice of Peace may require her to take this Oath altho she were once Noble for by her second Marriage she hath lost her Nobility and Name of Dignity together with the Priviledges of her Nobility Quando mulier nobilis nupserit ignobili desinit esse nobilis which is to be understood of Nobility acquired by Marriage supra 212. For that which was gotten by Marriage may also be lost by Marriage Eodem modo quo quid constituitur dissolvitur and in such Case she shall not be tryed by Noblemen for they are no longer her Peers 2 Inst 50. But if a Woman be Noble by Birth or descent whomsoever she marries yet she remaineth Noble for Birthright is Character indelebilis 4 Co. 118. Actons Case and 6 Co. 53. Countess Rutland 6 and 7 Ed. 6. Dyer 79. Rosin Br. 31.69 and 1 Inst 69. And 't is observable that 21 H. 8.13 § 33. N. 1. provides that a Dutchess Marquess Countess or Baroness Widows which take a second Husband under the degree of a Baron may notwithstanding such second Marriage take such number of Chaplains as if she were a Widow which she could not have done if it had not been expressly provided for by the Statute and the reason given 4 Co. 118. is because by such Marriage her Dignity is determined but hkre 7 Iac. 6. § 26. N. 4. there being no such provisional Clause she shall not have the priviledge of Nobility but may be tendred the Oath of Allegiance by the Justice of Peace as in the Case of a common person Page 247. Shall stand and he presented indictid or convicted CCLXIII 7 Iac. 6. § 26. N. 4. These words being in the Disjunctive it is not necessary that the party be convicted but if he stand presented or indicted for not coming to Church or not receiving the Sacrament and be under the degree of a Baron the Justice of peace ought to tender him this Oath CCLXIV Intendment Page 247 248. And the said Iustice shall find cause of Suspicion 7 Iac. 6. § 26. N. 4. and not if the party be suspected as Wingate Coron 159. mistakes for the bare suspicion of the Justice of peace or any other Person is no sufficient ground to require the Oath or committ the party for the refusal but there must be some good cause for that Suspicion and the same must be alledged in Justice of peace his Plea or justification if he be Sued for committing him so Prison for such refusal So if a Man be arrested on Suspicion of Felony and brings his Action for false Imprisonment the Defendant ought to shew some Matter in fact to induce his Suspicion for in these and the like Cases a bare Suspicion is no justification sufficient it being a Matter secret and not traversable but the Cause of Suspicion is traversable 3 Bulstr 28.4 Weale versus Wells 7 Ed. 4.20 and 17. Ed. 45. and 5 H. 7.4 And whether the Suspicion be just and lawfull shall be tryed and determined by the Justices 2 Inst 52.11 Ed. 4.4 CCLXV. Justices Page 248. That then any one Iustice of Peace 7 Iac. 6. § 26. n. 4. What was said by Coke Chief Justice in Griffiths Case 2 Bulstr 155. that any one Justice of Peace may minister this Oath is to be understood of some Cases only 12 Co. 130. which are no others than those here mentioned as he explains his meaning 12 Co. 132. that one Justice of Peace cannot committ any for Refusal of his Oath unless they be prosecuted indicted or convicted and according to 7 Iac. 6. § 26. n. 4. supra 184. Page 248 CCLXVI. 249 250. Within whose Commission or Power such Person or Persons shall at any time hereafter be 7 Iac. 6. § 26. N. 4 A person complained of and against whom Cause of Suspicion is found by the Justice of Peace flyeth into another County Quaere whether a Justice of Peace of that other County can require the Oath of him and committ him upon Refusal for he seems to be impowered thereunto by express words of the Statute for that the Party is fallen within his Commission or Power c. But yet I conceive that 7 Iac. 6. § 26. n. 4. By these words Any one Iustice of peace within whose Commission or Power c. is designed or intended no other Justice than a Justice of that County where the Party was complained of and suspected and that if he fly into another County no proceedings can be there upon the Complaint and Suspicion in the County whence he came nor any one Justice tender him the Oath or committ him for Refusal without a new Complaint and Cause of Suspicion in the County whither he flyeth For where the Party cannot be Indicted of a Praemunire for Refusing the Oath upon the second Tender at the Assizes or Sessions by 7 Iac. 6. § 26. n. 6. There the Justice or Justices of Peace out of Sessions cannot tender the Oath or commit for Refusal for the Commitment is in order to a second Tender and an Indictment of Praemunire thereupon but in this Case the Party can not be Indicted of a Praemunire in the County where he flyeth for refusing it upon the second Tender for the Offence for which the Party must be indicted is a
