non sunt culpabiles it had been ill But yet it seems that the Law is contrary to that Opinion Non sunt cuipabiles where good for where an Action or Information is brought against the Husband and Wife for an offence or wrong done by the Wife there the Husband is charged quoad poenam though not quoad culpam and when they both plead quod ipsi non sunt culpabiles the meaning is that he is not chargeable quoad poenam and she is not guilty quoad culpam and therefore it was resolved in the Case of Browne against Audley and his Wife Trin. 22 Jac. in an Action upon the Case for scandalous words by the Wife that where they both pleaded non culp and the Jury found the Feme guilty the Plaintiff should have Judgment For the issue was good for the reason aforesaid and the finding of the Jury was a good ground for the Judgment for if the Wife were guilty quoad culpam as the Verdict must necessarily be understood she being the wrong doer the Husband by consequence was chargeable quoad poenam and Judgment shall be against both Addition to Bendloes 148. and the Resolution in the Case of Needler versus Symnell and his Wife reported by Justice Croke Cro. Mich. 11. Car. 417. in the like Action brought for words spoken by the Wife is directly contrary to that opinion at the end of Sir John Cursons Case For there 't is adjudged that ipsi non sunt culpabiles by Baron and Feme is a good issue although the wrong were by the Wife alone Writ of Error by an Alien An Information of Recusancy lies against an Alien upon this Statute if he inhabits within the Realm and if Judgment be had against him he may have a Writ of Error to relieve himself Co. 1. Inst. 129. Popular Suit appropriated When once the Informer Qui tam c. hath commenced his Suit he hath of a popular Action made it his own private Action Co. 65. Dr. Fosters Case Vaughan 343. Thomas versus Sorrel And in this Case it is not necessary that the Defendant be served with Process to answer it Without Process for if the Informer put his Information into Court 't is enough to appropriate to him his share of the penalty Godbolt 158. C. 216. But yet a Note ought first to be made of the day month and year when it was exhibited for before Stat. 18 Eliz. 5. by the Statute of 18 Eliz. cap. 5. it is not to be taken to be of Record nor shall operate any thing either in appropriating the penalty or barring any other Informer but when that is done no other Informer can Sue for the same Offence and 't is a good Plea in Bar Bar. of the second Information for the Defendant to say that there is another Information depending against him for the same Offence For as soon as the first Information is delivered in and entred upon Record according to the said Statute of 18 Eliz. it shall be said to be depending Popular Suit when depending although it be not alleadged that any Writ or Process is Sued out against the Defendant thereupon Cro. Mich. 33 34 Eliz. 261. the Queen versus Harris Styles 417 Hobart 209. Parry versus Paris Palmer 40. Webbs Case Termes de la Ley 7. Action Popular Two Informations for the same offence Bar. The Defendant in an Information pleads that heretofore another Information was exhibited against him such a day in another Court for the same Offence but mistakes and names in his Plea a wrong day and not that wherein the first Information was exhibited The Plaintiff replies nul tiel Record yet if it appears that in truth the Information pleaded in Bar was exhibited before the other which is the substance of the matter this misprision shall not vitiate the Defendants Plea in Bar but Judgment shall be for the Defendant Hobart 209. Parry versus Paris Note this Case is cited in the late Additions to Dalton cap. 191. tit Informations Sect. 6. to prove that one person cannot exhibit two Informations in the same or in several Courts But that was not the Question there nor I think ever was made a Question but that the same person may exhibit two several Informations so they be not both for one and the same Offence An Information was exhibited in the Kings-Bench upon the Statute of 5 E. 6. cap. 7. for buying of Wools. Stat. 5 E. 6. 