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
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
be construed to be against reason for many things are excepted out of Statutes by the Law of Reason which are not excepted by express words 4 Inst 330 331. Com. 13. XVII Indictment Page 22. One indicted on 1 Eliz. 2. § 5. N. 1. for administring Baptism in other form then is thereby prescribed and is convicted and afterwards is again indicted for the like offence 1 Leon. 295. Pl. 403. by the opinion of Clench Justice in B. R. the second Indictment must mention the first Conviction or the Judgment cannot be for the second Offence viz. Imprisonment for a year and deprivation But Wray Cheif Justice held that if both Indictments were before the same Justices they are to take notice of the first conviction altho it be not mentioned in the second Indictment and ought to give Judgment accordingly but if the second Indictment be taken by other Justices then without mention therein of the first Conviction they cannot give Judgment for the second offence Page 24. XVIII Bar. Feme A Feme Covert is within the meaning of 1 Eliz. 2. § 9. N. 1. any person c. and shall be liable to the penalties thereby inflicted Hob. 97. Moor versus Hussey Dyer 203. pl. Sir Edward Walgrave's Case XIX Parliament Page 24. There hath been a great question when this Parliament of 1 Eliz. began Poulton saith Jan. 23. Dyer 203. pl. is Jan. 25. and 4 Inst 7. is Febr. 25. and for the incertainty when it commenced an information upon 1 Eliz. 2. § 9. N. 1. against Sir Edward Walgrave and his Wife by the Queens Attorny without any special recital of the Statute only supposing the offence to be Contra formam effectum cujusdam Statuti in Parliamento tent ' apud Westmon Anno primo Reginae nunc c. Dyer 203 pl. was held good For this is a general Statute and so needs not be perticularly recited Com. 53.79.81.23 XX. Religion Page 24. The hearing of Mass is a maintaining within 1 Eliz. 2. § 9. N. 2. and the person hearing is indictable thereupon Hob. 97. Dyer 203 and 323 pl. Fermors Case XXI Indictment Page 25. The Offender in any of these Cases viz. 1 Eliz. 2. § 10. N. 1. § 11. N. 1. cannot be punished for the second offence before he be adjudged for the first and that second offence must be committed after the Judgment given for the first nor for the third offence before he be adjudged for the second and that third must be committed after the Judgment for the second for quod non apparet non est non apparet Judicialiter ante Judicium 2 Inst 479. Dyer 323 pl. XXII Forfeiture Page 25 26. An Information was brought by the Attorny General in B. R. upon 1 Eliz. 2. § 9. N. 2. for hearing Mass and Judgment given Trin. 3 Eliz. Quod forisfaceret Dominae Reginae si non solvet infra c. tunc Imprisonabitur c. as 1 Eliz. 2. § 12. N. 1 and 13. N. 1. the forfeiture was estreated into the Exchequer within the six weeks mentioned in the Statute and before the six weeks expire the Defendent in the Information dieth Quaere whether his Executors shall be charged with the forfeiture of an hundred marks for that the Offender died within six weeks and so by the act of God his body cannot suffer imprisonment for six months in lieu of the forfeiture and the Statute gave his Election in this Case whether he would suffer imprisonment or pay the hundred marks Dyer 203 231. pl. Sir Edw. Walgraves Case But this Question may now be prevented for the Offender may be indicted upon 23 Eliz. 1. § N. which inflicts for such offence an hundred marks and imprisonment both XXIII Bar. Feme Page 26. A Feme Covert is within this Statute 1 Eliz. 2. § 14. N. 1. all and every Person c. and shall forfeit twelve pence if she repair not to Church every Sunday and holyday 11 Cook 61. Dr. Fosters Case 1 Rol. 93. 3 Bulstr 87. pl. Dominus Rex Law Hob. 97. XXIV Alien Page 26. In an Indictment upon 1 Eliz. 2. § 14. N. 1. It need not be inferred that the Offender is an Inhabitant within this Realm c. for if he be not that ought to come on the other side Godbolt 148. pl. 191. Ann Mannocks Case XXV Averment Page 26 27. Nor need be averred in such indictment on 1 Eliz. 2. § 14. N. 1. that the Party had no lawful or reasonable excuse to be absent but that ought likewise to come on the other side 2 Leonard 5. pl. 6 Eliz. Dormers Case Note that these words Having no lawful or reasonable excuse c. are by mistake in that Case supposed to be in 23 Eliz. 1. XXVI Church Page 27. If a Man doth not resort to the Church of the Parish wherein he dwelleth nor to the Chappel of Ease whereunto the place of his abode belongs yet if he goeth to that Church or Chappel to which he hath been accustomed to resort it seemeth to be sufficient to satisfie the intent of 1 Eliz. 2. § 14 N. 1. 1 Bulst 159. Page 27. Altho the words of 1 Eliz. 2. XXVII § 14. N. 1. be disjunctive Viz. That he shall abide there during the time of Common-Prayer Preaching or other Service of God yet they are to be taken conjunctively and the party ought not to depart when the Service is ended if there be preaching but must continue there for the whole time Godbolt 148. pl. 191. Mannocks Case and yet if he abides there during the whole time he may be liable to the penalty of this Law for there are four Adverbs in 1 Eliz. 2. § 14. N. 1. 