THE KING บ. HARRIS. three years ago, a certiorari was granted to remove an indictmient from Glamorganshire, on an affidavit, that an impartial trial could not be had there (v). Lord MANSFIELD, C. J.-The motions are very different, to change the venue, which is saying, that the cause of action or indictment arose elsewhere; and, as in the present case, to continue the same venue, and by a suggestion on the roll to have a trial in another county. For though a fair trial can't be had in the proper county, yet the venue still remains to direct the Court in their choice of a neighbouring county, where a fair trial may be had. However, as such a suggestion when once entered cannot be traversed, we must be satisfied, that there is not a possibility of a fair trial in the proper county. And I don't think, that the imputation of partiality is clearly made out at present. There is no point of interest now to be tried; nothing that can be a leading precedent for the future. The crime to be tried is, the not having admitted freemen in due time to vote at the last election. The city will rather be interested against the defendant than for him. When a special jury is to be struck by the officer of this Court in the presence of the parties, the sheriff or other returning officer is a mere [ *380 ] cypher (u). And yet the affidavit here goes only to the partiality of the return. And had it sworn generally, that the citizens were all partial, yet it gives no reasons nor facts from which that opinion is formed. The rule must be discharged. DENNISON, J., of the same opinion.-The Court never enters suggestions on the roll but upon the clearest proof of facts, or else from some matter arising on the face of the record. FOSTER, J., and WILMOT, J., of the same opinion. * (v) S. P. R. v. Lewis, 2 Stra. 704; R. v. Cowle, 2 Burr. 861; R. v. Inh. of Clace, 4 Burr. 2456. (u) As to the mode of striking a special jury, see R. v. Edmonds, 4 B. & A. 471, 484. bribery at common law should be cautiously granted, since the additional penalties by sta THE KING V. PITT and MEAD. S. C. 3 Burr. 1335. Informations for THE defendants were convicted on an information at common law for bribery at the last general election at Ilchester; Pitt being the bribing agent, and Mead the voter bribed. And being brought up this Term for the judgment of the Court, a doubt was started from the Bench, what judgment the Court could or ought to give upon the present prosecution; it being within the time of limitation (w) (viz. two years) established by statute 2 Geo. 2, c. 24(x), which inflicts a penalty of 500 to be recovered by any common informer; and enacts, that, after judgment had against the defendant, or his "being any other "wise lawfully convicted of bribery, &c. in elections," he shall tute. (w) In one case, the Court respited the sentence till after the expiration of the time limited for bringing an action; R. v. Heydon, 3 Burr. 1359. And see R. v. Heydon, post, 404. (x) S. 11; explained by 9 G. 2, c. 35, and amended by 49 G. 3, c. 118. incur a disability of voting and enjoying any franchise in a borough. Whereupon, the Court directed it to be argued at the bar; and it was accordingly argued by It was THE KING v. PITT. Norton, Solicitor-General, Morton and Thurlow, for the defendants, that this Court can give no judgment; because, 1. The jurisdiction of the Court to grant informations for bribery in parliamentary elections was taken up upon trust, and is warranted by no principle of law. In the Abingdon Cases, 1754, the original rule was against one Spinage for bribery in the election of a Mayor, which being a common law *franchise was certainly right. The next was hastily granted [ *381 ] against Mr. Thrale for bribery in the election of a member, but was made up and came to nothing. Afterwards, in the Berwick Cases, the rule was taken up equally hastily, and was founded upon a false induction. Because bribery in the election of a corporate officer had been punished by information, it was argued, that a fortiori it should be so punished in elections of members of Parliament. But this was not a just consequence; because, 2. Though bribery in parliamentary elections was always punishable at common law, yet till 1754 it was never punished by information in this Court. cognizable in the high Court of Parliament, in the House of Commons, by the lex Parliamenti, and not elsewhere, or by any other law. This Court has nothing to do with any proceedings at elections to serve in Parliament. There is not an instance in the books or records, wherein election bribery has been punished here, though the practice is very ancient. In 4 Inst. 23, it appears, that one Long, of Westbury, was fined by the House of Commons for bribery; and they have inflicted fines in other cases, as upon one Arthur Hall, for publishing a pamphlet that reflected on the House, 4 Inst. 23. 