7. The Defendant pleads that there is another Information depending against him in the Common-Bench at the Suit of L. and avers that they are both for the same Offence but in truth that in the Common-Pleas supposed the Offence to be done at one time and that in the Kings-Bench at another time yet this is a good Plea in Bar Bar. of the latter Information being with an Averment that they are both for the same Offence for otherwise by the Informers false supposal of the day the Defendant shall be put to double trouble Cro. Mich. 33 34 Eliz. 261. The Queen versus Harris And the same advantage no question any man may take against whom two Informations are exhibited upon this Statute for hearing of Mass Mass for perchance he never heard Mass above once in his life time and there is no reason he should be put to double trouble for one offence But otherwise it seems to be in the Case of Recusancy The absence from Church must be for a month For if an Information be brought upon this Statute for not coming to Church for a month there if the Defendant proves that he was at Church any time within that month it shall be sufficient to avoid the penalty of Twenty pounds And as the Defendants giving in Evidence that he was at Church within the compass of any other month then that which is laid in the Information shall not excuse him so the Informers proof of his absence any other month shall not hurt him but the Evidence must go to the very same month which the Information mentions And the reason is for that this Offence is punishable according to the time of its duration or continuance and the Offender is to forfeit for every month of his absence so that if another Information be exhibited against him for not coming to Church during another month it cannot be supposed to be for the same absence with that in the first Information but for the like absence at another time and therefore cannot be pleaded in Bar thereof Two Informations on the same day c. Bar. If two Informers on one and the same day exhibit Informations against the same person for the same Offence they are both void and may be pleaded the one in Bar of the other for that there is no priority to Attach the right of Action in one of the Informers more than in the other Hobart 128. Pie versus Coke Although Sunday
Sorrell Leonard 1.119 C. 161. Stretton and Taylors Case Cro. Trin. 31 Eliz. 138. the same Case Ibid. Mich. 39 40 Eliz. 583. Hammon versus Griffith 1 H. 7. 3. Co. 3. Inst 194. Such Entry of a non vult prosequi by the Attorney General hath the same effect with a Nonsuit of a private person The King cannot be non-suited But the King cannot be said properly to be nonsuited because he is in Judgment of Law ever present in Court Co. 1. Inst. 139.227 Hutton 82. Goldsborough 53. Leighs Case Savile 56. C. 119. Weare versus Adamson Where upon the demise of the King the proceedings shall be void 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 died 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 Defendant should plead de novo Cro. Pasch 1 Jac. 14. Co. 7. 30 31. Case Of discontinuance of Process And to that purpose the Case of Pasch 5 E. 6. Rot. 38. is there cited where in a popular Action the King died after Demurrer upon the Evidence and before Judgment and the Defendant pleaded de novo And where not But yet in a popular Action of Debt brought upon this Statute against Prince and his Wife where the Defendants demurred upon the Declaration and the Plaintiff Qui tam c. joyned in 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 Stat. 1 E. 6. 7. and is aided by the Statute of 1 E. 6. cap. 7. of Discontinuances and he only joyned in Demurrer Cro. Trin. 1 Car. 10. 11. Lionell Farringtons Case Hobart 82. the same Case Which Resolutions are in appearance flatly contrary each to other for that upon the death of the Queen 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 Farringtons Case the Plaintiff only joyned in Demurrer and not the Kings Attorney 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 joynes in Demurrer or Replies and not the Kings Attorney there the Suit may properly be said to be depending between party and party and within the express words of 1 E. 6. which provides that although the King die all proceedings in Suits depending between party and party shall stand But the Resolution of the Judges upon the death of the Queen is to be understood of such Cases where after a Plea or Demurrer by the Defendant the Attorney General alone replies or joyns in Demurrer there the proceedings shall be void and the Defendant shall plead de novo But the Information it self shall stand to avoid a manifest inconvenience for that the Informer is limited to a certain time wherein to exhibit his Information And so I conceive are these two Opinions which seem so contrary to be reconciled An Informer Qui tam Nonsuit release c. of the Informer c. may be nonsuited although the King cannot Co. 1. Inst 139. Hutton 82. Farrington versus Arundell If pending the popular Action or Information the Plaintiff or Informer Qui tam c. be nonsuited or release or enter a nolle prosequi or dye none of these shall Bar the King but the Attorney General may proceed upon the Information for the Kings part Leonard 1. 