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' II. And be it further enacted, That in all cases of indictments found or No. VI. informations exhibited under and by virtue of this Act, it shall be lawful 42 Geo. III. for his Majesty's said Court of King's Bench, upon motion to be made, and
c. 85. such notice thereof as to the said Court of King's Bench may appear to be sufficient, hy or on behalf of his Majesty's Attorney-general or other prosecutor, or of the defendant or defendants, to award at the discretion of The Court of the said court, a writ or writs of mandamus to any chief justice and King's Bench, judges, or any chief
justice or other judge singly for the time being, of award a writos any court or courts of judicature in the country or island, or near to
mandamus to the place where the crime, offence, or misdemeanor shall be charged in
any court of such indictment or information to have been committed, or to any go- judicature, or vernor or lieutenant governor or other person having any chief autho- the governor, rity in such country, island, or place, or to any other person or persons &c. of the residing there, as the case may require, and as to the said court of King's country where Bench may, under all the circumstances of the case, seem most expe
the offence was matters charged in any such indictment or information; and the
per- of the matters dient for the purpose of obtaining and receiving proofs concerning the committed to son or persons to whom such writ or writs shall be directed and sent, are hereby respectively authorized and required to hold a court, session, shall be done by
charged; which or meeting, with all convenient speed, for the examination of witnesses viva voce eviand receiving other proofs concerning the matters charged in such in- dence, and the dictment or information respectively, and in the mean time to cause examinations public notice to be given of the holding the said court, session, or meet- shall be transing, and to issue such summons or other process as may be requisite for mitted to the the attendance of witnesses, and to adjourn from time to time as occasion Court of King's may require; and such examination or examinations shall be then and Bench and adthere openly and publicly taken viva voce in the said court, session, or
mitted on the meeting, upon questions put by any such prosecutor or prosecutors, de- trial, &c. fendant or defendants, or any agent or agents, person or persons on behalf of the said Attorney-general or other prosecutor or prosecutors, and defendant or defendants respectively, if any such shall attend for that purpose, and by the court, person or persons to whom such writ shall be directed and sent as aforesaid, upon the respective oaths of witnesses, and the oaths of skilful interpreters if necessary, administered according to the forms of their several religions, and shall, by some officer or person sworn for that purpose, be reduced into writing on parchment or paper; and in case any duplicate or duplicates shall be required by or on behalf of the prosecutor, or the defendant or defendants respectively, into two or more writings on parchment or paper, as the case may require ; and such examination or examinations shall be sent to his Majesty in his Court of King's Bench closed up, and under the seal or seals of the person or persons before whom such examination or examinations as aforesaid shall have been taken ; and the person or persons taking such examination or examinations as aforesaid, shall deliver the same to any person or persons appointed by the said Court of King's Bench to receive the same, or shall transmit the same in such manner as the said Court of King's Bench shall direct; and all such examinations shall, with all convenient speed, be delivered to one of the clerks in court of his Majesty's Court of King's Bench, in the crown office of the said court, for the safe custody thereof; and every clerk in the said Court of King's Bench, to whom any examination or examinations shall be delivered, is hereby authorized to administer an oath to the person delivering the same to him, in such form as the said Court of King's Bench shall direct; and such examination or examinations shall be allowed and read upon the trial of any such indictinent or information, or any other subsequent proceeding thereon or relating, thereto, and shall be deemed as good and competent evidence as if the witness or witnesses, whose examination or examinations shali be so read, had been present, and sworn, and examined viva voce, at such trial, any law or usage to the contrary notwithstanding, saving all just exceptions to be taken to any such examination or examinations, or any part thereof when the saine shall be offered to be read
Bench may order an ex
de bene esse,
No. VI. as aforesaid ; and all persons concerned shall be entitled to take copies 42 Geo. III. of such examinations in the custody of such clerk in court at their c. 85.
own costs and charges.
