An explanation of the laws against recusants, &c. abridged by Joseph Keble ...

23 Eliz. 1. Of CHƲRCHES.

PAge 58. Upon 23 Eliz. 1. § 2. N. 1. It was held Mich. 12 Jac. in Loult and Faulklands Case 2 Cro. 357.358. and 2 Bul∣strode 271. (253.) and 1 Rol. 209. pl. 49. that if a man were indicted for endeavour∣ing and practising voluntarie, felonice, & pro∣ditorie, to perswade and withdraw any of the Kings Subjects from his obedience unto the Romish Religion, and was afterwards, debito modo acquietatus, yet an Action upon the Case in Nature of a Conspiracy would not lie a∣against the party who procured him to be

Indicted, and the main reason given was, that sorasmuch as every man is bound to dis∣cover Treason, and 'tis dangerous to conceal any thing which may tend to Treason, there∣fore the procuring one to be Indicted concern∣ing it, was no Cause of Action: And Coke Chief Justice said that such an Action was never brought before that time. But later Resolutions have been to the contrary of this opinion, and 'tis held for Law at this day, that if a man procures another to be Indicted of High Treason, an Action upon the Case in nature of a Conspiricy lieth against him that procures it, as well as if it were for Felony; the first leading Case of this nature, which was resolved upon solemn argument or debate was that of Hil. 1. Car. 1. of Smith and Cra∣shaw &c. addition to Bendloes 152. Latch 79.80. Jones 93.94.95. Where it was adjudged up∣on great deliberation by all the four Judges of B. R. that an Action in nature of a Con∣spiracy doth well lie in such Case, and that not only in Case of acquital upon Tryal, but upon the Exhibiting a Bill of Indictment for High Treason to the Court or Jury, if the Jury bring in Ignoramus, altho in this last Case a Writ of Conspiracy lyeth not; and Lovets Case was denyed to be Law: and Just∣ice Dodderidge who concurred 2 Bulstrode 271 (253) changed his opinion in Smiths Cas••, and held the Action maintainable, so that whosoever of meer malice without pro∣bable cause causeth any to be Indicted on 23 Eliz. 1. § 2. N. 1. or on 3 Jac. 4. § 22.

N. 1. for endeavouring or practiceing so to perswade or withdraw any Subject, or pre∣fers a Bill to the Court or Jury for that pur∣pose, is lyable to an Action upon the Case for so doing, if the party be acquitted, or the Jury bring in Ignoramus, as in other Cases of Fel∣ony.

Page 59. These words (And shall not within twenty dayes &c. disclose the same) 23 Eliz. 1. § 3. N. 1. have no refer∣ence to those who are aiders and maintainers of the offender, but only to those who have barely a knowledge of the offence without aiding or maintaining the party.

And therefore if such as are aiders or main∣tainers of the person offending discover the offence within twenty daies, yet such disco∣very shall not free them from the guilt of Imprisonment of Treason, as Wingate Crown 42. mistakes, but if they once aid or main∣taine the party, knowing him to be an offen∣dor, they are guilty whither they disclose or conceal the offence and shall have no bene∣fit of the twenty dayes.

Page 60. Upon 23 Eliz. 1. § 5. N. 1. Moor 606. pl. 838. Talbot was Indicted, quod existens aetatis 16 annorum & amplius non accessit ad Ecclesiam. &c. The question was, whether the Existens, &c. Should re∣fer to the time of his Indictment or to the time of his absence. And the Judges conceived that the Indictment was well e∣nough and pursuant to the Statute, and that Existens should in this Case

refer to the time of his absence.

Page 60. Upon 23 Eliz. 1. § 5. N. 1. this offence (Not repair, &c. but for∣bear &c.) consists not in committing but in omitting, and is but a nonfeasance, and there∣fore cannot be said to be in any certain place, and for this reason in a popular action brought by the Informer, qui tam, &c. there needs no place be alledged in the Declaration, Anderson, 139. pl. 109. Cuff against Vachel.

Nor is Recusancy within 31 Eliz. 5. § 2. N. 1. which sayeth that the offence shall be laid in the proper County where it was done or committed, for to speak properly it was not committed any where, Hobart 251. pl. Grimstone versus Molineux. infra, 79. § 6.

Page 60. 61. By this Being thereof lawfully convicted. 23 Eliz. 1. § 5. N. 1. Is not ment that the party must be Convict∣ed in some former suit, but a Conviction up∣on the same Indictment or Information which is brought against him, for the reco∣very of the 20 l. per month is sufficient con∣viction within the meaning of this Statute: And so are all penal Statutes which have in them those words (being thereof lawfully Convicted) to be understood, that is of a con∣viction in the same sute whereupon the pen∣alty is to be recovered, for the meaning only is that the offendor shall forfeit nothing be∣fore Conviction, which is no more than the Law implyeth, and therefore in truth these words are but superflous, and might as well have been omitted, 11 Co. 59. & 1

Rolls 90. pl. 41. Dr. Fosters Case, and 1. Rolls 234. pl. 6. and 3. Bulstrode 87. the King against Lane.

2. Nor is Convicton intended here 23 Eliz. 1. § 5. N. 1. only of a Conviction by Verdict, and therefore if the offendor be con∣victed upon his confession of the Fact and Judgment thereupon be had, and conse∣quently if Judgment be had against him up∣on a demurrer, which is a Confession of the matter of Fact, Or if Judgment be given against him on nihil dicit, for any other Cause, any of these are sufficient Convictions whereupon to recover his penalty; for Con∣victed is here 23 Eliz. 1. § 5. N. 1. to be taken for attainted, as tis in many other Ca∣ses, for until Judgment he shall forfeit nothing, and altho he that is convicted is not there∣fore attainted, yet every one who is attaint∣ed or adjudged is Convicted, and of such a Conviction is this Statute to be understood. infra, 233.

Page 61. These words (To the Queens Majesty.) In 23 Eliz. 1. § 5. N. 1. are but surplusage, and import no more than the Law would have given the Queen without them, for where a Statute gives a forfeiture, and limits not to any particular person, the King shall have it by construction of Law, as was agreed 2 Anderson 128. pl. 73. in the Case of Agard and Tandish, and so should he have this whole 20 l. per month if the Sta∣tute had staid here, and had not afterwards made another express appointment infra, 76.

Page 61. 62, 63. It seemeth that the month here 23 Eliz. 1. § 5. N. 1. mentioned shall be accounted secundum numerum singu∣lorum dierum, allowing but 28 daies to a month, for so are all Statutes to be understood which speak of the month, unless W. 2. cap. 5. § N. for the account of a Lapse and 2 & 3 Ed. 6.13. § N. of proving a suggesti∣on 1. Inst. 135. & 2 Co. 166. Yelverton 100 Hob. 179. (supra pl. 7.) and of this opinion the Court of B. R. seemed to be upon the Construction of the Statute of Liveries 8. Ed. 4.2. § 2. N. 3. in the Case of Donner and Smith, 3. Co. 835. pl. So that by this ac∣count the Recusant shall forfeit thirteen score pounds in the whole year.

2. In an Information 2 Cro. 529. pl. brought by Parker, Quitam, &c. against Sir John Curson and his Wife for the Recusancy of the Wife for 11 months, and not guilty pleaded, it was proved at the Trial, Pasch. 17. Jac. in B. R. that she conformed and came to Church for part of the time in the Infor∣mation, yet forasmuch as she was a Recusant both before and after, it was said by the Court that her Conformity for some part of the time should not excuse her, and she was found Guilty for the whole time.

3. The Informer shewed that the Recu∣sant was absent from Church from the 10 September 15. Jac. unto 9 September, 16. Jac. and demanded Two hundred and twenty pounds for eleven months, upon not Guilty pleaded, it was found against the Defend∣ent,

and it was resolved that altho the Infor∣mer had demanded less than by his own shewing was due (for the time mentioned in the Information was 13 months compleat Except one day) yet the Information was well enough, for the Recovery shall be in∣tended to be for the eleven months, when the Recusant was first absent, and the Additi∣on of more is not material 2 Cro. 529. and 2 Roll. 90. Parker against Sir John Curson and his Wife, and this is not like the Case of 1 Cro. 331. Bawderock and Mackaller, Mich. 9. Car. 1. where the Informer Qui tam, &c. Upon 31 Eliz. 6. of Symony demanded less than the penalty, and the Court seemed to be of opinion that altho it was good e∣nough for the King notwithstanding that misprision, yet it was not so for the Informer, and compared it to the Case of Agard and Candish, where an Information was brought upon the Statute of liveries after the year, and it was adjudged to be good for the King but not for the Informer, for upon 31 Eliz. 6. § N. which gives one intire penalty for the offence, if less be demanded the Statute is not persued, and there is a clear variance between that and the Information, but in the Case of Recusancy when he demands Two hundred pounds for eleven months the Sta∣tute 23 Eliz. 1. § 5. N. 1. is persued, and tho it appear by the Information that the Recusant was absent for a longer time, yet the Informer is at liberty whither he will de∣mand the penalty for his absence during

that Supernumerary time.

