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
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
one year and from thence forth till he have paid the said sum of Two hundred Marks And that every person which shall willingly hear Mass shall forfeit the sum of One hundred Marks and suffer Imprisonment for a year One hundred Marks And not Two hundred pounds Forfeiture as 't is mistaken in the late Additions to Dalton cap. 81. tit Recusants Sect. 59. Be it also further Enacted by the Authority aforesaid Stat. Sect. 5. The penalty for not coming to the Church by the space of a Month. That every person above the age of sixteen years which shall not repair to some Church Chappel or usual place of Common Prayer but forbear the same contrary to the tenor of a Statute made in the first year of her Majesties Reign for uniformity of Common Prayer and being thereof lawfully convicted shall forfeit to the Quéens Majesty for every month after the end of this Session of Parliament which he or she shall so forbear twenty pounds of lawful English money and that over and besides the said forfeitures every person so forbearing by the space of twelve months as aforesaid shall for his or her obstinacy after Certificate thereof in writing made into the Court commonly called the Kings-Bench by the Ordinary of the Diocess a Iustice of Assize and Goal-delivery or a Iustice of Peace of the County where such offender shall dwell or be be bound with two sufficient sureties in the sum of Two hundred pounds at the least to the good behaviour and so to continue bound until such time as the persons so bound do conform themselves and come to the Church according to the true meaning of the said Statute made in the said first year of the Queéns Majesties Reign Existens aetatis c. shall refer to the time of absence Above the age of sixteen years Talbot was Indicted upon this Statute Quod existens aetatis 16 annorum amplius non accessit ad Ecclesiam c. The question was whether the Existens aetatis 16 annorum should refer to the time of his Indictment or to the time of his absence And the Judges conceived that the Indictment was well enough and pursuant to the Statute And that Existens should in this Case refer to the time of his absence Moore 606. C. 838. Recusancy consists in omission Not repair c. but forbear This offence Consists not in committing but in omitting and is but a nonfeasance and therefore cannot be said to be in any certain place And for this reason in a Popular Action brought by the Informer qui tam c. there needs no place be alledged in the Declaration Anderson 1. 139. C. 190. Cuffe versus Vachel nor is Recusancy within that Branch of the Statute of 31 Eliz. cap. 5. Stat. 31 El. 5. which saith That the offence shall be laid in the proper County where it was done or committed For to speak properly it was not committed any where Hobart 251. Grimstone versus Molineux Vide infra Sect. 9. Conviction in the same Suit sufficient Being thereof lawfully convicted By this is not meant that the party must be convicted in some former Suit But a conviction upon the same Indictment or Information which is brought against him for the recovery of the 20 l. per month is a sufficient conviction within the meaning of this Statute And so are all penal Statutes which have in them those words being thereof lawfully convicted to be understood that is of a conviction in the same Suit whereupon the penalty is to be recovered For the meaning only is that the Offender shall forfeit nothing before conviction which is no more then the Law implies And therefore in truth these words are but superfluous and might have been as well omitted Co. 11. 59. Rolls 1. 90. C. 41. Dr. Fosters Case Rolls 1. 234. C. 6. Bulstrode 3. 87. The King against Law Nor is Conviction here intended only of a Convicton by Verdict What Conviction is here meant And therefore if the Offender be convicted upon his Confession of the fact and Judgment thereupon be had and consequently if Judgment be had against him upon a Demurrer which is a Confession of the matter of fact or if Judgment be given against him on nihil dicit for any other Cause any of these are sufficient Convictions whereupon to recover this Penalty For Convicted is here to be taken for Attainted as 't is in many other Cases For until Judgment he shall forfeit nothing And although he that is Convicted is not therefore Attainted yet every one who is Attainted or Adjudged is Convicted And of such a Conviction is this Statute to be understood Dr. Fosters Case Rolles 1. 89. 90. C. 41. Co. 11. 60. where several Cases are cited which prove that Convicted is oftentimes put for Attainted Shall forfeit to the Queens Majesty Shall forfeit i. e. to the King These words to the Queens Majesty are but surplusage and import no more than the Law would have given the Queen without them for where a Statute gives a forfeiture and limits it not to any particular person the King shall have it by Construction of Law as was agreed in the Case of Agard and Tandish Anderson 2. 128. C. 73. and so should he have this whole 20 l. per month if the Statute had staid here and had not afterwards made another express appointment Vid. Sect. 9. For every month Month what It seems that the month here mentioned shall be accounted secundum numerum singulorum dierum allowing but 28 days to a month For so are all Statutes to be understood which speak of the month unless W. 2. cap. 5. W. 2. 5. 2 3 E. 6. 13 for the account of a Lapse and 2 3 E. 6. of proving a suggestion Co. 1. Inst 135. Cro. Trin 5 Jac. 166. 167. Bishop of Peterburgh versus Catesby Yelverton 100. Catesby versus Baker Hobart 179. Copley versus Collins And of this Opinion the Court of Kings-Bench seemed to be upon Construction of the Statute of Liveries in the Case of Donner and Smith Trin. 43 Eliz. Cro. 835. The Recusant may forfeit for 13 months in a year so that by this account the Recusant shall forfeit thirteen score pounds in the whole year In an Information brought by Parker Qui tam Conformity in part not available c. against Sir John Curson and his Wife for the Recusancy of the Wife for eleven months and non culp pleaded It was proved at the Trial B. R. Pasch 17. Jac. that she conformed and came to Church for part of the time in the Information yet forasmuch as she was a Recusant both before and after it was said by the Court that her Conformity for some part of the time should not excuse her and she was found guilty for the whole time Cro. Jac. 529. The Informer demands less then is due The Informer shewed that the