messor but spicelegus a Gleaner And that in such Cases only where the King doth not prosecute pardon or release before the Informers Action is commenced 11 Co. 65. Dr. Fosters Case Bridgman 121.122 Parker against Sir J. Webb and uxor Lane 60. But whither this rule be general Bar. Fe◠and will not admit of an Exception in the Case of a Feme Covert is a Question For by some opinions if a Feme Covert be Indicted and convicted of Recusancy that shall not barr the Informer of his popular Action upon 23 Eliz. 1. § 11. N. 1. against her and her Husband for the Recusancy of the Wife because upon the Conviction by Indictment the cannot be compelled to pay the forfeiture of twenty pound per month while her Husband lives nor can it be levied of her Goods and Lands for that during the Coverture she hath nothing of her own to forfeit but all is her Husbands Bridgman 122. Infra 270. N 9. The Condemnation or acquittal of the party at the suit of the Informer is a good Bar against the King and all others 11 Co. 66. 18. Before 4 H. 7.20 § 1. N. 7. Collusion It seems that if a popular Action had been brought by Covin and with the consent of the defendent and the defendent was for want of Evidence or other Cause found not guilty and the Covin appeared to the Court yet Judgment should have been given thereupon against the King and it should have been a good Bar against all others 9 Ed. 4.4 pl. but now by 4 H. 7.20 § 1. N. 7. If any person sue with good Faith any Action popular and the defendent Plead a Recovery in an Action popular in Bar or that before that time he had Barred the Plantiff in such Action the Plantiff may aver such recovery or Bar was by Covin and upon such Covin found the Plantiff shall have Judgment and the defendent attainted or condemned of Covin shall shave Imprisonment of two years by process of Capias or Outlawry as well at the Kings suit as any other and the release of the party shall not avail the defendent which Covin may be averred generally Com. 49.50 54 55. Wymbishe and Talbois If a man bring upon a penal Statute debt tam c. quam c. and the defendent pleads thereunto the Plantiff may reply without the Kings Attorny c. Princes Case In debt upon 23 Eliz. 1. § 11. N. 1. the defendents demurred and the Plantiff qui tam c. Joyned in demurrer without the Kings Attorny and held to be good 1 Cro. 10.11 Farringtons Case Trin. 1. Car. 1. but in an Information tam c. quam c. the Kings Attorny ought to reply 2 Rol. 33. Smith and Catter And this difference between debt and an Information was taken Hutton 82. in the said Farringtons Case but yet if in an Information the defendent plead a special plea and the Kings Attorny will not reply and prosecute for the Kings part the Informer shall be admitted to reply and prosecute for his part as was adjudged in Stretton and Taylors Case 1 Leonard 119. pl. 161. and 11 Co. 65. Dr. Fosters Case 3 Inst 194. 19. The King before any Information or other popular suit commenced may pardon or release the whole penalty incurred Priory and it shall be a good bar against all men 11 Co. 65.66 Dr. Fosters Case 3 Inst 194.195.37 H. 6.4 _____ 2 R. 312. _____ _____ 1 H. 7.3 _____ Termes de ley 102. Decies tantum And if the defendent in the Information do not take advantage of such pardon or release by his plea but is condemned in the suit and the Kings share of the penalty be put in the Pipe in magno rotulo yet he may then discharge himself thereof upon a Compertum suit in magno rotulo by shewing forth the whole matter by way of Plea and shall not loose the effect of his pardon or release Savile 23. pl. 56. Tirringhams Case But when once the Informer hath brought his popular Suit the King cannot discharge it and if he then pardon or release or his Attorny enter an ulterius non vult prosequi this is good for the Kings part only but is no Bar quoad the Informer who may proceed notwithstanding for his part of the penalty And therefore neither can the Kings Attorny discharge the Jury when they come to deliver their Verdict Hutton 82. Vaughan 343. Thomas and Sorrel 1 Leonard 119. pl. 161. and 3 Cro. 138. Stretton and Taylor 3 Cro. 583. Hammon and Grissith 3 Inst 194. 