1. Diligently which denotes Attention 2. Faithfully which denotes Devotion 3. Soberly which denotes Gravity 4. Orderly which denotes Decency All which ought to be observed so that if he walk or talk in the Church during the service of God there he may be punished upon this Act as if he were absent by Cook Cheif Justice 1 Rol. 93. Dr. Foster's Case XXVIII Forfeiture Page 27 28. This Forfeiture 1 Eliz. 2. § 14. N. 2. still remains notwithstanding the Statute of 23 Eliz. 1. § 5. N. 1. which gives the 20 l. per month and that appears by 3 Jac. 4. § 27. N. 2. which gives a more speedy remedy for the recovery of the Forfeiture of twelve pence and by the different times when these two Forfeitures are due which sheweth that the one was not intended in the Room of the other For the 20 l. per month is due for a months absence and cannot be sued for till the month is past but the twelve pence is due for every absence either Sunday or Holyday for it is forfeited as soon as the Sunday or Holyday is past and may be sued for every week So that the Recusant may be punished both by
qui tam c. afterwards 23 Eliz. 1. § 11. N. 1. in a distinct branch by it self without any reference to this 4. So that by 23 Eliz. 1. § 9. N. 2. and before 35 Eliz. 1. § 10. N. 2. which gave the Queen an Action of debt c. the Queen had no other remedy to recover the intire forscitures given hereby but by Indictment only 11 Co. 60. and 1 Rol. 91. pl. 41. Dr. Fosters Case 5. See Jones 193 pl. for that and the suit by the common Informer are the only wayes appointed by 23 Eliz. 1. § 9. N. 2. and § 11. N. 1. and the subsequent Clause 23 Eliz. 1. § 10. N. 1. of submission which names the Justices before whom the party is to submit viz. the Justices before whom he is Indicted Arraigned or Tryed shews what proceedings are meant which are to be had before the Justices here named that is by Indictment Hob. 205. Pie and Lovel 6. Talbot and Shelden were Indicted for Recusancy Contra formam Statuti 23 Eliz. 1. in which Indictment the penalty was demanded and in a Writ of Error the Judgment was reverst for the offence is made by 1 Eliz. 2. § N. and the penalty is given by 23 Eli. 1. § N. and therefore it should have been Contra formam Statutorum Owen 135. pl. Wests Case infra 79 § 4. Far. Feme 7. If a Feme Covert be Indicted at the Kings Suit for an offence within 23 Eliz. 1. § 5. N. 1. she may be charged with the penalty after her Husbands death but the Husband is not chargable nor shall pay the penalty for that he is no party to the Judgment and this was one of the Causes of making 35 Eliz. 1. § 10. N. 1. by which Statute the King may have an Action of debt and recover the forfeiture against the Husband 1 Rol. 93.94 Roy versus Foster Savile 25 pl. 59. LXXIII Treason Page 68. This Exception 23 Eliz. 1. § 9. N. 2. of Treason and misprision of Treason extends not to the Justices of Oyer and Terminer or of Assize and Goal-delivery as Wingate Crown 46. hath mistaken but only to Justices of Peace who are not to medle in thâ—â—â— two Cases but the other Justices may LXXIV â—onformity Page 69. Upon 23 Eliz. 1. § 10. Before Iudgment submit and conform himself c. But now by 1 Jac. 4. § 17. N. 1. If the Recusant conforms after Judgment it seems it shall be time enough to have the forfeiture 2. A man is convicted of Recusancy according to 29 Eliz. 6. § 2. N. 5. upon Proclamation and default of appearance and afterwards submits and conforms he shall by force of 23 Eliz. 1. § 10. N. 1. be discharged of the forfeiture of twenty pounds per month for this is a submission and conformity before Judgment the Conviction upon Proclamation being no Judgment but only in nature of a conviction by verdict as was resolved by all the Judges Mich. 37. and 38 Eliz. see 1 Rol. 94. pl. 41. Dr. Fosters Case 3. Page 69. Certain Persons were Indicted upon 23 Eliz. 1. § 5. N. 1. for not coming to Church and were outlawed upon the Indictment the Court of B. R. would not in this Case receive their submission upon 23 Eliz. 1. § 10. N. 1. but advised them to purchase their pardon for the Outlawry which they did and the their submission was accepted of and they were discharged 4 Leonard 54. pl. 138. Note in the report the Statute 13 Eliz. 2. is mistaken for 23 Eliz 1. for no Indictment for not coming to Church lyeth on 13 Eliz. 2. LXXV Certisicate Page 69 Upon 23 Eliz. 1. § 10. N. 1. If a man be Indicted for Recusancy before Justices of Peace and he submits and conforms before the Bishop of the Diocess be may remove the Indictment by Certiorari into B. R. and there plead his Conformity by Certificate under the Bishops hand and Seal Styles 26. pl. 2. For the manner of a Recusants submission and Conformity before the Bishop after Conviction and the Bishops Certificat thereupon see Co. Entr. 569. LXXVI Forfeitures Page 70.71 All forfeitures of any sums of mony limited by this Act. 23 Eliz. 1. § 11. N. 1. Shall be divied c. So that the distribution here appointed extends not only to the forfeitures of Two hundered and One hundred Marks for saying or hearing of Mass and the ten pound a month for keeping a School-Master Contrary to this Act but likewise to the