King die all proceedings in Suits depending between party and party shall stand But 2 Cro. 14. is to be understood of such Cases where after a Plea or demurrer by the defendent the Attorny General alone replies or joynes in demurrer there the proceedings shall be void and the defendent 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 these two opinions are reconciled 20. An Informer Release qui tam c. may be Nonsuited altho the King cannot 1 Inst 139. Hutton 82. Farrington versus Arundell If pending the popular action or Information the Plantiff or Informer qui tam c. be Nonsuited or release or Enter a nolie prosequi or die none of these shall bar the King but the Attorny Genaral may proceed upon the Information for the Kings part 1 Leonard 119. pl. 191. 3 Cro. 138. Stretton versus Taylor 3 Cro. 583. Hamond 3 Inst 194. Moor 541. pl. 715. and 11 Co. 66. Dr. Fosters Case 2 Bulstrode 261.262 Waller versus Hanger 2 Rol. 33. Smith versus Carter And therefore the opinions in 37 H. 6.5 and 38 H. 6.2 that if the Plantiff in a Decies tantum which is a popular Action be Nonsuit the King is without remedy but by Indictment or if such Plantiff will relinquish his Suit that the King hath nothing further to do seem not to be Law at this day 21. If a popular Information be brought upon a penal Statue in a wrong Court where the Informer cannot sue Courts yet it was held Moor 564 c. pl. 770. in Agar and Candishes Case that the King should not for that loose his advantage of the suit but the Information should be good for his part of the penalty By 18 Eliz. 5. § 3. N. 3. If an Informer or Plantiff Costs upon a penal Statute where any forfeiture is generally limited to him that will sue shall delay or discontinue his suit or be Nonsuit or shall have the Tryal or matter pass against him by Verdict or Judgment of Law he shall pay to the defendent his Cost Charges and Damages see the addition to Bendloes 141. Rhobotham and Vincent and if it be upon a special Verdict or demurrer those Cases are within 18 Eliz. 5. § 3. N. 3. and he shall pay Costs by force thereof Hutton 36. Pies Case 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 defendent answer the Information 2 Bulst 18 Martin and Gunnystons Case Savil 10. pl. 26. Wilkes Case it was held in the Exchequer Chamber that if a writ of Error be brought upon a Judgment given for the King at the Suit of an Informer a Scire facias ought to be awarded against the Informer LXXX Courts Page 82 83 84. By any Court of Record is here 23 Eliz. 1. § 11. N. 1. meant the four ordinary Courts of Record at Westminster For they are the general Courts of Record and the Courts where the Kings Attorny may acknowledge or deny and the words of 23 Eliz 1. § 11. N. 1. being general are left to the construction of law where the Rule is that verba equivoca in dubio posita intelliguntur in digniori potentiori sensie 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 Borrough or corporate Towns or in a Court of Pipowders Stannary Courts c. Jones 193. And such a construction hath been made of those words Court of Record upon several Statutes as 6 Co. 19.20 and Moor 600. pl. 827. Gregories Case on 4 and 5 Ph. Mar. 5. § N. of Woolen Cloathes In 1 Cro. 149. Green versus Guy on 21 11.8.13 § 11. N. 2. of Non-resid nee In 1 Cro. 112.113 and Hutton 99 Farrington and Keymer on 23 H. 8.4 § 5. N. 3. of Brewers In Stiles 340. Buck stone and Shurlock on 7 Ed. 6.5 § 6. N. 3. of selling wine without Licence In 3 Cro. 737. Barnabee versus Goodale and 2 Cro. 538. Millors Case and Styles 383. upon 5 Eliz. 4. § 13. N. 3. of Trades In Moor 421. pl. 581 upon the Statutes for Tanning of Leather and divers others 2. It was held Mich. 6 and 7 Ed. 6. Dyer 236. pl. by all the Justices but three that where a Statute appoints a penalty for any offence made thereby which was not an offence at the common law to be Recovered in any of the Queens Courts of record by Action of debt and no other Court is appointed The Statute intends the sour ordinary Courts of Record at Westminster and the offence and penalty cannot be punished and determined by Commissioners of Oyer and Terminer in Patriam But Dyer makes a Quaere hereupon and Sir Edward Coke in Scarlets Case 12 Co. 98. saith 10 Jac. that the opinion of Catlin Sanders and Whiddon which were the three dissenting Justices before c. is at this day held for good law and the opinion of the rest of the Justices that any Courts of Record are restrained to the ordinary Courts at Westminster of Record is not held for law Continual Experience saith he being against it for that Justices of Assize in respect of their Commission of Oyer and Terminer have alwaies enquired of offences where the penalties is appointed to be sued in any Court of Record as upon 33 H. 8.9 § 18. N. 1. of unlawful Games 35 H. 8.17 § 9. N. 2. of words and 5 and 6 Ed. 6.14 § 9. N. 2. of forfeitures and other Statutes But under favor altho Commissioners of Oyer and Terminer may take Indictments for the doing of that which is made malum prohibitum by a Statute Law yet that part of the opinion in Dyer 236 which relates to the Action of debt and the Courts of Record where such Action must be brought is good law and where only Courts of Record are named such Action cannot be brought in any other Court then the four ordinary Courts of record at Westminster as appears by the several Cases and resolutions before recited 3. Sir Edward Coke 3 Inst 193. and 4 Inst 174. saith that this exception of Recusancy in 21 Jac. 4. § 5. N. 1. doth not extend to the Courts 21 Jac. 4. § 1. N. 5. wherein the Informer is to sue but only to the County where 21 Jac. 4. § 2. N. 1. the offence is to be laid So that notwithstanding that exception 21 Jac. 4. § 5. N. 1. the Kings Bench Chancery C. B. Exchequer or Exchequer Chamber cannot relieve or hold plea of any Information for Recusancy either by the Kings Attorny or
