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PART VI.

CHAPTER I.

PENAL ACTIONS (31 ELIZ. c. 5, s. 5; 3 & 4 wM. IV.

c. 42, s. 3).

THE earliest statute now in force limiting the time for PART VI. bringing penal actions is 31 Eliz. c. 5, the 5th section of which is as follows:

5, s. 5.

"All actions, suits, bills, indictments, or informations 31 Eliz. c. which, after twenty days 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 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 benefit 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, 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 committed, or to be committed against the said statute; and in default of such pursuit,

PART VI. then the same shall be had, sued, exhibited, or brought for the Queen's Majesty, her heirs, or successors, at any time within two years after that year ended. And if any action, suit, bill, 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, then the same shall be void and of no effect, any Act or statute made to the contrary notwithstanding."

3 & 4 Wm. IV. c. 42,

s 3.

"Provided always, that where any action, information indictment, 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, indictment, or other suit shall be brought within the time limited by such statute."

It was held that this statute did not apply to an action brought by the party grieved, but that he was at liberty to sue as before (1). This case is now provided for by the 3rd section of 3 & 4 Wm. IV. c. 42, which amongst other things enacts as follows:—

"All actions for penalties, damages, or sums of money given to the party grieved by any statute now or hereafter to be in force shall be commenced and sued. . . . within two years after the cause of such actions or suits, but not after; provided that nothing herein contained shall extend to any action given by any statute where the time for bringing such action is or shall be by any statute specially limited."

A similar provision with regard to Ireland is enacted by the 16 & 17 Vict. c. 113, s. 20.

The effect of these statutes is that an action for penalties, where the whole penalty is given to the Crown, must be brought within two years; where the penalty goes partly to the Crown and partly to the informer, the action must be brought within one year by an informer, or

(1) Noy's Rep. 71.

within two years after the end of that year by the Crown; PART VI. where the action is brought by the party grieved, it must be commenced within two years, subject in this case to the exceptions in favour of disabilities provided by the 4th section of 3 & 4 Wm. IV. c. 42, as amended by the Mercantile Law Amendment Act (1).

It seems doubtful whether an action brought by an informer, where no part of the benefit goes to the Crown, is left unaffected by any Statute of Limitations, or is governed by the Act 31 Eliz. c. 5, s. 5.

The words of the earlier part of the 5th section of the Act of Elizabeth seem clearly to speak only of two cases: 1st, where the whole penalty goes to the Crown; 2nd, where it goes to the Crown and the informer jointly; and the words of the latter part of the section, declaring that any action shall be void which is brought after the time before limited in that behalf, would, according to the ordinary rules of construction, be held to refer only to such actions as had been previously limited. And the earliest authority (2) is in favour of this view: but, after some conflict between the cases (3), it was decided by the Court of Exchequer (4) that the statute of Elizabeth limits actions by an informer, when no part of the benefit goes to the Crown, as well as those in which the Crown has an interest.

The Irish statute 2 Geo. I. c. 20, ss. 3 and 4, contains Irish Acts. provisions exactly similar to the English Act of Elizabeth. There is also an earlier Irish Act (5) which provides slightly different times of limitation for the same actions

(1) 19 & 20 Vict. c. 97, s. 10.

Culliford v. Blandford, Carth. 232; Comb. 195; Holt, 522; 4 Mod. 129; S. C. sub. nom. Calliford v. Blawford, 1 Shower, 353. (3) Culliford v. Blandford, ubi supra; Lookup v. Frederick, 4 Burr. 2018; Buller's N. P. 195; Chance v. Adams, 1 Lord Raymond, 77; R. v. Gall, 3 Salk. 200.

(4) Dyer v. Best, L. R. 1 Exch. 152; 35 L. J. Exch. 105. See Lewis v. Davis, L. R. 10 Exch. 86. But see per Bramwell, L.J. Robinson v. Currey, 7 Q. B. D. at p. 471.

(5) 28 Hen. VIII. c. 21, Ir.

PART VI. as 2 Geo. I. c. 20, and also imposes a limitation of one

Information.

year where the informer sues only for himself. It has been held that the statute 28 Hen. VIII. c. 21, Ir., applies where the penalty is to be divided between the informer and a House of Correction (1). That case was referred to and approved of by Pollock, C.B. in the case of Dyer v. Best (2).

An action by an officer of the Goldsmiths' Company, empowered by 7 & 8 Vict. c. 22, s. 3 to sue dealers who have in their possession wares with forged marks, is not an action by a common informer within 31 Eliz. c. 5, or by a party grieved within 3 & 4 Wm. IV. c. 42, s. 3, and can be brought more than two years after the accrual of the cause of action (3).

It has been decided under the statute of Elizabeth that if an act for which a penalty is imposed by statute be also an offence at common law, the prosecution for such an act as an offence at common law is not restrained by the statute of Elizabeth (4). It was also held under the old practice that in an action of debt for a penalty the defendant need not plead the statute, but might take advantage of it under the plea of nil debet (4), but now it would seem that in such a case the defendant is bound to plead the statute, except where a plea of the general issue by statute is admissible (5).

In the case of an information under the old method of process to recover penalties in the Exchequer for offences against the revenue laws, it was held that the issuing of process was the commencement of the proceeding; and it was up to the time of issuing process, and not to the date of the filing of the information, that the period of two years limited by the statute of Elizabeth was to be

(1) Barrett v. Johnson, 2 Jones Exch. R. Ir. 197.

(2) L. R. 1 Exch. 152.

(3) Robinson v. Currey, 7 Q. B. D. 465.

(4) See Bull. N. P. p. 195.

(5) See R. S. C. 1883, O. XIX. rr. 12 & 15; R. S. C. Ir. 1891, O. XIX. rr. 13 & 16. And see post, Part VIII. Ch. I. p. 542.

reckoned (1). But now the writ of subpoena to compel an PART VI. appearance in such cases is abolished, and the proceedings are commenced by the filing of the information; it is, therefore, at the date of this step that the statute now ceases to run (2).

(1) Att.-Gen. v. Hall, 11 Price, 760.

(2) 28 & 29 Vict. c. 104, ss. 6, 8, 10.

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