twenty pound per month for not repairing to Church 2. In which last Case the Informer Qui tam c. shall have the third part as well as in the other Cases for altho by 23 Eliz. 1. § 5. N. 1. the whole Twenty pound per month is given to the Queen which the other forfeitures are not in express words yet that will not alter the Case nor make void the express appointment made here in what manner and to whom all the forfeitures limited by 23 Eliz. shall be disposed of 3. And it is usual in Acts of Parliament to give the whole penalty for any Criminal matter to the King and afterwards in the same Act to make distribution thereof and give part to him that will sue as in 3 H. 6.3 § 1. N. 1.2 and 3 H. 7.7 § 1. N. 5.10 and the subsequent distribution shall alwaies stand good notwithstanding the precedent words of limitation of the whole to the King 4. For those words in penal Statutes To the King or to the Queen are upon the matter but void and superfluous and give the King or Queen no other or stricter interest than they would have had if they had been omitted and it had been said shall forfeit without apointing to whom 5. And the reason is for that the Law devolves the forfeiture upon the King where no other person is appointed and shall forfeit without more saying is as much as shall forfeit to the King But when afterwards in the same Statute a particular appointment is made how the penalty shall be that qualifies the former and general words and such distribution shall be made as the Statute appoints 11 Co. 60. and 1 Rol. 89.90 pl. 41. Dr. Fosters Case and 1 Anderson 139.140 pl. 190. Cuff and Vachell supra 46. Page 71. Upon 23 Eliz. 1. § 11. N. 1. Scot was Indicted for Recusancy LXXVII Poor Anno. 26. Eliz. 2 Leonard 167. pl. 204. By the name of William Scot of Southwark Gent. and Exception was taken to the Indictment for that within Southwark are several Parishes and the third part of the penalty is to be applyed to the relief of the Poor of the Parish where the offence was committed But in this Case the Recusant being named generally of Southwark non potest constare Curiae where the offence was nor to what Parish the third part of the penalty belongs But the whole Court of B. R. were there of opinion
any Common Informer but the matter shall be heard and determined before Justices of Assize Nisi prius Goal-delivery or Oyer and Terminer or Justices of Peace in their general Sessions according to 21 Jac. 4. § 1. N. 3. but the Informer if it be for Recusancy may by force of that exception 21 Jac. 4. § 5. N. 1. lay or alledge such offence in what County he will for the said exception extends only to the County 21 Jac. 4. § 2. N. 1. and not to the Courts 21 Jac. 4. § 1. N. 5. where the Informer is to sue Which opinion of his touching the extensiveness of the exception is probable enough viz. that 21 Jac. 4. § 5. N. 1. extends only to the County and not to the Courts where the Informer is to sue for the latter part of it speaks only of the County but this is unaptly applied to popular Informations upon 23 Eliz. 1. § 11. N. 1. for they are not within the meaning of that branch of 21 Jac. 4. § 1. N. 5. touching the Courts where the Informer is to sue for 21 Jac. 4. § 1. N. 5. medles not with those Informations upon those penal Laws which give the Informer no other remedy for recovery of the penalty but by Debt Bill plaint or Information in the Courts of Record at Westminster Nor doth 21 Jac. 4. § 1. N. 3. give the Justices of Assize or other Justices there named any new or further power than they had before but only appoints that where Informations might have been brought before them or in the Courts of Westminster at the Election of the Informer now they shall be brought before Justices of Assize Nisi prius Goal delivery or Oyer and Terminer or at the Sessions of the Peace in the County where the offence was committed for the ease of the Subjects who are defendents and not in the Courts at Westminster 4 Co. 1. 1 Cro. 112.113 But in our Case of Recusancy there is no such Election given the Informer by 23 Eliz. 1. § 11. N. 1. but he is strictly tyed to take his remedy by debt Bill plaint or Information in one of the Courts at Westminster and therefore 21 Jac. 4 § 1. N. 5. extends not to it in that branch touching the Courts where the Informer is to sue And as for Sir Edward Cokes Opinion that since 21 Jac. 4. § 1. N. 5. 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 B. R. Mich. 4. Car. 1. Greene and Guy 1 Cro. 146. pl. upon 21 H. 8.13 § 11. N. 2. and Fentons Case Mich. 27. Car. 2. upon this Statute of 23 Eliz. 1. and of C. B. in Farrington and Leymer 1 Cro. 112. Hutton 99. Trin. 4 Car. 1. upon 23 H. 8.4 § 5. N. 3. Are directly in point Contrary thereunto and so is the opinion of Rolls in Styles 340. Buck stone and Shurlock 7 Ed. 6.5 § 6. N. 3. and the resolution in Jones 193. And yet altho in penal Statutes any Court of Record shall be restrained to the ordinary Courts of Record at Westminster possibly in other Statutes those words may admit of a larger Construction 1 Rol. 51. pl. 21. Floyd and Best LXXXI Information Page 85 86. Upon 23 Eliz. 1. § 11. N. 1. by Action of debt Bill plaint or Information by 18 Eliz. 5. § 1. N. 3. it is