4. If it be shewed in the Information that the Recusant was absent from Church from a day certain to a day certain, which in all makes 13 months, and the penalty is demand∣ed for that time, and the Jury find the party Guilty for 12 months, it hath been held by some that the Verdict shall be good for 12 months, but whether for the first 12 months is a Question, for in Sir J. Cursons Case 2 Cro. 529. the demand was but for 11 months, and when the Jury finds the defendent guil∣ty, it shall be intended to be for the 11 months for which the penalty is demanded, and that shall be accounted from the 10 September which was the first day of absence alledged in the Information, and the rest of the time to the 9 September following after the first 11 months is to be accounted as surplu∣sage.

But in this Case on 23 Eliz. 1. § 5. N. 1. where the Jury abridgeth the time for which penalty is demanded, it may be questioned whither the Verdict shall be intended to be for the first 12 months of the 13. and the Judges of B. R. to salve a Case of the like nature 3 Cro. 835. seemed to be of opinion and 8 Ed. 4.2. § 2. N. 3. that it is not materi∣al which were the 12 months wherein the party offended, but if that opinion be law, it must follow that the party can never be pun∣ished for the 13 month, but that must be re∣mitted to him because its left uncertain which of the 13 shall be accounted the month not

found by the Jury, and it rather seems for this reason, that the Verdict is void for the uncertainty which 12 months of the 13 the party offended, unless it shall be intended of the first 12.

5. Mr. Shephard in his sure Guide cap. 6. Sect. 5. Raiseth this question, viz. 23 Eliz. 1. § 5. N. 1. having reference to 1 Eliz. 2. § 14. N. 1. which sayeth every one shall come to Church every Sunday and Holy-day, whither he that is not at Church every Holy-day doth not rigore juris forfeit 20 pound a month by force of 23 Eliz. 1. § 5. N. 1. but this question seems altogether needles, for tis clear by the express words of 23 Eliz. 1. § 5. N. 1. that it must be a for∣bearance from Church for a whole month together that makes the party liable to the forfeiture of 20 l. and if he comes to Church on any Sunday or Holy-day, within the month, he is ficed from the penalty of 20 l. altho not from the 12d. and by 1 Eliz. 2. § 14. N. 1. for the dayes of his absence if he comes not every Sunday and Holy-day both.

Page 63. 64. Upon the words, Be bound. in 23 Eliz. 1. § 5. N. 2. Some have made a question and among them Mr. Shephard in his Sure Guide, cap. 6. Sect. 5. by whom or in what Court the Recusant shall be bound to the good behavior by force of this Statute, for that the Court is not ex∣presly mentioned, and Wingate Crown 44. hath stumbled upon a conceit that after cer∣tificat made in B. R. a Justice of Assie, Goal

delivery, or Peace shall bind the party to the good behavior, and misrecites the Statute accordingly, but it seemeth the intention of the Law makers was that he should be bound in B. R. and of that opinion is Dalt. 192 § 5 cap. 79 tit. good behaviour.

2. For where any proceedings are appoint∣ed to be upon or after a certificate sent to any Court, there by common intendment the proceedings are to be in that Court to whom the Certificate is sent, if no other Court be named, and it cannot be presumed by any rea∣sonable construction of 23 Eliz. 1. § 5. N. 2. That the Certificate into B. R. is to any other end than for the Justices there to pro∣ceed in such manner as the Act directs to be done after such Certificate, as no question they may in this Case as well as upon Certi∣ficate of a presentment or of refusal of the Oath of Supremacy against 5 Eliz. 1. § 5. N. 10. Supra 39. and tis a rule in Con∣struction of Statutes, that where the intenti∣on plainly appears, the Law ought to be ad∣vanced according to its end, tho the words be short and imperfect, especially Laws made for Religion, as is held Hob. 157. and 11 Co. in Magdalen Colledge Case and 2 Bul∣strode 155.

3. Popish Recusants convicted are not to be reputed sufficient sureties within 23 Eliz. 1. § 5. N. 2. and therefore were refused by the Court of B. R. in the Case of Gri∣fith 2 Bulstrode 155.

Page 64. An Usher or assistant in teach∣ing

is a Master in the School, and seemeth to be included within the word School-Mast∣er 23 Eliz. 1. § 6. N. 1. and the fol∣lowing words here (or teacher) explain who is intended (viz.) Every teacher of youth 23 Eliz. 1. § 7. N. 2.

Page 64. 65. This Clause repair to Church as is aforesaid or be allowed 23 Eliz. 1. § 6. N. 1. being in the dis-junctive, it seemeth that altho a School-Master doth not come to Church, yet if he be Licensed by the Bishop, or Ordinary, it shall excuse the penalty, and this is not altered in that particular either by 1 Jac. 4. § N. infra nor by 13 and 14 Car. 2.4. § 11. N. 1. but then he must by 13 and 14 Car. 2.4. § 11. N. 1. &c. Among other things subscribe a declaration or acknowledgment that he will confirm to the Liturgy of the Church of England as it is now by law Established, or he shall for the first offence suffer three months imprisonment without bail, and for the se∣cond and every other offence shall suffer three months imprisonment without bail, and also forfeit V. li.

2. But if he be licensed and subscribe and do as aforesaid, and so cannot be punished by 23 Eliz. 1. § 6. N. 1 or either of the other said acts, yet now by 17 Car. 2.2. § 4. N. 1. unless he take the Oath there mentioned and frequent Divine service Established by the Laws of this Kingdom, and carry himself there as the said Statute is appointed, he shall for∣feit for every offence ten pound li. so that

now conformity in repairing to Church is is necessarlly required of every such School∣master.

3. But now by 13 and 14 Car. 2.4. § 11. N. 1. There may be 12 pence taken for such licence notwithstanding 23 Eliz. 1. § 7. N. 1.

Page 65. 66. This limitation of time within one year and day 23 Eliz. 1. § 8. N. 1. extends not to any offence made Treason by 23 Eliz. 1. but only to such offences men∣tioned in this act or 1 Eliz. 1.2. and 5 Eliz. 1. and 13 Eliz. 2. as concern the Kings Su∣premacy in Causes Ecclesiastical, the service of God coming to Church, or Establish∣ment of Religion.

2. And for those touching Religion 23 Eliz. 1. § 8. N. 1. enlargeth the time li∣mited by 1 Eliz. 2. § 20. N. 1. which saith the party must be Indicted the next Sessions or 1 Eliz. 2. § 22. N. 1. If in a Corporati∣on within fifteen dayes after Easter or Mi∣chaelmas: for now he may be Indicted at a∣ny time within the year and day.

3. But for absolving or withdrawing, or for being absolved withdrawn or recon∣ciled, which are 23 Eliz. 1. § 2. N. 1. made Treason, no time is limited for the persecuti∣on, but the offender may be Indicted at any time after the year and day, for the latter part of 23 Eliz. 1. § 8. N. 2. Speakes of those offences of Treason which the Justices of Peace cannot hear and determine, and there no time is limited, altho there be in the for∣mer part 23 Eliz. 1. § 8. N. 1 for those of∣fences

which are inquirable by Justices of Peace 1 Leonard 238. pl. 322. Guilfords, Case.

Page 66. 67. Upon 23 Eliz. 1. § 9. N. 1. The Justices of the Court of B. R. are the Soverain Justices of Oyer and Terminer, and Goal-delivery 9 Co. 118. Lord Sanchors Case, and therefore may enquire of, hear and determine the offences against this Act, altho they be not here especially named.

2. If an Indictment be preferred upon this Statute 23 Eliz. 1. § 9. N. 1. before Justices of Oyer and Terminer, or of Assie, for any offence not made Treason or misprisi∣on, and there is an Indictment before Justices of Peace likewise for the same offence, the Judgment of the Justices who do first enquire hear and determine the same shall stand, and the Judgment given by the other shall be void, as was held in the like Case. 2 Inst. 739. Upon 31 Eliz. 7. § N. of Inmates.

3. The Power here given 23 Eliz. 1. § 9. N. 2. The Justices of Peace in their op∣en Quarter Sessions to hear and determine the offence of not coming to Church is in force at this day, notwithstanding 29 Eliz. 6. § 2. N. 2. which saith that every conviction for not coming to Church shall be in B. R. or at the Assizes or General Goal-delivery, and not elsewhere; for 3 Jac. 4. § 7. N. 1. hath given power to Justices of Peace in their General or Quarter Sessions to enquire hear and determine of all offences for not com∣ing to Church according to former Laws in such manner as the Justices of Assize and

Goal delivery might do by former Laws in the Case of Recusancy for not repairing to Church, which is clearly a reviver of the power of Justices of Peace given to them by 23 Eliz. 1. § 9. N. 2. to proceed against Recusants, and taken from them by 29 Eliz. 6. § 2. N. 2.