1 H. 7.3 Such Entry of a non vult prosequi by the Attorny General hath the same effect with a Nonsuit of a Private person but the King cannot be said properly to be Nonsuit because he is in Judgment of Law ever present in Court 1 Inst 139.227 Hutton 82. Goldsborough 53. pl. Leighs Case Savile 56. pl. 119. Weare against Adamson Upon the Death of Queen Elizabeth it was resolved by the Judges that where an Information tam pro Domina Regina quam c. was brought upon a penal Statute and pending the same and before Judgment the Queen dyed the Information it self should stand for that otherwise the Suit might be lost there being a time limited for the bringing of it but all the proceedings thereupon were lost and void and the defendent should plead de novo 2 Cro. 14. and 7 Co. 30.31 Of discontinuance of Process And to that purpose 5 Ed. 6. Rot. 38. is there cited where in a popular action the King dyed after demurrer upon the Evidence and before Judgment and the defendent pleaded de novo But yet 1 Cro. 10.11 and Hob. 82. Farringtons Case in a popular action of debt upon 23 Eliz. 1. § 11. N. 1. against Prince and his Wife where the defendent demurred upon the declaration and the Plantiff qui tam c. Joyned demurrer in Hillary Term and King James died the Vacation following It was resolved that not only the Writ and declaration but all the other proceedings thereupon should stand notwithstanding the demise of the King for that in such Case it is meerly the Suit of the party and is aided by 1 Ed. 6.7 § 1. N. 4. of Discontinuances and he only Joyned in demurrer Which Resolutions are in appearance flatly contrary each to other for 2 Cro. 14. seems to take in all popular Suits whatsoever and as well a popular Action of debt as an Information but yet t is observable that in 1 Cro. 10. the Plantiff only joyned in demurrer and not the Kings Attorny And this seems to be the reason why in that Case the proceedings should stand notwithstanding the demise of the King for where the party alone joyns in demurrer or replies and not the Kings Attorny there the Suit may properly be said to be depending between party and party and within the express words of 1 Ed. 6.7 § 1. N. 4. which provides that altho the
this is not like the Case of Jurors upon 2 H. 5. § 2. cap. 3. § 1. N. 2. where t is said that the Juror shall have Lands of the clear yearly value of 40 s. if the debt or damage declared amount to 40 marks in which Case altho it be in the disjunctive debt or damage yet it hath been adjudged that where the debt and damages doth amount to 40 marks it is sufficient and the Juror must have 40 s. per Annum 1 Inst 272. For in that Case the word or is cumulative and debt or damage both amount to no more than one intire thing viz. The value of the Cause or Action depending And it appears plainly to be the intent of the makers of the Law 2 H. 5. Sect. 2. Cap. 3. § 1. N. 2. that no Cause declared to be of the value of 40 Marks shall be tryed by Jurors of a less Estate But in our Case the Lands and Goods are things of different natures one real and the other personal and cannot be regularly reduced under one and the same head and therefore shall not be valued together unless 35 Eliz. 2. § 8. N. 2. had expresly appointed such a valuation 2. But yet if a Popish Recusant hath a lease for years and personal Goods and both do amount in value to above 40. l. he shall be out of the danger of abjuration for altho the lease is in the realty and the goods are personal yet they shall in this Case be valued together For that by this Copulative and 35 Eliz. 2. § 8. N. 2. expresly so appoints without distinguishing between the values of either but makes it sufficient if both of them be of that value 3. Mony secured upon a Mortgage of Lands is within the meaning of these words Goods and Chattels 35 Eliz. 2. § 8. N. 2. And if the Popish Recusant hath above 40. l. owing to him upon such Mortgage he cannot be