Maxims and rules of pleading, in actions real, personal and mixt, popular and penal describing the nature of declarations, pleas, replications, rejoynders, and all other parts of pleading, shewing their validity and defects, and in what cases they are amendable by the court, or remediable by the statute-law, or otherwise : likewise, which of the parties in his plea shall first offer the issue, and where special matter may be given in evidence upon the general issue : of demurrers upon evidence, of verdicts, general and special, and of bills of exceptions to the same, of judgments, executions, writs of error and false judgment, and of appeals, indictments, and informations and the pleadings relating thereunto / published from the manuscript of Sir Robert Heath ... ; with additions of new matter to every title, from all the reports since his time.

CHAP. XIV. Of Appeals, Indictments, and Informa∣tions.

APPEAL, according to Co.* 1.1 on Little∣ton, Lib. 2. cap. 11. comes, from the Latin word Appello, to Call; quia Appellans vocat Reum in Iudicium, and is used in our Law, for the private Accusation of a Mur∣derer, by a Person who had Interest in the Party murdered.

It is as much as Accusatio with the Civi∣lians; for, as in their Law, Cognizance of Criminal Causes, is taken either upon Inquisition, Denunciation, or Accusation, so it is in ours upon Indictment or Appeal. In∣dictment comprehending both Inquisition and Denunciation. Accusation, or Appeal, being a lawful Declaration of another man's Crime (of Felony at least; for tho' there be an Appeal of Mayhem, yet that, according to Bracton, is but in a manner an Action of Trespass) before a Competent Iudge, by one who sets his Name to the Declaration, and undertakes to prove it, upon the Penalty that may ensue of the contrary.

Appeal, by others, is defined to be, The violent pursuing of a Subject unto Death; and is the most nice kind of Suit that is com∣menced at the Common Law, for every small matter will quash the same, if it be

not freshly pursued; and shall in divers re∣spects be taken strictly in favorem vitae.

And Note, That the Process in every Ap∣peal, is to bear Date the same day of the Retorn, and if not, it will be a Dis∣continuance of the Process.

Note also, That the Omission of any word, which is material, in the Writ of Appeal, will abate the same.

And it is to be Observed, That the Process in an Appeal, doth vary from all other Pro∣ceedings at the Common Law; for there shall be no Amendment of a Writ of Appeal, nor is the Discontinuance of it helped by any Statute.

Then,* 1.2 Where an Appeal of Murder will not lie for the Heir.

For which see Mich. 33 H. 8. Dyer 50.

The Statute of 31 H. 8. made it Treason for a Woman to Poison her Husband. A Woman Poisoned her Husband: Afterwards the Statute of 32 H. 8. Of General Pardon, pardoned the Offence; the Heir brought an Appeal of Murder: And it was the Opinion of all the Justices, that now an Appeal of Murder did lye for the Heir; for that now Murder was turned into Treason, and the greater Offence shall extinguish the lesser.

And see Co. Lib. 6. fo. 13. in the Case of Pardons acc. and 7 Eliz. Dyer 235. where Petty Treason is pardoned by a General Pardon, there one who killed his Master

was Indicted of Murder, and holden, the Indictment did not lye against him; but being found Guilty, was Reprieved.

And see Mich. 33 H. 8. Dyer 51. and 33 E∣liz. Co. Lib. 4. 45. where an Appeal of Mur∣der was brought against W. to Answer to A. B. alias dict' A. B. Fratri & haered' of the Person murthered; but because the Plain∣tiff in the Appeal was named Brother and Heir in the Alias dictus, which is no part of the Name, the Appeal did Abate, and the Defendant discharged by the Court.

And see 5 Ed. 6. Dyer 69. where there were three Brothers, and the Middle Brother is killed, and the Eldest Brother dies within the Year, without bringing any Appeal, and the Question was, If the Younger Brother might maintain an Appeal? It was not Resolved, but left a Quaere.

See 11 Ed. 4. 11. Stamf. 59. 20 H. 6. 43. by Fortescue, that he shall not; but 16 H. 7. 15. contra.