4. Nor doth that following Clause 3 Jac. 4. § 7. N. 2. Touching Conviction by proclamation impeach this, or restrain the Justices of Peace to proceed to conviction upon proclamation only and default of ap∣pearance, no more than the Justices of Assize or Goal-delivery are restrained thereby or by 29 Eliz. 6. § 2. N. 5. which gives them likewise Authority to proceed by Proclamati∣on.

5. For these Clauses of 3 Jac. 4. § 7. N. 1.2. are in the Affirmative, viz. first that the Justices of Peace shall have power to hear and determine the offence of not coming to Church according to Laws in such manner as Justices of Assize and Goal-delivery might do, and those Just∣ices might hear and determine that offence according to this Statute 23 Eliz. 1 § 9. N. 1. and then comes the next Clause of 3 Jac. 4. § 7. N. 2. That the Justices of Peace shall have power to convict by proclamati∣on which is purely affirmative also, and there∣fore abrogates no part of the power given them by the former Clause of 3 Jac. 4: § 7. N. 1. and this agrees with what Sir Ed. Coke saith 12 Co. 13 that if a man be In∣dicted for Recusancy at the Assizes or Ses∣sions

of the peace, the Court may waive the proceedings by proclamation upon 3 Jac. 4. § 7. N. 2. And may still if they please proceed against the party by process upon this Statute 23 Eliz. 1. § 9. N. 2. in which Case the process must be by Venire facias, capi∣as, &c. As in Indictments of trespass, and if saith he the party be fugitive in another County, the Indictment may be removed in B. R. and then process may be there made out against him into any County of Eng∣land.

Page 67. Upon 23 Eliz. 1. § 9. N. 2. by Quarter Sessions, is intended here only the Sessions of the Peace, held at four times of the year and not any other, altho it be general Sessions.

2. And therefore the Justices of Peace in London, who hold a Sessions every month, cannot take Indictments upon this Statute 23 Eliz. 1. § 9. N 2. at any of them, unless it be the Quarter Sessions: For that their Au∣thority is given them only at a certain time, as was resolved upon 5 Eliz. 9. § 9. N, 1. in the like Case, Mich. 17. Jac. B. R. Palmer 44. pl. Taylors Case.

3. And 3 Jac. 4. § 7. N. 1. which gives Justices of Peace power to take Indictments of Recusancy at their general or Quarter Ses∣sions, for so the word (said) there imports, having reference to the general or Quar∣ter Sessions mentioned before 3 Jac. 4. § 4. N. 2. about presentments, yet doth not en∣large the power of the Justices of Peace in

this particular, nor enable them to take such Indictments at any Sessions, but at their four Quarter Sessions: for altho it be put there 3 Jac. 4. § 4. N. 2. dis-junctively. General or Quarter, yet the latter word is but Explicative of the former, and shews what general Sessions are meant, as ap∣pears by 3 Jac. 4. § 14. N. 1. and 7 Jac. 6. § 26. N. 5. touching the Oath of Allegi∣ance; for in 3 Jac. 4. § 14. N. 1. tis said that if the party refuse the Oath he shall be committed to Goal, until the next Assizes or general Quarter Sessions, and if he re∣fuse the Oath tendred him by the Justices of Assize and Goal-delivery in their open As∣sizes, or by the Justices of Peace in their said general Quarter Sessions, he shall incurre a Praemunire; and in 7 Jac. 6. § 26. N. 5. that the party refusing shall be committed to Goal until the next Assizes, or general Quarter Sessions, and if he refuse the Oath tendred him by the Justices of Assizes and Goal-delivery in their open Assizes or Goal-delivery, or the Justices of Peace, or the great∣er part of them in their general or Quarter Sessions, he shall incurre a Praemunire, which clearly shews that the same thing is intend∣ed by General Quarter Sessions, and Gene∣ral or Quarter Sessions; and that all Gene∣ral Sessions which are not Quarter Sessions, are excluded out of the meaning of those Statutes.

Page 68. the Justices named in 23 Eliz. 1. § 9. N. 2. are hereby impowered to pro∣ceed

by Indictment only, and no other way for they are to hear and determine after en∣quiry infra, 95. & 165.

2. And the word (Enquire) implyeth an Indictment, and is alwaies so to be ex∣pounded supra 35, and so are the other words hear and determine where other proceedings are not specially named, as here they are not.

3. For the Action of debt, Information, &c. in any Court of Record is given to the Informer qui tam &c. afterwards 23 Eliz. 1. § 11. N. 1. in a distinct branch by it self without any reference to this.

4. So that by 23 Eliz. 1. § 9. N. 2. and before 35 Eliz. 1. § 10. N. 2. which gave the Queen an Action of debt, &c. the Queen had no other remedy to recover the intire forscitures given hereby, but by Indictment only 11 Co. 60. and 1 Rol. 91. pl. 41. Dr. Fosters Case.

5. See Jones 193 pl. for that and the suit by the common Informer are the only wayes appointed by 23 Eliz. 1. § 9. N. 2. and § 11. N. 1. and the subsequent Clause 23 Eliz. 1. § 10. N. 1. of submission which names the Justices before whom the party is to submit, viz. the Justices before whom he is Indicted, Arraigned or Tryed, shews what proceed∣ings are meant which are to be had before the Justices here named, that is by Indictment Hob. 205. Pie and Lovel.

6. Talbot and Shelden were Indicted for Recusancy, Contra formam Statuti 23 Eliz. 1.

in which Indictment the penalty was de∣manded, and in a Writ of Error the Judg∣ment was reverst, for the offence is made by 1 Eliz. 2. § N. and the penalty is given by 23 Eli. 1. § N. and therefore it should have been Contra formam Statutorum, Owen. 135. pl. Wests Case infra 79 § 4.

7. If a Feme Covert be Indicted at the Kings Suit for an offence within 23 Eliz. 1. § 5. N. 1. she may be charged with the penalty after her Husbands death, but the Husband is not chargable, nor shall pay the penalty, for that he is no party to the Judgment: and this was one of the Causes of making 35 Eliz. 1. § 10. N. 1. by which Statute the King may have an Acti∣on of debt, and recover the forfeiture a∣gainst the Husband 1 Rol. 93.94. Roy versus Foster, Savile 25 pl. 59.

Page 68. This Exception 23 Eliz. 1. § 9. N. 2. of Treason and misprision of Treason extends not to the Justices of Oyer and Terminer, or of Assize and Goal-deli∣very, as Wingate Crown 46. hath mistaken, but only to Justices of Peace, who are not to medle in th•••••• two Cases, but the other Justices may.

Page 69. Upon 23 Eliz. 1. § 10. Before Iudgment submit and conform himself, &c. But now by 1 Jac. 4. § 17. N. 1. If the Recusant conforms after Judgment, it seems it shall be time enough to have the forfeiture.

2. A man is convicted of Recusancy ac∣cording

to 29 Eliz. 6. § 2. N. 5. upon Pro∣clamation and default of appearance, and af∣terwards submits and conforms, he shall by force of 23 Eliz. 1. § 10. N. 1. be discharg∣ed of the forfeiture of twenty pounds per month; for this is a submission and confor∣mity before Judgment, the Conviction up∣on Proclamation being no Judgment but only in nature of a conviction by verdict, as was resolved by all the Judges, Mich. 37. and 38 Eliz. see 1 Rol. 94. pl. 41. Dr. Fost∣ers Case.

3. Page 69. Certain Persons were In∣dicted upon 23 Eliz. 1. § 5. N. 1. for not coming to Church, and were outlawed up∣on the Indictment, the Court of B. R. would not in this Case receive their submission, upon 23 Eliz. 1. § 10. N. 1. but advised them to purchase their pardon for the Outlawry, which they did, and the their submission was accepted of and they were discharged. 4 Le∣onard 54. pl. 138.

Note in the report the Statute 13 Eliz. 2. is mistaken for 23 Eliz 1. for no In∣dictment for not coming to Church lyeth on 13 Eliz. 2.

Page 69, Upon 23 Eliz. 1. § 10. N. 1. If a man be Indicted for Recusancy before Justices of Peace, and he submits and con∣forms before the Bishop of the Diocess, be may remove the Indictment by Certiorari in∣to B. R. and there plead his Conformity by Certificate under the Bishops hand and Seal Styles 26. pl.

2. For the manner of a Recusants sub∣mission and Conformity before the Bishop after Conviction, and the Bishops Certificat thereupon, see Co. Entr. 569.

