pl. 41. and Hob. 205. in Pie and Lovels Case and there was no limitation of time for the Informer Qui tam c. Upon 23 Eliz. 1. § 8. N. 1. until the said Statute of 23 Eliz. 5. § 5. N. 2. which limits him to a year after the offence committed and not a year and a day and altho this offence of Recusancy cannot in strictness be said to be committed for that in truth it is but a bare omission as hath been said supra 62. and therefore there needs not any place alledged yet in common parlance it it will pass well enough for an offence committed and seems to be within the meaning of 31 Eliz. 5. § N. 2. and in 23 Eliz. 1. § 11. N. 1. it s said the third part of the forfeiture for Recusancy shall be to the poor in the Parish where the offence is committed Infra 116. N. 2. 7. Now if it be objected that if the Recusancy be not an offence which is to be laid in the proper County by 31 Eliz. 5. § 2. N. 1. because it is not an offence that can be properly said to be committed by the same reason the Informer who is restrained by 31 Eliz. 5. § 5. N. 1. to a year after the offence committed is not restrained in the Case of Recusancy nor the poor of any Parish can take any benefit by 23 Eliz. 1. § 11. N. 1. as to the third part of the forfeiture for that there is no Parish wherein Recusancy can be said to be committed I answer there is a great difference betwixt the Cases for in the Cases of limitation of time when the offence must be prosecuted 31 Eliz. 5. § 5 N. 1. and that of the poor of the Parish 23 Eliz. 1. § 11. N. 1. where the forfeiture is to be distributed the word committed is no part of the substance of the matter and t is no more than if the Statute had said within a year after the offence and to the Parish where the offence was and there committed may be taken well in that sense but it cannot be so in that other Case supra 62. about the proper County for 31 Eliz. 5. § 2. N. 1. makes the Commission of the offence matter of substance and whither it were committed or not in the County where it is laid in the Information or popular suit goeth not to the merits of the Cause for if it were not committed in that County and the defendent alledg and traverse it and it be found for him the Plantiff shall be barred and those words That he may traverse that it was not committed shew clearly that offences which consist only in omission were not intended for otherwise neither Recusancy nor any other offence of that nature could be punished by any Information or popular Action for the Jury upon their Oaths must of necessity find that it was not committed in any County for that in truth and property of Speech it was not committed at all 8. By 31 Eliz. 5. § 5. N. 3. If the Informer Qui tam c. doth not prosecute within a year after the offence yet the King may at any time within two years after that year ended and therefore it was resolved in 2 Co. 366 in Syvedale and Sir Edward Lenthalls Case where an Information was brought in the Court of Exchequer Tam quam c. Upon 3 Jac. 4. § 3. N. 3. for three years forbearance to receive the Sacrament after Conformity that altho it was not good for the Informer yet it was well enough as to the King 9. Alien A natural born Subject or a denizen being defendent in any suit upon a penal Law in B. R. C. B. or Exchequer is not Compellable to put in special Bail but may appear by Attorny 29 Eliz. 5. § 21. N. 2. and 31 Eliz. 10. § 20. N. 3. Telverton 53. Saint Georges Case Bar. Feme 10. An Action of debt or Information Tam pro c. lieth upon 23 Eliz. 1. § 11. N. 1. against the Husband and Wife for the Recusancy of the Wife and the Husband in that case is lyable to pay the twenty pound per month notwithstanding he himself be no Recusant 3 Bulstrode 87. The King and Law 1 Rol. 93. pl. 41. Dr. Fosters Case Hob. 97. Moore and Hussey Savile 25. pl. 59. Infra 119. N. 2. But the Wife cannot appear by Supersedeas alone without her Husband for both must appear or both be outlawed Hob. 179. Lovedens Case Infra 173. N. 2. Nor can she plead or joyn issue without her Husband 2 Rol. 90. Sir G. Curson and Vxor's Case and therefore where in an Information brought against the Husband and Wife for the Recusancy of the Wife the Record was entred praedict J. M. veniunt praedicta M. dicit quod ipsa non est inde Culpabilis de hoc ponit se super Patriam this was alledged to be ill for the Husband pleads not at all but in this Case the Docket being Quod J. C. M. uxor ejus c. placitant non culp and it being manifest that they both appeared the record was amended by the Docket after verdict for it was but the mis-prision of the Clerk in drawing the plea 2 Cro. 530. the same Case with 2 Rol. 90. Crompt 14. a. At the end of the Case in 2 Cro. 530. a note is added that if Sir J. C. and his Wife had pleaded quod ipsi non sunt culpabiles it had been ill but yet it seems that the Law is Contrary to that opinion 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 tho 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 addition to Bendloes 148 in the Case of Brown and Audley and his Wife Trin. 22 Jac. in Action sur le Case for scandalous words by the Wife that where they both plead non culp and the Jury found the Feme guilty the Plantiff 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 And the resolution 1 Cro. 417. in the Case of Needler versus Symnell and his Wife Mich. 11. Car. 1. is directly contrary to that opinion in the end of 2 Cro. 530. for 1 Cro. 417. it s adjudged that Ipsi non sunt culpabiles by Baron and Feme is a good issue altho the wrong were by the Wife alone 11. Alien An Information of Recusancy lyeth
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
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
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.