required to abjure CXXXIII Days Page 137. Within three months next after such person shall be apprehended or taken 35 Eliz. 2. § 8. N. 3. Wingate Crown 80. clearly mistakes the meaning for he saith that a Popish Recusant whose Estate is under value must make the submission prescribed by this Act within three months next after his arrival at his place of abode which is a complicated Error for he quites leaves out him who is to repair to the place where he was born or his Father or Mother dwells he makes the party lyable to such submission before he becomes an offendor by not repairing or not presenting himself and giving in his true name or Travelling above five Miles He speakes nothing of his being apprehended whereas by the Act he cannot be required to abjure until three months after his apprehension and he turns the three months after his apprehension into three months after his arrival all great mistakes and fit to be taken notice of by Justices of Peace whose part it is to require the submission and abjuration that they may not be misled in the Execution of this part of their office by trusting to that abridgment Page 138. CXXXIV Being thereunto required by the Bishop c. 35 Eliz. 2. § 8. N. 3. If the offendor be not before the end of the three months next after his appreliension required by the Bishop a Justice of Peace or the Minister or Curate to make such submission he cannot be required afterwards nor be compelled to abjure by force of this Act but if he be required within the three months to make submission and refuse he may be at any time afterwards warned or required to abjure CXXXV Exile Page 138 139. The Oath of abjuration 35 Eliz. 2. § 8. N. 4. may be in this form or to this effect You shall Swear that you shall depart out of this Realm of England and out of all other the Kings Majesties Dominions and that you shall not return hither or come again into any of his Majesties Dominions but by the licence of our said Soveraign Lord the King or of his heirs So help you God 3 Inst 217. Stamford 119.120 Wilkinson 66. hath set down another form c. resembling that of a Felon c. This hear you Sir Coroner that I J M. of H. in the County of S. am a Popish Recusant and in the contempt of the Laws and Statutes of this Realm of England I have and do refuse to come to hear Divine Service there read and exercised I do therefore according to the intent and meaning of 35 Eliz. 2. § 8. N. 4. c. abjure the Land and Realm of King Charles now King of England Scotland France and Ireland and I shall hast me towards the Port of P. which you have given and assigned to me and that I shall not go out of the high-way leading thither nor return back again c. If I do I will that I be taken as a Felon of our laid Lord the King and that at P. I will diligently seek for passage and I will stay there but one flood and Ebb if I can have passage and unless I can have it in such space I will go every day into the Sea up to my knees assaying to pass over So God me help and his holy Judgment But in alluding to the old Oath for Felony c. Wilkinson is mistaken in the very Offence for which the Popish Recusant is to abjure by force of 35 Eliz. 2. § 8. N. 4. For the Offence is not his Refusal to hear Divine Service for that is but one of the precedent qualifications of the person but the Offence it self is of another nature viz. his not repairing to the place the Statute appoints him or his removal from thence contrary to the Statute or his not presenting himself and delivering his true name as aforesaid Either of these if he be a Popish Recusant within the meaning of this Act is a Crime for which he ought to abjure unless he prevents his abjuration by a timely Submission Nor is the Popish Recusant bound to swear that he will not go out of the high way or return back or will tarry but one Flood and Ebb or go into the Sea up to his knees Nor ought the Coroner or Justices of Peace to require any such Oath of him for this is a new Offence made by a Statute Law which doth not require the strict form of Abjuration as in Case of Felony and altho the Felon were tied to these Circumstances yet the Recusant is not nor shall be a Felon for omitting them but 't is sufficient if he simply abjure as 35 Eliz. 2. § 8. N. 4. directs and go from the appointed Port within the time limited and not return without Licence into any of the Kings Dominions He that thus abjures the Realm doth yet owe the King his Ligeance and remaineth within the Kings Protection Qui abjurat Regnum amittit regnum sed non Regem amittit Patriam sed