119. C. 161. Stretton and Taylors Case No Bar for the Kings part Cro. Trin. 31 Eliz. 138. The same Case Ibid. Mic. 39 40 Eliz. 583. Hammon versus Griffith Co. 3. Inst 194. Moore 541. C. 715. Co. 11.66 Dr. Fosters Case Bulstrode 2. 261 262. Sir Thomas Waller versus Hanger Rolles 2.33 Smith versus Carter And therefore the Opinions in 37 H. 6.5 and 38 H. 6. 2. That if the Plaintiff in a Decies tantum which is a popular Action be nonsuit the King is without Remedy but by Indictment or if such Plaintiff will relinquish his Suit the King hath nothing further to do seem not to be Law at this day Information in a wrong Court And if a popular Information be brought upon a penal Statute in a wrong Court where the Informer cannot sue yet it was held in Agar and Candishes Case that the King should not for that lose his advantage of the Suit but the Information should be good for his part of the penalty Moore 564 565 566. C. 770. Stat. 18 Eliz. 5. By the Statute of 18 Eliz. cap. 5. if an Informer or Plaintiff upon a penal Statute where any forfeiture is generally limited to him that will sue shall delay or discontinue his suit or be non-suit The Informer shall pay costs or shall have the trial or matter pass against him by Verdict or Judgment of Law he shall pay to the Defendant his Costs Charges and Damages Vide Addition to Bendloes 141. Rhobotham versus Vincent and if it be upon special Verdict or Demurrer those Cases are within the Statute and he shall pay Costs by force thereof Hutton 36. Pies Case But not find Sureties But an Informer is not compellable to find Sureties to answer Costs howbeit the Court if they see cause may order him to appear in person before the Defendant answer the Information Bulstrode 2.18 Martin and Gunnystons Case It was held in the Exchequer Chamber That if a Writ of Error Writ of Error be brought upon a Judgment given for the King at the Suit of an Informer a Scire facias Scire facias ought to be awarded against the Informer Savile 10. C. 26. Wilkes Case Courts of Record in penal Statutes are the four Courts at Westminster In any Court of Record By any Court of Record is here meant the four Ordinary Courts of Record at Westminster For they are the general Courts of Record and the Courts where the Kings Attorney may acknowledge or deny and the words of this Statute being general are left to the construction of Law where the Rule is verba aequivoca in dubio posita intelliguntur in digniori potentiori sensu And in this sense shall these words Court of Record be construed in all penal Statutes where the penalty is to be recovered in a popular Suit So that the Informer Qui tam c. cannot sue before Justices of Assize Goal delivery or Oyer and Terminer or Justices of Peace as in Borough or Corporate Towns or in a Court of Pipowders Stannary Courts
although he be there personally present and openly confess himself to be the same person who was Indicted and against whom the Proclamation issued yet if he deny to appear upon the Proclamation or to consent that his appearance be entred of Record it seems that his appearance cannot be Recorded but his default shall and he shall stand Convicted thereupon And this is no more an appearance then where a Prisoner is brought to the Common Pleas Bar by habeas Corpus to the intent to have him appear to an Original brought against him and he denies to appear to the Action in which Case his appearance cannot be Recorded as was resolved in Ascoughs Case 43 Eliz. Gouldsborough 118. Shall be as sufficient a conviction in Law That is a Recusant thus Convicted upon Proclamation and Default of appearance shall be in the same Condition as if he were convicted by Verdict but no Judgment is given Bridgman 122. Parker versus Webb But this Conviction upon Proclamation is no Judgment as was resolved in Doctor Fosters Case Co. 11.65 Conviction upon Proclamation no Judgment And although it shall make the Recusant liable to the several forfeitures penalties and incapacities inflicted on Recusants convict yet it shall not operate as a judgment as hath been already shewed in divers instances For this reason it hath been questioned whether if a Recusant be Convicted upon Indictment and Proclamation the King may not wave his advantage of this Conviction and bring his Action of Debt given him by the Statute of 35 Eliz. cap. 1. Stat. 35 Eliz. 1 For that such Conviction is no Judgment and consequently ought not to bind the King as a Judgment against the Recusant should have done Palmer 40.41 Sir John Webbs Case Worsley obtained a Patent to have all the Penalties of Recusants convict Although such a Patent was illegal for that the King cannot grant the penalty of a penal Law to a Subject for which Vide Rolles 1.10 C. 11. Roy versus Tollin Hobart 155. Colt Glover versus the Bishop of Coventry and Litchfield Ib. 183. Davison versus Barber yet admitting the Patent to be good The King cannot grant the forfeiture on a penal Law it was resolved that the penalties of Recusants convicted by Proclamation should not pass by those general words Rolles 1. 