against an Alien upon 23 Eliz. 1. § 11. N. 1. If he inhabits within the Realm and if Judgment be had against him he may have a Writ of Error to relieve himself 1 Inst 1â—9 12. Information When once the Informer qui tam c. hath commenced his suit he hath of a popular Action made it his own principal Action 11 Co. 65. Dr. Fosters Case Vaughan 343. Thomas and Sorrel And in this Case it is not necessary that the defendent be served with Process to answer it for if the Informer put his Information into Court t is enough to appropriate to him his share of the penalty Godbolt 158. pl. 216. But yet a Note ought first to be made of the day month and year when it was exhibited for before by 18 Eliz. 5. § 1. N. 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 barr for the defendent 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 18 Eliz. 5. § 1. N. 5. it shall be said to be depending altho it be not alledged that any Writ or process is such out against the defendent thereupon 3 Cro. 261. Mich. 33. and 34 Eliz. the Queen versus Harris Styles 417. Hob. 209. Parry versus Paris Palmer 40. Webbs Case Termes de la Leyverb Action popular The defendent in an Information pleads that heretofore another Information was hibited 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 is exhibited The Plantiff replyeth nul tiel Record yet if it appears that in truth the Information pleaded in barr was exhibited before the other which is the substance of the matter this misprision shall not vitiate the defendent Hob. 209. Parry and Paris note this Case is cited in the late additions to Dolt cap. 191. Sect 6. N. 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 made a question but that the same person may exhibit too several Informations so they be not both for one and the same offence 3 Cro. 261. The Queen against Harris Mich. 33. and 34. Eliz. An Information was in B. R. upon 5 and 6. Ed. 67. § N. for buying of Wools the defendent pleads that there is another Information depending against him in C. B. at the suit of L. and avers that they are both for the same offence but in truth that in C. B. supposed the offence to be done at one time and that in B. R. at another time yet this is a good plea in 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 defendent shall be put to double trouble And the same advantage no Question any man may take against whom two Informations are exhibited upon 23 Eliz. 1. § 4. N. 2. for hearing of 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 13. But otherwise it seems to be in the Case of Recusancy for if an Information be on 23 Eliz. 1. § 5. N. 1. for not coming to Church for a month there if the defendent proves that he was at Church any time within that month it shall be sufficient to avoid the penalty of the 20 l. And as the defendents giving 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 offendor 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 14. 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 Hob. 128. Pie versus Coke 15. Altho 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 and Alpe 16. In C. B. an Information may by the course of the Court be brought in and delivered to one of the Judges there out of term and shall be dated then For 18 Eliz. 5. § N. forbids all antedates 2 Rol. 33. Smith versus Carter 17. An Information is brought by an Informer Qui tam c. upon 23 Eliz. 1. § 5. N. 1. 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 Dr. Fosters Case that he may plead this Conviction puis le darreine continuance to discharge himself of the Information 1 Rol. 9 5. pl. 41. But as the Reporter well observes there 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 pleaseth 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 punisht for one and the same offence But if the Recusant be once convicted at the Kings suit either by Indictment upon 23 Eliz. 1. § 5. N. 1. or according to 29 Eliz. 6. § 2. N. 5. or 3 Jac. 4. § N. upon Proclamation the Informer Qui tam c. Cannot afterwards charge him but is barred for ever after For the intention of 23 Eliz. 1. § 11. N. 1. 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