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
came 23 Eliz. 11 § 13. N. 1. upon which he was Indicted and convicted It was resolved by all the Judges of England that the said lands were liable to this Statute and the Jurors charged to enquire what lands he had and were committed to the Fleet and fined each of them fifty pounds for that yet they would not find those Lands to be his 2. By means of any Conviction or Judgment 23 Eliz. 1. § 13. N. 1. Pauncefoot being Indicted of Recusancy made a deed of gift of all his leases and goods to a great Value coloured over with feined considerations to defeat the Queen of what might accrew to her by his Recusancy or flight and then went beyond Sea and afterwards was outlawed upon the said Indictment and it was resolved 36 Eliz. by the whole Court of Exchequer that this was a fraudulent Conveyanc within 13 Eliz. 5. § 2. N. 3. which was made for the relief of the Queen and otherpersons as well as Creditors But as this Case is related in 3 Co. 82. Twines Case t is observable that altho it was debated whither the Queen should avoid this Conveiance by force of 50 Ed. 3. 6. § 1. N. 2. or that of 3 H. 7.4 § 1. N. 2. or that of 13. Eliz. 5. § 2. N. 3. yet there is no mention made of this branch of 23 Eliz. 1. § 13. N. 1. for t is clear that the Queen could not avoid such a fraudulent Conveyance by force of 23 Eliz. 1. § 13. N. 1. unless Judgment had been first given against the Recusant or he had been convicted and Pauncefoot was neither Convicted or adjudged to be a Recusant but the Queens interest accrewed to her by means of the outlawry only LXXXIV Priviledge Page 88. Upon 23 Eliz. 1. § 14. N. 1. altho a Peer shall be tryed per pares yet he is to be indicted by an inquest under the degree of Nobility and may be Indicted before Commissioners of Oyer and Terminer or in B. R. if the offence be Committed in the County where the Kings bench is 2 Co. 49. 27 Eliz. 2. Of JESVITS LXXXV Alien PAge 90. And his Being born within this Realm c. 27 Eliz. 2. § 3. N. 1. must be comprised in the Indictment but it need not be shown in what particular place he was born but generally Quod J. S. natus infra hoc regnum Angliae c. And so it must be alledged in the Indictment on 27 Eliz. 2. § 3. N. 1. that he was made a Jesuit or Priest c. by authority Challenged or pretended from the See of Rome But it needed not be shewed where he was made a Jesuit or Priest c. whither beyond the Sea or within the Realm for wheresoever it was it is within this Law if he were made so by the pretended Authority of the See of Rome Popham 94. Southwells Case LXXXVI Seminary Page 91. In the late additions to Dalt Cap. 140. § 13. tit high Treason 'T is said that 27 Eliz. 2. § 4. N. 1. relates only to such as had before that time taken Orders which conceit I suppose is grounded on these words viz. who at the end of the said forty days and after such time of departure as aforesaid shall receive c. as if no Jesuit or Priest were here intended but such a one as was then a Priest or Jesuit and had fourty days given him for his departure and no person a Felon by 27 Eliz 2. § 4. N. 1. who receives or releives any other 2. But the words here such Iesuit c. seem to be more Extensive and to relate as well to the Receivers or Releivers of a Jesuit or Priest in Orders at this day as to those who were in Orders at the time of making this Stature and if we weigh the Gramatical Construction of the words with much more reason the former than the latter For the Proximum Antecedens to such is the Jesuit or Priest 27 Eliz. 2. § 2. N. 1. who was to be made ordained or professed and not he that was then ordayned or professed already And those words in 27 Eliz. 2. § 4. N. 1. Every Parson which after the end of the same XL. dayes c. shall receive c. that is fourty days next after the end of that Session of Parliament may well be construed to Extend to all Cases as well of receiving or relieving such who should be afterwards in Orders and should be found within the Realm for the time to come at any time after those fourty days as of such who were then in Orders and were to depart before the XL. days were expired 3. So that the receiving releiving or maintaining of a Jesuit Popish