Then,* 1.3 How Appeals shall be brought by In∣fants.

First, See Pasch. 17 Ed. 4. Pl. 4. and More, Case 646. where an Appeal was brought by an Infant, and the Defendant prayed to be dismissed, because the Plaintiff was an In∣fant.

Per Cur', If the Defendant be guilty, he shall stay in Ward till the Infant comes of Age.

But by 27 H. 8. 1. b. the Plaintiff now shall appear by Guardian.

By Co. 2 Inst. 5. If an Infant bring an Ap∣peal of the Death of his Ancestor, the Parol shall not demur for want of Battail, but the Infant shall be outed of it, as if the Appellor were Old, or Maimed.

But Mirror of Iustices 127. contra, the Parol shall demur.

And see 2 Ed. 4. 19. b. and 20. a. acc. and 11 H. 4. 93. a.

And Pasch. 27 H. 8. 25. an Infant brought an Appeal of Murder in the time of H. 8. and prayed, that the Parol might demur; and Resolved it should not.

By 35 H. 6. 10. If an Infant be found guilty of Felony, 'tis in the discretion of the Court to give Judgment or not, as they find the Infant hath Discretion, or Malicious In∣tent.

By Owen 59, 63.* 1.4 and Popham 115. in an Appeal of Murder, after Pleading to the Writ, the Defendant must Plead over to the Felony, else it is a Confession of it, for there his Life is in question.

And see 3 Cro. 223, 224. where in an Ap∣peal of the Death of an Husband, the De∣fendant pleads—Ne unques accouple, &c. and quoad, &c. Not Guilty. The Plaintiff Re∣plies, —fueront accouple, but pleads nothing to the rest; yet it seems the Plea is not Dis∣continued, because the first Plea is not Tri∣able at Common Law, so answers not the Plea over.

See 1 Cro. 247. Southby and Price's Case, An Appeal of Murder was brought in A. being the next County to B. where the Murder was done, the Writ shall abate: For by 26 H. 8. cap. 6. Indictments may be in Counties next adjoyning; but not Ap∣peals.

By Yelverton 204. Bradley and Bank's Case, and 2 Cro. 283. Discontinuance of Process in an Appeal is not aided by Appearance after∣wards.

And by Yelverton, ibid. Conviction with Clergy is a good Bar in Appeal.

And Idem 205. Non Culpabilis ad Murdrum & Feloniam praedict', is a good Bar in an Ap∣peal of Manslaughter.

See Dyer 348, 349. where A. Appeals one as Accessary to B. C. of D. in the County of E. who pleads Nulla talis persona in rerum natura, as B. C. die impetrationis brevis, nec unquam postea: 'Tis good tho' there be one named B. C. in another County.

And so it is, if he were dead the Day of the Writ brought.

But 26 H. 6. 8. A. brings an Appeal, and the Defendant pleads, Nulla talis persona in rerum Natura die impetrationis brevis. It seems not to be a good Plea, for he should have pleaded, Quod Quer' obiit ante diem impetra∣tionis brevis; or, Nulla talis persona unquam fuit in rerum Natura.

By Keilway 106, 107. the Court will not suffer the Defendant to plead Variance be∣tween the Appeal and the Indictment, and to Conclude to the Felony.

Vide eundem ibid. What Pleas are Peremp∣tory in Appeals.

By Co. Lib. 3. fo. 30. If a Stroke be struck in one County, and the Party die in another County, an Appeal of Murther may be brought in either of the Counties, although nothing be done in that County where he died, towards his Death.

By Co. Lib. 4. fo. 47. one Appeal of Murder must be brought against all the Parties, Principals and Accessories, and not several Appeals; and the Declaration must be a∣gainst them all; for the Wife brought an Appeal of Murder of her Husband against divers, and afterwards brought another Appeal against others.

Resolved by the whole Court,

That all the said Appeals, but the first, should abate.

That she ought to have one Appeal a∣gainst them all.