94 95. C. 41. Doctor Fosters Case And be it further Enacted Stat. Sect. 6. The penalty of a convicted Recusant That every offender in not repairing to Divine Service but forbearing the same contrary to the Statutes in that behalf made and provided that hereafter shall fortune to be thereof once convicted shall in such of the Terms of Easter and Michaelmas as shall be next after such Conviction pay into the Receipt of the Exchequer after the rate of Twenty pounds for every month which shall be contained in the Indictment whereupon such conviction shall be And shall also for every month after such Conviction without any other Indictment or Conviction forfeit Twenty pounds and pay into the Receipt of the Excheqver aforesaid at two times in the year that is to say in every Easter and Michaelmas Term as much as then shall remain unpaid after the rate of Twenty pounds for every month after such Conviction except in such Cases where the King shall and may by force of this Act refuse the same and take two parts of the Lands Tenements Hereditaments Leases and Farms of such Offender till the said party being Indicted for not coming to Church contrary to former Laws shall conform himself and come to Church according to the meaning of the Statute in that behalf made and provided What Convictions are here meant Once Convicted This extends to all Convictions whatsoever upon Indictment whether by Verdict Confession c. whereupon Judgment is given as well as to Convictions upon Proclamation and default And the penalty of Twenty pounds per month shall in any of the said Cases run on forever after and be appropriated to the King Stat. 29 Eliz. 6 Vide Stat. 29 Eliz. cap. 6. Sect. 4. In what Term the forfeiture is to be paid In such of the Terms of Easter and Michaelmas as shall be next after such conviction Here Easter and Michaelmas is to be taken disjunctively for Easter or Michaelmas as it is in the Statute of 29 Eliz. cap. 6. Sect. 4. For the meaning is not that the Recusant shall have both of the Terms of Easter and Mithaelmas next after his Conviction wherein to pay the forfeiture of Twenty pounds for every month contained in the Indictment But he ought to pay the whole into the Exchequer the next Easter or Michaelmas Term which shall first happen after his Conviction And therefore if he be convicted in February he ought to pay the whole the next Easter Term unless where the King chooses to seize the two thirds of his Lands by force of this Statute as was admitted in the Case of Standen and the University of Oxford Hill 20 Jac. Jones 24. 25. And in the Lady Webbs Case who was convicted in March the pleading was that in the Easter Term then next following the said Katherine did not pay into the Exchequer according to the rate of 20 l. per month without any mention of Michaelmas Term Bridgman Pasch 16 Jac. 121. For every month after such Conviction By this Clause and that of 29 Eliz. cap. 6. Sect. 4. 29 Eliz. 6. Penalty appropriated to the King to the same purpose after the Recusant is once Convicted the penalty of Twenty pounds per month shall run on without any new Indictment or Conviction and shall be for ever afterwards appropriated to the King alone and paid into the Exchequer so that the Informer cannot bring any popular Action or Information for the Twenty pounds per month Informer barred for any time incurred after such Conviction but is utterly barred Co. 11.61 Doctor Fosters Case Rolles 1. 93. C. 41. the same Case Owen 37. Sulherd and Evererds Case The Lady Webb was Indicted and Convicted of Recusancy upon Proclamation and default of appearance Whether barred in the Case of a Feme Covert and afterwards an Informer Qui tam c. sued her and her Husband for a new offence of Recusancy in the Wife subsequent to such Conviction to which they both pleaded the said Conviction at the Kings Suit The question was whether the Informer should be barred by this Plea or whether the Information was maintainable notwithstanding such former Conviction of the Wife for that the Wife seems not to be such an Offender as is here intended because she can have no Goods or Lands during the Husbands life which may be seized for non-payment of the penalty But it was granted on all hands that if she had been a Feme sole this had been a good Plea in bar of the Informers popular Suit for then she had been bound to pay the Twenty pounds per month into the Exchequer and