Priest or other Popish Ecclesiastical person at liberty and known by the party to be such is Felony at this day by this Act 27 Eliz. 2. § 4. N. 1. and the Offender shall lose the benefit of his Clergy and so hath the Law been taken upon Actions upon the Case for saying the Plaintiff kept a Seminary-Priest or Jesuit in his house knowing him to be such 2 Cro. 300. Pasch 10 Jac. Smith versus Flynt and Palmer 410. Clerk and Logins Case Lamb. 225. Infra 275. Page 92. By this word Return 27 Eliz. 2. § 5. N. 1. It seems that none are intended here but such as were sent out of this Realm for others born and resident in some other parts of the Kings Dominions untill their Entry into such Colledg or Seminary cannot be properly said to return hither LXXVII Ouster le M◠Page 92 93. Or any other her Highness Dominions 27 Eliz. 2. § 5. N. 1. a Subject of the Kings sent out of England to a Popish Colledg or Seminary is Commanded by Proclamation made in London to return into this Realm and within the six months here limited first goeth into Ireland and then comes into England and within two days submits himself and takes the Oath of Supremacy in this Case notwithstanding his return into England within the six months he shall be guilty of High Treason for after such Proclamation he ought to have come directly into England and into no other of the late Queens Dominions before he had been in England and if he doth he comes into the said Domininions otherwise then is appointed by this Act 27 Eliz. 2. § 5. N. 1. For the intent of 27 Eliz. 2. § 5. N. 1. Seems to be that he should not remain in any of the said Dominions untill he submits and takes the Oath which submission must be made by Oath taken in England within two days after his Arrival here and not elsewhere and altho the Oath of Supremacy be in force in Ireland yet his taking it here will not serve nor yet his submission there for he is to submit to the King and his Laws by which are intended the Laws of England and no other But a submission in Ireland to the Kings Laws
Convict any person upon Indictments for Recusancy or for saying hearing or being at Mass which they were enabled to do by 23 Eliz. 1. § 8. N. 1. but again disabled by these negative words in this Act 29 Eliz. 6. § 2. N. 2. and the hearing and determining of those offences commited only to the Justices of B. R. Assizes and general Goal-delivery But for Informations by a common Informer they were never intended here 29 Eliz. 6. § 2. N. 2. and the Justices of Assize and Goal delivery cannot hold plea of such Information as was resolved by the Judges Mich. 4. Car. 1. Jones 193. And yet 29 Eliz. 6. § 2. N. 2. did not wholly abrogate the power of the Justices of Peace or of any other Justices to whom Authority was given by 23 Eliz. 1. § 8. N. 1. surra 72. in relation to the offences of Recusancy or of saying or hearing Mass but that they might after 29 Eliz. 6. § 2. N. 2. take Indictments notwithstanding the negative words here for this Statute restraines them only from proceeding to Conviction but not from taking Indictments as was held in Sir Edward Plowdens Case cited 11 Co. 63. in Dr. Fosters Case and now by 3 Jac. 4. § 7. N. 1. the power of Justices of Peace to hear and determine the offences of not coming to Church is again restored to them Infra 103.165 XCXX Proces Page 102 103 104. This Statute 29 Eliz. 6. § 3. N. 1. medles not with any other way of Conviction than at the Queens suit by Indictment as hath been said and so is the Conviction here mentioned to be understood for this Statute is not Introductory of a new Law nor gave the Queen any new or other remedy than what she had against the Recusant by 23 Eliz. 1. § 5. N. 1. that is by Indictment but only gave her a more speedy way of proceeding upon that sundamental remedy 11 Co. 60. and 1 Rol. 93. Dr. Fosters Case So that a Conviction upon an Information against the Recusant upon 23 Eliz. 1. § 11. N. 1. or any other way save by Indictment doth not appropriate the penalty of twenty pound per month to the King for the time to come by force of 29 Eliz. 6. § 3. N. 1. Inrfa 165. supra 72. Hob. 205. Pie and Lovel nor for the same person by force of 3 Jac. 4. § 8. N. 1. where the same words are used and a