That she cannot have two Appeals of Death, but ought to joyn all in one Writ.

That if one brings an Appeal of Death against divers, and all but one makes Default; yet the Plaintiff must declare against them all.

But by Keilway 83. In Murder an Appeal shall be first brought against the Principal, and after that, another against the Abet∣tor.

So per eundem ibid. an Appeal of Robbery shall be first brought against the Principal, and then against the Accessory.

An Accessory shall be discharged, where the Principal before Judgment obtains his Pardon; as appears by Co. Lib. 4. fo▪ 43. where the Brother and Heir brought an Appeal of Murder against A. B. as Principal, and C. D. as Accessory of the Death of his his Brother.

The Principal pleaded, Not Guilty; but was found Guilty of Manslaughter, and had his Clergy.

It was Resolved in this Case,

• 1. That the Accessory was discharged, because he could not be guilty before the Fact, in case of Manslaughter.
• 2. Although the Principal was Convicted, yet, forasmuch as he had his Clergy before Judgment, the Accessory shall be discharged.

So, where the Principal upon his Arraign∣ment confesseth the Felony, and before Judgment obtains his Pardon, the Accessory is thereby discharged.

Vide Cro. Car. 382, 383. where an Appeal was brought against two, one for Petty-Treason, the other for Felony: The Defen∣dants pleaded Not Guilty the same Term in which the Appeal was Arraigned, and there∣fore there was no other Declaration filed: But if they had pleaded a Plea which was adjorned to another Term, or had not pleaded

that Term, then it ought to have been filed.

And it was then agreed by the Court,

That the Plaintiff might take out one or several Writs of Venire facias, for doubt of Challenge.

And see Co. Lib. 4. fo. 45. That Auterfoits Indicted of Manslaughter, and thereof Con∣victed, and Clergy allowed, was a good Bar in Appeal of Murder.

But contra, if the Indictment be insuffici∣ent.

And see 6 Ed. 6. Dyer 88. where an Appeal is brought by a Woman, of the Death of her Husband: To which the Defendant pleaded Not Guilty, and afterwards the Plaintiff took another Husband; and it was Adjudg∣ed, that the Appeal was determined by her Intermarriage.

See 3 H. 7. 5. where in an Appeal of Death one Challenged above 35, and had Judg∣ment of Pein fort & dure, that is, was Prest to Death.

So 21 Ed. 3. 18. Bro. Tit. Corone, Pl. 43. fo. 181. where one against whom an Appeal of Robbery was brought, did stand Mute out of Malice; and it was found by the Jury that he could Speak; whereupon he was presently Condemned to be Hanged, and the Appellor had his Goods: But if it had been by Indictment at the King's Suit, he should have had Judgment of Pein fort & dure.

Lastly, by Co. 3 Inst. 212 If the Defendant in an Appeal be Vanquished or Slain, the Judgment is the same, that is, Suspendere per Collum.

And thus much shall suffice of Appeals.

In the next place, We shall say something of Indictments, and the Pleadings thereupon, and what will Maintain or Quash the same.

An Indictment is an Accusation,* 1.5 drawn and ingrossed in Form of Law, in the nature of a Bill (or Declaration) against one for some Offence, Criminal or Penal, and presented to the Grand Jury to be Inquired of, who, in case they Find the same, do write Billa vera upon it; but otherwise do Indorse the word Ignoramus thereupon.

An Indictment is always at the Suit of the King, so that he who Prefers it, is no way tied to the Proof of it upon any Penalty, except there appear Conspiracy. It ought to be drawn with the greatest Exactness, Curiosity and Certainty; and the Day, Year and Place must be sure not to be omit∣ted.

Indictments are called Pleas of the Crown, and are exhibited for Treason, Felony, Misprisions of Treason, High Misdemea∣nors against the Common-Weal, and all other Crimes which touch the Life, or Mu∣tilation of a Man; and these cannot be Pro∣secuted in the Name of any one but the King, because he only can Pardon them, as Offences committed against his Crown and Dignity.

