No. I. 4 Hen. VII. c. 20. Recovery in an action popular by covin, or a bar in the same, is no plea in an action suedwith good faith. 'said misdoers or offenders, in eschewing to leese the said penalties, will cause an action popular to be commenced against them by covin of the plaintiff upon that case wherein they have so offended; or else if any such action popular be commenced against any such said offender by good faith, then the same offender will delay the said action, either by non-appearance or by traverse, and, hanging the same action, the same offender will cause like action popular to be brought against him by covin, for the same cause and offence that the first action was sued, and then by covin of the plaintiff in that second action he will be condemned, either by confession, feigned trial, or release: which 'condemnation or release, so had by collusion and covin pleaded by the said offender, shall bar the plaintiff in the action sued in good faith; and by these subtil means of collusion and covin the said good Acts and statutes seldom been executed against such offenders which causeth them to be bolder to offend the King, as well in breaking of the said statutes, laws, and peace, as in robbing, murdering, exactions taking, quarrels maintaining, and the King's poor subjects by extortion, and many other unlawful means oppressing: Therefore the King our Sovereign Lord, in reforming of the premises, by the advice and assent of the Lords Spiritual and Temporal, and at the request of the said Commons, in this said present Parliament assembled, and by authority of the same hath ordained, established, and enacted, That if any person or persons hereafter sue with good faith any action popular, and the defendant or defendants in the same action plead any manner of recovery of action popular in bar of the said action, or else that the same defendant or defendants plead, that he or they before that time barred any such plaintiff or plaintiffs in any such action popular, that then the plaintiff or plaintiffs in the action taken with good faith may aver, tha the said recovery in the said action popular was had by covin, or else to aver that the said plaintiff or plaintiffs was or were barred in the said action popular by covin, that then, if afterward the said collusion or covin so averred be lawfully found, the plaintiff or plaintiffs in that action sued with good faith, shall have recovery according to the nature of the action, and execution upon the same in like wise and The punish- effect, as though no such action afore had been had. And moreover, ment of the de- that it is enacted and ordained by the authority aforesaid, That in every fendantattaint- such action popular, wherein the defendant or defendants shall be lawed of collusion. fully condemned or attainted of covin or collusion, as is aforesaid, that every of the same defendants have imprisonment of two years by process of capias and outlagary, to be sued within the year after such judgment had, or at any time after, till the said defendant or defendants shall be had and imprisoned, as is aforesaid, and that as well at the King's suit as of every other that will sue in that behalf: And that no release of any common person hereafter to be made to any such party, whether before or after any action popular, or indictment of the same had or commenced, or made hanging the same action, be in any wise available or effectual to let or surcease the said action, indictment, process or execution. Provided alway, That no plaintiff or plaintiffs be in any wise received to aver any covin in any action popular, where the point of the same action, or else the covin or collusion have been once tried, or lawfully found with the plaintiff or plaintiffs, or against them, by trial of twelve men, and not otherwise. No release of a common per son cán dis charge a popu lar action. No collusion a verrable where the point of the action hath been tried by verdict. c. 5. [No. II.] 18 Elizabeth, c. 5.-An Act to redress Disorders in common Informers. 18 Elizabeth, FOR redressing of divers disorders in common informers, and for better execution of penal laws, Be it enacted, That every informer upon any penal statute shall exhibit his suit in proper person, and pursue the same only by himself or by his attorney (1) in court; and that (1) The action therefore cannot be brought or next friend; Maggs v. Ellis, B. N. P. 196. by an infant, who can only sue by guardian No. II. c. 5. none shall be admitted or received to pursue against any person or persons upon any penal statute, but by way of information or original ac- 18Elizabeth, tion and not otherwise; nor shall have ne use any deputy or deputies at all; and that upon every such information which shall be exhibited, a special note be made of the very day, month and year of the exhibiting thereof into any office or to any officer which lawfully may receive the same, without any manner of antedate thereof to be made, and that the same information be accounted and taken to be of record from that time forward and not before. And be it likewise enacted for the consideration aforesaid, That no process be sued out upon any such informa tion, until the information be exhibited in form aforesaid; and that upon every such process shall be indorsed, as well the party's name that pursueth the same process, as also the statute upon which the information in that behalf made is grounded: And that every clerk making out process contrary to the tenor and provision of this Act, shall forfeit and lose forty shillings for every such offence; the one half to be to the Queen's Majesty, her heirs and successors, and the other half to the party