enacted that none shall be admitted or received to prosecute against any person upon any penal Statute but by way of Information or original Action and not otherwise 6 Co. 19.20 Moor 412. pl. 565. and 600. pl. 827. Gregories Case 3 Cro. 544. Gadley versus Whitecote And this seems to extend as well to penal Statutes made afterwards as to those that were in force when 18 Eliz. 5. § 1. N. 3. was made for t is usual for a latter act of Parliament to be guided by a former as 4 Co. 4. Vernons Case But then it must be in such Cases where there are not express words in the latter act to controule the former and therefore altho the word of 18 Eliz. 5. § 1. N. 3 that the Informer shall not prosecute otherwise then by Information or original action yet the Affirmative words of this subsequent Statute 23 Eliz. 1. § 11. N. 1. that the Informer may sue by Bill hath taken away the force of that negative in 18 Eliz. 5. § 1. N. 3. in relation to the offence mentioned in 23 Eliz. 1. and the prosecutor qui tam c. upon 23 Eliz. 1. § 11. N. 1. may sue by Bill in B. R. 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 3 Inst 194. in Woodson and Clerks Case In a suit brought by Bill in B. R. upon 23 H. 6.10 § 1. N. 12. of Sheriffs and in Moor 248. pl. 390. Vdeson and the Major of Nottinghams Case contrary to the opinion in Styles 381. Hill and Dechair LXXXII Imprisonment Page 86. Upon 23 Eliz. 1. § 11. N. 2. Qui non habet in aere luet in corpore And yet in this Case the Judgment shall be absolute that the King and the Informer recover c. 1 Anderson 140. pl. 190. Vachels Case 2. A Feme Covert Recusant if the forseiture be not paid within the time limited 23 Eliz. 1. § 11. N. 2. may be imprisoned by force of this Statute until she pay or conform 11 Co. 61. Dr. Fosters Case Hob. 97. Moor and 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 Manwood to have hard and close Imprisonment and sequestred from all Company until she conform or forfeiture be paid Savile 25. pl. 59. But if the Husband and Wise be sued upon 23 Eliz. 1. § 11. N. 2. in a popular Action or Information for the Recusancy of the Wife 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 LXXXIII Assurances Page 87. Upon 23 Eliz. 1. § 13. N. 1. since the beginning of this Session of Parliament and yet a Covenons Conveyance tho made before that Session of Parliament should not have defeated the Interest right or Title which was given to the Queen by this Statute and therefore in the Case of Sir John Southwell 3 Leonard 147.148 pl. who in Anno 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 him the surplusage of the mean profits with a Clause of revocation after which he granted Trees took Fines for leases c. And then
there is a great difference between the penning of this Statute 35 Eliz. 2. § 15. N. 1. and 35 Eliz. 1. § 1. N. 5. for in 35 Eliz. 1. § 1. N. 5. there is an express designation of the place where such Submission and Declaration shall be viz. in any Church Chappel or usual place of Common prayer whither the Offender comes and this shall free him from his Imprisonment supra 112 But 35 Eliz. 2. § 8. N. 3. Where 't is said that he shall abjure unless he comes usually to Church and make such Confession and Submission c. His coming usually to Church cannot be applied to his Confession and Submission for that is to be made but once and not usually and therefore there being no place appointed where this Confession and Submission shall be made we must necessarily have recourse to 35 Eliz. 2. § 15. N. 1. where a place is appointed viz. some Parish Church So that the coming usually to Church without this formal Submission and Confession or Declaration in some Parish Church frees not the Offender here in any Case from abjuration Altho the coming to any Church Chappel or usual place of Common-prayer and hearing Divine service and making open Submission and Declaration there shall free an Offender within 35 Eliz. 1. § 1. N. 5. from Imprisonment Page 144 145. CXLVI Submission 35 Eliz. 2. § 15. and 16. If a Popish Recusant Indicted upon this Statute makes his Submission and brings with him into B. R. a testimonial thereof it is the Course of that Court to cause him there to make his Submission again upon his knees which the Clerk of the Crown reads to him and so was it done Pasch 2. Car. 1. Latch 16. in the Case of one Throgmorton but Jones Justice said there was no Statute to compel him to this second Submission and Throgmorton complained that he was not therein dealt with according to Law 2. 