By Co. 3 Inst. 106, 107. If any of the Grand Jury discover what persons are In∣dicted of Felony or Treason, they are guilty of high Misdemeanour, and shall be Fined and Imprisoned, for thereby the parties In∣dicted may Escape.

Vide Co. 3 Inst. 230. and 4 Rep. Sier's Case, where said, That it is not necessary for the Coroner to set down the Day precisely in his Inquisition of Felony or Murder; for if it be alledged to be a day before, or after the Fact done, the Jury ought to find the party Guilty, and also find the Day when it was done, and the Attainder shall relate to the Day found in the Verdict: And if he be found Guilty thereupon, he may plead Auterfoits acquitte.

But if they find him Guilty generally, his Feoffee or Lessee may falsify the time, if alledged before it was done to their preju∣dice.

By Co. 4 Rep. 46, 47. Wrote and Wigg's Case, an Inquisition was taken before the Coro∣ners of the Sejeantry and of the County, concerning a Death, &c. at D. within the Verge, and, by him that pleaded a Con∣viction in Bar thereupon, averr'd to be In∣dented; but, it not appearing to be so by the Inquisition it self, it shall be intended otherwise, and so the Inquisition insufficient, and the Conviction thereupon void, and no Bar.

Vide Dyer 323. a. 323. b. where an Indict∣ment was brought against divers for saying, and hearing of Mass, and every one was Fined one hundred Marks upon the Statute of 1 Eliz. where said, That the word Mi∣nister includes Priest, and Clerk is sufficient to prove one a Priest, And where one is Con∣victed of three Offences upon three Indict∣ments at one time, he shall be Fined only for the first.

And by Popham, in his Rep. fo. 93. In In∣dictments of Iesuits upon the Statute of 27 Eliz. for coming into England, mention must be made, that he was born within the Kingdom of England, and that he is a Ie∣suit; but need not shew where he was made a Iesuit.

Vide Stile's Rep. 245, 312, 324, 350. That an Indictment or Information brought a∣gainst Two, or more, for speaking Words, &c. may be good; but in Cases of Felony a joynt Indictment against them is not good.

By Cro. 2 Part 479. the Court is to take notice ex Officio, of all apparent Faults, as Insufficiency in Indictments, and toaward Supersedeas thereupon, if it be found against the party Indicted, without any Exception taken by him thereunto.

And by Dyer 367. Co. 11. Rep. 6. in Case of Indictments and Outlawries thereupon, the Court may amend all Imperfections therein, as to want of Form.

But by Stile's Rep. 437. a Caption of an Indictment of a former Term, cannot be amended in another Term; but the same Term it may.

Then,* 1.6 What shall be sufficient Causes to quash Indictments, and what shall not.

See, first, Dyer 50. b. Co. 4. Rep. 41. a. 44. b. 47. a. 3 Cro. 739. One strikes a man in March, who died thereof 15 April, and the Indict∣ment concludes, that he killed him in March: 'Tis not good; but that he killed him upon the 15th of April is. But the best way is to Conclude generally, and say, he killed him, without naming the day.

And Note, That in an Indictment of Murder, the word Murdravit supplies ex Malitia praecogitata; and so doth Furatus fuit, Felonice cepit.

But where an Indictment was, That A. assaulted B. at C. & ipsum Murdravit, with∣out saying, adtunc & ibidem, it was holden to be ill, for want of naming the Place; for the Assault and Murder are several things, and may be done at several places.

So, an Inquisition taken by a Coroner in this Form—Berk ss. Inquisitio capt' pri∣mo die Maii, without saying where, was Ad∣judged to be ill.

So, by Co. 3 Inst. 135. if one be Indicted for Poisoning another with Rats-bane, and it be proved, that he was Poisoned with Can∣tharides, it doth well maintain the Indict∣ment,

because Poison is the substance of them both; but killing by Weapon, or otherwise, will not maintain such Indict∣ment.

But if the Indictment be for killing with a Sword, Dagger, or other Weapon, it will maintain the Indictment, because 'tis killing under the same Clauses, by Weapons.

