In the construction of this act it has been holden, that it does not extend to any offence created since that statute, but that where a subse[*196] quent statute gives an action of debt or other remedy* for the recovery of a penalty in any court of record generally, it so far impliedly repeals 21 Jac. I. However, the offence must be laid within the proper county.-Hicks's Ca. H. 10 W. III. 1 Salk. 572. (a) This within a year before the suit commenced. This statute does not extend to offences since committed, 2 H. P. C. c. 26; and by s. 5. several statutes (now obsolete) are exempted from the operation of this act. Neither does this statute extend to subsequent penal laws; and as offences created by subsequent statutes are governed and remedied by the several directions therein respectively given, so it shall not be construed to affect an action founded on 12 Ann. st. 2. c. 16. against usury, therefore it is not necessary that there should be an affidavit that the offence was committed within a year before the action brought. French q. t. v. Coxon, Stra. 1081. Harris q. t. v. Reyney, there Reyney, there cited. R. v. Gaul, Salk. 372. Raym. 370. Messenger v. Robson, cited in Garland q.t.v. Burton, And. 292. Mr. Selwyn, however, (N. P.Abr. 562,(n.) mentions a prevalent opinion, that where a subsequent statute gives a popular action, the venue must be laid in the proper county, within the equity of 21 Jac. I. c. 4; and, he says, the only authority he is aware of for such a position is a dictum of Lord Holt in Hicks's Case, adopt ed in Bull. N. P. 196. Mr. S. has also, in the same note, given a more correct statement of French v. Coxon, than is reported by Strange. It is to be further observed, that where, by any act in force at the passing of the above statute, the informer might have sued by action, bill, plaint, &c. in the inferior courts, as well as in the courts above, he is now confined to sue in the former; but as the statute does not give any new jurisdiction to the inferior courts, the parties may still sue in the courts at Westminster, for all the penalties which could not before the passing of that act have been recovered in the inferior courts. R. v. Gaul, sup. Garland v. Burton, sup. therefore an informer may bring debt in the courts at Westminster, on the statute 1 Jac. I. c. 22. s. 14. for the penalties for selling goods not searched and scaled. Shipman q. t. v. Henbest, 4 T. Rep. 109. R. v. Ferris, 1 Williams' Saund. 312, c. n. (1) (a) When a matter in one county is depending upon the matter in another, then the plaintiff may choose in which county he will bring his action, unless the defendar.t, upon the general issue pleaded, should be prejudiced in his trial, which would not be in this case (on action for maliciously prosecuting to outlawry where plaintiff was dead) as if two conspire to indict a man in one county, and they, by their malicious prosecution, make the execution of their conspiracy in another county, and then cause the party to be iudicted, the plaintiff may bring his action of conspiracy in which county he will, for they put their conspiracy in one county in execution in the other, and the matter of record in the indictment is mixed with matter of fact. But if they conspire in one county, by force of which conspiracy (without any act done by them) he is indicted in another county, then the writ ought to be brought in the county where the conspiracy was, for the defendants have done nothing in the county where the indictment was laid, nor were parties or privies to the finding the indictment, but only by This statute gives no new jurisdiction to the courts therein mentioned; therefore suits for such offences, over which they have no jurisdiction before the statute, must be brought in the courts of Westminster. Where by the act creating the penalty, it is to be recovered by bill, plaint or information, in any of the king's courts of record, and no mention made of the quarter sessions or assizes, the 21 Jac. I. does not extend to it; for the act never meant to give a jurisdiction to the quarter sessions or assizes where they had none before. (R. v. Gallilee, M. 10 W. III. Carth. 465.) (a) Therefore it was holden that an information did not lie at the assizes for non-residence, the penalty (by 21 Hen. VIII.) being recoverable by bill, plaint, or information, in the king's courts.