35 Eliz. 2. § 16. N. 2. Is Over her Majesty or within any her Majesties Realms or Dominions And not over her Majesty within any her Dominions as Wingate Crown 85. grosly misrecites for that denies only Popes or See of Romes Authority over her Majesty but not any other ther Authority which they might claim over her Subjects And 't is clear by the disjunctive or which Wingate omits that both these Authorities are intended to be denied by this Submission these words or any Colour or means of any Dispensation which are a very material part of the Submission are likewise omitted by Wingate CXLVII Certificate Page 145. Such Relaps 35 Eliz. 2. § 18. N. 1. with the Indictment thereof is to be certified into the Court of Exchequer as was done by the Justices of B. R. 1 Bulstrode 133 in the Case of Francis Holt Pasch 9 Jac. 1 Iac. 4. Of SEIZVRES CXLVIII Oath PAge 147. By the Oath of Obedience is here 1. Jac. 4. § 1. N. 2. meant the Oath of Supremacy in 1. Eliz. 1. § 19. N. 4. supra and by that name it is here called afterwards 1 Jac. 4. § 3. N. 2. Crompt 13. Page 148. CXLIX It hath been doubted on 1 Jac. 4. § 2. N. 1. whether these words Accodring to the true meaning of the Statutes in that behalf do refer only to the manner of the Recusants Conformity or to the time likewise when it is to be done as well as to the manner For if they refer to the time then the Recusant is still bound notwithstanding this Statute to Conform before Judgement according to 23 Eliz. 1. § 10. N. 1. or his Conformity afterwards shall not discharge him of the penalty But the better opinion is that by these words according to the true meaning of the Statutes 1 Jac. 4. § 2. N. 1. is to be Intended only that the Recusant must Conform in such manner as is there appointed But as to the time the general words 1 Jac. 4. § 2. N 1. have enlarged the time limited by 23 Eliz. 1. § 10. N. 1. For this Statute 1 Jac. 4. § 2. N. 1. is made in further favour of the Recusant So that now if he Conforms after Judgment 't is time enough and he shall be discharged of all penalties in respect of his Recusancy 2. And if an Information tam pro Domino Rege quam pro seipso be brought upon 23 Eliz. 1. § 11. N. 1. against the Recusant and after Judgment had against him thereupon he Conforms he shall be discharged of the Judgment but first his Conformity must appear of Record otherwise the Court cannot take notice of it and as for that his Remedies against the King and the Informer must be several for against the Informer he must bring his Audita Querela and against the King he must plead his Conformity which he may do in this Case after Judgment for that no Audita Querela lieth against the King 11 H. 7.10 and it he should not be admitted to plead he would be without any legal Remedy to discharge himself of the forfeiture and Judgement as to the Kings part whose Execution will not be hindered by the Audita Querela against the Informer But if the Defendant neglect to put in his Plea and Execution issueth for the King and he be taken in Execution he comes too late to plead his Conformity and hath then no other way left to releive himself as to the Kings part but by his Petition to the King to pardon the Debt 2 Bulstrode 324 1. Rol. 95. Dr. Fosters Case Savil 23. pl. 56. Tiringhams Case CL. Heir Page 149. If any Recusant shall hereafter die 1 Jac. 4. § 3. N. 1. that is a Recusant either Convicted upon Proclamation and default or Convicted by Verdict Confession c. and adjudged for in both those Cases if the Recusant die the discharge of the Heir depends upon his Conformity CLI Forfeiture Page 149 150. Of all and singular the penalties Charges and Incumbrances 1 Jac. 4. § 3. N. 1. If Judgment be had at the Kings suit against a Recusant Tenant in Tail for Recusancy this is a charge and Incumbrance within this Stature of which the Heir in Tail shall not be discharged unless he conforms but must satisfie all the Arrears incurred in the life time of his Ancestor For it being a debt to the King upon a Judgment the entailed Lands are lyable thereto by 33 H. 8.391 § N. But these two Clauses 1 Jac. 4. § 3. N. 1. discharge the Arrears of the 20 l. per month Incurred in the Recusants life time upon the Conformity of the Heir in such Cases only where the two parts of the Recusants Lands were not seized before his death For if they are seized in his life time and continue so till his death neither his fee simple Lands nor his Intailed Lands if a Judgment were had against him for his Recusancy at the Kings suit shall be discharged upon the Heirs conformity without payment of
sufficient ground to record his appearance nor shall save his default for altho 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 than where a Prisoner is brought to 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 43 Eliz. in Ascoughs Case Gouldsborough 118. pl. CLXX Process Page 165. Shall be as sufficient a Conviction in Law 3 Jac. 4. § 7. N. 3. 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 Web. But this Conviction upon Proclamation is no Judgment as was resolved 11 Co. 65. in Dr. Fosters Case and altho it shall make the Recusant lyable 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 whither if a Recusant be Convicted upon Indictment and Proclamation the King may not waive his advantage of this Conviction and bring his Action of debt given him by 35 Eliz. 1. § 10. N. 