See Dyer 99, a. 285, a. 370, a. where holden, That an Indictment de Morte, or for stealing the Goods, Cujusdam ignoti is good; for the party slain, or robbed, may not be known.

So, Stile's Rep. 124. an Indictment for Assaulting one Iohn of the Parish of A. omitting his Surname, holden to be good, as well as of Killing quendam ignotum; and if he should be Indicted again, under the whole Name, he may help himself by Aver∣ment.

But by Cro. 2 Part 606. an Indictment for Striking in the Church-yard, was quashed, because it was—Ad Generalem Sessionem Pacis tent' apud B. not mentioning the County; for tho' the County were in the Margin, and so may be intended that County; yet Indictments shall not be taken by Intendment.

Yet by Cro. 3 Part 108, an Indictment was of a Riot, That he coram A. & B. Iustic' Domini Regis, &c. and Exception was taken to it, that it should have been, coram A. & B. duobus Iustic', &c. But Resolved by the Court, That false Latin shall not quash an Indictment where the Intendment is evident.

But see Stile's Rep. 155. and Cro. 3 Part 331. contra.

And see Cro. 3 Part 137. an Indictment of Murder—quod in Brachia sua dextra percussit—held to be sensless and uncer∣tain.

And so, to say—instanti die obiit, without the word Ibidem, or naming the Place where, is as ill.

So, by Co. 3. 194. an Indictment for Mur∣der, on the Coroners Inquest, being—quod percussit cum gladio, not saying Felonice, was quashed for that Reason.

So Idem ibid. 583. an Indictment—quod felonice & burglariter fregit domum, was held to be no good Indictment for Burglary, because it wanted the word Noctanter.

But by Gawdy Justice, 'tis good for the Felony; yet because the Addition was in the Alias dictus, and not in Primo nomine, it was quashed as to both.

And Id. ibid. 920▪ an Indictment of Burg∣lary was—quod Burglarit fregit, and Ex∣ception taken to it, because not said Burgla∣riter; but Resolved to be good.

Yet Co. Rep. 4. 39, b. Burglarit for Burgla∣riter, was Adjudged ill.

So, in Ryley's Case, Murderaverunt for Murdraverunt, held not good.

So, Idem, ibid. and Dyer 261, a. 304, b. Felonice & ex Malicia sua praecogitata fregit, will not serve instead of the word Mur∣dravit; for vocabula Artis are not to be sup∣plied by words that tantamount.

And by Stile's Rep. 12. the like Law is in Cases of Rape.

So, by Cro. 2 Part fo. 20. an Indictment shall be taken strictly, not by Intendment; and therefore to say, quod Rapuit Foeminum, without saying Felonice, was held ill.

See a Notable Case in Co. 5 Rep. fo. 120, 121, 122. where an Indictment was upon the Coroner's Inquest for Murder, and Ex∣ceptions taken to it:

First, Because 'tis super Mammillam in an∣terior' parte Corporis; and Mamilla is spelt with a double m, and so false Latin: But Resolved, false Latin shall not quash an In∣dictment, tho' it will an Original; but an Insensible word, in a Material place, may. Also super Mammillam is but a Redundancy, for super anteriori parte Corporis, intending the Trunk, was certain enough. But super Ca∣put, super Faciem, in dextra parte Corporis, in sinistra parte Corporis, super sinistram or dextram Manum, Brachium, Latus, &c. without addi∣tion, is not.

Secondly, 'Tis Dans unum vulnus, for unam plagam; but that was Ruled, well enough.

Thirdly, The length, breadth and depth of the Wound was not shewed, but because it was shewed, that he was shot through with a Pistol, that was certain enough; for they are but set forth to shew the Mortality.

Fourthly, 'Twas said Dans unum vulnus to∣taliter penetrans, &c. and thereto Objected, That it was not the Wound, but the Total did penetrate; but that was Ruled to be 〈◊〉〈◊〉 enough, for the Wound went through.

