7. N. 3. saith then as well the person so doing as also every other person receiving thm to that intent shall incurre a Praemunire so that then only when the person delivering them so doth that is delivers them to be worn or used the person receiving them to that intent shall incurre a Praemunire But yet there needs not any such concurence of intentions in the giver and receiver to make the giver an offender and therefore if a man brings into the Realm such superstitious things and delivers them to be worne or used tho the party receive them not to the intent to use or wear them but defaces burns or otherwise destroyes yet he that gave or delivered them incurrs a Praemunire for the words in the act 13 Eliz. 2. § 7. N. 2. relating to the offerer or deliverer are intire in themselves and have no dependence on the subsequent words 13 Eliz. 2. § 7. N. 3. relating to the receiver but generally make all offenders who bring them in and either offer or deliver them to a superstitious intent without any respect to the intent of the party who receives or is offered them LVI Justices Page 54. Upon 13 Eliz. 2. § 8. N. 1. If the person to whom such Agnus Dei c. Is offered do bring the offender to any Justice of Peace of the County where the offer is made altho he be not the next Justice yet it is good enough and satisfieth the intent of this act for the word next is put in such cases into acts of Parliament but for conveniency and the more speedy Execution of Justice Styles 246. pl. Maine and Sergeants Case LXVII Justices Page 54. The Statute 13 Eliz. 2. § 8. N. 1. provides for the discovery of the offender in order to his punishment in three Cases 1. If any such superstitious thing be offered and the party be able to apprehend him that offers it he must bring him to the next Justice of Peace of the County where the offer is made 2. But if he cannot apprehend him he is to disclose his name and place of abode or resort to the Ordinary of that Diocese or a Justice of Peace of that County where the person to whom the offer was made is resident and that within three dayes after such offer made 3. But 13 Eliz. 2. § 8. N. 2. If he receives the thing offered then he is not to apply to the Ordinary but is strictly tyed to deliver it within a day after to some Justice of Peace of that County where he who received it shall then be Resident or happen to be and in this last Case if he receives it with an intent to use or wear it and keeps it above a day or delivers it to any other person or Justice of Peace or any other County he incurrs a Praemunire But these Justices of Peace are strangely confounded as well in Dalt 229. cap. 89 tit high Treason as in Wingate Crown 37 Lambert 194. 195. Page 56. LXVIII Upon 13 Eliz. 2. § 10. N. 1. As is aforesaid So that if the offence be not declared as is aforesaid that is to such Justice of Peace as is appointed in 13 Eliz. 2. § 8. N. 1. but it shall be declared to any oother Justice of Peace of a wrong County that other Justice of Peace shall not incurre a Praemunire if he doth not signifie or declare it to a Privy Counsellor Here 13 Eliz. 2. § 10. N. 1. 'T is plain that any one Privy Counsellor sufficeth and the Justice of Peace is not bound to signifie the offence to the Privy Council as Wingate Crown 138. misrecites the Statute 23 Eliz. 1. Of CHVRCHES PAge 58. Upon 23 Eliz. 1. § 2. N. 1. LXXIX Conspiracy It was held Mich. 12 Jac. in Loult and Faulklands Case 2 Cro. 357.358 and 2 Bulstrode 271. 253. and 1 Rol. 209. pl. 49. that if a man were indicted for endeavouring and practising voluntarie felonice proditorie to perswade and withdraw any of the Kings Subjects from his obedience unto the Romish Religion and was afterwards debito modo acquietatus yet an Action upon the Case in Nature of a Conspiracy would not lie a-against the party who procured him to be Indicted and the main reason given was that sorasmuch as every man is bound to discover Treason and 't is dangerous to conceal any thing which may tend to Treason therefore the procuring one to be Indicted concerning it was no Cause of Action And Coke Chief Justice said that such an Action was never brought before that time But later Resolutions have been to the contrary of this opinion and 't is held for Law at this day that if a man procures another to be Indicted of High Treason an Action upon the Case in nature of a Conspiricy lieth against him that procures it as well as if it were for Felony the first leading Case of this nature which was resolved upon solemn argument or debate was that of Hil. 1. Car. 1. of Smith and Crashaw c. addition to Bendloes 152. Latch 79.80 Jones 93.94.95 Where it was adjudged upon great deliberation by all the four Judges of B. R. that an Action in nature of a Conspiracy