medy for the recovery of a penalty in any court of record generally, it fo far impliedly repeals 21 Jac. 1. However the offence must be laid within the proper county. This ftatute gives no new jurisdiction to the courts therein mentioned; therefore fuits for fuch 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 Carth. 465. by bill, plaint or information in any of the king's courts of record, and no mention made of the quarter feffions or affizes, the 21 Jac. 1. does not extend to it; for the act never meant to give a jurifdiction to the quarter feflions or affizes where they had none before. Therefore it was holden that an infor- Str. 1103. mation did not lie at the affizes for non refidence, the penalty (by 21 H. 8.) being recoverable by bill, plaint or informa. tion in the king's courts. 1.25 In the cafe of the K. v. Martel, M. 25 Car. 2. in an information on the 5 Eliz. it was holden, that it lay not originally in K.B. because the 21 Jac. 1. hath negative words, but that if it be begun originally below, the party may remove it by certiorari if he will, and give jurifdiction to that court, for it is a ftatute for the eafe of the fubject; but the king cannot remove it. No fuit by a party grieved is within the restraint of the fta- Show. 354 tute. By 18 Eliz. c. 5. No informer fhall compound or agree with any that hall offend against any penal flatute for an offence committed, but after anfwer made in court to the suit, nor after answer but by confent of the court. This extends only to common informers. It extends as well to fubfequent penal ftatutes, as to thofe Hut. 35. which were in being when it was made. By that ftatute the common informer muft fue in proper perfon, or by his attorney: therefore an infant cannot be a common informer, for he muft fue by guardian. A common informer cannot fue for a lefs penalty than the ftatute gives; if he do, though he have a verdict, judgment will be arrested. Ex. gr. If a common informer were to fue for the fingle value of money won at play, where 9 An. c. 14. gives the treble value. Maggs and Ellis, M. 25 Cunningham v. G. 1. C. B. Bennet, Tr. & A fervant, in the prefence, and by the command of his ma- Turner. La. fter, who is qualified, may kill game. Coning by, In In an action on a penal statute it was moved by the defendant, that the plaintiff should give fecurity to pay the cofts, upon affidavit that he was a poor man. But the court refused the motion, for the statute having given him power to fuc, 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 profecutor to give fecurity. The court will on motion give the defendant liberty to pay the penalty into court with cofts. Wherever the action is founded on a penal ftatute, pot guilty or nil debet are good pleas. If a defendant would plead a recovery in another action for the fame offence in bar, he must take care to fet out in his plea, that the plaintiff in the other action had priority of fuit; if he do not, his plea on demurrer will be bad, but the record of a recovery in another action, cannot be given in evidence on nil debet. For if it be pleaded, the plaintiff might reply nul tiel record, or that it was a recovery by fraud to defeat a real profecutor, which he cannot be prepared to fhew on the general iffue. The provifo in the Oxford act, 16 & 17 Car. 2. c. 8. that that act shall not extend to any action or information on any penal ftatute, must be understood of popular actions and informations, and not of remedies given by ftatute to the parties grieved. The act of 24 G. 2. c. 18. (reciting that by the 4 & 5 Ann. it was enacted, that every venire facias fhould be awarded out of the body of the county with a provifo, that it should not extend to any action or information upon any penal statute, and that the provifo had been found inconvenient) enacts, That every venire facias for the trial of any iffue in any action. or information upon any penal ftatutes, fhall be awarded of the body of the proper county where fuch iflue is triable. If the defendant plead a prior recovery, and the plaintiff reply per fraudem, and fuch recovery be found to be fraudulent, the defendant is liable to two years imprisonment by 4 H. 7. C. 20. PART PART IV. Containing ONE BOO K. Of Criminal Profecutions relative to Civil Rights. INTRODUCTION. HOUGH criminal profecutions (as fuch) are not within the compass of the prefent work, yet there being two in which civil rights come in question, I am neceffarily led to take notice of them. I fhall therefore in this book treat, I. Of the writ of Mandamus. 2. Of informations in nature of Quo Warranto: СНАР 11 Co. Bag's eafe. Wheeler and Trotter, E. 8 G. 2. 