Page images
PDF
EPUB
[ocr errors]

No. I. • said misdoers or offenders, in eschewing to leese the said penalties, will 4 Hen. VII. cause an action popular to be commenced against them by covin of c. 20. '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 ofiender, shall bar the plaintiff in the action sued in good faith ; • and by these subtil menn's of collusion and covin the said good Acts ' and statutes seidom 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, ipurdering, exactions taking; Recovery in an

quarreis maintaining, and the King's poor subjects by extortion, aud

many other uniawful means oppressing : Therefore the King our action popular Sovereign Lord, in reforming of the premises, by the advice and asby covin, or a

sent of the Lords Spiritual and Temporal, and at the request of the bar in the same, said Commons, in this said present' Parliament assembled, and by action sued with authority of the same hath ordained, established, and enacted, That if good faith. 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 aciion 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, that the said recovery in the said action popular was had by covin, or else to aver that the said plaintiff or plaintiff's 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 No release of as of every other that will sue in that behalf : And that ou release of any a common per- common person hereafter to be made to any such party, whether before son can dis- orafter any action popular, or indictment of the same bad or commenced, charge a popu- or made hanging the same action, be in any wise available or effectual lar action.

to let or surcease the said action, indictment, process or execution. No collusion a

Provided alway, That no plaintiff or plaintiffs be in any wise received to verrable where aver any covin in any action popular, where the point of the same action, the point of the or else the covin or collusion have been once tricd, or lawfully found action hath with the plaintiff or plaintiffs, or against theid, by trial of twelve men, been tried by and not otherwise. verdict. [ No. II. ] 18 Elizabeth, c. 5.-An Act to redress Dis

orders in coinmon Informers. 18 Elizabeth, FOR redressing of divers disorders in common informers, and for bet

ter execution of penal laws, Be it enacted, That every informer upon any penal statute shall exhibit his suit ip proper person, and pur

sue the same only by hinself 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

c. 5.

none shall be admitted or received to pursue against any person or per- No. II. sons upon any pena! statute, but by way of information or original ac. 18 Elizabeth, tion and not otherwise ; nor shall have ne use any deputy or deputies

C. 5. at all ; and that upon every such information which shall be exbibited, 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 The duty of same, without any manner of antedate thereof to be made, and that an informer in the same information be accounted and taken to be of record from that prosecuting a time forward and not before. And be it likewise enacted for the consi- suit upon a deration aforesaid, That no process be sued out upon any such informa- penal statute;

and his punishtion, until the information be exhibited in forin aforesaid ; and that

ment if he upon every such process shall be indorsed, as well the party's name that abuse it. pursueth the same process, as also the statute upon which the informa- A note of the tion in that behalf made is grounded : And that every clerk making out day, month process contrary to the tenor and provision of this Act, shall forfeit and and year of the lose forty shillings for every such offence; the one half to be to the exhibiting of Queen's Majesty, her heirs and successors, and the other half to the an information. party against whom any such defective process shall be awarded, to be Indorsement recovered in any court of record, by action of debt or information, in of the process which no essoin, protection, injunction, or wager of law shall be per- awarded upon mitted or allowed.

an information. II. And be it further enacted, That no jury shall be compelled to Where the trial appear in any of the Queen's Majesty's courls of Westminster, for the of an issue trial of any issue in any such suit upon any penal law, for any sueh shall be in a offence committed above thirty miles from the city of Westininsler, 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 sball be noted on the backside of the writ of distringas thereupon awarded, to the end the sheriff or bis 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 offeod, (1) against any penal statute, (2) with the de. for 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

court.

(1) The party paying money to compound but that was a case not within the statute, and may recover it back; Williams v. Hedley, 8 therefore the opinion merely a dictum. In East 378. As to suing in an inferior court, or Bradshaw v. Mottram, I Str. 167, leave was by bill in B. R. see authorities cited Com. Dig. given after verdict on affidavit of the poverty of Notes upon Statute E. 1. Sce also 2 Hawk. the defendant who was in execution. In 380. Leiglı v. Kent, 3T. R. 362. n.