against whom any such defective process shall be awarded, to be recovered in any court of record, by action of debt or information, in which no essoin, protection, injunction, or wager of law shall be permitted or allowed. The duty of of the process II. And be it further enacted, That no jury shall be compelled to appear in any of the Queen's Majesty's courts of Westminster, for the of an issue trial of any issue in any such suit upon any penal law, for any such shall be in a offence committed above thirty miles from the city of Westminster, suit upon a except in case where the Attorney-general for the time being, for some penal statute. reasonable cause in that behalf to be shewed, shall require the same to be tried at the bar, in any of the courts of the Queen's Majesty, her heirs or successors, at Westminster aforesaid; which request shall be noted on the backside of the writ of distringas thereupon awarded, to the end the sheriff or his bailiff may and shall signify the same to the jury that are in such case impanelled. III. And be it further enacted, That no such informer or plaintiff No informer shall or may compound or agree with any person or persons that shall shallcompound offend, or shall be surmised to offend, (1) against any penal statute, (2) with the defor such offence committed, or pretended to be committed, but after fendant but by answer made in court (3) unto the information or suit in that behalf consent of the exhibited or prosecuted; nor after answer, but by the order or consent of the court (4) in which the same information or suit shall be depend (1) The party paying money to compound may recover it back; Williams v. Hedley, 8 East 378. As to suing in an inferior court, or by bill in B. R. see authorities cited Com. Dig. Notes upon Statute E. 1. See also 2 Hawk. 380. Leigh v. Kent, 3T. R. 362. n. (2) The enactment extends to offences created by subsequent statutes; semble Pie's case, Hutton 35. (3) This section does not apply to offences cognizable only before magistrates: and an indictment for compounding such an offence was holden bad in arrest of judgment; Rex v. Crisp, 1 B. & A. 282. (4) The court of C. B. will not give leave to compound, either before or after verdict, where part of the penalty goes to the King, unless the consent of the crown is previously signified; Howard v. Sowerby, 1 Taunt. 103; and a king's serjeant must be instructed to consent, though there is an affidavit that the moiety of the Crown has been paid; Sheldon v. Mumford, 5 Taunt. 268. In Button v. Pierce, Barnes 462, it is said by the court, that after conviction leave is never given to compound court. In but that was a case not within the statute, and therefore the opinion merely a dictum. In Bradshaw v. Mottram, 1 Str. 167, leave was given after verdict on affidavit of the poverty of the defendant who was in execution. Maughan v. Walker, 5 T. R. 98., after verdict in usury under favourable circumstances. But it lies with the defendant to shew the circumstances entitling him to such an indulgence; Crowder v. Wagstaff, 1 B. & P. 18. In an action on the posthorse duties, the plaintiff was allowed to receive the deficient duties (being less than 40s.) and costs, although amounting to more than the 40s. paid to the Crown; North v. Smart, 1 B. & P. 51. In an action on a statute giving no costs, the plaintiff having agreed to stay proceedings, on pay. ment of a sum in equal moieties to the crown and the plaintiff, and the entire costs to the plaintiff; the Crown obtained a moiety of the costs also; Lee v. Cass, 2 Taunt. 213. On leave to compound, the King's half is paid to the Master of the Crown Office; Brown v. Bailey, 4 Bur. 1929. The leave to compound is in the discretion of the court, and was re ing; upon the pains and penalties hereafter in this present Act set down and declared. And that if any such informer or plaintiff as aforesaid, shall willingly delay his suit, or shall discontinue or be nonsuit in the same, or shall have the trial or matter past against him therein by verdict or judgment of law; That then in every such case the same informer or plaintiff shall yield, satisfy and pay unto the party defendant, his costs, charges and damages, to be assigned by the court in which the same suit shall be attempted: For the recovery and execution whereof every such defendant shall immediately upon the same costs, charges and damages assigned, have his capias ad satisfac. fieri facias, or elegit, to be awarded unto him out of the same court in which the same shall be so assigned as is aforesaid, as in other cases of execution. IV. And be it also enacted, That if any person or persons (except the clerks of the court only, for making out of process otherwise than is above appointed) shall offend in suing out of process, making of composition, or other misdemeanour, contrary to the true intent and meaning of this statute, or shall by colour or pretence of process, or without process, upon colour or pretence of any matter of offence against any penal law (1) make any composition, or take any money, reward or promise of reward for himself, or to the use of any other, without order or consent of some of her Majesty's courts at Westminster ; that then he or they so offending, being thereof lawfully convicted, shall stand on the pillory (2) in some market-town next adjoining where the same offence shall be committed, in the open market-time, and there remain by the space of two hours; and shall from and after such conviction for ever be disabled to pursue, or be plaintiff or informer in, any suit or information upon any statute popular or penal; and shall also for every such offence forfeit and lose ten