Sunday be not dies Juridicus so as to award a Judicial Process or enter a Judgment of Record on that day yet an Information may be exhibited in Court on that day and good Jones 156. 157. Bedoe versus Alpe Information delivered In the Common-Pleas an Information may by the course of that Court be brought in and delivered to one of the Judges there out of Term No antedate Stat. 18 Eliz. 5. and shall be dated then For the Statute of 18 Eliz. cap. 5. forbids all antedates Rolls 2.33 Smith versus Carter Conviction on Indictment pending the Information An Information is brought by an Informer Qui tam c. upon this Statute for Recusancy and pending the Information the Recusant is convicted at the Kings Suit upon an Indictment for the same absence the Question is what remedy the Recusant hath in this Case that he may not Bis puniri pro uno delicto And to this it was Answered by Coke Chief Justice B. R. in the Case of Dr. Foster that he may plead this Conviction puis le darreine continuance to discharge himself of the Information Rolles 1. 95. C 41. But as the Reporter there well observes the Informer when he hath begun his popular Action hath appropriated the Action to himself And if it shall be admitted that the King can devest him of this Action when he pleases Action appropriated by Indictment at his own Suit this would prove very mischievous to Informers Quaere therefore how in this Case the Recusant shall defend himself from being doubly punished for one and the same Offence But if the Recusant be once convicted at the Kings Suit either by Indictment upon this Statute or according to the Statutes of 29 Eliz. cap. 6. Stat. 29 Eliz. 6 3 Jac. 4. or 3 Jac. cap. 4. upon Proclamation the Informer Qui tam c. cannot afterwards charge him but is barred for ever after Informer barred For the intention of this Statute is that the Informer may exhibit Informations against such only as are concealed or not charged at the Kings Suit so that the Informer is neque falcator neque 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 Co. 11. 65. Dr. Fosters Case Bridgman 121.122 Parker against Sir John Webb and his Wife Lane 60. But whether this Rule be general and will not admit of an exception in the Case of a Feme Covert Feme Covert is a Question for by some Opinions if a Feme Covert be Indicted and Convicted of Recusancy that shall not Bar the Informer of his popular Action upon this Statute against her and her Husband for the Recusancy of the Wife Because upon the Conviction by Indictment she cannot be compelled to pay the forfeiture of Twenty pounds 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 Vide Bridgman 122. 123. Parker versus Sir John Webb and his Wife Vide Stat. 3 Jac. cap. 4. Sect. 6. The Condemnation or Acquittal of the party at the Suit of the Informer is a good Barr against the King and all others Bar. Co. 11. 66. Before the Statute of 4 H. 7. cap. 20. Popular Action by Covin it seems that if a popular Action had been brought by Covin and with the consent of the Defendant and the Defendant 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 Barr against all others 9 E. 4. 4. But now by that Statute of H. 7. Stat. 4 H. 7. 20 If any person sue with good Faith any Action popular and the Defendant plead a Recovery in an Action popular in Barr or that before that time he had barred the Plaintiff in such Action the Plaintiff may aver such Recovery or Bar was by Covin and upon such Covin found the Plaintiff shall have Judgment and the Defendant so attainted or condemned of Covin shall have Imprisonment for 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 Defendant which Covin may be averred generally Vide Wymbishe and Talbois Case Plowden 49 50 54 55. If a man bring upon a penal Statute an Action of Debt tam pro Domino Rege quam pro seipso Who is to reply in a popular Action of debt and the Defendant pleads thereunto the party Plaintiff may reply without the Kings Attorney And in Princes Case in an Action of Debt upon this Statute the Defendants demurred and the Plaintiff qui tam c. joined in Demurrer without the Kings Attorney and held to be good Cro. Trin. 1 Car. 10 11. Lionel Farringtons Case But in an Information tam c. quam And who in a popular Information c. the Kings Attorney ought to reply Rolles 2.33 Smith versus Carter And this difference between an Action of Debt and an Information was taken in the aforesaid Case of Farrington versus Arundell Hutton 82. But yet if in an Information the Defendant plead a special Plea and the Kings Attorney 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 the Case of Stretton and Taylor Co. 11.65 Dr. Fosters Case Co. 3. Inst 194. Where the King may pardon or release the penalty The King before any Information or other popular Suit commenced may pardon or release the whole penalty incurred and it shall be a good Bar against all men Co. 11.65 66. Dr. Fosters Case Co. 3. Inst. 194 195. 