that the Indictment was good enough notwithstanding it is not said of what Parish the Recusant was for the whole penalty of twenty pound per month is at first 23 Eliz. 1. § 5. N. 1. given to the Queen and the Inhabitants of the Parish where the offence was are by 23 Eliz. 1. § 11. N. 1. to sue in the Exchequer for their third part and surmile in their Bill that the offence was in their Parish and if it were so it shall be delivered to them as the Act directs LXXVIII Exchequer Page 71. Upon 23 Eliz. 1. § 11. N. 1. the principal Officers of the Court of Exchequer are the Treasurer and Barons but the principal Officers of the receit of the Exchequer are the Treasurer and Chamberlains Savile 38. pl. 87. LXXXIX Information Page 71. c. 82. on 23 Eliz. 1. § 11. N. 1. upon a penal Statute where part of the forfeiture is given to the King and part to him that will sue the Informer or Plantiff qui tam c. sequitur tam pro Domino Rege quam pro seipso and so it must be said in the Information or declaration and not only there but in the Joyning of Issue and the Venire facias it must be entred qui tam pro Domino Rege c. or the omission of it is Error 1 Cro. 336. pl. Mich. 9. Car. 1. 2. In an Information upon 23 Eliz. 1. § 11. N. 1. the usual way is that the Informer for himself petit inde tertiam partem juxta formam Statut ' 11 Co. 56. Dr. Fosters Case but then the Statute must be named for in an Information 2 Cro. 142. Mich. 4. Jac. by Broughton Qui tam c. against Moâ—re for the forbearing to come to Church Contra formam Statuti without naming which Statute in which Case the Informer demanded the third part for himself it was adjudged by the Court of B. R. to be ill for there are several Statutes against Recusancy and it did not appear which of them was meant 3. But if this Statute of 23 Eliz. 1. § 11. N. 1. be named in Certain and the party who sueth demands the whole forfeiture for the King and himself and Judgment be given that the King shall recover one moity and the Informer or Plantiff Qui tam c. the other moity in that Case the Judgment is well enough for the Information or declaration being Quod actio accrevit Domino Regi praefat A. ad habend ' exigend ' the full forfeiture the Judgment doth not vary there from when it saith that a moiety shall be to the King and a moiety to the Plantiff or Informer and altho the Statute 23 Eliz. 1. § 11. N. saith that he which will sue shall have but a third part yet thâ—t is by way of distribution only and such distribution if the penalty is an act subsequent to the Judgment and is to be made as well out of the moity given by the Judgment to the Informer or Plantiff Qui tam c. as out of the mony thereby given to the King and this I conceive to be the reason of the resolution in Chambers Case 2 Roll. 437. pl. where such a Judgment in Case of Recusancy upon this Statute was allowed to be good But if the whole forfeiture be not demanded in certain there altho the party who sues demands his own share 't is ill and so it was adjudged in an Information upon a poenal Statute 5 Eliz. 5. § 16. N. 1. which concluded Vnde petit advisamentum Curiae quod forisfaciat 5 l. pro qualibet offensunde ipse petit medietatem For the Informer doth not make his demand certain but leaves it to the Court or Jury to cast up the sum it Amounts to Hobart 245. Pie and Westly 4. If there be several Statutes Information and each of them prohibit one and the same thing and Inflict a penalty and give an Information for recovery of it the Information may conclude contra formam Statuti and good because the best shall be taken for the King 5 H. 7.17 So if one Statute make the offence and another Inflicts the penalty or forfeiture and the Information be for the offence only it may conclude contra formam Statuti which is to be understood of that Statute which makes the offence But if the Information both lay down the offence and demand the penalty there both Statutes must be recited or at least the Information must conclude contra formam Statutorum Owen 135. Wests Case supra 72. § 6. 5. In the late additions to Dalt 547. cap. 191. § 6. N. 3. it s said that Informations and saiâ—s on penal Statutes are stricti juris and excepted out of all the Statutes of Jeofailes which is a mistake for they are not excepted out of 32 H. 8.30 It s true they are out of 18 Eliz. 14. § N. and 21 Jac. 13. § N. and that as it seemeth in all Cases within those two Statutes see Styles 307. Theoballs against Newton And in the Case of Scot and Lawes Hob. 328. It seems to be intimated that they are excluded out of all three Where the Case was debt by an Informer Qui tam c. upon a penal Statute 21 H. 8.13 § 2. N. 4. the defendent pleads non debet praefato J. meaning the Informer and not the King and the Issue was found against the defendent in that Case it was resolved that this was a good Cause to stay Judgment and there it s said that it being upon a penal Statute the Statute of Jeofailes 32 H. 8.30 would not help it but that reason was Ex abundanti for 32 H. 8 30. seems to extend to all popular suits whatsover and in Wallers Case Dyer 346.347 in an Information brought against him 18 Eliz. by Topcliffe Qui tam c. upon 37 H. 8.9 of Usury it was adjudged that the mis-conveying of Process and mis-joyning of Issue in the said Information Dayes were aided by 32 H. 8.30 6. By 31 Eliz. 5. § 5. N. 2. an Informer Qui tam c. must begin his suit within one year after the offence committed otherwise he shall not have any part of the penalty 2 Co. 366. Hill 12 Jac. Godbolt 158. pl. 216. Sivedale versus Sir Edward Lenthal But popular suits upon the Statute 39 Eliz. 2. § N. of Tillage are excepted and not upon the Statute of Tallage as is mistaken in the the late additions to Dalt 546. cap. 191. § 3. In Dr. Fosters Case 11 Co. 65. it s said that the Informer hath no Remedy for recovery of the forfeitures for Recusancy after the year and day is expired for that time is limited in certain by 23 Eliz. 1. § 8. N. 1. but yet with submission it seems that 23 Eliz. 1. § 8. N. 1. relates to Indictments only and so it was held in this very Case of Dr. Foster 11 Co. 60. and 1 Rol. 93.
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