1II. And be it further enacted, That it shall also be lawful for the said
Court of King's Bench, upon motion to be made, and such notice there. Court of King's of as aforesaid, by or on bebalf of bis Majesty's Atlorney General, or
other prosecutor, or defendant or defendants in any such indictment or amination on
information, to order an examination de bene esse of witnesses upon ininterrogatories terrogatories in any case where the viva voce testimony of such witnesses
cannot conveniently be bad, to be taken before an examiner to be apwhere viva voce pointed by the said court, and the depositions taken upon such inevidence can
terrogatorics shall he afterwards admitted to be read in evidence upon not be had.
the trial of such indictment or information, or in any other subsequent proceeding thereon or relating thereto, and shall be deemed good and sufficient evidence in the law, saving all just exceptions to be taken to
such depositions when the same shall be offered to be read as aforePersons to
IV. And be it further enacted, That it shall be lawful for any person whom such
or persons to whom any such writ or writs of mandamus shall be diwrits of man
rected, or order sent as aforesaid; and in case the same shall be directed damus shall be or sent to more than one person, for so many of them as shall for that be directed,em- purpose be appointed by the
said writ, or required by the said order, powered to do and who shall act in the execution thereof, and such person and persons all things ne
is and are hereby respectively authorized and required, to administer all cessary for the oaths required to be taken under any of the provisions of this Act, or thereof by com
necessary for the due execution of any such writ or order, or any Act, pelling the ap- matter, or thing relating thereto, and io examine upon oath all persons pearance and whom he or they find occasion to summon, and all other persons whom testimony of he or they shall think fit to examine, touching all matters and things witnesses, &c. necessary for the due execution of any such writ or order as aforesaid ;
and such person and persons respectively, to whom such writ shall be directed, or order sent as aforesaid, or so many of them as shall in that behalf be appointed, and shall act in the execution thereof as aforesaid, shall have full power and authority to compel the appearance and giving evidence of any witness upon any such writ or order, and to issue special summons or other process for that purpose, and may proceed upon such summons, or other process, by imprisonment of the body of any person refusing to appear or give evidence, in like manner as any court or courts of record within this kingdon, having competent authority for that purpose, may proceed agaiost any person or persons for any
contempt committed against the authority of any such court. Persons giving
V. And be it further enacted, That in case any person or persons in false evidence the course of his, her, or their examination upon uath, under and by (either under virtue of the said recited Act or the twenty-fourth year of his present 24 Geo.3. c.25. Majesty, or this Act, shall wilfully and corruptly give false evidence, or this Act) such person or persons so offending, and being thereof duly convicted, subject to pe- shall be, and is and are hereby declared to be, subject and liable to such nalties of per- pains and penalties, as persons guilty of wilful and corrupt perjury shall jury.
be liable to by any law or laws then in force in the kingdom, island,
or place where such false evidence shall have been given as aforesaid. 21 Jac. 1. c. 12. "VI. And whereas it is expedient to extend the provisions of an Act,
. passed in the twenty-first year of the reign of his Majesty King James • The first, intituled, “ An Act to enlarge and make perpetual the Act * made for ease in pleading against troublesome and contentious suits,
prosecuted against justices of the peace, mayors, constables, and cer: • lain other his Majesty's officers, for the lawful execution of their of
fice, made in the seventh year of his Majesty's most happy reigo," to all persons who may by law commit to safe custody, either in or out
of this kingdom ;' Be it therefore enacted, That, from and after the (1) The defendant is only entitled to such the Court by affidavit ; but the prosecutor is mandamus, upon laying sufficient grounds before entitled of course; Rex v. Jones, 8 East, 31.
passing of this Act, the said recited Act, and all the provisions therein No. VI. contained shall extend, and be deemed, taken, and construed to extend 42 Geo. III. to all persons having, holding, or exercising, or being employed in, or who may hereafter have, hold, or exercise, or be employed in any
C. 85. public employment, or any office, station, or capacity, either civil or military, either in or out of this kingdom; and who under and by virtue, The protection or in pursuance of any Act or Acts of Parliament, law or laws, or lawful
of recited Act authority within this kingdom, or any act or acts, statute or statutes,
extended to ordinance or ordinances, or law or laws, or lawful authority in any public employ.
