mentioned in it. A notice that the tenant will quit as soon as he can get another situation will not enable the landlord to recover under the statute, although he can prove that the tenant had got another situation. Farrance v. Elkington, 2 Campb. 591. A tenant who, after having given notice to quit, holds over for a year and then pays double rent, under the above statute, is not liable to an action for double rent if he quits at the expiration of such year without giving a fresh notice, for the double rent is payable only while he continues in possession (a). By the acceptance of a single rent the landlord, it seems, waives his right to recover double rent under the statute. Gilder v. Gildoe, cited Cowp. 245.

By 3 & 4 Will. IV. c. 42, s. 3-All actions for penalties, damages, or sums of money, given to the party grieved, by any statute now or hereafter to be in force, shall be commenced and sued within two years after the cause of such actions or suits.

IX. Debt for Penalties.

By 31 Eliz. c. 5, s. 2-In any declaration or information the offence against any penal statute shall not be laid to be done in any other county but where the contract or other matter alleged to be the offence was in truth done (b), and every defendant in such action, &c., may allege that the offence was not committed in the county where such offence is alleged, which, being tried for the defendant, or if the plaintiff be thereupon nonsuit in his information or suit, the plaintiff shall be barred in that action or information. By sect. 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 by any person that may lawfully pursue the same 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 (sect. 6), that where a shorter time is limited by any penal statute, the action shall be brought within that time.

This statute extends 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 (c), but not to actions of debt brought by the party grieved (d) (which however must, by the 3 & 4 Will. IV. c. 42, s. 3, be commenced and sued within two years of the cause of action), or, it seems, as to the (a) Booth v. Macfarlane, 1 B. & Ad. 904.

(b) See Smith v. Bond, 11 M. & W.

549.

(c) Barber v. Tilson, 3 M. & S. 434. (d) Fife v. Bousfield, 6 Q. B. 100.

time limited for bringing the action, to cases where the whole penalty is given to the common informer (e), and therefore it does apply where a moiety of the penalty is given to the poor of the parish (f). 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. The defendant may take advantage of this statute on the general issue, and need not plead it (g). In actions brought on penal statutes, it is incumbent on the plaintiff to show that the action was commenced within the limited time (h).

By 21 Jac. I. 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, and not elsewhere save only in the said counties; and the like process shall be as in actions of trespass at common law; and all informations, actions, &c., by the attorney-general, or other officer, or common informer, in any of the courts at Westminster, for any of the said offences, penalties, or forfeitures, shall be void. By sect. 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 3rd section-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 (to 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 within a year before the information or suit, within the same county.

The above statute does not extend to subsequent penal laws (i); consequently, in an action founded on the 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 (k). Wherever, by any act in force

(e) 1 Show. 354, in notis.

(f) Frederick v. Lookup, 4 Burr. 2018. (g) 21 Jac. 1, c. 4, s. 4, infra.

(h) Maugham v. Walker, Peake's N. P. C. 163: i. e., if the general issue "by statute," is pleaded, post, p. 636.

(i) Hick's case, Salk. 373; R. v. Galle, Salk. 372; Lord Raym. 370; Messenger v. Robson, cited in Garland v. Burton, Andr. 292.

(k) French v. Coxon, 2 Str. 1081.

at the time when this statute passed, the informer might have sued. by action 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 courts (1), 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 (m). Hence, an informer may bring an action of debt in the courts at Westminster on the 1 Jac. I. 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 (n). This statute applies to those penal statutes only, on which proceedings may be had before the justices of assize, justices of the peace, &c. (0)

By the 4th section (of the 21 Jac. I. c. 4) defendants are permitted to plead the general issue, and give the special matter in evidence; and this section, it has been held, applies to subsequent statutes. Lord Spencer v. Swannell, 3 M. & W. 154. By 21 Pl. R. H. T. 1853, the defendant must in such a case insert in the margin of the plea the word "by statute," together with the year or years in which the act or acts which he relies on was passed, and also the chapter and section, specifying whether it is a public act or not, "otherwise such plea shall be taken not to have been pleaded by virtue of an act of parliament."

By 18 Eliz. c. 5, s. 1 (made perpetual by 27 Eliz. 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 (p). By the 3rd section, 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. Leave, however, cannot be obtained at nisi prius (q). 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. 118 R. G. H. T. 1853. The consent of the crown, however, must be obtained. R. v. Gibbs, 3 Dowl. 345.

This statute extends to suits by common informers only, and not to those by the party grieved (r). It extends, however, as it seems, to subsequent penal statutes, as well as to those which were in

(1) R. v. Galle, Carth. 466; Garland v.
Burton, 2 Str. 1103.

(m) Morgan v. Lute, 1 Chitt. 381.
(n) Shipman v. Henbest, 4 T. R. 109.
(0) Leigh v. Kent, 3 T. R. 362.

(p) Maggs v. Ellis, Bull. N. P. 196. (9) 1 Wius. Saund. 312, b, n. (1). (r) Doghead's case, 2 Leon. 116; 2 Hawk. P. C. (8th ed.) 372. See also sect. 6 of the statute.

being when it was made (s). A common informer cannot sue for a less penalty than the statute gives; 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 statute (9 Ann. c. 14, s. 2) giving the treble value (†).