Fifthly, There wanted the word Percussit, for it was dans unum vulnus without the word Percussit; and for that, tho' it was shooting with a Pistol, the Indictment was quashed as Insufficient.

And see Cro. 1 Part 334. an Indictment against Two, for striking in a Church, where the Grand Jury found Billa vera as to or 〈◊〉〈◊〉 Ignoramus for the other; and Ex∣ceptions taken to it,

First, Because the Bill is laid joyntly—quod fecerunt, sed non allocatur; for that is but false Latin, which of it self shall not quash an Indictment.

Secondly, The Bill is—contra formam Statuti, and yet it doth not appear by the Indict∣ment, that the striking was with a Weapon, and that lies not within the first Clause of the Statute, and the second Clause gives only Excommunication to the Offender ipso facto; and contra formam Statut', cannot stand in an Indictment of Battery at Common Law.

So Leon. Rep. 2 Part, 183, 184. an Indict∣ment was upon the Statute of 5 Ed. 6. 4. for Drawing in the Church upon one A. B. without saying, That he did it with an Intent to Stab him, and for that Cause holden to be ill; and moreover, for that it Concluded—contra formam Statut', it did not appear to be like to an Indictment at Common Law.

See Cro. 697. acc.

And see Noy's Rep. 171, 172, 173. an In∣dictment for striking one in the Church-yard, quashed upon two Exceptions:

First, Because it is laid—quod extraxit Gladium & percussit, instead of Extraxit Gla∣dium ad percutiend', according to the words of the Statute, which are—If any person maliciously Strike in the Church-yard, or Draw any Weapon there with an Intent to Strike, &c.

Secondly, Because the word 〈◊〉〈◊〉 was omitted in the Indictment, which is a Material Error, because expresly named in the Statute.

Then, For Indictments of Nusances,* 1.7 take these Rules:

See Cro. 3 Part 63. where an Indictment against one, for making a Nusance in the Horse-way, was quashed, because it was not said the Kings-way, or the High-way.

And Note, by 22 Ass. an Indictment doth not lye for a Nusance done to a parti∣lar Place; for it must be ••aid, to be done to all the King's Liege-People.

So, Idem, ibid. 148. an Indictment for stopping an High-way, was said to be—ad Nocumentum diversorum Lige••runs Domini Re∣gis, &c. and quashed, because too particular, for that thereby only is intended a Nusance to some, not all the King's Subjects.

So, Leon. 2 Part 183, 184. an Indictment was for not Repairing a Bridge; where said —Ita quod Ligei Domini Regis ibidem transire non possunt, ad Nocumentum eorum; and for that Exception was taken to it, because not said—ad Commune Nocumentum; for when the King's Subjects are named in an Indict∣ment, it ought to be expressed to be a Com∣mon Nusance.

So, Mich. 16 Car. 2. in B. R. Rex versus Morris, an Indictment for keeping a Glass-House—ad magnum Nocumentum Subdi∣torum Domini Regis, was quashed, because not said—ad Commune Nocumentum; and Serjeant Maynard doubted, if this Offence were Indictable.

And see Cro. 3 Part 90. Leon. 1 Part 117. and 27 Ass. 6. one was Indicted at the Assizes—Quare vi & armis, he inclosed Land wherein others had Common; and Ruled, That an Indictment lies not in this Case, because it is no Publick, but a Private Nu∣sance; and the vi & armis ill, for one can∣not forceably inclose his own Land.

Lastly, it was Objected, That the Indict∣ment did not lye here, because Justices of Gaol-Delivery have no power to take an Indictment of Nusance.

And see Bendl. Rep. 152. an Indictment was Exhibited against one, for Erecting a Wear in the River W. which Concludes—ad Nocumentum omnium Inhabitantium in Comitatu H. and Resolved by the whole Court, tho' not said to be—ad Commune Nocumentum, or—Nocumentum omnium

Ligeorum, or Subditorum; yet General enough, because a Nusance to the whole County of H.