Conviction by Indictment only intended as here 2. In Hob. 205. It s said that if a man at the making of 29 Eliz. 6. § 3. N. 1. had been Convicted of Recusancy by any other means then by Indictment he had not been bound by 29 Eliz. 6. § 3. N. 1. to pay the twenty shillings it should be twenty pound a month from the Conviction and if a man be now Convicted in B. R. by Indictment or otherwise he cannot be proclaimed nor otherwise his penalty run on which last words Inferr that the Conviction here intended is only a Conviction according to 29 Eliz. 6. § 5 N. 6. by Proclamation upon default 3. But if we compare together 29 Eliz. 6. § 2. N. 2. which speaks of a Conviction after the making of this Statute and 29 Eliz. 6. § 2. N. 1. which speaks of a Conviction before this Statute the Contrary will evidently appear for 29 Eliz. 6. § 2. N 1. must necessarily be intended of Convictions according to 23 Eliz. 1. § 5 N. 1. without any Proclamation for the Proclamation in the Case of Recusancy was not given until 29 Eliz. 6. § 5. N. 5. And if a man had been Convicted of Recusancy upon Indictment in B. R. or elsewhere before 29 Eliz. 6. § 5. N. 5. the forfeitures of twenty pound per month should by force of 29 Eliz. 6. § 3. N. 1. have run on from the time of the Conviction that is clear by the express words of the former clause 29 Eliz. 6. § 2 N. 1. Then comes 29 Eliz. 6. § 3. N. 1. which provides what shall be done upon Convictions for the future and appoints in that case likewise the forfeiture of twenty pound per month to run on from the time of Conviction Both which Convictions as well before as after this Statute are granted to be meant only of Convictions upon Indictment and there is no difference between the penning of these two Clauses 29 Eliz. 6. § 2. N. 1.2 but that one respects the time past and the other the time to come but both appoint the penalty to run on Now there is no reason to suppose that the makers of the Law intended the word Convicted in a more restrained sense in this Clause 29 Eliz. 6. § 3. N. 1. then in the former Clause 29 Eliz 6. § 2. N. 1. where the penalty should have run on upon any Conviction whatsoever upon Indictment or that the Conviction in 29 Eliz. 6. § 2. N. 1. by Indictment upon 23 Eliz. 1. § 5. N. 1. without Proclamation should be wholly shut out of the latter Clause 29 Eliz. 6. § 2. N. 2. By Conviction therefore in these Clauses 29 Eliz. 6. § 2. N. 1.2 seems to be meant such Convictions upon Indictment as were warranted by the Statutes in force at the several and respective times here mentioned that is to say in 29 Eliz. 6. § 2. N. 1. a Conviction upon 23 Eliz. 1. § 5. N. 1. without a Proclamation And in 29 Eliz. 6. § 2. N. 2. a Conviction either with or without a Proclamation In either of which Cases the penalty of twenty pound per month shall run on by force of this Act 29 Eliz. 6. § 3. N. 1. and consequently it shall run on if the Recusant be Indicted Convicted and adjudged in B. R. altho he cannot be Proclaimed there And accordingly it was agreed 1 Rol. 93. in Dr. Fosters Case that where the Recusant is Convicted upon Indictment the penalty should ever after run on and be appropriated to the King and t is not restrained there to a Conviction upon Proclamation only 4. But yet altho this Clause 29 Eliz. 6. § 3. N. 1. Extends as well to a Conviction upon 23 Eliz. 1. § 5. N. 1. as to a Conviction by Proclamation yet every Conviction upon 23 Eliz 1. § 5. N. 1. is not here Intended for if a man Indicted for Recusancy do upon his Arraignment confess the Indictment to be true and plead guilty Or upon trial a Verdict pass against him these are Convictions in Law but yet by these Convictions he forfeits nothing untill Judgment nor shall the penalty of twenty pound per month run on or be appropriated to the King until Judgment be given by Conviction Therefore is here 29 Eliz. 6. § 3. N. 1. to be understood Convicted by Proclamation or default or Convicted by Verdict Confession c and adjudged for so the word is here to be taken viz. For Adjudged or Attainted unless it be in case of Conviction upon Proclamation