37 H. 6. 4. 2 R. 3. 12. Termes de la Ley 102. Decies tantum 1 H. 7. 3. And if the Defendant 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 fuit in magno rotulo by shewing forth the whole matter by way of Plea and shall not lose the effect of his pardon or release Vide Savile 23. C. 56. Tirringhams Case And where not But when once the Informer hath brought his popular Suit the King cannot discharge it and if he then pardon or release or his Attorney 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 Attorney discharge the Jury when they come to deliver their Verdict Hutton 82. Vaughan 343. Thomas versus
sue And as for Sir Edward Cokes Opinion that since the said Statute of 21 Jac. the Courts at Westminster cannot receive or hold Plea of any Information brought by a common Informer not only common Experience ever since that Statute is against it but the Judgments and Resolutions both of the Kings Bench Mich. 4 Car. 1. in the Case of Greene and Guy upon the Statute of 21 H. 8. cap. 13. of Non-residence Stat. 21 H. 8. 13. and of the Common Pleas. Trin. 4 Car. 1. in the Case of Farrington and Leymer upon the Statute of 23 H. 8. cap. 4. of Brewers 23 H. 8. 4. are directly in point contrary thereunto Cro. Car. 146. ibid. 112 113. Hutton 99. And so is the Opinion of Rolles upon the Statute of 7 E. 6. cap. 5. 7 E. 6. 5. of Selling Wines without Licence Styles 340. Buckstone against Shurlock and the Resolution in Jones 193. And yet although in penal Statutes any Court of Record shall be restrained to the ordinary Courts of Record at Westminster In what Statutes Courts of Record may be taken in a large sense possibly in other Statutes those words may admit of a larger Construction Vide Rolles 1. 51. C. 21. Floyde versus Beste By Action of Debt Bill Plaint or Information An Informer may sue upon this Statute by Bill Stat. 18 Eliz. 5. By the Statute of 18 Eliz. cap. 5. it is Enacted That none shall be admitted or received to pursue against any person upon any penal Statute but by way of Information or original Action and not otherwise Vide Co. 6. 19 20. Gregories Case Moore 412. C. 565. 600. C. 827. the same Case Cro. Hill 39 Eliz. 544. Gadley versus Whitecot And this seems to extend to as well penal Statutes made afterwards as to those which were in force when the said Act was made For 't is usual for a later Act of Parliament to be guided by a former of which see several Instances in Vernons Case Co. 4.4 But then that must be in such Cases where there are not express words in the later Act to controul the former And therefore although the words of 18 Eliz. be in the Negative that the Informer shall not pursue otherwise then by Information or original Action yet the Affirmative words of this subsequent Statute of 23 Eliz. that the Informer may Sue by Bill hath taken away the force of that Negative in 18 in relation to the Offences mentioned in 23. And the prosecutor Qui tam c. upon this Statute may Sue by Bill in the Kings-Bench as well as by Information which otherwise had there been no direct words here to that purpose he could not do as it seems by the resolution given in Woodson and Clarks Case in a Suit brought by Bill in the Kings-Bench 23 H. 6. 10. upon the Statute of 23 H. 6. cap. 10. of Sheriffs Co. 3. Inst 194. and in Vdeson and the Mayor of Nottinghams Case Moore 248. C. 390. contrary to the opinion in Styles 381. 382. Hill against Dechair Within threé months after Iudgment thereof given shall be committed to Prison Qui non habet in aere luet in corpore The Judgment shall be absolute And yet the Judgment in this Case shall be absolute that the King and Informer recover c. Anderson 1. 140. C. 190. Vachels Case A Feme Covert Feme Covert Recusant if the forfeiture be not paid within the time here limited may be imprisoned by force of this Statute until she pay or conform Co. 11. 