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distinct averment (112). If the plaintiff declare that he had J. S. and his wife in executione, and that the defendant suffered them to escape, and the jury find specially that the husband only was taken in execution (it being a debt due from the wife before coverture), and that he escaped, the plaintiff shall have judgment, for the substance of the issue is found (113). Declaration for an escape stated, that the plaintiff in E.T. 5 G. 4. recovered against one H. W. £ as by the record appeared, that in Trin. T. in the fifth year aforesaid, such proceedings were had in the said court, that it was considered, that the plaintiff should have execution against the said H. W. for the damages aforesaid, according to the force of the said recovery by default of the said H. W. as by the record of the said last-mentioned proceedings still remaining in the said court appears, and thereupon, on, &c. in T. T. in the fifth year aforesaid, the said H. W. was committed to the custody of the marshal in execution for the damage aforesaid, and escaped. Plea, not guilty. At the trial, the plaintiff proved the original judgment, and that a committitur issued thereon, but he did not prove any judgment in scire facias. It was holden”, that the allegation of the judgment in sci. fa. was immaterial, and that the word “thereupon,” did not so connect the judgment, in sci. fa. with the commitment, as to make it necessary for the plaintiff to prove such

g Roberts v. Herbert, 1 Sidf. 5.

h Bromfield v. Jones, 4 B. & C. 380.

(112) A different rule holds, where an action is brought for an escape after a commitment on a habeas corpus, of a person arrested on mesne process; there the prout patet per recordum remaining in the court,” may either be rejected as surplusage, on the ground of such commitments not being records, nor capable of becoming so; or, if considered as quasi of record, the allegation is sufficiently proved by the production of the writ, with the committitur annexed by the clerk of the papers of the King's Bench Prison, with whom, as servant of the marshal, such papers are usually deposited. Wigley v. Jones, 5 East, 440.

(113) In debt for an escape against the marshal, it was alleged, that the prisoner was surrendered to him at the chief justice's chambers in the parish of St. Bride's, whereas it appeared upon evidence, that it was in the parish of St. Dunstan. But the judges held it well enough, this being debt, and the surrender (not the place of the surrender) being the only thing material, and that it differed from trespass, where every part of the declaration was descriptive. Oates v. Machen, Str. 595. at Nisi Prius, in Middlesex, coram Fortescue and Raymond, justices.

judgment. Declaration against the marshal for escape alleged, that J. S. was arrested and gave bail, that afterwards bail above was put in before a judge at chambers, “as appears by the record of the recognizance;" that J. S. surrendered in discharge of the bail, and afterwards escaped. At the trial, the plaintiff produced the entry of a recognizance of bail, and the entry of special bail in the filazer's book; but the entry of recognizance imported, not that the recognizance was taken before a judge at chambers, but in court, and the entry in the filazer's book imported that bail was put in before a judge, but did not state whether it was put in at chambers or in court. It was holden', that the allegation in the declaration was not supported by the evidence. If the defendant plead no escapek, he cannot give in evidence no arrest, for the plea admits an arrest.

X. Of the Statutes, and general Rules, relative to Actions

founded on Penal Statutes.

Of the time within which Actions on Penal Statutes must be brought.-By stat. 31 Eliz. c. 5. s. 5. "All actions brought for any forfeiture upon a penal statute, whereby the forfeiture is limited to the king only, shall be brought within two years next after the offence committed. And all actions brought for any forfeiture upon a penal statute, (except the statute of tillage) the benefit whereof is limited to the king and the prosecutor, shall be brought within one year after the offence committed; and, in default thereof, the same shall be brought for the king, at any time within two years after that year ended. And if any action shall be brought after the time before limited, the same shall be void. Provided', that, where a shorter time is limited by any penal statute, the action shall be brought within that time.”

This statute extendsm to all actions brought upon penal statutes, whereby the forfeiture is limited to the king, or to the king and the party, whether made before or since the statute. 2dly, If any offence prohibited by any penal statute be also an offence at common law, the prosecution of it as an offence at common law is not restrained by this statute. 3dly, The defendant may take advantage of this statute, on the general issue, and need not plead it. In actions brought on penal statutes, it is incumbent on the plaintiff to shew that the action was commenced within the limited time.

i Bevan v. Jones, 4 B. & C. 403.
k Bull. N. P. 67.

I S. 6.
m Tidd's Prac. 15.

By stat. 21 Jac. 1. c. 4. s. 1. “All offences against any penal statute, for which any common informer may ground a popular action, bill, plaint, suit, or information, before justices of assize, justices of nisi prius or gaol delivery, justices of oyer and terminer, or justices of peace in their general or quarter sessions, shall be commenced, sued, prosecuted, tried, recovered, and determined by way of action, plaint, bill, information, or indictment, before the justices of assize, &c. of every county, city, &c. having power to determine the same, wherein such offences shall be committed, in any of the courts, &c. aforesaid respectively; and the like process shall be as in actions of trespass vi et armis at common law; and all informations, actions, bills, plaints, and suits, commenced, sued, &c., by the attorney-general, or other officer, or common informer, in any of the king's courts at Westminster, for any of the said offences, penalties, or forfeitures, shall be void." And by s. 2. “The offence shall be alleged to have been committed in the county where such offence was in truth committed; and if, on the general issue, the plaintiff or informer shall not prove the offence, and that the same was committed in the county in which it is laid, the defendant shall be found not guilty.” By the 3d section it is enacted,“ that no officer in any court of record, shall receive, file, or enter of record any information, bill,” &c. grounded upon a penal statute, until the informer has first taken an oath, which shall be entered of record, before some of the judges of the court, that the offence was not committed in any other county than where, by the said information, bill, &c. the same is supposed to have been committed, and that he believes in conscience, that the offence was committed