Page 70.71. All forfeitures of any sums of mony limited by this Act.] 23 Eliz. 1. § 11. N. 1. Shall be divied &c. So that the distribution here appointed ex∣tends not only to the forfeitures of Two hundered and One hundred Marks, for say∣ing or hearing of Mass, and the ten pound a month for keeping a School-Master Con∣trary to this Act, but likewise to the twenty pound per month, for not repairing to Church.

2. In which last Case the Informer, Qui tam, &c. shall have the third part as well as in the other Cases, for altho by 23 Eliz. 1. § 5. N. 1. the whole Twenty pound per month is given to the Queen, which the o∣ther forfeitures are not in express words, yet that will not alter the Case nor make void the express appointment made here in what manner and to whom all the forfeitures li∣mited by 23 Eliz. shall be disposed of.

3. And it is usual in Acts of Parliament to give the whole penalty for any Criminal matter to the King, and afterwards in the same Act to make distribution thereof, and give part to him that will sue, as in 3 H. 6.3. § 1. N. 1.2. and 3 H. 7.7. § 1. N. 5.10. and the subsequent distribution shall al∣waies stand good notwithstanding the pre∣cedent words of limitation of the whole to the King.

4. For those words in penal Statutes (To the King or to the Queen) are upon the mat∣ter but void and superfluous, and give the King or Queen no other or stricter interest than they would have had if they had been omitted, and it had been said (shall forfeit) without apointing to whom.

5. And the reason is, for that the Law devolves the forfeiture upon the King, where no other person is appointed, and (shall forfeit) without more saying, is as much as shall forfeit to the King. But when afterwards in the same Statute a particular appointment is made how the penalty shall be, that qualifies the former and general words, and such distribution, shall be made as the Statute appoints 11 Co. 60. and 1 Rol. 89.90. pl. 41. Dr. Fosters Case, and 1 Anderson 139.140. pl. 190. Cuff and Vachell, supra 46.

Page 71. Upon 23 Eliz. 1. § 11. N. 1. Scot was Indicted for Recusancy, Anno. 26. Eliz. 2 Leonard 167. pl. 204. By the name of William Scot of Southwark Gent. and Exception was taken to the Indictment, for that within Southwark are several Par∣ishes, and the third part of the penalty is to be applyed to the relief of the Poor of the Parish where the offence was commit∣ted. But in this Case the Recusant being named generally of Southwark, non potest constare Curiae where the offence was, nor to what Parish the third part of the penalty belongs. But the whole Court of B. R.

were there of opinion that the Indictment was good enough notwithstanding it is not said of what Parish the Recusant was: for the whole penalty of twenty pound per month is at first 23 Eliz. 1. § 5. N. 1. given to the Queen: and the Inhabitants of the Parish where the offence was, are by 23 Eliz. 1. § 11. N. 1. to sue in the Exchequer for their third part, and surmile in their Bill that the offence was in their Parish, and if it were so, it shall be delivered to them as the Act directs.

Page 71. Upon 23 Eliz. 1. § 11. N. 1. the principal Officers of the Court of Ex∣chequer are the Treasurer and Barons, but the principal Officers of the receit of the Exchequer are the Treasurer and Cham∣berlains, Savile 38. pl. 87.

Page 71. &c. 82. on 23 Eliz. 1. § 11. N. 1. upon a penal Statute where part of the forfeiture is given to the King, and part to him that will sue; the Informer or Plan∣tiff qui tam, &c. sequitur tam pro Domino Rege, quam pro seipso, and so it must be said in the Information or declaration, and not only there, but in the Joyning of Issue and the Venire facias, it must be entred, qui tam pro Domino Rege, &c. or the omission of it is Error 1 Cro. 336. pl. Mich. 9. Car. 1.

2. In an Information upon 23 Eliz. 1. § 11. N. 1. the usual way is that the Infor∣mer for himself petit inde tertiam partem, juxta formam Statut'. 11 Co. 56. Dr. Fosters Case, but then the Statute must be named, for in

an Information 2 Cro. 142. Mich. 4. Jac. by Broughton, Qui tam, &c. against Mo••re, for the forbearing to come to Church Contra formam Statuti, without naming which Sta∣tute, in which Case the Informer demanded the third part for himself, it was adjudged by the Court of B. R. to be ill, for there are several Statutes against Recusancy, and it did not appear which of them was meant.

3. But if this Statute of 23 Eliz. 1. § 11. N. 1. be named in Certain, and the party who sueth demands the whole forfeiture for the King and himself, and Judgment be given that the King shall recover one moity, and the Informer or Plantiff Qui tam, &c. the other moity, in that Case the Judgment is well enough: for the Information or de∣claration being, Quod actio accrevit Domino Regi & praefat. A. ad habend' & exigend' the full forfeiture, the Judgment doth not vary there from, when it saith, that a moie∣ty shall be to the King, and a moiety to the Plantiff or Informer: and altho the Sta∣tute 23 Eliz. 1. § 11. N. saith that he which will sue shall have but a third part, yet th••t is by way of distribution only, and such di∣stribution if the penalty is an act subsequent to the Judgment and is to be made as well out of the moity given by the Judgment to the Informer or Plantiff, Qui tam, &c. as out of the mony thereby given to the King, and this I conceive to be the reason of the resolution in Chambers, Case 2 Roll. 437. pl. where such a Judgment in Case of Re∣cusancy

upon this Statute was allowed to be good.

But if the whole forfeiture be not demanded in certain, there, altho the party who sues demands his own share, 'tis ill; and so it was adjudged in an Information upon a poe∣nal Statute, 5 Eliz. 5. § 16. N. 1. which concluded, Ʋnde petit advisamentum Curiae, & quod forisfaciat 5 l. pro qualibet offens∣unde ipse petit medietatem. For the Infor∣mer doth not make his demand certain, but leaves it to the Court or Jury to cast up the sum it Amounts to: Hobart 245. Pie and Westly.

4. If there be several Statutes, and each of them prohibit one and the same thing, and Inflict a penalty and give an Information for recovery of it; the Information may con∣clude contra formam Statuti, and good; be∣cause the best shall be taken for the King. 5 H. 7.17. So if one Statute make the offence, and another Inflicts the penalty or forfei∣ture, and the Information be for the of∣fence only, it may conclude contra formam Statuti, which is to be understood of that Statute which makes the offence. But if the Information both lay down the offence, and demand the penalty, there both Statutes must be recited, or at least the Information must conclude contra formam Statutorum: Owen 135. Wests Case, supra 72. § 6.

5. In the late additions to Dalt. 547. cap. 191. § 6. N. 3. its said that Informati∣ons and sai••s on penal, Statutes are stricti

juris, and excepted out of all the Statutes of Jeofailes; which is a mistake, for they are not excepted out of 32 H. 8.30. Its true they are out of 18 Eliz. 14. § N. and 21 Jac. 13. § N. and that as it seemeth in all Cases within those two Statutes: see Styles 307. Theoballs against Newton.

And in the Case of Scot and Lawes, Hob. 328. It seems to be intimated that they are excluded out of all three: Where the Case was debt by an Informer, Qui tam, &c. upon a penal Statute 21 H. 8.13. § 2. N. 4. the defendent pleads non debet praefato J. (meaning the Informer, and not the King) and the Issue was found against the defend∣ent; in that Case it was resolved that this was a good Cause to stay Judgment, and there its said that it being upon a penal Statute, the Statute of Jeofailes 32 H. 8.30. would not help it, but that reason was Ex abundanti, for 32 H. 8, 30. seems to extend to all popular suits what∣sover; and in Wallers Case Dyer 346.347. in an Information brought against him 18 Eliz. by Topcliffe, Qui tam, &c. upon 37 H. 8.9. of Usury, it was adjudged that the mis-conveying of Process, and mis-joyning of Issue in the said Information, were aid∣ed by 32 H. 8.30.

6. By 31 Eliz. 5. § 5. N. 2. an Infor∣mer, Qui tam, &c. must begin his suit within one year after the offence committed, otherwise he shall not have any part of the penalty 2 Co. 366. Hill. 12 Jac. Godbolt 158. pl. 216. Sivedale versus Sir Edward

Lenthal: But popular suits upon the Statute 39 Eliz. 2. § N. of Tillage are except∣ed, and not upon the Statute of Tallage, as is mistaken in the the late additions to Dalt. 546. cap. 191. § 3.