Of the Pleadings in Actions founded on Penal Statutes.—The exceptions in the enacting clause of a statute, which creates an offence, must be negatived by the plaintiff in his declaration (u), or it would be held bad on demurrer (x); but if there be a separate proviso, although in the same section, that need not be negatived in the declaration, but is matter of defence, and the other party must show it to exempt himself from the penalty (y); a fortiori, therefore, if the proviso is in a subsequent section (z), or in a subsequent statute (a). A saving proviso may, however, it seems, 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 (b).

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 (c); and in this plea, it should be stated that the plaintiff in the other action had priority of suit; otherwise the plea will be bad on demurrer (d). To this plea of a prior recovery, 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 (e). No release of any common person shall be available to discharge a popular action (f). The defendant may, it seems, since the Common Law Procedure Act, 1852, s. 81, plead several matters to an action on a penal statute (g).

In an action on a penal statute, it was moved by the defendant that the plaintiff should give security to pay the costs, upon affidavit that he was a poor man. But the court refused the motion; for, the statute having given him him; but if it appeared that the

(s) Williams v. Drewe, Willes, 392. (t) Cunningham v. Bennet, Bull. N. P. 196.

(u) Spieres v. Parker, 1 T. R. 141; per Alderson, B., Simpson v. Ready, 12 M. & W. 740.

(x) Gill v. Scrivens, 7 T. R. 27. After verdict, however, the omitted facts might perhaps be suggested under sect. 143 of the Com. Law Proc. Act, 1852.

(y) Steel v. Smith, 1 B. & Ald. 94. (z) Per Erle, J., Van Boven's case, 9 Q. B. 684.

(a) Pilkington v. Cooke, 16 M. & W.

615.

(b) Pelly v. Rose, 12 M. & W. 435.

power to sue, it is a debt due to action was brought in a feigned

But, semble, that this applies only to cases
where the proviso in fact amounts to an
exception, and should be stated in the
declaration; thus practically leaving two
courses open to the defendant, either to
demur, or to plead the general issue, and
show himself within the exception; for it
seems doubtful whether even under the
general issue, "by statute," such evi-
dence could be given. Thibault v. Gibson,
12 M. & W. 88, and cases supra.

(c) Bredon v. Harman, 2 Str. 701.
(d) Jackson v. Gisling, Bull. N. P. 197.
(e) 4 Hen. VII. c. 20.

(f) Ibid.

(g) See Heyrick v. Foster, 4 T. R. 701.

name, they would oblige the real prosecutor to give security (h). The court will grant a new trial, after verdict for the defendant, in a penal action, on account of a mistake or misdirection of the judge (i); but it is a settled rule not to grant a new trial in such a case on the ground that the verdict is against evidence (k), or, it seems, on any other ground than a misdirection of the judge in point of law (D).

Damages. It is a general rule that damages cannot be given in a popular action for detention of the debt, no interest attaching in the plaintiff before the recovery thereof; and if judgment be entered for damages as well as the debt, it will be reversed pro tanto: or if the costs and damages be incorporated together, the judgment will be reversed as to both (m).

Bribery, &c.-By the 17 & 18 Vict. c. 102 (n), all the previous statutes on the subject of bribery, treating, &c. are repealed. By section 2 of that statute,

Every person who shall, directly or indirectly, give, lend, or agree to give or lend, or shall offer, promise, or promise to procure, or to endeavour to procure, any money or valuable consideration for any voter, or for any person on behalf of any voter, or for any other person in order to induce any voter to vote, or refrain from voting, or shall corruptly do any such act on account of such voter having voted or refrained from voting at any election (o): or,-2ndly,-who shall, directly or indirectly, give or procure, or agree to give or procure, or offer, promise, or promise to procure or to endeavour to procure any office, place or employment for any voter, or for any person on behalf of any voter, or for any other person, in order to induce such voter to vote, or refrain from voting, or shall corruptly do any such act on account of any voter having voted or refrained from voting at any election: or,-3rdly,-who shall, directly or indirectly, make any such gift, loan, offer, promise, procurement or agreement to any person, in order to induce such person to procure, or endeavour to procure, the return of any person to serve in Parliament, or the vote of any voter at any election: or,-4thly,-who shall, in consequence of any such gift, loan, &c., procure, or engage or endeavour to procure the return of any person or the vote of any voter: or,-5thly,-who shall advance or pay, or cause to be paid any money to the use of any other person with the intent that such money or any part thereof shall be expended in bribery at any election, or who shall knowingly pay any money to any person in discharge or repayment of any money wholly or in part expended

(h) Shinley v. Roberts, Bull. N. P. 196. And see Gregory v. Elvidge, 2 Dowl. 259. (i) Wilson v. Rastall, 4 T. R. 753. (k) Green v. Hall, 9 Exch. 247. (1) Brook v. Middleton, 10 East, 268. (m) Cuming v. Sibley, 4 Burr. 2489. (n) Continued by 21 & 22 Vict. c. 87.

(0) The receipt of money by a voter after an election is evidence from which a jury would be justified in inferring an agreement for it previous to the giving of the vote. Per Lord Campbell, C. J., R. v. Thwaites, 1 E. & B. 704.