doth well lie in such Case and that not only in Case of acquital upon Tryal but upon the Exhibiting a Bill of Indictment for High Treason to the Court or Jury if the Jury bring in Ignoramus altho in this last Case a Writ of Conspiracy lyeth not and Lovets Case was denyed to be Law and Justice Dodderidge who concurred 2 Bulstrode 271 253 changed his opinion in Smiths Cas◠and held the Action maintainable so that whosoever of meer malice without probable cause causeth any to be Indicted on 23 Eliz. 1. § 2. N. 1. or on 3 Jac. 4. § 22. N. 1. for endeavouring or practiceing so to perswade or withdraw any Subject or prefers a Bill to the Court or Jury for that purpose is lyable to an Action upon the Case for so doing if the party be acquitted or the Jury bring in Ignoramus as in other Cases of Felony LX. Accessory Page 59. These words And shall not within twenty dayes c. disclose the same 23 Eliz. 1. § 3. N. 1. have no reference to those who are aiders and maintainers of the offender but only to those who have barely a knowledge of the offence without aiding or maintaining the party And therefore if such as are aiders or maintainers of the person offending discover the offence within twenty daies yet such discovery shall not free them from the guilt of Imprisonment of Treason as Wingate Crown 42. mistakes but if they once aid or maintaine the party knowing him to be an offendor they are guilty whither they disclose or conceal the offence and shall have no benefit of the twenty dayes LXI Enfant Page 60. Upon 23 Eliz. 1. § 5. N. 1. Moor 606. pl. 838. Talbot was Indicted quod existens aetatis 16
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
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
3. is restrained in this Case to three years after the offence committed within which time he must persue the remedy here given him by 35 Eliz. 1. § 10. N. 2. for the recovery of the forfeiture But it seems that he is not restrained to two years for 31 Eliz. 5. § 5. N. 3. where the forfeiture is limited to the King and him that will sue there the Informer hath one year and the King the next two years if the Informer doth not sue within the first year of the three and the restraint 31 Eliz. 5. § 5. N. 1. of the King to the two next years after the offence committed extends not to this Case For altho the King is enabled by 35 Eliz. 1.10 N. 2. to sue for the intire forfeiture yet the intire forfeiture was not originally limited to the King only for the Informer may sue upon 23 Eliz. 1. § 11. N. 1. as well as the King may upon this Act 35 Eliz. 1. § 10. N. 2. and where the Informer may sue it was not the meaning of 31 Eliz. 5. § 5. N. 1. to limit the King to two years after the offence commited but he may stay if he please till the Informers years is expired and then 31 Eliz. 5. § 5. N. 3. gives him two years afterwards to sue for the penalty 2. Much less is the King limited to sue upon 35 Eliz. 1. § 10. N. 2. within a year and a day and what is said in Dr. Fosters Case 11 Co. 65. viz. that for any forfeiture before the year and day neither the King nor the Informer hath any remedy for that that time is limited in certain by 23 Eliz. 1. § 8. N. 1. is a clear mistake of the meaning of that Statute for the limitation there of a year and a day extends only to the Kings suit by Indictment and not to the popular suit given by 23 Eliz. 1. § 11. N. 1. much less to the Action of debt c. given to the King by this Statute 35 Eliz. 1. § 10. N. 2. suprà 79. N. 6. CXVII Process Page 122. If the King sue by any of these ways of debt bill plaint or Information 35 Eliz. 1. § 10. N. 2. no Proclamation can be made thereupon for the Proclamation given by 29 Eliz. 6. § 5. N. 5. and 3 Jac. 4. § 7. N. 2. in case of Recusancy at the Kings suit is upon Indictment only 11 Co. 62. Dr. Fosters Case CXVIII Courts Page 122. This Statute 35 Eliz. 1. § 10. N. 2. adds to other Courts where the King may sue for Recusancy or for saying or hearing of Mass for by 29 Eliz. 6. § 2. N. 2. the Queen was limited to the Kings bench the Assizes or general Goal-delivery and that only by way of Indictment but 10. v by 35 Eliz. 1. § 10. N. 2. she might sue not only in those Courts by Indictment but in B. R. C. B. or Exchequer by Action of debt Bil plaint or Information 11 Co. 61. Dr. Fosters Case But whereas t is there said that 35 Eliz. 1. § 10. N. 2. takes not off the restriction of the Informer Qui tam c. by 29 Eliz. 6. § 2. N. 2. to the Courts there mentioned this passage was occasioned by an opinion there held 11 Co. 6◠in the said Dr. Fosters Case that the Informer Qui tam c. was restrained by 29 Eliz. 6. § 2. N. 2. to those Courts but the opinion is not Law nor was there ever any such restriction of the Informer for 29 Eliz. 6. § 