In Dr. Fosters Case, 11 Co. 65. its said, that the Informer hath no Remedy for re∣covery of the forfeitures for Recusancy after the year and day is expired, for that time is limited in certain by 23 Eliz. 1. § 8. N. 1. but yet with submission it seems that 23 Eliz. 1. § 8. N. 1. relates to Indictments only, and so it was held in this very Case of Dr. Foster, 11 Co. 60. and 1 Rol. 93. pl. 41. and Hob. 205. in Pie and Lovels Case; and there was no limitation of time for the In∣former Qui tam, &c. Upon 23 Eliz. 1. § 8. N. 1. until the said Statute of 23 Eliz. 5. § 5. N. 2. which limits him to a year after the offence committed, and not a year and a day, and altho this offence of Recusancy cannot in strictness be said to be committed, for that in truth it is but a bare omission, as hath been said supra 62. and therefore there needs not any place alledged, yet in common parlance it it will pass well enough for an offence com∣mitted, and seems to be within the meaning of 31 Eliz. 5. § N. 2. and in 23 Eliz. 1. § 11. N. 1. its said the third part of the for∣feiture for Recusancy shall be to the poor in the Parish where the offence is com∣mitted Infra 116. N. 2.

7. Now if it be objected that if the Re∣cusancy be not an offence which is to be laid in the proper County by 31 Eliz. 5. § 2. N. 1.

because it is not an offence that can be pro∣perly said to be committed, by the same reason, the Informer who is restrained by 31 Eliz. 5. § 5. N. 1. to a year after the of∣fence committed is not restrained in the Case of Recusancy, nor the poor of any Parish can take any benefit by 23 Eliz. 1. § 11. N. 1. as to the third part of the forfeiture, for that there is no Parish wherein Recusancy can be said to be committed, I answer there is a great difference betwixt the Cases, for in the Cases of limitation of time when the of∣fence must be prosecuted 31 Eliz. 5. § 5▪ N. 1. and that of the poor of the Parish, 23 Eliz. 1. § 11. N. 1. where the forfeiture is to be distributed, the word (committed) is no part of the substance of the matter, and tis no more than if the Statute had said with∣in a year after the offence and to the Parish where the offence was, and there [commit∣ted, may be taken well in that sense] but it cannot be so in that other Case, supra 62. about the proper County, for 31 Eliz. 5. § 2. N. 1. makes the Commission of the of∣fence matter of substance, and whither it were committed or not in the County where it is laid in the Information or popular suit, goeth not to the merits of the Cause, for if it were not committed in that County and the defendent alledg and traverse it, and it be found for him, the Plantiff shall be bar∣red, and those words, (That he may tra∣verse that it was not committed) shew clearly that offences which consist on∣ly

in omission were not intended: for other∣wise neither Recusancy nor any other of∣fence of that nature could be punished by a∣ny Information or popular Action; for the Jury upon their Oaths must of necessity find that it was not committed in any County, for that in truth and property of Speech it was not committed at all.

8. By 31 Eliz. 5. § 5. N. 3. If the Infor∣mer, Qui tam, &c. doth not prosecute with∣in a year after the offence, yet the King may at any time within two years after that year ended, and therefore it was resolved in 2 Co. 366, in Syvedale and Sir Edward Len∣thalls Case, where an Information was brought in the Court of Exchequer, Tam quam &c. Upon 3 Jac. 4. § 3. N. 3. for three years forbearance to receive the Sa∣crament after Conformity, that altho it was not good for the Informer, yet it was well e∣nough as to the King.

9. A natural born Subject, or a denizen being defendent in any suit upon a penal Law in B. R. C. B. or Exchequer, is not Compellable to put in special Bail, but may appear by Attorny 29 Eliz. 5. § 21. N. 2. and 31 Eliz. 10. § 20. N. 3. Telverton 53. Saint Georges Case.

10. An Action of debt or Information Tam pro, &c. lieth upon 23 Eliz. 1. § 11. N. 1. against the Husband and Wife for the Recusancy of the Wife, and the Husband in that case is lyable to pay the twenty pound per month, notwithstanding he himself be

no Recusant 3 Bulstrode 87. The King and Law, 1 Rol. 93. pl. 41. Dr. Fosters Case, Hob. 97. Moore and Hussey, Savile 25. pl. 59. Infra 119. N. 2.

But the Wife cannot appear by Superse∣deas alone without her Husband, for both must appear or both be outlawed, Hob. 179. Lovedens Case, Infra 173. N. 2.

Nor can she plead or joyn issue without her Husband 2 Rol. 90. Sir G. Curson and Ʋxor's Case; and therefore where in an Informati∣on brought against the Husband and Wife, for the Recusancy of the Wife, the Record was entred, & praedict. J. & M. veniunt, & praedicta M. dicit quod ipsa non est inde Culpabilis, & de hoc ponit se super Patriam: this was alledged to be ill, for the Husband pleads not at all, but in this Case the Dock∣et being Quod J. C. & M. uxor ejus, &c. placitant non culp. and it being manifest that they both appeared, the record was a∣mended by the Docket, after verdict, for it was but the mis-prision of the Clerk in drawing the plea 2 Cro. 530. the same Case with 2 Rol. 90. Crompt. 14. a.

At the end of the Case in 2 Cro. 530. a note is added that if Sir J. C. and his Wife had pleaded quod ipsi non sunt culpabi∣les, it had been ill, but yet it seems that the Law is Contrary to that opinion, for where an Action or Information is brought against the Husband and Wife for an offence or wrong done by the Wife, there the Husband is charged quoad poenam, tho not quoad cul∣pam;

and when they both plead, quod ipsi non sunt culpabiles, the meaning is, that he is not chargeable quoad poenam, and she is not Guilty quoad culpam, and therefore it was resolved, addition to Bendloes 148 in the Case of Brown and Audley and his Wife Trin. 22 Jac. in Action sur le Case for scandalous words by the Wife, that where they both plead non culp. and the Jury found the Feme guilty, the Plantiff should have Judgment, for the issue was good for the reason afore∣said, and the finding of the Jury was a good ground for the Judgment, for if the Wife were guilty, quoad culpam, as the Ver∣dict must necessarily be understood, she be∣ing the wrong doer, the Husband by con∣sequence was chargeable, quoad poenam, and Judgment shall be against both.

And the resolution 1 Cro. 417. in the Case of Needler versus Symnell and his Wife, Mich. 11. Car. 1. is directly contrary to that opinion in the end of 2 Cro. 530. for 1 Cro. 417. its adjudged that Ipsi non sunt culpabiles by Baron and Feme is a good issue, altho the wrong were by the Wife alone.

11. An Information of Recusancy lyeth against an Alien, upon 23 Eliz. 1. § 11. N. 1. If he inhabits within the Realm, and if Judgment be had against him he may have a Writ of Error to relieve himself 1 Inst. 1••9.

12. When once the Informer qui tam, &c. hath commenced his suit he hath of a

popular Action made it his own principal Action. 11 Co. 65. Dr. Fosters Case, Vaughan 343. Thomas and Sorrel.

And in this Case it is not necessary that the defendent be served with Process to answer it, for if the Informer put his Information into Court, tis enough to ap∣propriate to him his share of the penalty, God∣bolt 158. pl. 216.

But yet a Note ought first to be made of the day month and year when it was ex∣hibited, for before by 18 Eliz. 5. § 1. N. 5. it is not to be taken to be of Record, nor shall operate any thing either in appropriating the penalty, or barring any other Informer, but when that is done no other Informer can sue for the same offence, and tis a good plea in barr, for the defendent to say that there is another Information depending a∣gainst him for the same offence for as soon as the first Information is delivered in and entred upon record, according to 18 Eliz. 5. § 1. N. 5. it shall be said to be depending, altho it be not alledged that any Writ or process is such out against the defendent thereupon 3 Cro. 261. Mich. 33. and 34 Eliz. the Queen versus Harris, Styles 417. Hob. 209. Parry versus Paris, Palmer 40. Webbs Case, Termes de la Leyverb. Action popular.

The defendent in an Information pleads that heretofore another Information was hibited against him such a day in another Court for the same offence, but mistakes and names in his plea a wrong day, and not that wherein

the first Information is exhibited. The Plantiff replyeth, nul tiel Record; yet if it appears that in truth the Information plead∣ed in barr, was exhibited before the other, which is the substance of the matter, this misprision shall not vitiate the defendent Hob. 209. Parry and Paris; note this Case is cited in the late additions to Dolt. cap. 191. Sect 6. N. to prove that one person cannot exhibit two Informations in the same or in several Courts, but that was not the question there, nor I think ever made a que∣stion, but that the same person may exhi∣bit too several Informations so they be not both for one and the same offence.

3 Cro. 261. The Queen against Harris, Mich. 33. and 34. Eliz. An Information was in B. R. upon 5 and 6. Ed. 67. § N. for buying of Wools, the defendent pleads that there is another Information depend∣ing against him in C. B. at the suit of L. and avers that they are both for the same offence: but in truth that in C. B. supposed the offence to be done at one time, and that in B. R. at another time, yet this is a good plea in Bar of the latter Information, being with an Averment that they are both for the same offence; for otherwise by the In∣formers false supposal of the day, the de∣fendent shall be put to double trouble.

