The third part of the reports of severall excellent cases of law, argued and adjudged in the courts of law at Westminster in the time of the late Queen Elizabeth, from the first, to the five and thirtieth year of her reign collected by a learned professor of the law, William Leonard ... ; with alphabetical tables of the names of the cases, and of the matters contained in the book.

CCCXXVI. Broughton and Prince's Case. Mich. 32 & 33 Eliz. In the Exchquer.

BRoughton, an Apprentice of the Inner-Temple,* 1.1 being Farmor to the Queen, exhibited a Bill in the Exchequer, Quo minus, &c. against Prince, a Practicer of the Law in the Marches of Wales, for maintaining one J.S. in a Suit, against the Statute of Maintenance.

To which the Defendant pleaded, That he was Consiliarius & in lege eruditus, &c. and so justified. And now it was moved by Atkinson, on the part of the Defendant, That by the Statute of 18 Eliz. Cap. 5. That no Informer shall sue any person upon any Penal Statute, but by way of Information, or Original Action, and not otherwise, And here the suit is by Bill, which cannot be war∣ranted by the Statute. And he conceived, That this suit is brought upon the Statute of 1 R. 2. cap. 4. upon which Statute, no prose∣cution shall be in the name of the subject only, but it may be in the name of the King only. See the Book of Entries, 393. Where the suit is, tam pro Domino Rege, quam pro seipso: And there by the King only, and there by the party only. And as to the Statute of 32 H. 8. cap. 9. suit upon the same ought to be, tam pro Domina Regina, quam pro seipso: Which see in the Book of Entries, 395. Also by the Statute of 31 Eliz. cap. 5. The suit brought, ought to begin within one year after the offence committed: And in our Case, the offence upon which the suit is conceived, was committed 3 years before the Information brought; and it cannot be added, because that the Plaintiff is the party grieved; For every Statute made against Maintenance is Popular.

Broughton said, We have Replied to the Defendant, That he is a Lay Man, et non in Lege Eruditus; and prayed, that the same might be enquired of by the Country: And the Defendant Prince likewise, and so Issue is joyned: And because you have such Ob∣jections, they shall be saved to you to move in Arrest of Iudgment.

Atkinson, I may offer them as well now to the Iury, as well as in Arrest of Iudgment. And afterwards it was moved, That the Defendant might demur upon the Replication, if he would; and if not, the Issue should be tryed: And if then it pass against the Defendant, that then he shew the matter in Arrest of Iudgment; for no Exception shall be allowed for staying of the Enquest, if it be not an apparant fault, and not only a doubt.

At another day the matter was moved; and then it seemed to the Barons, That the Plaintiff here being Pars gravata, was not restrained to any year after the offence committed, but that re∣straint did extend only to Common Informers. The Defendant pleaded, That he was admitted in Societatem interioris Templi, and there remained a Student for so many years; And that he was

homo eruditus in Lege, and a Counsellor, and took his Fee; &c. The Plaintiff by Replication, said of his own wrong without that, that the Defendant is homo Conciliarius & in lege eru∣ditus, & hoc petit quod, &c. ut supra. And Atkinson took Exception to the Traverse and Conclusion of it, Et hoc petit quod inquiratur per Patriam; for that cannot be tryed by the Coun∣try, but by the Iudges: For here is a Question of the Learning of the Defendant, and that is to be tryed: and his sufficiency in this Learning is to be discerned by those who are skilful in the Laws of the Land; For if a matter in Law is to be tryed by the Iudges, a multo fortiori, the Learning of the Law is to be tryed by them; for that is more difficult to be judged. As, where the Ordinary re∣fuseth a Clerk for insufficiency in learning, upon which they are at Issue, the same shall not be tryed by the Country, but by the Bi∣shop: Which see Articuli Cleri, cap. 13. de Idonietate praesentata ad Beneficium Ecclesiasticum pertinet Examinatio ad Judicium Ecclesiasti∣cum, 40 E. 3. 25. And see the Statute of 18 Eliz. that Pars gravata in the Case of Maintenance, is not tyed to a year. And this suit is conceived to be in such Quality, being a private grievance to the party himself; the King not being party, but only the party grie∣ved: But where the penalty is expresly given to the King, and him that shall sue, there all the proceedings ought to be in both their names.

And Manwood, Chief Baron, said, That this Issue shall be tryed by the Country. Which see in the Book of Entries, 396.

Notes

• * 1.1

  1 Cro. 728. Tryal per pays 175 Owen Rep. 128, 227.