persons having plantation, island, colony, or foreign possession of his Majesty, now ment, in or out have or may hereafter have, by virtue of any such public employment, of the kingdom, or such office, station, or capacity, power or authority to commit per- being by law sons to safe custody; and all such persons, having such power or au- empowered to thority as aforesaid, shall have and be entitled to all the privileges, commitpersons benefits and advantages, given by the provisions of the said Act as
to safe custody. fully and effectually, to all intents and purposes, as if they had been specially named therein : Provided always, That where any action, Actions bill, plaint, or suit upon the case, trespass, battery, or false im- broughtagainst prisonment, shall be brought against any such person as is in this them for things Act described as aforesaid, in this kingdom for or upon any act, done out of this matter, or thing done out of this kingdom, it shall be lawful for kingdom, may the plaintiff bringing the same to lay such act, matter, or thing, to
belaid in Westhave been done in IVestminster, or in any county where the
person against whom any such action, bill, plaint, or suit, shall be brought, shall then reside; any thing in this Act to the contrary thereof not. withstanding
[ No. VII.] 43 George III. c. 141.–An Act to render
Justices of the Peace more safe in the Execution of
their Duty.--[11th August, 1803.] : WHEREAS it is expedient that justices of the peace in Great Britain 43 George III. and Ireland respectively, who by virtue of divers Acts of Parlia
c. 141. * ment in force in the united kingdom, are authorized and required * to convict persons of sundry offences in a summary way, should be rendered more safe in the execution of such their duty: Be it therefore enacted by the King's most excellent Majesty, hy and, with the advice and consent of the Lords Spiritual and Teinporal, and Commons, in this present Parliament assembled, and by the authority of the same, That in all actions whatsoever which shall, at any time, after the passing of this Act, be brought against any justice or justices of the peace in the In actions united kingdom of Great Britain and Ireland, for or on account of any
against justices conviction by him or them had or made, under or by virtue of any Act
for any convicor Acts of Parliament in force in the said united kingdom, or for or by plaintiff (be
tion, &c. the reason of any act, matter, or thing whatsoever, done or commanded to sides any penalbe done by such justice or justices, for the levying of any penalty, ap- ty levied) shall prebending any party, or for or about the carrying of any such convic- recover only 2d. tion into effect, in case such conviction shall bave been quashed, (1) the damages, unplaintiff or plaintiffs in such action or actions, besides the value and less malice and amount of the penalty or penalties which may have been levied upon want of probathe said plaintiff or plaintiffs, in case any levy thereof shall have been ble cause be made, shall not be entitled to recover any more or greater damages than expressly althe sum of two pence, nor any costs of suit whatsoever, unless it shall leged. be expressly alleged in the declaration in the action wherein the recovery shall be had, and which shall be in an action upon the case only, that such acts were done maliciously and without any reasonable and probable cause. (2)
(1) See Massey v. Johnson, 12 East, 67; Gray v. Cookson, 16 East, 13.
(2) See Burley v. Bethune, 1 Marshall, 220, the plaintiff must prove want of probable cause No. VII. - II. And be it further enacted, That such plaintiff shall not be entitled 43 Geo. III. to recover against such justice any penalty which shall have been levied, c. 141.
nor any damages or costs whatsoever, in case such justice shall prove at
the trial that such plaintiff was guilty of the offence whereof he had Nor shall the
been convicted, or on account of which he had been apprehended, or Penalty, &c.
had otherwise suffered, and that he had undergone no greater punishbe recovered if ment than was assigned by law to such offence. plaintiff be proved guilty of the offence, &c.
in an action for malicious prosecution: shew- such actions, by virtue of any statute, &c. ing that he was innocent of the offence of which Massey v. Johnson, 12 East, 67.-It extends, he is convicted is not sufficient. But the sta- however, to protect magistrates against actions tute does in no instance extend to protect of trespass only in the case of a conviction justices of peace in the execution of their quashed; giving to the party grieved a remedy office against actions for acts of trespass or by action on the case, Gray v. Cookson, 16 imprisonment, unless done on account of some East, 13. conviction made by them of the plaintiffs in
Penal Actions and Informations.
The following note upon the general subject of penal actions was subjoined by the Editor to the case of Kirkham v. Wheeley, 1 Salk. 30, 6th Edition.