annorum amplius non accessit ad Ecclesiam c. The question was whether the Existens c. Should refer to the time of his Indictment or to the time of his absence And the Judges conceived that the Indictment was well enough and pursuant to the Statute and that Existens should in this Case refer to the time of his absence LXII Lieu. Page 60. Upon 23 Eliz. 1. § 5. N. 1. this offence Not repair c. but forbear c. consists not in committing but in omitting and is but a nonfeasance and therefore cannot be said to be in any certain place and for this reason in a popular action brought by the Informer qui tam c. there needs no place be alledged in the Declaration Anderson 139. pl. 109. Cuff against Vachel Nor is Recusancy within 31 Eliz. 5. § 2. N. 1. which sayeth that the offence shall be laid in the proper County where it was done or committed for to speak properly it was not committed any where Hobart 251. pl. Grimstone versus Molineux infra 79. § 6. LXIII Proof Page 60. 61. By this Being thereof lawfully convicted 23 Eliz. 1. § 5. N. 1. Is not ment that the party must be Convicted in some former suit but a Conviction upon the same Indictment or Information which is brought against him for the recovery of the 20 l. per month is sufficient conviction within the meaning of this Statute And so are all penal Statutes which have in them those words being thereof lawfully Convicted to be understood that is of a conviction in the same sute whereupon the penalty is to be recovered for the meaning only is that the offendor shall forfeit nothing before Conviction which is no more than the Law implyeth and therefore in truth these words are but superflous and might as well have been omitted 11 Co. 59. 1 Rolls 90. pl. 41. Dr. Fosters Case and 1. Rolls 234. pl. 6. and 3. Bulstrode 87. the King against Lane 2. Nor is Convicton intended here 23 Eliz. 1. § 5. N. 1. only of a Conviction by Verdict and therefore if the offendor be convicted upon his confession of the Fact and Judgment thereupon be had and consequently if Judgment be had against him upon a demurrer which is a Confession of the matter of Fact Or if Judgment be given against him on nihil dicit for any other Cause any of these are sufficient Convictions whereupon to recover his penalty for Convicted is here 23 Eliz. 1. § 5. N. 1. to be taken for attainted as t is in many other Cases for until Judgment he shall forfeit nothing and altho he that is convicted is not therefore attainted yet every one who is attainted or adjudged is Convicted and of such a Conviction is this Statute to be understood infra 233. LXIV Forfeiture Page 61. These words To the Queens Majesty In 23 Eliz. 1. § 5. N. 1. are but surplusage and import no more than the Law would have given the Queen without them for where a Statute gives a forfeiture and limits not to any particular person the King shall have it by construction of Law as was agreed 2 Anderson 128. pl. 73. in the Case of Agard and Tandish and so should he have this whole 20 l. per month if the Statute had staid here and had not afterwards made another express appointment infra 76. Page 61. 62 63. It seemeth that the month here 23 Eliz. 1. § 5. N. 1. mentioned shall be accounted secundum numerum singulorum dierum LXV Dayes allowing but 28 daies to a month for so are all Statutes to be understood which speak of the month unless W. 2. cap. 5. § N. for the account of a Lapse and 2 3 Ed. 6.13 § N. of proving a suggestion 1. Inst 135. 