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 Altho such a Patent was illegal for that the King cannot grant the penalty of a penal Law to a Subject 1 Rol. 10 pl. 10. Roy versus Tollin Hob. 155. Colt and Glover c. Hob. 183. Davison versus Barber Yet admitting the Patent to be good it was resolved that the penalties of Recusants Convicted by Proclamation should not pass by those general words 1 Rol. 94.95 Dr. Fosters Case Page 166. Once Convicted 3 Jac. 4. § 8. N. 1. This extends to all Convictions whatsoever upon Indictment whither by Verdict Confession c. Whereupon Judgment is given as well as to Convictions upon Proclamation and default And the penalty of twenty pound per month shall in any of the said Cases run on forever after and be appropriated to the King CLXXII Days Page 166. Here 3 Jac. 4. § 8. N. 1. Easter and Michaelmas Is to be taken disjunctively for Easter or Michaelmas as it is in 29 Eliz. 6. § 4. N. 1. supra 97. for the meaning is not that the Recusant shall have both of the terms of Easter and Michaelmas next after his Conviction wherein to pay the forfeiture of twenty pound 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 chuses to seize the two thirds of his Lands by force of 3 Jac. 4. § 11. N. 4. as was admitted Jones 24 25. in Standens Case Hil. 20. Jac. and Pasch 16. Jac. in the Lady Webbs Case Bridgman 121. 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 twenty pound per month without any mention of Michaelmas Term. Page 166 CLXXIII 167 168. For every month after such Conviction 3 Jac. 4. § 8. N. 2. by this Clause and 29 Eliz. 6. § 4. N 1. supra 96. N. 4. to the same purpose after the Recusant is once Convicted the penalty of twenty pound 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 pound per month for any time incurred after such Conviction but is utterly barred 11 Co. 61. and 1 Rol. 93. Dr. Fosters Case Owen 37. Sulherd and Eveterds Bar Feme 2. 2 Cr. 481 482. The Lady Webb Pasch 16 Jac. was Indicted and Convicted of Recusancy upon Proclamation and default of appearance 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 3 Jac. 4. § 8. N. 2. because she can have no Goods nor 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 pound per month into the Exchequer and she should not be doubly punished both that way and at the suit of the Informer and for the same reason it was urged that this Information would not lie against the Husband and Wife for after the Husbands death she would be lyable to pay into the Exchequer all the Arrears after the rate of twenty pound per month from the time of her Conviction and her Goods and two parts of her Lands might be then seized for non-payment thereof And if the Husband and Wife should in the mean time at the suit of the Informer pay twenty pounds per month for part of the same time for which the Wife was lyable to pay after the Husbands death this would be a double punishment for one and the same offence suprà 79. N. 10.17 Infra 270. N. 9. 3. And it was further said 2 Cro. 482. That it was usual where the Wife was Indicted and Convicted for Recusancy to seize by Exchequer-process the Lands and Leases which the Husband had in her right and one Woods Case was cited to this purpose which proves that a Feme Covert is within the meaning of the Act 3 Jac. 4. § 8. N. 2. and therefore after she is once Convicted upon Indictment shall be no more Subject to the Informers popular suit than a Feme Sole but this last point is much to be questioned for the Lands and Leases of the Wife are the Husbands during the Coverture and 't is a General rule that his
278 Eyre vers Woodfine Pasch 34. Eliz. Pellam Justice doubted thereof C. B. and observed that 11 H. 4 65. which saith that the party outlawed shall upon reversal of the outlary have restitution speaks only of Goods seised but not of a term sold before But Anderson Ch. I. and Walmsley held that the termor in this case should have his term again in whosoever hands the land came and upon whatsoever consideration and not the money for which the term was sold for the Outlary being reverst it is as if there were no record of it and the Queens interest was but conditional scilicet if the outlary were good and judgment accordingly Nor is this like the case where a Sheriff upon a fieri facias venditioni exponas sells a term for there if the judgment be reversed the party shall have the money for which the term was sold but not restitution of the term it self as was resolved 26 Eliz. Dyer 362. And the reason is because the Sheriff did no more than he was commanded for he was commanded to sell and therefore the sale shall be good to all intents But in the case of an outlary it is otherwise and there is no such command which difference between a fieri facias capias utlagatum was agreed in Doctor Druryes Ca. 8. Co. 143. A man is seized of an Advowson in gross Presentment the Church becomes void and then the patron is outlawed upon an indictment of recusancy whereupon the King presents the presentee is instituted and inducted and afterwards the outlawry reversed in this case the patron shall be restored to his presentment So if the patron of an advowson in gross hath judgment in a Quare impedit and is afterwards outlawed for recusancy and the King presents and the presentee is instituted and inducted in this case the patron shall have a fi fa. to execute the judgment and shall oust the presentee of the King And the reason in both Cases is because upon reversal of an Outlawry the party shall be restored to all things which are principal and here the presentment was the principal thing forfeited by the Outlary and therefore upon reversal the patron shall be restored to it Moor 269 pl. 421. Savil 89 pl. 166. Bluerleigh vers Cornwall But if the King upon an Outlary seize a Mannor to which an advowson is appendant and the Church becomes void whereupon the King presents and the presentee is inducted there 't is otherwise and the King's presentee shall not be removed upon reversal of the Outlary for the presentment in that Case is but as an accessory that follows the Principal which is the Mannor the profits of which Mannor the King was to have during the Outlawry and consequently the presentment as a profit of the advowson which is a parcel of the Mannor CLXXXVIII Amendment Page 180. 