And see Cro. Car. 274, 275.* 1.8 an Indictment against one—Quare vi & armis, he burnt his own House; Iones and Berkly were of Opinion, That it did not lye Vi & armis, because the House was in the parties own possession: But Croke was of the contrary Opinion, and said, That if a Servant runs away with his Masters Goods, committed to his charge, the Indictment against him shall be Vi & armis.

And Note, That an Indictment upon the Statute of Hen. 6. of Forcible Entry,—Quod pacifice intravit & ipsum expulit & extratenuit, was Adjudged to be ill, for want of the words Vi & armis, & manu forti.

So, Cro. Iacobi 20. an Indictment upon the Statute of H. 6. not shewing how the Entry was Pacifice, or Falso, was holden ill by two Judges.

And Mich. 13 Car. 2. in B. R. an Indictment upon the same Statute, saying Pasifice ingres∣sus, for Pacifice, and having no Manu forti in the whole Indictment, was for that Reason quashed, and the Clerk of the Peace fined for it.

So Cro. Caroli 422.* 1.9 an Indictment for Erect∣ing an House upon the High-way, and streightning it, ill, for want of the words con∣tra Pacem.

Mich. 16 Car. 2. in B. R. an Indictment was against one, for Seducing a Man into an ill House, and cheating him of his Mony.

By 29 Ass. 45. an Indictment against one as Communis Latro,* 1.10 or Common Forestaller, Champertor, Conspirator, &c. without charging the Party with some particular Fact, is not good.

But by 30 Ass. 37. an Indictment of Com∣mon Confederacy is.

And by 38 Ass. 11, 12. an Indictment for taking Charters of Land quashed, for not setting forth what the Charters were.

But Pasch. 18 Car. 2. in B. R. and Roll's Abridg. 2 Part 79. an Indictment against one for being Communis Oppressor, was Ruled good upon Exception; but the Court was of Opi∣nion, that—Communis Forstallator is not good.

See Mo. Case 302. touching the words Communis Fur, Latro, &c.

Pasch. 16 Car. 2. in B. R. Resolved,* 1.11 That an Indictment lies for the Breach of a Private Statute, where no particular Penalty is pro∣vided; if the Statute concern a multitude of Persons, so as an Action of the Case will not lye: But if it concerns a Particular Person or Interest, an Action of the Case lies, and not an Indictment.

An Information,* 1.12 is a kind of Declaration, as well at the Suit of the King, as the In∣former (therefore called a Qui tam, from the words in the Information, A. B. qui tam pro Domino Rege, quam pro seipso sequitur) for the Breach of some Statute, or Penal Law, wherein some part of the Penalty, as a Moiety or Third part, is given to him; and may be either by Action of Debt, or Information.

Informations are also brought by the At∣torney General only, in Cases where the whole Penalty or Forfeiture is given, by some Penal Law, to the King.

Vide Co. 6 Part, Gregory's Case, 3 Inst. 43, 194, 223. 340, 356. 15 Eliz. ca. 5. 29 Eliz. ca. 5. 21 Iac. 1. ca. 4. Cro. 3 Part 375. touching the Duty of an Informer.

By 18 Eliz. ca. 5. Every Informer upon Penal Statutes must Exhibit his Information in Person, not by Attorney; and pursue it by himself, or Attorney; a Note of the Day of the Month of the Entry of it must be made; no Jury must be Compelled to West∣minster, to Try any Offence done Forty Miles off, unless the Attorney General, for special Reasons requires it; and the Informer not to make Composition, without License of the Court, on pain of Pillory.

By 15 Eliz. ca. 5. Defendants in Informa∣tions upon Penal Statutes, may Appear by their Attorneys, where they are Bailable by Law; or by the leave and favour of the Court.

But by 31 Eliz. ca. 10. This last Act shall only extend to Natural Subjects, and Deni∣zens.

By the Statute of 21 Iacobi ca. 4. for all Offences against Penal Laws, the Information must be laid in the proper County where the Fact was done, and not to be received till the Informer hath made Oath, That it was done in that very County, and that within a Year before; and the Defendant may plead thereto the General Issue.