pounds of lawful English money, the one half thereof to the Queen's Majesty, her heirs and successors, and the other half to the party grieved thereby, to he recovered in any court of record, by action of debt or information; in which no essoin, protection, injunction or wager of law shall be permitted or allowed; And that justices of oyer and terminer, justices of assize in their circuits, and justices of peace in their quarter-sessions, shall have full power and authority to hear and determine all offences to be committed or done contrary to the true intent and meaning of this present Act. V. Provided always, and nevertheless be it enacted, That it shall and may be lawful to and for any person or persons grieved by means of any manner of maintenance, champerty, buying of titles or imbracery, to pursue upon any the statutes provided and set forth against maintenance, champerty, buying of titles, or imbracery, as he or they might have done before the making of this Act; any thing in this Act contained to the contrary in any wise notwithstanding. VI. Provided also, That this Act shall not extend to any suit already depending, nor shall restrain any certain person, body politic or corporate, to whom or to whose use any forfeiture, penalty or suit is or shall be specially limited or granted by virtue of any statute, and not generally to any person that will sue, but that every such certain person, body politic or corporate, which might sue or inform, as if this Act were not made, may in such case sue, inform and pursue, as he or they might have done if this Act were never had nor made. VII. And provided also, That neither this Act, nor any thing therein contained, shall in any wise extend to any such officers of record, as have in respect of their offices heretofore lawfully used to exhibit in fused in Howell v. Morris, in an action for selling gold of less fineness than required by stat. 18 Eliz. c. 15; Howell v. Morris, 1 Wils. 79; in an action on stat. 20 Geo. 2. c. 36, for keeping a disorderly house, M. 38 Geo. 3. (Tidd's Practice.) For the course of proceeding on ap plications for leave to compound, see Tidd, c. 22. (1) See Rex v. Southerton, 6 East, 126. (2) By stat. 56 Geo. III. c. 138, the punishment of the pillory is abolished in all cases except perjury, and fine and imprisonment substituted. See the stat. post., Part V. formations or sue upon penal laws, nor to any officers informing or pursuing for matters only concerning his or their offices, but that they and every of them may inform and pursue in that behalf, as they might have done before the making of this Act; any thing in this Act contained to the contrary in any wise notwithstanding. VIII. This Act to take force and effect from the feast of Easter next coming, and from thenceforth to endure unto the end of the first session of the next Parliament. [Made perpetual by 27 Eliz. c. 10. 31 Eliz. c. 5.] [No. III.] 31 Elizabeth, c. 5.-An Act concerning In formers. FOR that divers of the Queen's Majesty's subjects be daily unjustly vexed and disquieted by divers common informers upon penal sta'tutes, notwithstanding any former statute that hath been heretofore "made against their disorders;' For remedy whereof, Be it enacted by the authority of this present Parliament, That all former statutes made for reformation of disorders of such common informers, not repealed or altered by this Act, shall be put in due execution: And that no person, other than the party grieved, after twenty days after the end of this session of parliament, shall be received to inform or sue upon any penal statute, that before that time hath been for any misdemeanor, by any order of any of the Queen's Majesty's courts, ordered not to follow or pursue any suit upon any penal statute. No. II. 18Elizabeth, c. 5. 31 Elizabeth, Nonerestrained may be an in 18 Eliz. c. 5. In information upon penal statutesthe county where the of fence was done must be expressed, &c. Many be disquieted bycom II. And be it further enacted by the authority aforesaid, That in any declaration or information at any time after twenty days after the end of this session of Parliament to be had, brought, sued or exhibited, the offence against any penal statute shall not be laid to be done in any other (1) county, but where the contract, or other matter alleged to be the offence, was in truth done: And that every defendant in such action or information shall and lawfully may traverse and allege, that the offence supposed by the same suits to be committed, was not committed in the county where such offence is alleged; which being tried for the defendant, or if the plaintiff be thereupon nonsuit in his information or suit, that then the plaintiff shall be bar- Informers rered in that action or information; any law or use to the contrary strained to sue notwithstanding. mon informers. by order of some court. The county shall be expressed where the offence was done. III. Provided always, That this Act, nor any thing herein con- Officers of retained, shall in any wise extend to any such officers of record, as have cord shall not in respect of their offices heretofore lawfully used to exhibit informa- be bound by tions, or sue upon penal laws; but that they and every of them may inform and pursue in that behalf, as they might have done before the making of this Act; any thing in this Act to the contrary in any wise notwithstanding. this Act. IV. And provided also, That this Act, nor any thing herein contained, Certainoffences shall extend to the laying or alleging of any offence in any declaration whereof inor information, for or concerning any champerty, buying of titles or ex- formation may tortion, or any offence committed or to be committed against the statute be given in ary made in the first year of the Queen's Majesty's reign, intituled, An county. Act limiting the times for laying on land merchandize from beyond 1 the seas, and touching customs of sweet wines' And one other Act made in the said first year of her Majesty's reign, intituled, An Act (1) There has been much difference of opinion as to this provision being in force; and in Wynn v. Bellman, Mic. 55 Geo. III. 1 Marshall, 320, (in which the venue was charged upon the common affidavit) it seems to have been supposed that the action might be laid in any county; but in the following term it was held, El. c. 11. 