181. Or other defect whatsoever 3 Jac. 4. § 16 N. 1. this is meant of Defects within the Indictment or other proceeedings and not of any Collateral matter which the recusant hath to Discharge himself as a pardon Auterfoyts Convict c. for the recusant is not hereby disabled to plead such Collateral matter but may take advantage thereof 11 Co. 65. Doctor Festers Ca. Nor yet is this 3 Jac. 4. § 16. N 1. meant of all Defects whatsoever within the Indictment or other proceedings for if there be any defect which apparently tends to the Kings prejudice the recusant may take advantage of it and therefore 1 Co. 504.505 in the Case of the Marquis of Winchester who was indicted and convicted of recusancy and had judgment thereupon but Ideo capiatur was omitted the judgment was reverst for that omission which is not alded by 16 and 17 Car. 2.8 § 1. N. 12. CLXXXIX Ouster le mere Page 182. the Service mentioned throughout this Branch 3 Jac. 4. § P 8. N. 2. is intended of Civil or Domestick as wel as Military 3 Inst 80. And altho 3 Jac. 4. § 19. N. 1. speaks there of Gentlemen and Persons of higher degrcco without poynting at any particular sort of service so that to serve or go to serve a forreign Prince c. in any capacity whatsoever without first doing what is here required is felony by 3 Jac. 4. § 18. N. 2. the passing or going out of this Realm to serve a forreign Prince c. without taking the oath or if of that Quality entring into bond is felony by 3 Jac. 4. § 18. N. 2. altho the Party he never received into actual service for the words are in the Disjunctive go or pass to serve or voluntarily serve 3 Iust 80. Page 182. Or shall c. CXC pass over the Seas and there shall voluntarily serve 3 Jac. 4. § 18. N. 2. So if he pass over the Seas upon some other occasion and not with an intent to serve a foreign Prince c. yet if when he is there he voluntarily serve him and did not before his departing hence take the oath and if of that Quality enter into such bond he shall incurr the penalty of the Law and suffer as a felon 3 Inst 81. CXCI. Oblig Page 182 shall become bound by Obligation c. unto Our Soveraign Lord the Kings Majesty 3 Jac. 4. § 18. N. 1. An obligat made to the Kings use is not sufficient nor will satisfy the intent of the act but it must be made to the King himself for the bond must be Domino Regi according to 33 H. 8 39. § 51 1 N. 2. or the Officer who takes it is liable so imprisonment for taking the bond contrary to that statute therefor Wingate Corone 112. lays a snare for the Officer of the Port when he directs him only to take this bond to the Kings use and he might have been informed out of 33 H. 8.39 § 51. 1 N. 2. 24 H. 8.8 § 1. N. 3. of the difference between a bond made to the King and to the King'suse Savil 13. Pl. 33. Page 183. shall be a Felon CXCII 3 Jac. 4. § 18. N. 2. the offender against any part of this Branch of the Statute may have the benefit of his Clergy The Laws CXCIII c. 183 184. which said Customer and Controller 3 Jac. 4. § 21. N. 2. These words notwithstanding the Copulative And are not to be taken Conjunctively as if every bond and oath is to be certified both by the Customer and Controller for if the Customer take the bond and oath the Controller is not to be punisht for not certifying no more is the Customer if the Controller take them for each of them shall forfeit for his own default and not for the default of the other And it can not be reasonably presumed that one of them is privy to the doings of the other And therefore these words must be construed Disjunctively Customer or Controller 3 Jac. 4. § 21. N. 2. that is he of the two
complicated Offence consisting of several Particulars 1. In giving just cause of Suspicion without which the Party complain'd of according to this Act 7 Iac. 6. § 26. n. 4 cannot be tendered the Oath by one Justice of Peace Then 2. In refusing the Oath before the Justice of Peace who tendered it And lastly 3. In refusing it upon the second Tender at the Assizes or Sessions all which must be comprized in the Indictment So that the cause of Suspicion is pars communis and that arising in the County where the Party dwelt and was complained of cannot be punished in another County unless the Statute 7 Iac. 6. § 26. n. 4. had expressly made it examinable there supra 184. True it is that some Statutes do enable Justices of Peace to punish an Offence done in another County but that is where they enable them likewise to examin the truth of the Fact and take Process and Evidence thereof So 1 Iac. 27. § 5. n. 2. and 7 Iac. 11. § 8. n. 3. and supra 255. impower the Justices of Peace where the Party is apprehended to examin and punish