An action q. t. is the suit of the informer, not of the King; Lut. 196. A plaintiff qui tain may be nonsuited; 3 Lev. 398 ; Sav. 56. Upon such nonsuit the defendant is entitled to costs against him ; Wilkinson, q. t. v. Allot, Cowp. 366. The Court will not in a penal action stay proceedings until costs of a non pros. at the suit of another plaintiff, are paid ; English, q. t. v. Cox, Cowp. 322 : nor upon affidavit, that a former action was brought for the same offence, which the defendant had leave to compound; the fact must be specially pleaded ; Harrington q. t. v. Johnson, Cowp. 744. Proceedings will be stayed on motion until the plaintiff gives notice of his place of abode, and, if he is out of the realm, security for costs; Val. v. Green, Str. 697. Actions on penal statutes are expressly excepted in stat. 4 Anne, c. 16, which allows double pleading; and it has been accordingly adjudged, that in them the defendant cannot plead double; Heyrick v. Foster, 4 T. R. 701. A plea of another action commenced the same term must set forth that it was commenced prior; Combe v. Pitt, 3 Burr. 1423; 1 Bl. 437. Informations on penal statutes are excepted in the statutes of amendment; but there is no difference between civil and penal actions with respect to amendments at common law; Baldwin v. Bunb. 49; Brooke v. Day, Bunb. 336; Edgell v. Decker, Bunb. 252; Wynne v. Middleton, Str. 1227 ; 1 Wils. 256 ; Bonfield, q. t. v. Milner, 2 Burr. 1098; Mace v. Lovett, 5 Burr. 2833; Richards v. Brown, Doug. 113. The Court will not set aside a judgment of non pros. regularly obtained against a mere common informer suing for punishment; but it might be otherwise, if the party really injured sued for justice and reparation; 1 Burr. 401. Wliere a q.t. Action has been depending four years, an amendment will not be permitted though all is in paper; Goff v. Popplewell, 2 Ť. R. 707. In a popular action on two counts for two 51. penalties, the detendant had leave to pay 5l, into Court generally; Stock v. Eagle, Bl. Rep. 1052. If there appears reason to suspect that the action is brought merely for the sake of the issue-money, that will be ordered to be paid into Court to abide the event of the suit; Parker, q. t. v. Macfarlan, 3 T. R. 137. The defendant may have nisi prius by proviso; 2 Leon. 110. A Quaker's evidence is admissible in a penal action; Atchison v. Everett, Cowp. 382. If the q. t. informer die after a verdict, his executor or administrator shall have judgment for his moiety ; Hard. 161: If he dies after judgment, and his death is suggested on the roll; Com. Dig. action upon stat. E. 2. New trial may be granted for the mistake or misdirection of the jndge, but not for the wrong conclusion of the jury after verdict for the defendant ; Wilson v. Rastall, 4 T. R. 753. If the action is for several penalties, and the jury give a verdict generally for one, which the plaintiff applies to a particular count, and that cannot be supported, he cannot afterwards apply it to another, which is good and sufficiently supported by evidence'; Holloway, q. t. v. Bennett, 3 T. R. 448. The defendant in a q.t. action cannot be discharged upon surrendering his effects under the Lords' Act; Harl, q. t. v. Hawkins, 3 Burr. 1322; I BI. 372. The defendant cannot be taken in execution on a Sunday ; Rex v. Myers, 1 T. R. 265.
[ No. I. ] 4 Henry VII. c. 20.-Actions popular, prose
cuted by Collusion, shall be no Bar to those which be
pursued with good Faith. ITEM, That where actions popular in divers cases have been or- 4 Henry VII.
dained by many good Acts and Statutes afore this time made, for c. 20. • the reformation of extortions, maintenances, oppressions, injuries, ex- The enormities
actions, and wrongs used and committed within this realm, which collusion . actions been very penal to all misdoers and offenders in such actions practised in su
condemned, and much profitable as well to the King, as to every of ing of actions ' his subjects that them will sue and maintain, if the same actions so sued popular.
and commenced might be truly pursued without covin or collusion. • But now it is so commonly used within this realm, that if any such offenders offending in cases where any of the said actions lie, then the