2. N. 2. intends only suits by Indictment but toucheth not the popular Action or Information supra 95. CXIX Bar. Feme Page 122 123 As c. any other debt c. should or may be recovered 35 Eliz. 1. § 10. N. 2. before this Statute the Queen had no way to recover of the Husband the intire forfeiture for the Recusancy of his Wife Infra 270. For if the Wife had been Indicted of Recusancy at the Queens suit and Convicted thereupon this had not affected the Husband who shall never be charged for the act or default of his Wife but where he may be made party to the Action or suit as in an Action of debt Trespas Action upon the Case for words by the Wife c. but not upon an Indictment 2. And in this respect the Queen having before this Statute 35 Eliz. 1. § 10. N. 2. no remedy for recovery of the forfeiture but by Indictment where the Husband could not be charged for his Wife the Informer was then in better Case than the Queen for he may charge the Husband and Wife both for the Recusancy of the Wife and shall recover the forfeiture of him by 23 Eliz. 1. § 11. N. 1. supra 79. N. 10. But upon the Conviction of the Wife upon Indictment the Queen must have staid till the death of the Husband before she could have Levied the Forfeiture and if the Wife had died before her Husband it was utterly lost in most Cases But by 35 Eliz. 1. § 10. N. 2. the Queen might and the King may at this day charge the Husband and wife joyntly by action of debt bill plaint or Information for the Recusancy of the Wife in such sort as he may be charged in any other action at Common-Law for the debt or Trespass of his Wife and the forfeiture for her Recusancy shall be recovered of him And this was the Principal end and scope of making this branch of the Statute and to this purpose were these words added 35 Eliz. 1. § 10. N. 2. in such sort and in all respects as by the ordinary course of the Common Laws of this Realm any other debt due by any such person in any other Case should or may be recovered 11 Co. 61.62 Dr. Fosters Case and 1 Rol. 233.234 Roy versus Law Vxor Savil 25. pl. 59. Page 123. CXX The Statute here 35 Eliz. 1. § 11. N. 1. mentioned and called 28 Eliz. 6. is the same with 29 Eliz. 6. before It being in some Books called 28 Eliz. in others 29 Eliz but as it seems more properly 29 Eliz 6. for the Session wherein it was made was by Prorogation held 15 Feb. 29 Eliz. 1 Anders 294. pl. 303. and 4 Inst 7. Page 123. CXXI Here 35 Eliz 1. § 12. N. 1. Wingate Crown 77. mentions only a Feme Covert leaving out the Popish Recusant Page 124. CXXII The late Additions to Dalton Cap. 81. Sect. 7. 'T is said that no married Woman is punishable by this Statute 35 Elizabeth but are thereout excepted whereas in truth they are no where excepted throughout this Statute save only that they shall not be compelled or bound to abjure 35 Eliz. 1. § 12. N. 1. For if a married Woman comes not to Church but forbears for a month and goes to Conventicles or any other Meetings or Assemblies under colour or pretence of the Exercise of Religion
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
and in such a case it is to be taken in divers other Cases Infra 173. XCVII Days Page 104. Upon 29 Eliz. 6. § 4 N. 1. That is the Term of Easter or Michaelmas which shall first happen and not the next Easter and Michaelmas Terms both for the Recusant ought to pay the whole penalty for the time conteined in the Indictment in the very first of thse Terms next after his Conviction 3 Jac. 4. § 8. N. 1. Infra 172. Page 104. Upon 29 Eliz. 6. § 4. N. 3. Take seiz and enjoy But as to Lands and tenements there must first be an office found for the King XCVIII Seizure for regularly before the finding of such office Lands or Tenements cannot be seized into the Kings hands 2 Inst 573. and 8 Co. 169. Stoughters Case Br. tit Off. 17.55 Com. 486. Nichols Case Page 105. by 29 Eliz. 6. § 4. N. 3. the Queen was to have and enjoy two parts of the Recusants lands and Hereditaments nomine poenae or districtionis XCIX until he had in some other manner satisfied her of the whole forfeiture of the twenty pound per month incuried for his Recusancy And the profits of those two parts should not have been accounted to go to the payment of any part of the said debt or forfeiture for the Statute 29 Eliz. 6. § 4. N. 3. Inflicted this forfeiture upon him meerly as a further penalty for his neglect of payment of the twenty pounds per month as was resolved by the two Chief Justices and Chief Baron Trin. 43 Eliz. in Gages Case 3 Cro. 845.846 and by all the Judges 3 Jac. at Russel house Jones 24 Standen versus Vniversity of Oxford and Whitton but now the law is altered in this point by 1 Jac. 4. § 5. N. 1. Infra 153. Page 105 106. A Recusant is Indicted and convicted and then failes of payment of the twenty pound per month C. Chattels yet his goods are not forfeit to the King by 29 Eliz. 6. § 4. N. 3. before seisure for the King hath his Election whither he will seize them or no by Coke Chief Justice B. R. 12 Jac. Cullom versus Sherman 1 Rol. 7. pl. 8. 