2 Co. 166. Yelverton 100 Hob. 179. supra pl. 7. and of this opinion the Court of B. R. seemed to be upon the Construction of the Statute of Liveries 8. Ed. 4.2 § 2. N. 3. in the Case of Donner and Smith 3. Co. 835. pl. So that by this account the Recusant shall forfeit thirteen score pounds in the whole year 2. In an Information 2 Cro. 529. pl. brought by Parker Quitam c. against Sir John Curson and his Wife for the Recusancy of the Wife for 11 months and not guilty pleaded it was proved at the Trial Pasch 17. Jac. in B. R. that she conformed and came to Church for part of the time in the Information yet forasmuch as she was a Recusant both before and after it was said by the Court that her Conformity for some part of the time should not excuse her and she was found Guilty for the whole time 3. The Informer shewed that the Recusant was absent from Church from the 10 September 15. Jac. unto 9 September 16. Jac. and demanded Two hundred and twenty pounds for eleven months upon not Guilty pleaded it was found against the Defendent and it was resolved that altho the Informer had demanded less than by his own shewing was due for the time mentioned in the Information was 13 months compleat Except one day yet the Information was well enough for the Recovery shall be intended to be for the eleven months when the Recusant was first absent and the Addition of more is not material 2 Cro. 529. and 2 Roll. 90. Parker against Sir John Curson and his Wife and this is not like the Case of 1 Cro. 331. Bawderock and Mackaller Mich. 9. Car. 1. where the Informer Qui tam c. Upon 31 Eliz. 6. of Symony demanded less than the penalty and the Court seemed to be of opinion that altho it was good enough for the King notwithstanding that misprision yet it was not so for the Informer and compared it to the Case of Agard and Candish where an Information was brought upon the Statute of liveries after the year and it was adjudged to be good for the King but not for the Informer for upon 31 Eliz. 6. § N. which gives one intire penalty for the offence if less be demanded the Statute is not persued and there is a clear variance between that and the Information but in the Case of Recusancy when he demands Two hundred pounds for eleven months the Statute 23 Eliz. 1. § 5. N. 1. is persued and tho it appear by the Information that the Recusant was absent for a longer time yet the Informer is at liberty whither he will demand the penalty for his absence during that Supernumerary time 4. If it be shewed in the Information that the Recusant was absent from Church from a day certain to a day certain which in all makes 13 months and the penalty is demanded for that time and the Jury find the party Guilty for 12 months it hath been held by some that the Verdict shall be good for 12 months but whether for the first 12 months is a Question for in Sir J. Cursons Case 2
against the Defendant upon failer of the Record Hetley 18. But yet if there be a Plea of a Conviction of Recusancy had before the Justices of Gaol delivery and the Defendant mistakes Certiorari and takes out a Certiorari to the Justices of Peace this shall not be a failer of the Record altho the Defendant hath it not at the day for that the issuing of a Certiorari was the Award of the Court but a Certiorari shall be awarded de novo to the Justices of Gaol delivery before whom the Plaintiff was convicted Hob. 135. Pye and Thrill Note If the Defendant be sued in C. B. or any other of the Principal Courts at Westminster and he plead a Conviction of Recusancy before the Justices of Gaol delivery or Justices of Peace he need not take his Certiorari out of the Chancery and so bring it by Mittimus but the Court may send a Certiorari immediately to that inferiour Court where the Plaintiff was convicted as was held Hob. 135. See 19 H. 6.19 And the Justices themselves before whom the Conviction was had must certify and therefore if the Conviction was had before Justice of peace the Certificate cannot be by the Custos Rotulorum alone though he keep the Records for the Certiorari is in such Case directed to the Justices of peace Hob 135. A Popish Recusant is convicted of recusancy in a popular suit and after such Conviction sues the Informer qui tam c. upon some other matter or cause of action arising between them Quaere whether the Desendant may plead such Conviction in disability of the Recusant by 3 Jac. 5. § 11. N. 2. for this Conviction disables the Recusant to sue as if he were excommunicated and no otherwise Now if a Bishop excommunicate any one and the Bishop be afterwards sued at Law for any other matter or cause by the person so excommunicated the Bishop cannot plead this Excommunication in disability of the plaintiff who sueth 1 Inst 134. Swinborn 305. part 5. sect 6. and the reason given for this 8 Co. 68. in Trollop's Case is because the Bishop was a party to the Excommunication and therefore shall take no advantage by it