II. And be it further enacted, That in all cases of indictments found or informations exhibited under and by virtue of this Act, it shall be lawful for his Majesty's said Court of King's Bench, upon motion to be made, and such notice thereof as to the said Court of King's Bench may appear to be sufficient, by 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 said court, a writ or writs of mandamus to any chief justice and judges, or any chief justice or other judge singly for the time being, of any court or courts of judicature in the country or island, or near to the place where the crime, offence, or misdemeanor shall be charged in such indictment or information to have been committed, or to any governor or lieutenant governor or other person having any chief authority in such country, island, or place, or to any other person or persons residing there, as the case may require, and as to the said court of King's Bench may, under all the circumstances of the case, seem most expedient for the purpose of obtaining and receiving proofs concerning the matters charged in any such indictment or information; and the person or persons to whom such writ or writs shall be directed and sent, are hereby respectively authorized and required to hold a court, session, or meeting, with all convenient speed, for the examination of witnesses and receiving other proofs concerning the matters charged in such indictment or information respectively, and in the mean time to cause public notice to be given of the holding the said court, session, or meeting, and to issue such summons or other process as may be requisite for the attendance of witnesses, and to adjourn from time to time as occasion may require; and such examination or examinations shall be then and there openly and publicly taken viva voce in the said court, session, or meeting, upon questions put by any such prosecutor or prosecutors, defendant 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 indictment 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 shall 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 same shall be offered to be read No. VI. 42 Geo. III. c. 85. The Court of King's Bench, on motion,may award a writ of mandamus to any court of judicature, or the governor, &c. of the country where the offence was committed to of the matters obtain proofs charged; which shall be done by viva voce evidence, and the examinations shall be transmitted to the Court of King's Bench and ad mitted on the trial, &c. No. VI. 42 Geo. III. c. 85. Bench may order an examination on interrogatories as aforesaid; and all persons concerned shall be entitled to take copies III. 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 thereCourt of King's of as aforesaid, by or on behalf of his Majesty's Attorney General, or other prosecutor, or defendant or defendants in any such indictment or information, to order an examination de bene esse of witnesses upon interrogatories in any case where the viva voce testimony of such witnesses cannot conveniently be had, to be taken before an examiner to be appointed by the said court, and the depositions taken upon such interrogatories shall he afterwards admitted to be read in evidence upon 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 aforesaid. (1) de bene esse, where viva voce evidence cannot be had. Persons to whom such writs of man damus shall be be directed,empowered to do all things necessary for the due execution thereof by compelling the appearance and testimony of witnesses, &c. Persons giving nalties of per- 21 Jac. 1. c. 12. IV. And be it further enacted, That it shall be lawful for any person or persons to whom any such writ or writs of mandamus shall be directed, or order sent as aforesaid; and in case the same shall be directed or sent to more than one person, for so many of them as shall for that purpose be appointed by the said writ, or required by the said order, and who shall act in the execution thereof, and such person and persons is and are hereby respectively authorized and required, to administer all oaths required to be taken under any of the provisions of this Act, or necessary for the due execution of any such writ or order, or any Act, matter, or thing relating thereto, and to examine upon oath all persons whom he or they find occasion to summon, and all other persons whom he or they shall think fit to examine, touching all matters and things 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 kingdom, having competent authority for that purpose, may proceed against any person or persons for any contempt committed against the authority of any such court. V. And be it further enacted, That in case any person or persons in the course of his, her, or their examination upon oath, under and by virtue of the said recited Act or the twenty-fourth year of his present Majesty, or this Act, shall wilfully and corruptly give false evidence, such person or persons so offending, and being thereof duly convicted, shall be, and is and are hereby declared to be, subject and liable to such pains and penalties, as persons guilty of wilful and corrupt perjury shall 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. 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 certain other his Majesty's officers, for the lawful execution of their office, made in the seventh year of his Majesty's most happy reign," 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. No. VI. Geo. III. c. 85. of recited Act extended to public employpersons having ment, in or out of the kingdom, being by law empowered to commitpersons to safe custody. passing of this Act, the said recited Act, and all the provisions therein contained shall extend, and be deemed, taken, and construed to extend 42 to all persons having, holding, or exercising, or being employed in, or who may hereafter have, hold, or exercise, or be employed in any 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 authority within this kingdom, or any act or acts, statute or statutes, ordinance or ordinances, or law or laws, or lawful authority in any plantation, island, colony, or foreign possession of his Majesty, now have or may hereafter have, by virtue of any such public employment, or such office, station, or capacity, power or authority to commit persons to safe custody; and all such persons, having such power or authority as aforesaid, shall have and be entitled to all the privileges, benefits and advantages, given by the provisions of the said Act as 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 have been done in Vestminster, 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 notwithstanding. [ 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.] be laid in Westminster, &c. c. 141. against justices for any conviction, &c. the WH 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 '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, by and, with the advice and consent of the Lords Spiritual and Temporal, 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 conviction by him or them had or made, under or by virtue of Act any or Acts of Parliament in force in the said united kingdom, or for or by reason of any act, matter, or thing whatsoever, done or commanded to be done by such justice or justices, for the levying of any penalty, apprehending any party, or for or about the carrying of any such conviction into effect, in case such conviction shall have been quashed, (1) the plaintiff or plaintiffs in such action or actions, besides the value and amount of the penalty or penalties which may have been levied the 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. upon plaintiff (besides any penalty levied) shall recover only 2d. damages, unless malice and want of proba (2) See Burley v. Bethune, 1 Marshall, 220, the plaintiff must prove want of probable causa 198 43 Geo. III. c. 141. -II. And be it further enacted, That such plaintiff shall not be entitled to recover against such justice any penalty which shall have been levied, 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: shewing that he was innocent of the offence of which he is convicted is not sufficient.-But the statute does in no instance extend to protect justices of peace in the execution of their office against actions for acts of trespass or imprisonment, unless done on account of some conviction made by them of the plaintiffs in such actions, by virtue of any statute, &c. Massey v. Johnson, 12 East, 67-It extends, however, to protect magistrates against actions of trespass only in the case of a conviction quashed; giving to the party grieved a remedy by action on the case, Gray v. Cookson, 16 East, 13. PART IV. CLASS XXI. 6 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 tam 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. 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. Where a q. t. Action has been depending four years, an amendment will not be permitted though all is in paper; Goff v. Popplewell, 2 T. R. 707. In a popular action on two counts for two 57. penalties, the defendant had leave to pay 57. into Court generally; Stock v. Eagle, 2 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 judge, 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; 1 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, prosecuted 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 of collusion actions been very penal to all misdoers and offenders in such actions practised in sucondemned, 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 |