61. Dr. Fosters Case Hobart 97. Moore vesus Hussey And if she be convicted upon Indictment at the Kings Suit in which Case the Husband is not bound to pay the penalty she ought by the opinion of Manword to have hard and close Imprisonment Imprisoned and be sequestred from all Company until she conform or the forfeiture be paid Savile 25. C. 59. But if the Husband and Wife be Sued upon this Statute in a popular Action or Information for the Recusancy of the Wife Her Husband chargeable and Judgment be had against them and the forfeiture is not paid within the three months the Husband in that Case may be imprisoned likewise Savile 25. C. 59. Stat. Sect. 10. Service in a mans private House Provided also That every person which usually on the Sunday shall have in his or her house the Divine Service which is established by the Law of this Realm and be thereat himself or her self usually or most commonly present and shall not obstinately refuse to come to Church and there to do as is aforesaid and shall also four times in the year at the least be present at the Divine Service in the Church of the Parish where he or she shall be resident or in some other open Common Church or such Chappel of ease shall not incur any pain or penalty limited by this Act for not repairing to Church Stat. Sect. 11. Fraudulent Assurances to defeat forfeitures And be it likewise Enacted and Declared That every Grant Conveyance Bond Iudgment and Execution had or made since the beginning of this Session of Parliament or hereafter to be had or made of Covinous purpose to defraud any interest right or title that may or ought to grow to the Queén or to any other person by means of any Conviction or Iudgment by vertue of this Statute or of the said Statute of the said thirteenth year shall be and be adjudged to be utterly void against the Quéen and against such as shall Sue for any part of the said penalties in form aforesaid Since the beginning of this Session of Parliament And yet a Covenons Conveyance though made before that Session of Parliament should not have defeated the interest Fraudulent conveyances right or title which was given to the Queen by this Statute And therefore in the Case or Sir John Southwell who in An. 19 Eliz. conveyed his lands to certain Feoffees and their heirs in Trust for the maintenance of him and his Family marriage of his Daughters payment of his Debts c. and to answer to him the Surplusage of the mean profits with a Clause of Revocation after which he granted Trees took fines for Leases c. and then came this Statute upon which he was Indicted and Convicted It was resolved by all the Judges of England that the said Lands were liable to this Statute and the Jurors charged to inquire what Lands he had were committed to the Fleet and fined each of them Fifty pounds for that they would not find those Lands to be his Leonard 3. 147. 148. By means of any Conviction or Iudgment Pauncefoot being Indicted of Recusancy A 〈◊〉 Outlawâ—â—â— made a Deed of Gift of all his Leases and Goods to a great value coloured over with fained considerations to defeat the Queen of what might accrew to her by his recusancy or flight and then went beyond Sea and afterwards was
Privy Council of your Highness your Heirs or Successors or by the Bishop of the Diocess if she be a Baroness or if she be under that Degrée by two Iustices of the Peace of the same County whereof one to be of the Quorum there to remain without Ball or Mainprize until she shall conform her self and come to Church and receive the Sacrament of the Lords Supper unless the Husband of such Wife shall pay to the Kings Majesty his Heirs or Successors for the Offence of his said Wife for every month ten pounds of lawful money of England or else the third part in thrée parts to be divided of all his Lands and Tenements at the choice of the Husband whose Wife is so convicted as aforesaid for and during so long time as she remaining a Recusant convicted shall continue out of Prison during which time and no longer she may be at liberty What Conviction is here meant Stat. 23 Eliz. 1. Being lawfully convicted as a Popish Recusant That is upon Indictment at the Kings Suit or a popular Action or Information on the Statute of 23 Eliz. 1. or an Action of Debt at the Kings Suit alone according to the Statute of 35 Eliz. 1. 35 Eliz. 1. In which two last Cases the former Laws are somewhat altered by this Statute For by the former Laws if a person had been convicted of Recusancy any other way then by Indictment no more could have been demanded either by the King or Informer then for the months mentioned in the Information or Count And the penalty should not have run on in such Case For that the Statutes of 29 Eliz. 6. and 3 Jac. 4. 29 Eliz. 6. 