the Offence but in our Case the cause of Suspicion arising in one County is not made examinable and consequently not punishable in another County and if not punishable there no Justice of Peace of that other County can proceed upon that cause of Suspicion notwithstanding the Party happen to be within his Commission or Power But yet the Party so flying into another County may without any Complaint or cause of Suspicion be tendered the Oath and proceeded against there by two Justices of Peace Quorum unus c. by vertue of the fore-going words of this Clause 7 Iac. 6. § 26. n. 2. Altho he dwell in another County and that for the reason before given viz because this Oath sequitur personam non locum But Wingate Coron 150. saves the labour of this Question for he erroneously restrains the pawer of tendring the Oath in this Case to the Justice of Peace to whom the Complaint is made as if no other Justice of peace of that County could proceed therein which is contrary to the express words as well as the meaning of 7 Iac. § 26. n. 4. Note That Dalton 107. Cap. 45. saith it seems requisite that the Justice or Justices of Peace do make like Certificat as 3 Iac. 4. § 13. n. 5. at the next Assizes or Quarter-Sessions of such Persons as have taken this Oath before them by force of 7 Iac. 6. § 26. n. 4. But upon what ground Master Dalton thought this requisite to be certified at the Assizes I know not seing there is no such Certificate to be made by 3 Iac. 4. § 13. n. 5 but only to the General or Quarter-Sessions of the Peace And as for the Sessions I conceive neither the Justices of Peace if they proceed on 7 Iac. 6. § 26 n. 4. and not upon 3 Iac. 4. § 13. n. 5. are bound to make such Certificate nor the Clerk of the Peace or Town-Clerk to record it for it is not here required to be done But yet in such Cases where the same persons are impowered by both these Statutes to require and minister this oath as where the Party is convicted of Recusancy in which Case two Justices of the Peace Quorum unus c. may require the Oath by the Special words in this Clause of 7 Iac. 6. § 26. n. 2. or of the General words in this Clause of 7 Iac. 6. § 26. n. 2. And it doth not appear upon which of these Statutes they proceed as it may sometimes so happen there if the Party take it will be fafest for the two Justices to make such Certificate to the next General or Quarter-Sessions as is appointed 3 Iac. 4. § 13. n. 5. and for the Clerk of the Peace or Town-Clerk to record it Page 250. CCLXVII If any Person or Persons this Clause 7 Iac. 6. § 26. n. 5. is General and extends to all before So that if any of the Nobility refuse this Oath they may be committed to the Common Gaol c. by such as are by this Act Authorized to tender it 12 Co. 131. Page 251. CCLXVIII Shall refuse to take the said Oath duly tendered to him or her 7 Iac. 6. § 26. n. 5. If the Persons authorized to tender this Oath ask the Party whether he will take it and he saith he will not quaere whether this be such a Tender and Refusal as shall make the refuser liable to be imprisoned proceeded against by force of this Act unless he or they who tender it have in readiness both the Form of the Oath and the Book to swear on for it is to be presumed that the Act intends all requisite Circumstances ready to enable the one to minister and the other to take the Oath And 't is held that before there can be any such Refusal of this Oath as is here intended it ought to be read or offered to be read to the Party especially if he be illiterate or if he be not yet that at least it ought to be offered to him for himself to read it for perhaps the Party never saw or heard it And in such Case it would be against Reason that the Refusal should be penal and therefore in 9 Iac. upon the Tender of this Oath at Sarjeants-Inne in Fleet-Street it was read by Order of the Judges there Page 251. CCLXIX To the Common Gaol 7 Iac. 9. § 26. n. 5. The Justices of the Court of B. R. used to tender this Oath in Court as Justices of Peace of Middlesex and upon Refusal the Party is to be committed to the Prison of the Marshalsey which is the Ordinary Prison of that Court untill the next Sessions 2 Bulstr 155. Dyer 297. Page 252 253 254. CCLXX. Being lawfully Convicted as a Popish Recusant 7 Iac. 6. § 28 n. 1. That is upon Indictment at the King's Suit or a Popular Action or Information upon 23 Eliz. 1. § 5. and 11. or Debate at the King's Suit alone by 35 Eliz. 1. § 10. n. 2. supra 119 In which two last Cases the former Laws are somewhat altered by this Statute For by the former Laws 23 Eliz. 1. and 35. Eliz. 1. If a Person had been convicted of Recusancy any other way than by Indictment no more could have been demanded either by the King or Informer than for the Months mentioned in the Information or Count and the Penalty should not have run on in such Case for that 29 Eliz. 6. § N and 3 Jac. 4 § N. which appropriate the Penalty to the King after Conviction intend no other Conviction than by Indictment as hath been there said But by this Act 7 Jac. 6. § 28. N. 1. If a Popular Action or Information or Action of Debt c. at the King's Suit alone be brought against the Husband and Wife for the Recusancy of the Wife and Judgment be had