receiving of the profits there it was said Copy-holds shall be included within the general words of Lands Tenements and Hereditaments 3. And yet see Owen 37. where this Case of Sulhard and Everet is otherwise reported and that it was at length after great debate adjudged that Copyhold Lands are not within 29 Eliz. 6 § 4. N. 3. nor are seizable for the Kings two parts And according to this Judgment I take the modern practice of the Exchequer to have been that neither the Land it self nor the profits of Copyhold Lands are lyable to such seizure CIII Process Page 107 108. If the same be taken at any Assize or Goal-delivery 29 Eliz. 6. § 5. N. 6. for if the Indictment had been taken before Justices of Peace no Proclamation thereupon could have been made upon this Statute by the Justices of Assize or Goal-delivery as was resolved in the Case of Sir Edward Plowden And therefore upon such an Indictment for Recusancy taken before Justices of Peace the Court was to remove the Indictment in B. R. and there process might have been made out against the Recusant and he Convicted for the Justices of Peace could do no more than Indict all other proceedings being taken away from them by this Statute 29 Eliz. 6 § 2. N 2.11 Co 63. and 1 Rol. 94. but now by 3 Jac. 4. § 7. N. 1. the Law is altered in this point and the Justices of Peace upon Indictments taken before them may proceed to proclaime and convict the Recusant as well as Justices of Assize and Goal delivery supra 95. N. 2. Page 108 CIV Upon such default 29 Eliz. 6. § 5. N. 6. that is upon his default of appearance of record at the next Assizes or Goal delivery For if he make such appearance that shall save his default of not rendring his body to the Sheriff And the not rendring himself to the Sheriff shall be no Conviction as Wingate Crowne 66. would make it Page 108. CV As sufficient a Conviction in Law 29 Eliz. 6. § 5. N. 6. that is as if he were Convicted by Verdict but not as sufficient as if a Judgment were had against the Recusant For altho by force of 29 Eliz. 6. § 5. N. 5. and other Statutes the Conviction upon Proclamation and default of appearance make a Recusant lyable to divers penalties and Incapacities and is in those respects as forceable as a Judgment yet it shall not in other Cases have the force or effect of a Judgment and therefore it was resolved 37 and 38 Eliz. in the Case of the general pardon Anno 35 Eliz. where there is an exception of all penalties and forfeitures due to the Queen and converted to a debt by Judgment that notwithstanding that exception a Recusant Convicted upon Proclamation was within the pardon and the forfeitures due upon such Conviction were thereby pardoned for the debt was not due to the Queen by Judgment but upon Conviction only but otherwise it had been if he had been Convicted according to 23 Eliz. 1. § 5. N. 1. without Proclamation and Judgment had been given thereupon 11 Co. 65. Dr. Fosters Case Page 109 110 111. CVI. Upon 29 Eliz. 6. § 6. N. 1. It was resolved by all the Judges Mich. 37 and 38 Eliz. 1 Rol. 94. in Dr. Fosters Case that if a man had been Convicted according to this Statute 29 Eliz. 6. § 5. N. 5. by Proclamation upon default and afterwards conformed himself he should be discharged of the penalty due upon his Conviction notwithstanding these words 29 Eliz. 6. § 6. N. 1. and full satisfaction of all the Arrearages and the reason of this is given by Coke Chief Justice B. R. for that 29 Eliz. 6. § 5. N. 6. saith that such Conviction should be as sufficient as if there were a Verdict recorded but 't is only a Judgment which converts the penalty into a debt and not a Verdict And here all the penalties are discharged upon Conformity unless such as are Converted into a debt 29 Eliz. 6. § 6. N. 1. But otherwise it would have been if there had been a Judgment against the Recusant upon Tryal or Confession upon 23 Eliz. 1. § 5. N. 1. for then his Conformity would have come too late to have saved the penalty Incurred by his Conviction for by the Judgment the penalty was Converted into a debt Quaere tamen Whither these words here 29 Eliz. 6. § 6. N. 1. Due and payable are to be understood due and payable upon a Judgment only However now by 1 Jac. 4. § 1. N. 1. if the Recusant confirm either before or after Judgment he shall be discharged of all penalties 2. But the profits of the Recusants