378. 9. 13 El. c. 8. 1 El. c. 20. upon a full discussion and examination of this statute and 21 James c. 4, post. that the provision is in force unrepealed by the later statute, and extends to cases in which penal actions are given by subsequent statutes; and see Robinson v. Garthwaite, 9 East, 296. No. III. 31 Elizabeth, c. 5. 5 & 6 Ed. 6. c. 14. 21 Jac. 1. c. 4. s. 2. Within what times suits upon penal statutes shall be pursued. Actions, informations, &c. limited by some statutes to be sued within a shorter time. A repeal of the statute of 7 H. 8. c. 3. touching informations. of a subsidy of tonnage and poundage,' or any thing in any of them contained, or for the concealing, or defrauding the Queen's Majesty, her heirs and successors, of any customs, tonnage, poundage, subsidy, impost or prizage; or for any matter of corrupt usury; or for any offence comprised in any statute made or to be made against engrossing, regrating or forestalling, where the penalty or forfeiture shall appear to be to the value of twenty pounds or above; but that every such offence shall or may be laid in any county at the pleasure of any such informer; any thing in this Act to the contrary notwithstanding. V. And be it further enacted by the authority aforesaid, That all actions, suits, bills, indictments or informations, which after twenty days next after the end of this session of Parliament shall be had, brought, sued or exhibited, for any forfeiture upon any statute penal made or to be made, whereby the forfeiture is or shall be limited to the Queen, her heirs or successors only, shall be had, brought, sued or exhibited within two years next after the offence committed or to be committed against such Act penal, and not after two years; and that all actions, suits, bills or informations which after the said twenty days shall be had, brought, sued or commenced for any forfeiture upon any penal statute made or to be made, except the statute of tillage, the be nefit and suit whereof is or shall be by the said statute limited to the Queen, her heirs or successors, and to any other which shall prosecute in that behalf, (1) shall be had, brought, sued or commenced by any person that may lawfully pursue for the same as aforesaid, within one year next after the offence (2) committed, or to be committed against the said statute; and in default of such pursuit, that then the same shall be had, sued, exhibited, ar brought for the Queen's Majesty, her heirs or successors, at any time within two years after that year ended. And if any action, bill, suit, indictment or information for any offence against any penal statute made or to be made, except the statute of tillage, shall be brought after the time in that behalf before limited, That then the same shall be void and of none effect; any act or statute made to the contrary notwithstanding. VI. Provided always, That where any action, information, indict ment or other suit, is or shall be limited by any statute penal, to be had, sued, commenced or brought within shorter time than is afore rehearsed; That in every such case, the action, information, indict ment or other suit shall be brought within the time limited by such estatute. VII. And be it further enacted by the authority aforesaid, That one statute made in the seventh year of the reign of the late King of famous memory, King Henry the Eighth, concerning the time of bringing actions or informations upon penal laws, shall from and after twenty days after the end of this session of Parliament be utterly repealed; and that all suits from and after the said twenty days to be pursued upon any statute, for using any unlawful game, or for not using of any lawful game, or for not having bows and arrows according to the law, (1) The Act extends to an action given in the first instance to the party grieved, and on his default to a common informer for himself and the poor of the parish; Lookup v. Frederick, Bull. N. P. 195. Where the whole penalty is given to the informer, the case is not within the Act; Cuthford v. Blandford, Carth. 232; 1 Lord: Raym. 78; Chance v. Adams, 1 Lord Raym, 77. (2) The action must be shewn to be commenced in proper time. The memorandum on the record is prima facie evidence of the time of commencing the action, as well in the Common Pleas as the King's Bench; Wcbb v. Pratchitt, 1 B. & P. 263. It will in general be sufficient to shew, that a writ which will warrant the declaration was sued out in proper time, without shewing it to have been either served or returned; Parsons v. King, 7 T. R. 6. Where two or more writs have issued, it must appear that the writ on which the plaintiff has declared, was a continuation of the first, which can only be done by shewing that the first writ was returned; Harris v. Woolford, 6 T. R. 617. Lord Kenyon allowed the plaintiff to produce the writ (the action not appearing, by the memorandum on the record, to be commenced in time) after the objection had been taken; Maugham v. Walker, Peake N. P. C. 163, |