Maughan v. Walker, 5 T. R. 98., after verdict (2) The enactment extends to offences creat- in usury under favourable circumstances. But ed by subsequent statutes ; semble Pie's case, it lies with the defendant to shew the circumHutton 35.

stances entitling him to such an indulgence; (3) This section does not apply to offences Crowder v. Wagstaff, 1 B. & P. 18. cognizable only before magistrates : and an in- In an action on the posthorse duties, the dictment for compounding such an offence was plaintiff was allowed to receive the deficient holden bad in arrest of judgment; Rex v. duties (being less than 40s.) and costs, although Crisp, 1 B. & A. 282.

amounting to more than the 40s. paid to the (4) The court of C. B. will not give leave Crown; North v. Smart, 1 B. & P.51. In an to compound, either before or after verdict, action on a statute giving no costs, the plainwhere part of the penalty goes to the King, un- tiff having agreed to stay proceedings, on pay. less the consent of the crown is previously sig- ment of a sum in equal moieties to the crown nified ; Howard v. Sowerby, 1 Taunt. 103; add and the plaintiff, and the entire costs to the a king's serjeant must be instructed to con- plaintiff; the Crown obtained a moiety of the sent, though there is an affidavit that the moi. costs also; Lee v. Cass, 2 Taunt. 213. On ety of the Crown has been paid ; Sheldon v. leave to compound, the King's half is paid to Mumford, 5 Taunt. 268. In Button v. Pierce, the Master of the Crown Office; Brown ». Barnes 462, it is said by the court, that after Bailey, 4 Bur. 1929. The leave to compound conviction leave is never given to compound : is in the discretion of the court, and was re

[ocr errors]

No. II. 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, 18 Elizabeth, shall

willingly delay his suit, or shall discontinue or be nonsuit in the c. 5.

same, or shall have the trial or matter past against him therein by ver

dict or judgment of law; That then in every such case the same inThe penalty of former or plaintiff shall yield, satisfy and pay unto the party defendant, an informer de- his costs, charges and damages, to be assigned by the court in which laying or dis- the same suit shall be attempted : For the recovery and execution continuing his whereof every such defendant shall immediately upon the same costs,

charges and damages assigned, have his capias ad satisfac. fieri fanonsuit, &c.

cias, 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. The punish

IV. And be it also enacted, That if any person or persons (except the ment of an in- clerks of the court only, for making out of process otherwise than is former misbe- above appointed) shall offend in suing out of process, making of comhaving himself position, or other misdemeanour, contrary to the true intent and meanin the prosecu- ing of this statute, or shall by colour or pretence of process, or withtion of his

out process, upon colour or pretence of any matter of offence against suit, &c.

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-tiine, 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 debtor information; in

which no essoin, protection, injunction or wager of law shall be perWhat justices mitted or allowed ; And that justices of oyer and terminer, justices of may hear and

assize in their circuits, and justices of peace in their quarter-sesdeterminethese sions, shall have full power and authority to hear and determine all offences.

offences to be committed or done contrary to the true intent and mean

ing of this present Act. Pursuing upon

V. Provided always, and nevertheless be it enacted, That it shall the statute and may be lawful to and for any person or persons grieved by means against mainte- of any manner of maintenance, champerty, buying of titles or imnance, cham- bracery, to pursue upon any the statutes provided and set forth against

maintenance, champerty, buying of titles, or inbracery, 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. Penalties given VI. Provided also, That this Act shall not extend to any suit already to persons cer- depending, nor shall restrain any certain person, body politic or corpo, tain, and not

rate, to whom or to whose use any forfeiture, penalty or suit is or shall generally.

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. Officers using

VII. And provided also, That neither this Act, nor any thing therein to exhibit in- contained, shall in any wise extend to any such officers of record, as formation. have in respect of their offices heretofore lawfully used to exhibit in

perty, &c.

fused in Howell v. Morris, in an action for sell- plications for leave to compound, see Tidd, c.22. ing gold of less fineness than required by stat. (1) See Rex v. Southerton, 6 East, 126. 18 Eliz. c. 15; Howell v. Morris, 1 Wils. 79; (2) By stat. 56 Geo. III. c. 138, the punishin an action on stat. 20 Geo. 2. c. 36, for keep- ment of the pillory is abolished in all cases exing a disorderly house, M. 38 Geo. 3. (Tidd's 'cept perjury, and fine and imprisonment suhPractice.) For the coursc of proceeding on ap- stituted. Sce the stat. post., Part V.