And the same advantage no Question a∣ny man may take against whom two Infor∣mations are exhibited upon 23 Eliz. 1. § 4. N. 2. for hearing of Mass, for perchance he

never heard Mass above once in his life time, and there is no reason he should be put to double trouble for one offence.

13. But otherwise it seems to be in the Case of Recusancy, for if an Information be on 23 Eliz. 1. § 5. N. 1. for not coming to Church for a month, there if the defendent proves that he was at Church any time within that month it shall be sufficient to avoid the penalty of the 20 l.

And as the defendents giving Evidence that he was at Church within the compass of any other month, then that which is laid in the Information, shall not excuse him; so the Informers proof of his absence any other month, shall not hurt him, but the Evidence must go to the very same month which the Information mentions: And the reason is, for that this offence is pu∣nishable according to the time of its durati∣on or continuance, and the offendor is to forfeit for every month of his absence, so that if another Information be exhibited against him for not coming to Church during ano∣ther month, it cannot be supposed to be for the same absence with that in the first Information, but for the like absence at a∣nother time, and therefore cannot be plead∣ed in bar thereof.

14. If two Informers, on one and the same day, exhibit Informations against the same person for the same offence, they are both void and may be pleaded the one in Bar of the other, for that there is no priority to

attach the Right of Action in one of the Informers more than in the other. Hob. 128. Pie versus Coke.

15. Altho Sunday be not dies Juridicus, so as to award a Judicial process, or enter a Judgment of record on that day, yet an In∣formation may be exhibited in Court on that day, and Good. Jones 156.157, Bedoe and Alpe.

16. In C. B. an Information may by the course of the Court be brought in and deli∣vered to one of the Judges there out of term, and shall be dated then: For 18 Eliz. 5. § N. forbids all antedates 2 Rol. 33. Smith versus Carter.

17. An Information is brought by an In∣former, Qui tam, &c. upon 23 Eliz. 1. § 5. N. 1. for Recusancy; and pending the Information, the Recusant is convicted at the Kings suit upon an Indictment for the same absence; the question is, what reme∣dy the Recusant hath in this Case that he may not Bis puniri pro uno delicto? And to this it was answered by Coke Chief Justice, B. R. in Dr. Fosters Case, that he may plead this Conviction, puis le darreine continuance, to discharge himself of the Information, 1 Rol. 9 5. pl. 41. But, as the Reporter well observes there, the Informer when he hath begun his popular Action hath appro∣priated the Action to himself: And if it shall be admitted that the King can devest him of this Action when he pleaseth, by In∣dictment at his own suit, this would prove

very mischievous to Informers. Quaere therefore, how in this Case the Recusant shall defend himself from being doubly punisht for one and the same offence.

But if the Recusant be once convicted at the Kings suit either by Indictment upon 23 Eliz. 1. § 5. N. 1. or according to 29 Eliz. 6. § 2. N. 5. or 3 Jac. 4. § N. up∣on Proclamation, the Informer, Qui tam, &c. Cannot afterwards charge him, but is barred for ever after: For the intention of 23 Eliz. 1. § 11. N. 1. is, that the Infor∣mer may exhibit Informations against such only as are concealed, or not charged at the Kings suit: So that the Informer is neque falcator, neque messor, but spicelegus, a Gleaner. And that in such Cases only where the King doth not prosecute pardon or release before the Informers Action is commenced. 11 Co. 65. Dr. Fosters Case, Bridgman 121.122. Parker against Sir J. Webb and uxor. Lane 60.

But whither this rule be general, and will not admit of an Exception in the Case of a Feme Covert, is a Question: For by some opinions, if a Feme Covert be In∣dicted and convicted of Recusancy, that shall not barr the Informer of his popular Action upon 23 Eliz. 1. § 11. N. 1. against her and her Husband for the Recusancy of the Wife: because upon the Conviction by In∣dictment, the cannot be compelled to pay the forfeiture of twenty pound per month while her Husband lives, nor can it be le∣vied

of her Goods and Lands: for that du∣ring the Coverture, she hath nothing of her own to forfeit, but all is her Husbands. Bridgman 122. Infra 270. N 9.

The Condemnation or acquittal of the party at the suit of the Informer, is a good Bar against the King and all others, 11 Co. 66.

18. Before 4 H. 7.20. § 1. N. 7. It seems that if a popular Action had been brought by Covin, and with the consent of the de∣fendent, and the defendent was for want of Evidence or other Cause found not guilty, and the Covin appeared to the Court, yet Judgment should have been given thereupon against the King, and it should have been a good Bar against all others, 9 Ed. 4.4. pl. but now by 4 H. 7.20. § 1. N. 7. If any person sue with good Faith any Action po∣pular, and the defendent Plead a Reco∣very in an Action popular in Bar, or that before that time he had Barred the Plantiff in such Action, the Plantiff may aver such recovery or Bar was by Covin, and upon such Covin found, the Plantiff shall have Judgment; and the defendent attainted or condemned of Covin, shall shave Im∣prisonment of two years by process of Ca∣pias or Outlawry, as well at the Kings suit as any other, and the release of the party shall not avail the defendent; which Covin may be averred generally. Com. 49.50, 54, 55. Wymbishe and Talbois.

If a man bring upon a penal Statute debt

tam, &c. quam, &c. and the defendent pleads, thereunto the Plantiff may reply without the Kings Attorny &c. Princes Case.

In debt upon 23 Eliz. 1. § 11. N. 1. the defendents demurred, and the Plantiff qui tam, &c. Joyned in demurrer without the Kings Attorny, and held to be good, 1 Cro. 10.11. Farringtons Case, Trin. 1. Car. 1. but in an Information tam, &c. quam, &c. the Kings Attorny ought, to reply, 2 Rol. 33. Smith and Catter.

And this difference between debt and an Information was taken Hutton 82. in the said Farringtons Case; but yet if in an In∣formation the defendent plead a special plea, and the Kings Attorny will not reply, and prosecute for the Kings part, the Informer shall be admitted to reply and prosecute for his part, as was adjudged in Stretton and Taylors Case, 1 Leonard 119. pl. 161. and 11 Co. 65. Dr. Fosters Case, 3 Inst. 194.

19. The King before any Information or other popular suit commenced may par∣don or release the whole penalty incurred, and it shall be a good bar against all men 11 Co. 65.66. Dr. Fosters Case, 3 Inst. 194.195.37 H. 6.4. _____ _____ 2 R. 312. _____ _____ _____ _____ 1 H. 7.3. _____ _____ Termes de ley 102. Decies tantum.

And if the defendent in the Information do not take advantage of such pardon or re∣lease by his plea, but is condemned in the suit and the Kings share of the penalty be

put in the Pipe in magno rotulo, yet he may then discharge himself thereof upon a Com∣pertum suit in magno rotulo, by shewing forth the whole matter by way of Plea, and shall not loose the effect of his pardon or release. Savile 23. pl. 56. Tirringhams Case.

But when once the Informer hath brought his popular Suit, the King cannot dis∣charge it, and if he then pardon or release, or his Attorny enter an ulterius non vult pro∣sequi, this is good for the Kings part only but is no Bar quoad the Informer who may proceed notwithstanding for his part of the penalty: And therefore neither can the Kings Attorny discharge the Jury when they come to deliver their Verdict. Hutton 82. Vaughan 343. Thomas and Sorrel. 1 Leonard 119. pl. 161. and 3 Cro. 138. Stret∣ton and Taylor, 3 Cro. 583. Hammon and Grissith, 3 Inst. 194. 1 H. 7.3.

Such Entry of a non vult prosequi by the Attorny General, hath the same effect with a Nonsuit of a Private person; but the King cannot be said properly to be Nonsuit, be∣cause he is in Judgment of Law ever present in Court 1 Inst. 139.227. Hutton 82. Goldsborough 53. pl. Leighs Case Savile 56. pl. 119. Weare against Adamson.

Upon the Death of Queen Elizabeth it was resolved by the Judges, that where an Information tam pro Domina Regina, quam &c. was brought upon a penal Statute and pending the same and before Judgment the Queen dyed, the Information it self should

stand, for that otherwise the Suit might be lost, there being a time limited for the bringing of it, but all the proceedings there∣upon were lost and void, and the defen∣dent should plead de novo, 2 Cro. 14. and 7 Co. 30.31. Of discontinuance of Process. And to that purpose 5 Ed. 6. Rot. 38. is there cited, where in a popular action, the King dyed after demurrer upon the Evidence, and before Judgment, and the defendent pleaded de novo.