Lands taken before his Conformity shall never be restored 3. It hath been questioned upon 29 Eliz. 6. § 6. N. 1. if a Recusant Convicted by Proclamation upon default had died before seizure of two parts of his Lands whither his lands might have been seized after his death for the Arrearages of the 20 l. per month or if they were seized in his life time whither they should have been discharged after his death without payment of such Arrears And the opinion of those who held that the seizure should neither ensue nor continue after his death but that the Arrears were discharged was pricipalpally grounded upon 29 Eliz. 6. § 6. N. 1. that due and payable extended only to Arrearages due and payable upon a Judgment and converted into a debt But when the Recusant was Convicted by Proclamation the penalty was never Converted into a debt and therefore when he died there were no Arrearges due in the sense of 29 Eliz. 6. § 6. N. 1. for the heir to pay and yet by such offendor here is generally intended all Recusants Convicted as well by Proclamation upon default as upon on Judgment and the heirs of either should have had the benefit of this Proviso viz. that upon the death of the Ancestor no seizure should ensue or be continued only in the Case of a Judgment the Arrears were to have been paid 4. But there seems now to be no further need of this Question for 1 Jac. 4. § 3. N. 1. meets with both these Cases For if there be no seizure of the Recusants Lands in his life time the discharge of the heir will depend upon his Conformity and if there were seizure the two parts shall continue in his Majesties possession till the Arrears are paid and satisfied But this 29 Eliz. 6. § 6. N. 1. is not intended of entailed Lands For without any aid of this Proviso if a Recusant Tenant in Tail be convicted by Proclamation upon default and dieth neither any Seizure for the Arrears of the 20 l. per month shall ensue after his death nor if they were seized in his life time shall the seizure be continued after his death nor is the heir in Tail bound to pay any such Arrears But if a Judgment be had
33 H. 8.39 § 68. 26 N. 1. because it is not a debt by Judgment as that Statute requires Moor 523. pl. 691. And thus the opinion Trin 43 Eliz. of the two Chief Justices 3 Cro. 846. is to be understood for they held that if intailed Lands had been seized for non-payment of the twenty pound per month and the Tenant in Tail had died the issue in Tail should not have had the Land out of the Queens hands before the debt were satisfied but should have been charged with the said debt At the end of 3 Cro. 846. pl. is added a Dubitatur But yet the opinion there held stands good if it be intended only of a Conviction of the Ancestor by Judgment upon Trial or Confession and not of a Conviction upon Proclamation and default Page 154. CLVI To any Colledge c. 1 Jac. 4. § 6 N. 1. extends only to publick houses or Colledges but not to such as are bred beyond the Seas in any private Popish Family and therefore 3 Car. 1. cap. 2 3 § 1. N. 2. was made to supply that defect CLVII Scholars Page 155. Note all Grammar Schools are not here 1 Jac. 4. § 9. N. 1. excepted but only publick or free Grammar Schools nor yet all Gentlemens Houses but only of such as are not Recusants in both which respects this Statute is defectively recited in the late additions to Dalt cap. 87. Sect. 1. 3 Jac. 4. of convictions PAge 158 159. CLVIII Every Popish Recusant Convicted 3 Jac. 4. § 2. N. 2. Wingate Crown 98. Speaks Indefinitely as if this extended to all Recusants whatsoever which is contrary to the express words of the Statute 2. In an Information upon 3 Jac. 4. § 2. N. 2. for not receiving the Sacrament Information the Conviction of the party for Recusancy ought to be shewed in certain before whom in what Court c. for before he is Convicted of Recusancy he is not lyable to the penalty Inflicted by 3 Jac. 4. § 2. N. 2. for not receiving And yet if it be only generally shewed in the Information that the defendant was Convicted in due form of Law and the defendant doth not demur thereto but pleads not guilty and it be found against him there Judgment shall not be staid for this defect for he hath lost his advantage and by his plea