before the information or suit, within the same county." By the 4th section, defendants are permitted to plead the general issue, not guilty, and give the special matter in evidence. By the 5th section, several statutes now obsolete, e. g. the statute against popish recusants, and actions for maintenance, &c. are exempted from the operation of this act. With respect to this statute, it is to be observed, 1st. That it does not extend to subsequent penal laws"; consequently, in an action founded on stat. 12 Ann. c. 16. against usury, it is not necessary that there should be an affidavit that the offence was committed in the county where, and within a year before, the action was brought s. 2dly, Wherever, by any act in force at the time when this statute passed, the informer might have sued by action, bill, plaint, suit, or information, in the inferior courts, as well as in the courts at Westminster, he is now confined to sue in the former; but as the statute does not give any new jurisdiction to the inferior courtst, the party may still sue in the courts at Westminster for all penalties, which could not, before the passing of that statute, have been recovered in the inferior courts. Hence, an informer may bring an action of debt in the courts at Westminsterų, on the stat. 1 Jac. c. 22. s. 14. for the recovery of the penalties for selling leather, which has not been searched and sealed; because this statute > gives no jurisdiction to the inferior courts to distribute the penalties, but only to inquire of the premises; which inquiry means in their accustomed manner, namely, by indictment or presentment at common law. 3dly, This statute applies to those penal statutes only, on which proceedings may be had before the justices of assize, justices of the

within a year

r Hicks's case, Salk. 373. R. v. Galle,

Salk. 372. Ld. Raym. 370. Harris, 9. t. v. Renny, cited in Prench, q. t.

v. Coxon, St. 1081. Messenger v. Robson, cited in Garland v. Burton, Andr. 292.

c By stat. 3 & 4 W. 4. c. 42. s. 3. [14th Aug. 1833,] “All actions for penalties, given to party grieved, must be commenced and sued within two years after the cause of action. See ante, p. 607, 8.

By stat. 18 Eliz. c. 5. s. 1. (made perpetual by statute 27 Éliz. c. 10.) “Every informer, upon any penal statute, shall sue in proper person, or by his attorney. Hence an infant cannot be a common informer; for he must sue by prochein amy or guardian 2.

By the 3d section of stat. 18 Eliz. “No informer shall compound with any person that shall offend against any penal statute, for an offence committed, but after answer made in court to the suit, nor after answer, but by order or consent of the court." In cases where part of the penalty goes to the crown, leave shall not be given to compound unless notice shall have been given to the proper officer; but in other cases it may. R. G. H. T. 2 W. 4. This statute

peace , &c.

s French v. Coxon, Str. 1081.
t See R. v. Galle, Carth. 466, and

Garland, q. t. v. Burton, Str. 1103.

Andr. 291, s. C. u Shipman, q. t. v. Herbest, 4 T. R.

109. R. v. Ferris, H. 37 G. 3. Exch.

I Wms. Saund. 312. c. n. (1) S. P. x See s. 50. y Leigh v. Kent, 3 T. R. 362. 2 Maggs v. Ellis, M. 25 G. 2 B. R.

Bull. N. P. 196. and MS.

extends to suits by common informers onlyą, and not to those by party grieved; it extends, however, as it seems b, to subsequent penal statutes, as well as to those which were in being when it was made. A common informer cannot sue for a less penalty than the statute givese; if he do, though he has a verdict, judgment will be arrested : e. g. if a common informer were to sue for the single value of money won at play, the statuted giving the treble value. The exceptions in the enacting clause of the statute, which creates the offence, must be negatived by the plaintiff in his declaratione; but if there be a separate proviso, although in the same section, that need not be negatived in declaration, but is matter of defence, and the other party must shew it to exempt himself from the penalty.

Of the Pleas to Actions fonnded on penal Statutes.-A saving proviso may be given in evidence on the general issue; because, if the party is within the proviso, he is not guilty on the body of the act on which the action is founded; but another statute, whereby the defendant is exempted or discharged from the penalty, must be pleaded, and cannot be given in evidence on the general issue . So a recovery in another action for the same offence must be pleaded specially , in order to give the plaintiff an opportunity of replying nul tiel record, or that it was a fraudulent recovery; and in pleading this plea, care must be taken to set forth that the plaintiff in the other action had priority of suit; otherwise the plea will be bad on demurreri. To this plea of a prior recovery k the plaintiff may reply that the recovery was had by covin; and if the covin be found, the plaintiff shall recover, and the defendant shall be imprisoned for two years. No release of any common person shall be available to discharge a popular action. The defendant cannot plead several matters to an action on a penal statutel; because the stat. 4 Ann. c. 16. (which m enables defendants to plead several matters) contains a proviso that nothing in the said act shall extend to actions on any penal statute.

Of the Venire.—By stat. 24 G. 2. c. 18. s. 3. (reciting that by stat. 4 Ann. c. 16. s. 6. it was enacted, that every venire

a Doghead's case, 2 Leon. 116. 2 g Gilb. Evid. 6.

Hawk. P. C. 279. See also s. 6. of h Bredon q. t. v. Harman, E. 12 G. 2. the statute.

C. B. London Sittings, Eyre, C. J. b Pie's case, Hutt. 35.

Str. 701. c Cunningham v. Bennet, T. I G. 1. i Jackson v. Gisling, T. 15 G. 2. Bull. C. B. Bull. N. P. 196.

N. P. 197. d 9 Ann c. 14.

k Stat. 4 H. 7. c. 4. e Spieres v. Parker, 1 T. R. 141. 1 Heyrick v. Foster, 4 T. R. 701. f Steel v. Smith, 1 B. & A. 94.

m See s. 4.

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