But yet 1 Cro. 10.11. and Hob. 82. Far∣ringtons Case, in a popular action of debt upon 23 Eliz. 1. § 11. N. 1. against Prince and his Wife, where the defendent demur∣red upon the declaration, and the Plantiff, qui tam, &c. Joyned demurrer in Hillary Term, and King James died the Vacation following. It was resolved that not only the Writ and declaration, but all the other pro∣ceedings thereupon should stand notwith∣standing the demise of the King, for that in such Case it is meerly the Suit of the par∣ty, and is aided by 1 Ed. 6.7. § 1. N. 4. of Discontinuances, and he only Joyned in de∣murrer.

Which Resolutions are in appearance flat∣ly contrary each to other, for 2 Cro. 14. seems to take in all popular Suits whatsoever and as well a popular Action of debt as an In∣formation, but yet tis observable that in 1 Cro. 10. the Plantiff only joyned in demur∣rer, and not the Kings Attorny: And this seems to be the reason, why in that Case the

proceedings should stand notwithstanding the demise of the King, for where the party alone joyns in demurrer, or replies, and not the Kings Attorny, there the Suit may pro∣perly be said to be depending between party and party, and within the express words of 1 Ed. 6.7. § 1. N. 4. which provides, that altho the King die, all proceedings in Suits depending between party and party shall stand: But 2 Cro. 14. is to be under∣stood of such Cases where after a Plea or demurrer by the defendent, the Attorny General alone replies, or joynes in demur∣rer, there the proceedings shall be void and the defendent shall plead de novo. But the Information it self shall stand to avoid a ma∣nifest inconvenience, for that the Informer is limited to a certain time wherein to ex∣hibit his Information, and so these two o∣pinions are reconciled.

20. An Informer, qui tam, &c. may be Nonsuited altho the King cannot, 1 Inst. 139. Hutton 82. Farrington versus Arundell.

If pending the popular action, or Infor∣mation the Plantiff or Informer, qui tam, &c. be Nonsuited, or release, or Enter a nolie prosequi, or die, none of these shall bar the King, but the Attorny Genaral may pro∣ceed upon the Information for the Kings part, 1 Leonard 119. pl. 191. 3 Cro. 138. Stretton versus Taylor, 3 Cro. 583. Hamond 3 Inst. 194. Moor 541. pl. 715. and 11 Co. 66. Dr. Fosters Case, 2 Bulstrode 261.262. Waller versus Hanger, 2 Rol. 33. Smith ver∣sus

Carter: And therefore the opinions in 37 H. 6.5. and 38 H. 6.2. that if the Plan∣tiff in a Decies tantum which is a popular Action, be Nonsuit, the King is without re∣medy but by Indictment: or if such Plan∣tiff will relinquish his Suit that the King hath nothing further to do, seem not to be Law at this day.

21. If a popular Information be brought upon a penal Statue in a wrong Court where the Informer cannot sue, yet it was held, Moor 564, &c. pl. 770. in Agar and Can∣dishes Case that the King should not for that loose his advantage of the suit, but the In∣formation should be good for his part of the penalty.

By 18 Eliz. 5. § 3. N. 3. If an Informer or Plantiff, upon a penal Statute where any forfeiture is generally limited to him that will sue, shall delay or discontinue his suit, or be Nonsuit, or shall have the Tryal or matter pass against him, by Verdict or Judg∣ment of Law, he shall pay to the defendent his Cost Charges and Damages: see the ad∣dition to Bendloes 141. Rhobotham and Vin∣cent; and if it be upon a special Verdict or demurrer, those Cases are within 18 Eliz. 5. § 3. N. 3. and he shall pay Costs, by force thereof Hutton 36. Pies Case.

But an Informer is not compellable to find Sureties to answer Costs, howbeit the Court if they see Cause may order him to appear in per∣son before the defendent answer the Infor∣mation 2 Bulst. 18 Martin and Gunnystons Case.

Savil 10. pl. 26. Wilkes Case, it was

held in the Exchequer Chamber that if a writ of Error be brought upon a Judgment given for the King at the Suit of an Infor∣mer, a Scire facias ought to be awarded a∣gainst the Informer.

Page 82, 83, 84. By any Court of Record, is here 23 Eliz. 1. § 11. N. 1. meant the four ordinary Courts of Record, at Westminster: For they are the general Courts of Record, and the Courts where the Kings Attorny may acknowledge or de∣ny, and the words of 23 Eliz 1. § 11. N. 1. being general are left to the construction of law, where the Rule is that verba equivoca & in dubio posita intelliguntur in digniori & potentiori sensie. And in this sense shall these words (Court of Record) be construed in all penal Statutes where the penalty is to be recovered in a popular suit, so that the Informer, qui tam, &c. cannot sue before Justices of Assize Goal-delivery or Oyer and Terminer, or Justices of Peace as in Borrough or corporate Towns, or in a Court of Pi∣powders, Stannary Courts, &c. Jones 193.

And such a construction hath been made of those words (Court of Record) upon se∣veral Statutes as 6 Co. 19.20. and Moor 600. pl. 827. Gregories Case on 4 and 5 Ph. & Mar. 5. § N. of Woolen Cloathes.

In 1 Cro. 149. Green versus Guy, on 21 11.8.13. § 11. N. 2. of Non-resid nee.

In 1 Cro. 112.113. and Hutton 99 Far∣rington and Keymer, on 23 H. 8.4. § 5. N. 3. of Brewers.

In Stiles 340. Buck stone and Shurlock on 7 Ed. 6.5. § 6. N. 3. of selling wine with∣out Licence.

In 3 Cro. 737. Barnabee versus Goodale. and 2 Cro. 538. Millors Case and Styles, 383. upon 5 Eliz. 4. § 13. N. 3. of Trades.

In Moor 421. pl. 581 upon the Statutes for Tanning of Leather and divers others.

2. It was held Mich. 6 and 7 Ed. 6. Dyer 236. pl. by all the Justices but three, that where a Statute appoints a penalty for any offence made thereby, which was not an offence at the common law to be Recover∣ed in any of the Queens Courts of record by Action of debt and no other Court is appointed: The Statute intends the sour or∣dinary Courts of Record at Westminster, and the offence and penalty cannot be punished and determined by Commissioners of Oyer and Terminer in Patriam.

But Dyer makes a Quaere hereupon; and Sir Edward Coke in Scarlets Case, 12 Co. 98. saith 10 Jac. that the opinion of Cat∣lin, Sanders, and Whiddon, (which were the three dissenting Justices before, &c.) is at this day held for good law, and the opin∣ion of the rest of the Justices that (any Courts of Record) are restrained to the ordinary Courts at Westminster of Record, is not held for law. Continual Experience (saith he) being against it, for that Justices of Assize in respect of their Commission of Oyer and Terminer, have alwaies enquired of offences where the penalties is appointed

to be sued (in any Court of Record) as up∣on 33 H. 8.9. § 18. N. 1. of unlawful Games 35 H. 8.17. § 9. N. 2. of words and 5 and 6 Ed. 6.14. § 9. N. 2. of forfei∣tures and other Statutes.

But under favor, altho Commissioners of Oyer and Terminer may take Indictments for the doing of that which is made malum prohibitum by a Statute Law, yet that part of the opinion in Dyer 236 which relates to the Action of debt and the Courts of Re∣cord where such Action must be brought, is good law, and where only (Courts of Record) are named, such Action cannot be brought in any other Court then the four ordinary Courts of record at Westminster, as appears by the several Cases and resolutions before recit∣ed.

3. Sir Edward Coke 3 Inst. 193. and 4 Inst. 174. saith that this exception of Re∣cusancy, in 21 Jac. 4. § 5. N. 1. doth not extend to the Courts 21 Jac. 4. § 1. N. 5. wherein the Informer is to sue but only to the County where 21 Jac. 4. § 2. N. 1. the offence is to be laid.

So that notwithstanding that exception 21 Jac. 4. § 5. N. 1. the Kings Bench Chancery, C. B. Exchequer, or Exchequer Chamber, cannot relieve or hold plea of a∣ny Information for Recusancy, either by the Kings Attorny or any Common Informer, but the matter shall be heard and deter∣mined before Justices of Assize Nisi prius, Goal-delivery or Oyer and Terminer, or Justi∣ces

of Peace in their general Sessions, accord∣ing to 21 Jac. 4. §. 1. N. 3. but the Infor∣mer if it be for Recusancy may by force of that exception 21 Jac. 4. § 5. N. 1. lay or alledge such offence in what County he will, for the said exception extends only to the County 21 Jac. 4. § 2. N. 1. and not to the Courts 21 Jac. 4. § 1. N. 5. where the Informer is to sue.