3dly, Supposing this Court to have a jurisdiction, yet no judgment can be given on this record. Nemo bis punitur pro eodem delicto; and yet, if judgment be now given, the defendant may be punished twice, if any common informer thinks proper to bring an action for the 500l., on the recovery of which a disability is also consequent. 4thly, If any judgment can be given, it can only be the same that the Court has given in a similar case, K. and Luckup, T. 9 Geo. 2, Stra. 1048: information upon stat. 9 Anne, c. 14, against gaming, to recover the quintuple value. On conviction the Court thought they could give no other judgment than ideo convictus, and leave the informer to recover the forfeiture by an action on the judgment. The reason is the same in both cases. So in perjury, which is an offence at common law, when new penalties were superadded by the statute of Elizabeth, though there is a particular provision therein, that nothing in that act should stop any proceeding at common law; yet it was never known, that a prosecution was carried on upon both the common law and the statute. 5thly, No judgment can here be given, but what must interfere with [ *382 ] the statute penalties. The Legislature therefore meant, that this penalty chalked out by the statute should be the whole of THE KING บ. PITT. [ *383 ] the punishment inflicted, and be recovered by that method only, which is there pointed out by Parliament. Lord MANSFIELD, C. J.-The statute of 9 Anne is levelled at two species of offences; one, which was a crime at common law, that of deceitful gaming; the other, which was not so,winning more than 107. at a sitting. Probably the conviction of Luckup was for that, which was no crime at common law, and then the Court could certainly give no other judgment. DENNISON, J.-I was counsel for Luckup. The prosecutor, finding it difficult to prove a fraud, had recourse to the other clause for winning above 107. WILMOT, J.-In my note of the King and Luckup, Lord Hardwicke expressly took notice, that the information was not for any fraudulent winning. Davy and Burland, Serjeants, and Popham, for the prosecutors, argued,-1. That, where an offence is punished by a special statute, the common law punishment is not thereby taken away; 2 Hal. P. C. 191. By stat. West. 1, c. 20, De Malefactoribus in Parcis, a statute penalty is inflicted. But Lord Coke in his Comment holds, 2 Inst. (y), that the common law remedy is not superseded thereby. Q. and Orbell, 6 Mod. 42; an indictment was allowed for cheating in a foot-race, notwithstanding it was within the time of limitation for bringing an action, as appears by searching the record. K. and Stanton, 2 Show. 30; information for cutting down the banks of the river Wye, for which special remedies are provided by a stat. 5 Eliz: and argued thereupon, that the information would not lie; but the Court held otherwise, and gave judgment for the King. K. and Dixon, 10 Mod. 336, indictment for keeping a gaming-house, for which, by stat. 33 Hen. 8, a penalty is inflicted: held, that the indictment at common law was not ousted by this statute. 2. That this is an offence, whereof this Court has criminal cognizance. *And by Lord Mansfield, C. J.-We are well satisfied as to that, so that you need not argue it. (And note, the argument of the exclusive cognizance of the House of Commons was only urged by Norton, Solicitor-General). 3. The Legislature, if it pleases, may say, that a man shall be twice punished for the same offence. The statute intended the new penalties as cumulative over and above the common law punishment. There are no negative words to annihilate the justice of the common law. And it is held, Salk. 460; 1 Hawk. P. C. 178 (2), that affirmative statutes, which inflict new penalties, are cumulative, and do not oust the common law remedies. Afterwards, in the same Term, Lord MANSFIELD, C. J., delivered the opinion of the Court.-We are very glad this case has been solemnly argued, in order to shew the ground upon which informations of this kind have been granted. Whatever effect it may have upon the present case, it will certainly THE KING V. PITT. nishable at com be of use hereafter to make the consequences of thus interposing more fully considered. Upon search it appears, that, since the stat. 2 Geo. 2, no informations for bribery at parliamentary elections were ever granted till about the general election in 1754. The practice was begun by a mistake. It was taken for granted, that the Case of the King and Spinage at Abingdon was conclusive to this species of bribery also, which it certainly was not. We have no doubt, but that bribery at elec- Bribery at partions, taken generally, was always and is still punishable at liamentary eleccommon law. But it did not follow of course, that the Court tions still puis obliged, ex debito justitia, to grant informations for bribery mon law. at elections of members since the making of the statute, 2 Geo. 2, which inflicts such very severe penalties. The first Abingdon Case was for bribery in the election of a mayor; an offence for which there was no extraordinary remedy