-Garland v. Burton, M. 12 Geo. II. Stra. 1103. In the case of K. v. Martel, M. 25 Car. II. in an information on the 5 Eliz. it was holden, that it lay not originally in K. B. because the 21 Jac. I. hath negative words, but that if it be begun originally below, the party may remove it by certiorari if he will, and give jurisdiction to that court, for it is a statute for the ease of the subject; but the king cannot remove it. No suit by a party grieved is within the restraint of the statute.Calliford v. Blawford, T. 4 W. III. 1 Show. 354. By 18 Eliz. c. 5. s. 3. No informer shall compound or agree with any that shall offend against any penal statute for an offence committed, but after answer made in court to the suit, nor after answer but by consent of the court. (b) by the conspiracy in the other county. Bulwer v. Smith, 7 Co. 57. In all cases where the action is founded upon two things done in several counties, and both are material or traversable, and the one without the other doth not maintain the action, then the plaintiff may bring his action in which court he will, as it is if a servant be retained in one County and departs to another. S. C. In an action upon a matter in several counties, if the issue be confined to a thing in one of the counties, it ought to be tried there; as in covenant upon a lease in the county of H. of a house in the county of B. Verdict in the county of H. If the breach be for not repairing, and issue upon it, it is bad after verdict, for the action should have been in the county of B. Gilbert v. Martin, 1 Lev. 114. So in debt, for an escape in one county, upon an arrest in another, if the issue be upon the arrest, it must be brought and tried in the county where the escape was. S. C. In an action for a penalty for killing game, if the defendant gives in evidence a deputation from the lord of the manor. he shall not be put to strict proof of the boundaries of the manor, but proof of the exercise of a right upon a particular spot is sufficient. Hawkins v. Bailey, 4 T. R. 681 (n.) Nor will the judge in such an action try the boundaries of a manor, although the action be brought by consent for that purpose. Blunt v. Grimes, 4 T. R. 682 (n.) But a deputation is no defence, if it appears that the person who gave it has no colourable claims to the manor. Calcraft v. Gibbs, 4 T. R. 682. (a) Shipman q. t. v. Henbest, 4 T. R. 116. S. P. (b) The release of a common person shall not discharge a popular action, vide stat. 4 Hen. VII. c. 20. [197] This extends only to common informers. (a) It extends as well to subsequent penal statutes, as to those which were in being when it was made.-Pie's Ca. Hut. 35. By s. 1. of that statute, the common informer must sue in proper person, or by his attorney: therefore an infant cannot be a common informer, for he must sue by guardian.-Maggs v. Ellis, M. 25 Geo. II. (b) A common informer cannot sue for a less penalty than the statute gives; if he do, though he have a verdict, judgment will be arrested. Ex. gr. If a common informer were to sue for the single value of money won at play, where 9 Ann. c. 14. gives treble value.—Cunningham v. Bennet, T. 1 Geo. I. C. B. A servant, in the presence, and by the command of his master, who is qualified, may kill game.-Turner v. Ld. Coningsby, M. 1724. (c) In an action on a penal statute it was moved by the defendant, that the plaintiff should give security to pay the costs, upon affidavit that he was a poor man. But the court refused the motion, for the statute having given him power to sue, it is a debt due to him; but if it appeared that the action was brought in a feigned name, they would oblige the real prosecutor to give security.-Shinler v. Roberts, E. 12 Geo. II. C. B. (d) The court will, on motion, give the defendant liberty to pay the penalty into court with costs.-Walker v. King, T. 31 Geo. II. (e) Wherever the action is founded on a penal statute, not guilty or nil debet are good pleas.-Bawtrey v. Isted, M. 13 Jac. I. Hob. 218.(ƒ) If a defendant would plead a recovery in another action for the same offence in bar, he must take care to set out in his plea, that the plaintiff in the other action had priority of suit; if he do not, his plea on demurrer will be bad, but the record of a recovery in another action (a) Vide Doghead's Case, infra. 2 Hawk. P. C. 279. (b) This statute was made perpetual by 27 Eliz. c. 10. (c) Quære tamen, if there be not some late cases (unreported) to the contrary. (d) In an information on the sta tute of 27 Eliz. c. 4. by the party grieved, who was nonsuited, it was held, that he should not be liable to costs and damages (under the statute of 18 Eliz.) for that statute is to redress disorders in common informers. Doghead's Case, 2 Leon. 116. And Per Hobart, C. J. in Pie's Case, sup. If the matter pass against the informer, whether by verdict or judgment, he is liable for the costs, for the makers of this statute intended to curb all vexatious informers. And if it should be suffered that informers may inform, (for instance) upon statutes not in force, and pay no costs, that would open a window to the great vexation of the subject. (e) Vide Tidd's Pract. 470. 500, for the mode of this application. (f) Vide etiam Coppin q. t. v. Carter, 1 T. R. 462. cannot cannot be given in evidence on nil debet. (Jackson v. Gisling, T. 31 Geo. II.) For if it be pleaded, the plaintiff might reply nul tiel record, or that it was a recovery by fraud to defeat a real prosecutor, which he cannot be prepared to shew on the general issue.-Bredon q. t. v. Harman, E. 1739. Stra. 701. (a) The proviso in the Oxford act, 16 & 17 Car. II. c. 8. that that act shall not extend to any action or information on any penal statute, must be understood of popular actions and informations, and not of remedies given by statute to the parties grieved.