Which reason seems to hold likewise in the case of an Informer Qui tam c. who is a party to the Conviction of the Recusant upon the popular suit which conviction renders the Recusant disabled to all intents as an excommunicate person and therefore he being a party to it by the same Rule shall not take advantage of it in disability of the Recusant in any action brought by the Recusant against him But yet notwithstanding I conceive the Informer qui tam c at whose suit the Recusant was convicted may well take advantage of this Conviction and plead it in disability of the person of the Recusant and that the true reason why the Bishop shall not be admitted to plead an Excommunication pronounced by him in disability c. is not because he is a party to the Excommengement but because in matters of Excommunication the Bishop acts as judge and 't is by his Sentence and Authority that the party is excommunicated and he shall not take advantage in another suit of a sentence given by himself judicially and this will not hold in the case of an Informer c. 14. H. 4.14 If an Executor or Administrator becomes a Popish recusant convict it seems he is disabled by this Act 3 Jac. 5. § 1. N. 1. to sue in either of these capacities for 3 Jac. 5 § 11. N. 1. saith he shall be disabled to all intents as an excommunicate person Now a person actually excommunicated can not sue as Executor or Administrator as is held 21 Ed. 4.49 21 H. 6.30 and 14. H. 6.15 and 1 Inst 134. altho there are some opinions to the contrary Finch 27. Page 219 CCXXXVI 220. Which are not to be seized or taken into the King's hands c. 3 Jac. 5 § 12. N. 1. these words are not restrained to such Lands c. as cannot be seized into the King's hands for recusancy for then the Recusant could in no case sue for more than the third part for that the King may if he please make his Election and seize the other two parts in lieu of the XX. lb per Month But they are intended of all Lands c. of the recusant which neither the King hath seized nor are by Law to be seized by vertue of any thing which the king hath already done or in respect of what the recusant after his conviction hath omitted to do And therefore if a man be convicted of recusancy upon a popular suit or an action of debt at the King's suit alone in which cases the penalty of XX. lib. per Month is not appropriated to the King for the time to come and he payeth the penalty recovered or if he be convicted upon Indictment and after such Conviction duly payes the XX. lib. per Month into the Exchequer and the King makes no Election to take the two third parts of his Estate in lieu thereof such Recusant may by this Proviso 3 Jac. 5. § 12. N. 1. in either of those Cases sue or prosecute for any of his Lands Tenements Leases Rents Annuitys or Hereditaments whatsoever notwithstanding his conviction for when the penalty recovered is satisfied or the forfeiture appropriated to the King is duely paid into the Exchequer his lands c. are not to be seized by force of any Law for recusancy unless the King make his Election to have the two parts and untill that Election they cannot in the sense of this Proviso 3 Jac. 5. § 12. N. 1. be said to be Lands to be seized or taken into the King's hands for that the King cannot have the two parts and the XX. lib. per Month both But if the King make no such Election and the XX. lib. per Month be duely paid into the Exchequer the Recusant is to hold and enjoy all his Lands Tenements c. as if he had never been convicted and during that time there can be no distinction made between the two parts and the Recusants third part so that in this Case the recusant must either be enabled to sue and prosecute for all his Lands c. or none and and to think the latter of these were to render this Proviso 3 Jac. 5. § 12. N. 1. nugatory and vain But when once the King hath seized the two Thirds for Recusancy either by way of Election or for non-payment of the XX. lib. per Month penalty then the Recusant is enabled to sue only for the other Third part whether in the hands of the King or of a common person CCXXXVII Marriage Page 220 221. Every man being or which shall be a Popish Recusant convicted 3 Jac. 5 § 13. N. 2. A man who is no Popish recusant convicted marrieth a Woman who is a Popish recusant convicted in other form than is here