2 M. 316. Mich. 8 G. 3. Rex v. Dr. Rex. Churchwardens and Overseers of Clerkenwell, & G. 1. ΤΗ CHAPTER I. Of Writs of Mandamus. HE writ of mandamus is a prerogative writ iffuing out of the court of K. B (as that court has a general fuperintendency over all inferior jurifdictions and perfons) and is the proper remedy to enforce obedience to acts of parliament and to the king's charter, and in fuch cafe is demandable of right; but where the right is of a private nature, as to an office in which the public is not concerned, fuch as a deputy regifter, &c. it is difcretionary in the court to grant or to refuse it. Therefore in every application for a mandamus it muft appear what the office is; and for this reafon a mandamus to fwear one who was elected to be one of the eight men of Aburn court was denied, becaufe it did not appear what the office was. But the court will in no cafe grant a mandamus till there has been a default; and therefore in the cafe of the king against the borough of St. Ives, where a mandamus was granted to the churchwardens and overfeers of the poor, to make a poor's rate; the court would not grant a mandamus to the justices at the fame time, to allow it: For they would not prefume the juftices would not do their duty; though the same juftices had before refused to allow a rate, when a mandamus iffued for that purpofe, and had been taken up but the term before, upon an attachment for difobedience. A mandamus is never granted to compel a mere ministerial officer to do his duty, neither has it ever been granted to oblige a vifitor to exercife his jurifdi&tion. This writ lies as well to reftore one who has been unjustly removed, as to admit one who has a right; though perhaps there may be this difference between the two cafes; that where it is to fwear, or to admit, the court will, in cafe the right appear plain, grant the writ upon the firft motion: but where it' is to restore one who has been removed, they would first grant a rule to fhew caufe why fuch a writ fhould not iffue. And note; The rule to fhew caufe must be always on the fame perfons to whom the writ is to be directed; therefore a rule rule upon churchwardens and overfeers, to fhew cause why a mandamus fhould not iflue, directed to them and the twenty principal inhabitants of the parifh was holden to be bad; however, the court upon motion gave leave to amend the rule, faying it would be good on new service. Upon a motion for a mandamus to the warden of the vint- Mich. 25 G. z. ners company to fwear J. S. one of the court of affiftants, the affidavit being only that he was informed by fome of the court of affiftants that he was elected, and no positive affidavit of an election, the court would only grant a rule to fhew caufe, but faid, if there had been a pofitive affidavit of his election, they would have granted the writ in the first instance. N. B. In this cafe there was an affidavit that he applied to inspect the court books, in order to fee whether he were elected, and was refufed; without which the court would have hardly granted a rule. Note; Where there is a corporation by prefcription, the Ibid. conftitution of it (as well as the parties right) must be verified by affidavit. Where it is by charter, a copy of it must be produced at the time of making the motion. Rex v. Dr. Band, Tr. 1741. 24 G. 2. Where they grant a rule to fhew caufe, though upon fhewing cause it appear doubtful, whether the party have a right or not, yet the court will iflue the mandamus, in order that the right may be tried upon the return. It makes no difference by what mode the party becomes in- Rex v. Ld. titled to the franchife, whether by charter, prescription, or teMountague, nure; therefore where by the custom of the borough of Midburst, the jury at a court baron is to present the alienation of every burgage tenement, and upon fuch prefentment the steward is to admit the tenant, who then becomes intitled to the franchises of the borough: The jury at a court baron in 1749, having refused to prefent feveral conveyances of burgage tenements, the court granted a mandamus to the lord to hold a court, and to the burgeffes to attend at fuch court and to prefent the conveyances. And though one mandamus will not lie to restore several perfons, yet the court held it would lie in this cafe to the jury to do an act to perfect the rights of several. So where by the custom, the court leet was to present to the fteward the perfon whom the commonalty of the borough had chofen to be mayor, the court granted a mandamuş to the stew ard Cafe of the church, 12 G. 2. Bor' of Chrift |