3 Jac. 4. which appropriate the penalty to the King after Conviction intend no other Conviction then by Indictment as hath been there said Baron and seme But by this Statute if a popular Action or Information or an Action of Debt c. at the Kings Suit alone be brought against the Husband and Wife for the Recusancy of the Wife and Judgment be had against them the Husband shall not only pay for the time contained in the Information or Count but the Wife shall be imprisoned ever afterwards unless she conform or the Husband pay ten pounds per month or yield the third part of his Lands to the King And yet this Statute doth not after such Conviction of the Wife in a popular Suit Suits upon former Statutes not taken away or Action of Debt c. at the Kings Suit take away the popular Action or Information from the Informer or the Action of Debt c. from the King for the time to come but that they may be brought against the Husband and Wife for the Recusancy of the Wife for any month or months wherein she is absent from Church after such Conviction For this Statute and 23 Eliz. 1. and 35 Eliz. 1. Stat. 23 Eliz. 1 35 Eliz. 1 are all affirmative Laws and may well stand together so that any of the three remedies given by these Statutes may be pursued This Statute not abrogating any former Law but only providing another way of punishment for the Wife after she is once convicted Howbeit she shall not be punished by any more then one of these three ways Co. 11. 63 64. Rolles 1. 94. Doctor Fosters Case Cro. Pasch 17 Jac. 529. Parker versus Curson And therefore if the King bring an Action of Debt c. upon 35 Eliz. against the Husband and Wife Where the Wife shall not be imprisoned or the Informer sue them upon 23 Eliz. for any absence of the Wife from Church after she is once convicted by either of those ways and recover the Privy Counsellor Bishop or Justices of Peace here mentioned cannot imprison her by force of this Act for the non-payment of the ten pounds per month by the Husband for those months for which the King or Informer hath recovered or for his not yielding the thirds of his Lands to the King And the reason is for that when the Husband stands charged with the penalty of twenty pounds per month for the absence of the Wife the intent of the Act is satisfied in respect of those months of her absence for which he stands so charged For if he pay not the twenty pounds per month so recovered the King or Informer hath the ordinary remedy after Judgment by Process of Capias against them both both And the intent of the Act was no more then that the Husband should pay for the Recusancy of his Wife or the Wife be imprisoned And if in this Case the Privy Counsellor Bishop or Justices of Peace should have power to imprison the Wife unless the Husband would pay ten pounds for the months for which the King or Informer hath recovered it would follow that the Husband hath his Election whether he will pay ten pounds per month to the King by force of this Act or the twenty pounds per month so recovered against him by the King or Informer For he shall not pay both the one and the other for that were bis puniri pro uno delicto And if he shall have his Election the King or Informer might by this device be eluded of the penalty of twenty pounds per month so recovered which could not be the intent of the makers of this Law The King and Informer barred by her Imprisonment But if the Wife be after such Conviction imprisoned by force of this Act neither the King or Informer can so sue the Husband and Wife for the Recusancy of the Wife For she is already punished by this Act and must remain in Prison until the Husband pay the ten pounds for every month or yield the thirds of his Lands to the King or the Wife conforms Or if the Husband yields the thirds So if the Husband yields the thirds of his Lands to save his Wives imprisonment he is already punished by this Act and shall not again be punished or Sued by the King or Informer either upon 23 Eliz. or 35 Eliz. Or pay Ten pounds per month And if after such conviction of the Wife he pay Ten pounds per month to save her imprisonment he cannot be sued with his Wife for the Twenty pounds per month upon either of those Statutes by the King or Informer for those months of her absence from Church incurred after her conviction for which he hath paid the Ten pounds monthly to the King for he shall not Bis puniri pro uno delicto Hitherto hath been spoken of the Conviction of the Wife at the Suit of the King alone by Action of Debt c. or by the Informer Qui tam c. which doth not appropriate the penalty to the King by 29 Eliz. 6. or 3 Jac. 4. Conviction upon Indictment If the Wife be convicted of Recusancy upon an Indictment it hath been much debated whether that doth not so appropriate the