—Sewel v. Edmonton Hundred, E. 7 Geo. I. C. B. The act of 24 Geo. II. c. 18. (reciting that by the 4 & 5 Ann. it was enacted, that every venire facias should be awarded out of the body of the county, with a proviso, that it should not extend to any action or information upon any penal statute, and that the proviso had been found inconvenient) enacts, That every venire facias for the trial of any issue in any action or information upon any penal statutes, shall be awarded of the body of the proper county where such issue is triable.-French q. t. v. Wiltshire, H. 11 Geo. II. 2 Stra. 1085. If the defendant plead a prior recovery, and the plaintiff reply per fraudem, and such recovery be found to be fraudulent, the defendant is liable to two years imprisonment by 4 Hen. VII. c. 20. (b) (a) Where the defendant has compounded a former action against him for the same offence, he must plead the matter specially in bar to the second action, for the court will not stay proceeding thereon on motion and affidavits of the fact. Harrington q. t. v. Johnson, Cowp. 744. Several mutters cannot be pleaded to a penal action, for such a plea is expressly against the statute 4 Ann. c. 16. 8. 4. which enables defendants so to plead. Heyrick v. Foster, 4'T. R. 701. This proviso, however, so far as relates to the awarding the venire from the body of the county, has been repealed. Vide French q. t. v. Wiltshire, 2 Stra. 1085. (b) A new trial will be granted after a verdict for the defendant in a penal action, where there is a mistake, or any misdirection in the judge. Wilson v. Rastall, 4 T. R. 753; but where the case is properly left to the jury, though they should draw a wrong conclusion, the court is averse to disturb the verdict. Calcraft v. Gibbs, 5 T. R. 19. he As to the evidence in these actionswherever a penal statute creates a duty, debt lies to enforce it, and defendant may plead not guilty or nil debet. The plaintiff, however, must prove that the defendant committed the acts imputed to him by evidence of the whole affirmative matter in the declaration, but where the declaration negatives any fact which the defendant only can prove, must prove the affirmative, as in an action on the game laws, where the plaintiff need only prove the game killed, or attempted to be so, by a dog, &c. and defendant must shew his qualification. Peake's Evid. 272. But in Rex v. Stone, 1 East, 639, where a question arose whether the prosecutor must not give general negative evidence on an information before a magistrate, the court were equally divided; and even in actions where the negative matter is as ca pable pable of proof by the plaintiff, as in an action for sporting without a certificate, it should seem the plaintiff must prove a search at the proper office near the defendant's residence, and that no such certificate was entered there, for though by the general rule the affirmative need only be proved, yet where one man has transgressed the law, and the other party can prove the negative, the rule admits of an exception. Mr. Peake, however, says, that no such evidence had been required within his experience in actions for sporting without a certificate. Peake's Evid. 273. The defendant may also avail himself on the general issue of the suit not being commenced within two years, according to 31 Eliz. c. 5. s. 5. where the forfeiture goes wholly to the king, and within one year where to the king and the informer, if no other time of limitation is fixed by statute. Plaintiff, therefore, must always be prepared to shew the day the action commenced, in order to prove it was brought in due time. Maughan v. Walker, Peake's N. P. Ca. 163. Harris v. Woolford, 6 T. R. 617. After a plea of general issue pleaded, defendant's evidence can only be such as to contradict the plaintiffs, or to shew a reasonable excuse; there fore, in an action on the game laws, the court will not try the lord's right to the manor, and if the person who appointed defendant his gamekeeper had but a colourable title, that shall not charge him in such action. Calcraft v. Gibbs, 4 T. R. 681; but if he has no other ground of claim, the mere appointing defendant is no excuse. S. C. 5 T. R. 19. As to the proof of qualification by estate, if defendant prove he is possessed of the land, he shall be presumed the owner till plaintiff shew that he is only renter, or that it is reduced by incumbrances. Wetherall v. Hall, Cald. 230. And a claim by defendant of an allowance from the commissioners of income, because by incumbrances his estate is reduced below £100 per annum, is sufficient evidence of that fact. R. v. Clarke, 8 T. R. 220. Where defendant admits his guilt, but means to avail himself of a former conviction, he must plead it specially, and if the plaintiff reply nul tiel record, an issue at law is made, and defendant must prove his plea as in other cases of record. Bredon v. Harman, and Jackson v. Gisling, T. 15 Geo. II. but if per fraudem be replied, this will be tried by a jury, and the onus will lie on the plaintiff. Peake's Evid. 275. PART |