But this Statute shall not extend to Infor∣mations, touching Recusants, Tonnage and Poundage, Transportation of Gold, Silver, Powder, Shot, Wool, Wool-fells, or Lea∣ther.

And by Cro. 3 Part, 138. Co. 3 Part, 138. 5 Part, 48. 583. 11 Part, 65, b. 3 Inst. 141, 238. Mo. Case 715. Leon. 1 Part. 292. If the Infor∣mer dies, the Attorney General may pro∣ceed for the Kings Moiety after his death.

And so 'tis, if the Informer will not Pro∣secute any further.

And so, if the Attorney General will not Prosecute any further, or will not Reply, as the Course is for him to Reply alone, in these Cases the Informer may Prosecute for his Part; for after the Suit begins the Infor∣mer hath an Interest, which the King cannot Release, or Pardon.

And it appears by Stile's Rep. 329, 330. where an Action or Information is—tam pro Domino Rege quam pro parte; there, if the Judgment be Entred only for the Party, 'tis Erroneous.

And Idem 318, 319. upon an Information, where part of the Mony did belong to the King, the Party sued Execution of all to himself; the Execution was ordered to be stayed, and a New one awarded, and in the mean time the Mony to be brought into Court.

And Idem 387. an Information was Exhi∣bited for several Things; whereof some of them appeared to be done before the Date of the Information, and other part of them afterwards; yet all well, if done before the filing of the Information, and Bail upon it, for then the Action begins.

See Mo. Cases 165. Cro. 1 Part 24. 2 Part 366, & 666. by Dyer, where a Statute ap∣points the Information to be brought within a Year; yet if it be brought within six years after, 'tis sufficient for the Party.

And so Cro. 1 Part 341. in Demands less than due, good for the King, tho' ill for the Informer.

And see 35 H. 6. 27. b. in an Information for Detaining the Kings Goods, 'tis sufficient to say, That they were in his Possession, without shewing how they came, as it must be in Trover, or Detinue, by a Common Person.

See Noy's Rep. 118. where the Defen∣dant pleads to an Information upon the Statute of 23 H. 8. for selling Beer without License, that there is another Information depending in the Exchequer for the same Of∣fence; 'tis a good Plea, if there be no Covin in the Case, and if there be, the Informer may set it forth in his Replication.

Mich. 22 Car. 2. an Information was brought in the Kings-Bench against one, for being Perturbator Pacis & Communis Oppressor, and for that he took unreasonable Distress of divers of his Tenants; after Verdict, Judg∣ment was staid for Three Reasons:

First, Because not said which of his Te∣nants.

Secondly, For that Information lies not for unreasonable Disterss; but Action upon the Statute of Marlbridge 43.

Thirdly, Because Communis Oppressor, and Perturbator Pacis, are words too General to ground an Information upon.

So Hill. 15 & 16 Car. 2. an Information was brought in the Kings-Bench against one for using the Trade of a Draper; and Ruled to be ill for two Reasons:

First, Because not saying, it was a Trade at the time that the Statute of 5 Eliz. was made.

Secondly, Because it wanted the words Contra pacem.

But Mich. 24 Car. 2. in B. R. an Information That diversis diebus & vicibus, between such a day and such a day the Defendant did such Offences, held good, tho' in a Criminal Case.

Notes

• * 1.1

  Appeal, what?
• * 1.2

  Where the Heir shall not have an Ap∣peal of Murder.
• * 1.3

  Appeals brought by Infants.
• * 1.4

  Of pleading to Appeals.
• * 1.5

  Indictment, what?
• * 1.6

  What shall Quash an In∣dictment; what not.
• * 1.7

  Nusances.
• * 1.8

  Vi & armis.
• * 1.9

  Contra pacem.
• * 1.10

  Incertainty.
• * 1.11

  A Rule to di∣stinguish, where an Indictment, and where an Action of the Case doth lye.
• * 1.12

  Information, what?