2. A Recusant lends mony and for security hath a rent charge granted him in fee by deed indented with condition of Redemption and takes likewise a Recognizance for performance of Covenants in the said Indenture the Recognizance is forfeited and afterwards he is Indicted and convicted of Recusancy and failes of payment of the twenty pound per month in this Case the King shall have the recognizance by force of 29 Eliz. 6. § 4. N. 3. for when forfeited to the Recusant it is but a Chattel personal and shall pass to the King by this word Goods for in an act of Parliament where the offendors goods are given to the King all debts and personal Chattels and actions are thereby given him as well as goods in possession and here in 29 Eliz. 6. § 4. N. 3. as take and seize referre to two parts of the Recusants Lands and Tenements so enjoy referrs to goods and the King shall enjoy the debt due by the Recognizance Nor doth it alter the Case for that the Recognizance was acknowledged for performance of Covenants in an Indenture concerning a rent charge in fee which seems to savor of the realty for it was originally for the loan and forbearance of mony which is personal 12 Co. 1.2 Ford and Sheldon 3. If a man who is a Recusant take such a Recognizance in the name of another the King upon his Conviction shall have the Recognizance for when the Recusant was such at the time of the Recognizance taking it shall be intended that it was done by Covin and that he took it in the name of another with an intent to prevent the King of levying of the forfeiture And such Covin shall not Bar the King 12 Co. 2.3 4. If a Recognizance or obligation be forfeited to the King by force of 29 Eliz. 6. § 4. N. 3. he may grant it over as he may any other Chattel in Action under his private Seal 1 Rol. 7. pl. 8. Cullom versus Sherman Page 106. A Rent of Inheritance CI. Forfeiture and an Advowson in gross are comprehended under this word Hereditaments 29 Eliz. 6. § 4. N. 3. but whither the King may seize such an Advowson as part of his two parts and present by vertue thereof since 3 Jac. 5. § N. which gives the presentation to the Universities see Infra Page 106 107. CII Copy-hold It hath been much disputed whither Copyhold Lands are within this branch of the Statute 29 Eliz. 6. § 4. N. 3. of all other the Lands Tenements and Hereditaments lyable to such seizure or to the penalties aforesaid For regularly in Acts of Parliment which are enacted for forfeiture of Lands Tenements and Hereditaments Copyholds shall not be forfeited but only Lands Tenements and Hereditaments which are such as the C. Law and not those which are such by custome only as Copyholds are And it was agreed in Heydons Case 3 Co. 8 Savil 66 pl. 138. that where an Act of Parliament alters the service or tenure or other thing in prejudice of the Lord there general words in the act of Parliament shall not extend to Copyholds And if the King should seize them by force of the general words 29 Eliz. 6. § 4. N. 3. Lands Tenements and Hereditaments the Lord would during the time they are in the Kings hands lose his Seigniory customes and services But yet it was held by Manwood Chief Baron and Baron Clerk 1 Leonard 97. pl. 126. in the Case of Sulherd and Everet Mich. 30. Eliz. that Copyholders are within 29 Eliz. 6. § 4. N. 3. and altho Manwood seemed to grant that they are not within it directly by express words yet they both conceived they were within the intent of the Act by reason as Manwood said of these words all other the Lands c. liable to such seizure or to the penalties aforesaid 2. But it was granted on all hands that by these general words here 29 Eliz. 6. § 4 N. 3. the King hath not any estate given him in the Recusants Copyhold Lands but only a right and title to two thirds of the profits By the Kings receiving of which the Lord cannot be impeached of his customes and services as he would be if the King should seize the land it self And a difference was there taken 1 Leonard 98. pl. 126. between an Act of Parliament which transsers an Estate to the King and an Act of Parliament which gives him only the profits of the Estate for in the first Case the Rule 3 Co. 8. that Copy-hold Lands shall not pass by general words shall stand good for the prejudice that may otherwise accrew to the Lord But where the Lords Seigniory Custome and services are not to be impeached or taken away as here they will not by the Kings bare
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