Twenty pounds per month is at first given to the Queen and the Inhabitants of the Parish where the Offence was are to Sue in the Exchequer for their third part The Parish must Sue for their third part in the Exchequer and surmise 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 Leonard 2. 167. C. 204. The principal Officers in the Receipt of Exchequer Principal Officers of the Exchequer The principal Officers of the Court of Exchequer are the Treasurer and Barons but the principal Officers of the Receipt of the Exchequer are the Treasurer and Chamberlains Savile 38. C. 87. To such person as will sue for the same Rules and Cases touching the common Informer This Branch of the Statute being the Axis upon which all popular Suits for Recusancy by the common Informer turn and move I shall be the larger thereupon and shall here set down the several Rules Cases and Resolutions in our Books which concern the common Informer or Plaintiff qui tam c. as far as they are applicable to the Case of Recusancy or the other Cases within this Statute Upon a penal Statute where part af the forfeiture is given to the King and part to him that will Sue Tam pro Domino Rege c. material the Informer or Plaintiff 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 Cro. Mich. 9 Car. 336. In an Information upon this Statute the usual way is The particular Statute must be named that the Informer for himself petit inde tertiam partem juxta formam Statut ' Vide Co. 11. 56. Dr. Fosters Case But then the Statute must be named for in an Information by Broughton Qui tam c. against Moore for 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 Kings-Bench to be ill For there are several Statutes against Recusancy and it did not appear which of them was meant Cro. Mich. 4 Jac. 142. Judgment of a Moiety to the King and a Moiety to the Informer where good But if this Statute be named in certain and the party who sues demands the whole forfeiture for the King and himself and Judgment be given that the King recover one moiety and the Informer or Plaintiff Qui tam c. the other moiety 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 therefrom when it saith that a moiety shall be to the King and a moiety to the Plaintiff or Informer And although the Statute saith That he which will sue shall have but a third part yet that is by way of distribution only And such distribution of the penalty is an Act subsequent to the Judgment and is to be made as well out of the moiety given by the Judgment to the Informer or Plaintiff Qui tam c. as out of the moiety given thereby to the King And this I conceive to be the reason of the resolution in Chambers Case where such a Judgment in the Case of Recusancy upon this Statute was allowed to be good Rolles 2. 437. The Informers demand must be certain But if the whole forfeiture be not demanded in certain there although the party who sues demands his own share 't is ill And so it was adjudged in an Information upon a poenal Statute which concluded Vnde petit advisamentum Curiae quod forisfaciat 5 l. pro qualibet offens unde 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 versus Westly Where Contra formam Statuti and where Statutorum If there be several Statutes 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 Vide supra Sect. 7. In the late Additions to Dalton cap. 191. tit Informations Informations within which Statute of Jeofailes St. 32 H. 8. 30. 18 Eliz. 14. 21 Jac. 13. Sect. 6. its said That Informations and Suits 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 the Statute of 32 H. 8. cap. 30. It 's true they are out of the Statutes of 18 Eliz. cap. 14. and 21 Jac. cap. 13. and that as it seems in all Cases within those two Statutes Vide Styles 307. Theoballs against Newton And in the Case of Scott versus Lawes Hobart 328. it seems to be intimated that they are excluded out of all three where the Case was that in an Action of Debt brought by an Informer Qui tam c. upon a penal Statute the Defendant pleads non debet praefato J. meaning the Informer and not the King and the issue was found against the Defendant 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 would not help it But that reason was ex abundanti it being an incurable fault not aided by any Statute of Jeofailes in any sort of Action and under favour might well have been spared For the Statute of 32 H. 8. seems to extend to all popular Suits whatsoever and in Wallers Case in an Information brought against him 18 Eliz. by Topcliffe Qui tam pro Domina Regina quam pro seipso c. upon the Statute of 37 H. 8. cap. 9. of Vsury it was adjudged 37 H. 8.9 that the mis-conveying of Process and mis-joyning of issue in the said Information were aided by 32 H. 8. Dyer 346 347. By the Statute of 31 Eliz. cap. 5. an Informer Qui tam 31 Eliz. 5. c. must begin his Suit within one
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