Which opinion of his touching the ex∣tensiveness of the exception is probable e∣nough, (viz.) that 21 Jac. 4. § 5. N. 1. ex∣tends only to the County and not to the Courts where the Informer is to sue, for the latter part of it speaks only of the County, but this is unaptly applied to popular Infor∣mations upon 23 Eliz. 1. § 11. N. 1. for they are not within the meaning of that branch of 21 Jac. 4. § 1. N. 5. touching the Courts where the Informer is to sue; for 21 Jac. 4. § 1. N. 5. medles not with those Informations upon those penal Laws which give the Informer no other remedy for re∣covery of the penalty but by Debt, Bill, plaint or Information in the Courts of Re∣cord at Westminster.

Nor doth 21 Jac. 4. § 1. N. 3. give the Justices of Assize, or other Justices there named any new or further power than they had before, but only appoints that where Informations might have been brought be∣fore them or in the Courts of Westminster at the Election of the Informer, now they shall be brought before Justices of Assize,

Nisi prius, Goal delivery or Oyer and Ter∣miner, or at the Sessions of the Peace in the County where the offence was committed, for the ease of the Subjects who are de∣fendents and not in the Courts at Westminster. 4 Co. 1. 1 Cro. 112.113.

But in our Case of Recusancy, there is no such Election given the Informer by 23 Eliz. 1. § 11. N. 1. but he is strictly tyed to take his remedy by debt, Bill, plaint or Infor∣mation in one of the Courts at Westminster, and therefore 21 Jac. 4 § 1. N. 5. extends not to it in that branch touching the Courts where the Informer is to sue.

And as for Sir Edward Cokes Opinion, that since 21 Jac. 4. § 1. N. 5. the Courts at Westminster cannot receive or hold Plea of any Information brought by a Common Informer, not only common Experience e∣ver since that Statute is against it, but the Judgments and resolutions both of B. R. Mich. 4. Car. 1. Greene and Guy, 1 Cro. 146. pl. upon 21 H. 8.13. § 11. N. 2. and Fentons Case, Mich. 27. Car. 2. upon this Statute of 23 Eliz. 1. and of C. B. in Far∣rington and Leymer 1 Cro. 112. Hutton 99. Trin. 4 Car. 1. upon 23 H. 8.4. § 5. N. 3. Are directly in point Contrary thereun∣to, and so is the opinion of Rolls in Styles 340. Buck stone and Shurlock, 7 Ed. 6.5. § 6. N. 3. and the resolution in Jones 193.

And yet altho in penal Statutes (any Court of Record) shall be restrained to the

ordinary Courts of Record at Westminster, possibly in other Statutes those words may admit of a larger Construction 1 Rol. 51. pl. 21. Floyd and Best.

Page 85, 86. Upon 23 Eliz. 1. § 11. N. 1. by Action of debt, Bill, plaint or In∣formation, by 18 Eliz. 5. § 1. N. 3. it is enacted that none shall be admitted or re∣ceived to prosecute against any person upon any penal Statute but by way of Information or original Action and not otherwise, 6 Co. 19.20. Moor 412. pl. 565. and 600. pl. 827. Gregories Case 3 Cro. 544. Gadley versus Whitecote.

And this seems to extend as well to penal Statutes made afterwards as to those that were in force when 18 Eliz. 5. § 1. N. 3. was made, for tis usual for a latter act of Parliament to be guided by a former, as 4 Co. 4. Vernons Case.

But then it must be in such Cases where there are not express words in the latter act to controule the former, and therefore altho the word of 18 Eliz. 5. § 1. N. 3 that the Informer shall not prosecute other∣wise then by Information or original acti∣on, yet the Affirmative words of this subse∣quent Statute 23 Eliz. 1. § 11. N. 1. that the Informer may sue by Bill hath taken a∣way the force of that negative in 18 Eliz. 5. § 1. N. 3. in relation to the offence mentioned in 23 Eliz. 1. and the prose∣cutor, qui tam, &c. upon 23 Eliz. 1. § 11. N. 1. may sue by Bill in B. R. as well as

by Information which otherwise had there been no direct words here to that purpose he could not do as it seems by the resolution 3 Inst. 194. in Woodson and Clerks Case.

In a suit brought by Bill in B. R. upon 23 H. 6.10 § 1. N. 12. of Sheriffs, and in Moor 248. pl. 390. Ʋdeson and the Ma∣jor of Nottinghams Case, contrary to the o∣pinion in Styles 381. Hill and Dechair.

Page 86. Upon 23 Eliz. 1. § 11. N. 2. Qui non habet in aere, luet in corpore. And yet in this Case the Judgment shall be ab∣solute that the King and the Informer re∣cover, &c. 1 Anderson 140. pl. 190. Va∣chels Case.

2. A Feme Covert Recusant if the for∣seiture be not paid within the time limited, 23 Eliz. 1. § 11. N. 2. may be imprison∣ed by force of this Statute until she pay or conform 11 Co. 61. Dr. Fosters Case, Hob. 97. Moor and Hussey.

And if she be convicted upon Indictment at the Kings suit, in which Case the Hus∣band is not bound to pay the penalty, she ought by the opinion of Manwood to have hard and close Imprisonment, and sequest∣red from all Company, until she conform or forfeiture be paid, Savile 25. pl. 59.

But if the Husband and Wise be sued up∣on 23 Eliz. 1. § 11. N. 2. in a popular Acti∣on or Information for the Recusancy of the Wife, and Judgment be had against them, and the forfeiture is not paid within the three months, the Husband in that Case

may be Imprisoned likewise.

Page 87. Upon 23 Eliz. 1. § 13. N. 1. since the beginning of this Session of Par∣liament, and yet a Covenons Conveyance tho made before that Session of Parliament should not have defeated the Interest, right or Title which was given to the Queen by this Statute, and therefore in the Case of Sir John Southwell 3 Leonard 147.148. pl. who in Anno 19 Eliz. Conveyed his lands to certain. Feoffees and their heirs in trust for the maintenance of him and his Family, Marriage of his Daughters, payment of his debts, &c. and to answer him the surplu∣sage of the mean profits, with a Clause of revocation after which he granted Trees took Fines for leases, &c. And then came 23 Eliz. 11 § 13. N. 1. upon which he was Indicted and convicted: It was resolved by all the Judges of England that the said lands were liable to this Statute, and the Jurors charged to enquire what lands he had, and were committed to the Fleet, and fined each of them fifty pounds, for that yet they would not find those Lands to be his.

2. By means of any Conviction or Judg∣ment 23 Eliz. 1. § 13. N. 1. Pauncefoot be∣ing Indicted of Recusancy made a deed of gift of all his leases and goods, to a great Value, coloured over with feined consider∣ations to defeat the Queen of what might accrew to her by his Recusancy or flight, and then went beyond Sea, and afterwards was outlawed upon the said Indictment and

it was resolved 36 Eliz. by the whole Court of Exchequer that this was a fraudulent Con∣veyanc within 13 Eliz. 5. § 2. N. 3. which was made for the relief of the Queen and otherpersons, as well as Creditors.

But as this Case is related in 3 Co. 82. Twines Case, tis observable that altho it was debated whither the Queen should a∣void this Conveiance by force of 50 Ed. 3. 6. § 1. N. 2. or that of 3 H. 7.4. § 1. N. 2. or that of 13. Eliz. 5. § 2. N. 3. yet there is no mention made of this branch of 23 Eliz. 1. § 13. N. 1. for tis clear that the Queen could not avoid such a fraudulent Conveyance by force of 23 Eliz. 1. § 13. N. 1. unless Judgment had been first given a∣gainst the Recusant or he had been convicted, and Pauncefoot was neither Convicted or adjudged to be a Recusant, but the Queens interest accrewed to her by means of the outlawry only.

Page 88. Upon 23 Eliz. 1. § 14. N. 1. altho a Peer shall be tryed per pares, yet he is to be indicted by an inquest under the de∣gree of Nobility, and may be Indicted be∣fore Commissioners of Oyer and Terminer: or in B. R. if the offence be Committed in the County where the Kings bench is. 2 Co. 49.

Notes

• LXXIX. Conspiracy.
• LX. Accessory.
• LXI. Enfant.
• LXII. Lieu.
• LXIII. Proof.
• LXIV. Forfeiture.
• LXV. Dayes.
• LXVI. Behaviour.
• LXVII. Schools.
• LXVIII. Licence.
• LXIX. Dayes.
• LXX. Justices.
• LXXI. Justices.
• LXXII. Endictment.
• Far. & Feme
• LXXIII. Treason.
• LXXIV. ••onformity.
• LXXV. Certisicate.
• LXXVI. Forfeitures.
• LXXVII. Poor.
• LXXVIII. Exchequer.
• LXXXIX. Information.
• Information.
• Dayes.
• Alien.
• Bar. & Feme
• Alien.
• Information.
• Bar. & Fe••
• Collusion.
• Priory.
• Release.
• Courts.
• Costs.
• LXXX. Courts.
• LXXXI. Information.
• LXXXII. Imprisonment
• LXXXIII. Assurances.
• LXXXIV. Priviledge.