C. 5.

formations or sue upon penal laws, nor to any officers informing or pur- No. II. suing for matters only concerning his or their offices, but that they and 18 Elizabeth, 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 31 Elizabeth, tutes, notwithstanding any former statute that hath been heretofore Nonerestrained made against their disorders ;' For remedy whereof, Be it enacted by by order of the authority of this present Parliament, That all former statutes made any of the for reformation of disorders of such common informers, not repealed Queen's courts or altered by this Act, shall be put in due execution : And that no per- former. son, 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. II. And be it further enacted by the authority aforesaid, That in any

18 Eliz. c. 5. declaration or information at any time after twenty days after the In information end of this session of Parliament to be bad, brought, sued or exhibited, upon penal stathe offence against any penal statute shall pot be laid to be done in where the ofany other (1) county, but where the contract, or other matter alleged fence was done to be the offence, was in truth done: And that every defendant in must be exsuch action or information shall and lawfully may traverse and allege, pressed, &c. that the offence supposed by the same suits to be committed, was Many be disnot committed in the county where such offence is alleged ; which quieted bycombeing tried for the defendant, or if the plaintiff be thereupon non

mon informers. suit 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.

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- Oficers 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

this Act. 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.

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 El. c. .

1 El. c. 20. • the seas, and touching customs of sweet wines ; And one other Act

37 H. 8. c. 9. made in the said first year of her Majesty's reign, intituled, * An Act

13 El. c. 8. (1) There has been much difference of opi- upon a full discussion and examination of this nion as to this provision being in force; and in statute and 21 James c. 4, post. that the proviWynn v. Bellman, Mic. 55 Geo. III. 1 Marshall, sion is in force unrepealed by the later statute, 320, (in which the venue was charged upon the and extends to cases in which penal actions common affidavit) it seems to have been sup- are given by subsequent statutes; and see Roposed that the action might be laid in any binson v. Garthwaite, 9 East, 296. county; but in the following term it was held,

No. III. ' of a subsidy of tonnage and poundage, or any thing in any of them 31 Elizabeth, contained ; or for the concealing, or defrauding the Queen's Majesty,

her heirs and successors, of any customs, tonnage, poundage, subsidy, c, 5.

impost or prizage; or for any matter of corrupt usury; or for any 5 & 6 Ed. 6.

offence coinprised in any siatute made or to be made against eac. 14.

grossing, regrating or forestalling, where the penalty or forfeiture 21 Jac. 1. c.

shall appear to be to the value of twenty pounds or above; but 4. s. 2.

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. Within what V. And be it further enacted by the authority aforesaid, That all times suits up

actions, suits, bills, indictments or informations, which after twenty on penal sta- days next after the end of this session of Parliament shall be had, tutes shall be

brought, sued or exhibited, for any forfeiture upon any statute penal pursued.

made or lo 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 commitied 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 bad, brought, sued or commenced for any forfeiture upon any penal statute made or to be made, except the statute of tillage, the benefit and suit whereof is or shall be by the said statute limited to the Queen, ber 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 inay 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 bad, sued, exhibited, or brought for the Queen's Majesty, her heirs or successors, at any time withiu two years after that year ended. Aod 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 {imited, That then the same shall be void and of none effect; any act or statute made to the

contrary notwithstanding. Actions, in- VI. Provided always, That where any action, information, indictformations,&c. meot or other suit, is or shall be limited by any statute penal, to limited by some be had, syed, commenced or brought within shorter time than is afore statutes to be

rehearsed ; That in every such case, the action, information, indictsued within a

ment or other suit shall be brought within the time limited by such shorter time.

estatute, A repeal of the VII. And be it further enacted by the authority aforesaid, That one statute of 7 H. statute made in the seventh year of the reign of the late King of fa8. c. 3. touching mous memory, King Henry the Eighth, concerning the time of bringing informations, 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 nut 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 sufficient to shew, that a writ which will warthe first instance to the party grieved, and on rant the declaration was sued out in proper his default to a common informer for himself time, without shewing it to have been either and the poor of the parish ; Lookup v. Frede- served or returned; Parsons r. King, 7 T. R. rick, Bull. N. P. 195. Where the whole pe- 6. Where two or more writs have issued, it nalty is given to the informer, the case is not must appear that the writ on which the plainwithin the Act; Cuthford v. Blandford, Carth. tiff has declared, was a continuation of the 232 ; 1 Lord: Raym. 78 ; Chance v. Adams, 1 first, which can only be done by shewing that Lord Raym, 77.

the first writ was returned ; Harris v. Wool(2) The action must be shewn to be com-'ford, 6 T. R. 617. Lord Kenyon allowed the menced in proper time. The memorandum on plaintiff to produce the writ (the action not apthe record is prima facie evidence of the time pearing, by the memorandum on the record, of commencing the action, as well in the to be commenced in time) after the objection Common Pleas as the King's Bench; Wcbb v. had been taken; Maugham v, Walker, Pcake Pratchitt, 1 B. & P. 263, I will in general be N. P. C. 163,

« PreviousContinue »