hath admitted the point of Conviction and at the trial the only thing in issue was whether he had received the Sacrament and not whether he was Convicted 2 Gro. 365 366. Sivedal and Lenthal CLIX. Conformity Page 159. This Conformity 3 Jac. 4. § 2. N. 2. need not be set forth in the Information in every particular Circumstance as when or before whom the Popish Recusant Conformed himself For it is sufficient if it be said that he went to Church and continued there dureing Divine Service and afterwards neglected to receive the Sacrament c. and upon such Conformity and neglect he is liable to the Penalty inflicted by this Act altho he never went before the Ordinary 2 Cro. 366. CLX Forfeiture Page 159 160. And for every year after such not receiving forty pound 3 Jac. 4. § 3. N. 2. Note the Statute saith not that the Offender shall forfeit for the first second and third Offence but for the first and second year and for every year after For if it had been said he should have forfeited twenty pound for the first Offence forty pound for the second and sixty pound for the third he must have been Convicted and have had Judgment of the first Offence before he could have incurred the penalty for the second and of the second before he could have incurred the penalty for the third and every one of these Offences must have appeared Judicialiter which could not be ante Judicinum But here 3. Jac 4. § 3. N. 2. where 't is said he shall forfeit twenty pound for the first year forty pound for the second and sixty pound for every year after it is otherwise and the Offender shall forfeit sixty pound for the third year altho he was never Convicted for the first or second 2. And therefore in an Information upon 3 Jac. 4. § 3. N. 2. for sixty pound against a Popish Recusant Convicted for Recusancy who hath conformed and neglected to receive the Sacrament the third year after his Conformity its sufficient to set forth that he was a Popish Recusant and was convicted and conformed himself and went to Church c. two years before such a day and that after the said day he sailed for a whole year to receive the Sacrament without mentioning what he did the first or second year after his Conformity and so was 2 Cro. 365. Page 160. CLXI Shall for every such Offence lose and forfeit threescore pounds 3 Jac. 4. § 3. N. 3. If a Popish Recusant once receive the Sacrament after his Conformity and after neglect so to do within the time prescribed by this Act 3 Jac. 4 § 1. N. 2. and is guilty of such neglect for two years together altho he was never convicted for the first year yet an Information lieth against him and he shall forfeit threescore pound for the second year for 3 Jac. 4. § 3. N. 3. he is liable to pay so much for every Offence that is for every year wherein he neglects to receive the Sacrament after he hath once received it and the Informer is at his liberty for which Offence or year he will inform whether for the first second c. and the reason of this is because here are no steps or gradations to encrease the penalty for the second or third Offence but the penalty is equal and alike in this Case for every Offence 2 It is observable that the Popish Recusant who after his Conformity receives the Sacrament and afterwards neglects so to do for the space of one or more years is in worse Condition than he who conforms and receives it not at all for in this last Case he shall forfeit but twenty pound for the first and forty pound for the second year but if he once receive the Sacrament and afterwards neglect it for the space of two years he shall forfeit for each of those years threescore pound Page 160. CLXII To him that will sue for the same 3 Jac. 4. § 3. N. 4 An Information upon this Branch must be brought by an Informer Qui tam c. within a year after the Offence or neglect or he can take no advantage thereof for such an Information is within 31 Eliz. 5. § N. 2. Cro. 366. Page 160. CLXIII Justices Or before Justices of Assize c. 3 Jac. 4. § N. 3 5. Note that notwithstanding these words an Information upon this Statute by an Informer Qui tam c. for not receiving the Sacrament cannot be brought before Justices of Assize or Goal-delivery or Justices of Peace for no Common Informer can sue