provided by statute. In the second case, the King and Thrale, it was too hastily concluded, that if an information was proper to go for the one, it was much more proper for the other, which is a * still greater [ *384 ] offence. I am confident, that if that case had been fully considered and argued, the Court would have required a very special case before they would have granted the information. When I came here, I thought it a settled point, and that if the fact appeared, the information had always gone of course. The first case in my time was the Windsor Case. That also went off. And the present is the first that was ever prosecuted to effect; which has brought on the present difficulty of giving judgment, which must immediately have occurred before, if ever any criminal had been before brought up for judgment. As it is, the Court will certainly hereafter lay a great stress on the circumstances which have now occurred, in future motions for informations of the like kind (a). We have not the least doubt but that the offence, notwithstanding the statute, still remains an offence at common law. It is proper it should remain so, to prevent a collusion; that this offence, which is of deep malignity, may be prosecuted at the suit of the King for the public benefit; the statute remedy being only recoverable at the suit And supposed of a private informer. The statute itself supposes it to remain to continue so by punishable at common law by the words, or any otherwise lawfully convicted," which refer to some other proceedings than those which the statute has pointed out. Whether the Court will ever hereafter grant informations for this offence, till the time of limitation is expired, will be matter of future consideration. There may sometimes be very good reasons for granting them (b); but the Court for the future will exert their discretion only upon very particular circumstances, and when 66 the statute. tions. the case is well considered. For the present case, the Court Judgment for has an eye to the penalties which may hereafter be recovered bribery at elecin the punishment now set:-Which was six months imprisonment for the agent, Pitt; and three months for Mead, the voter. (a) See R. v. Robinson, post, 541. VOL. I. (b) See ante, 294, n. (o). X sufficient evi dence to dis prove a man's GOULD V. JONES. S. C. Bull. N. P. 236. Correspondent IN the trial of an issue out of Chancery, before Lord Mansfield, C. J., at the Sittings in Middlesex after Term, it was dis[ *385puted, whether the name of one William Jones subscribed to a declaration of trust was genuine; and, to prove the hand-writhand, though he ing forged, a witness was produced, who had frequently corresponded with Jones, but had never seen him write. And, upon debate, Lord Mansfield held him to be a good evidence, and his testimony was accordingly admitted (c). has never seen him write. (c) It appears from the report in Bull. N. P., that Jones was a person residing abroad and in an action on a bond, where to prove payment a receipt was produced, but the hand-writing of the person signing it was only proved by a witness who had received letters from him, but had never seen him write; and it was contended on the authority of this case, that such evi dence was sufficient; Buller, J., said, "that was only because the writer lived abroad, and so that persons, who had seen him write, were out of the reach of a subpœna;" and he rejected the evidence; Willis v. Singer, Supp. Vin. Abr. Evidence (T. b. 48). But this distinction, it seems, does not exist; for, in general, where it can be satisfactorily proved that the per- See No copy of ac quittal need be granted by the Court, to found an action for a malicious prose cution, except in case of felony. MORRISON V. KELLY. AT the Sittings in Middlesex after Term, this action came on to be tried, being for a malicious prosecution in indicting the plaintiff for keeping a disorderly house. To prove the fact, the clerk of the peace for the Westminster Sessions attended with the original record of the acquittal. Norton, Solicitor-General, objected, that there ought to be a copy of the record granted by the Court, before which the acquittal is had, in order to ground an action for a malicious prosecution. But it was ruled by Lord Mansfield, that though this is necessary, where the party is indicted for felony (d), yet the practice is otherwise in case of misdemesnors (e). (d) Holt, C. J., laid it down, that a prisoner in a case of felony cannot have a copy of the record of acquittal, without leave of the Judge; Groenvelt v. Burrell, 1 Ld. Raym. 253: and by an order made 16 C. II, at the Old Bailey, no copies of any indictment for felony shall be given without special order; "for the late frequency of actions against prosecutors (which cannot be without copies of the indictments) deterreth people from prosecuting for the King upon just occasions;" Kelyng. 3, pl. 7; 3 Bla. Comm. 126 acc.; Brangan's Ca., 1 Leach, Cr. Ca. 27, 4. D. 1742, |