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. 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 within a year 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. r Hicks's case, Salk. 373. R. v. Galle, Salk. 372. Ld. Raym. 370. Harris, q. t. v. Renny, cited in French, q. t. v. Coxon, St. 1081. Messenger v. Robson, cited in Garland v. Burton, Andr. 292. 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 broughts. 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 courts, 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 Westminster", 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 peace, &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 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 guardian2. 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 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. 1 Wms. Saund. 312. c. n. (1) S. P. x See s. 50. y Leigh v. Kent, 3 T. R. 362. z Maggs v. Ellis, M. 25 G. 2 B. R. Bull. N. P. 196. and MS. extends to suits by common informers only, and not to those by party grieved; it extends, however, as it seems, 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 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 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 5. 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 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 statute1; because the stat. 4 Ann. c. 16. (which 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 Hawk. P. C. 279. See also s. 6. of the statute. b Pie's case, Hutt. 35. g Gilb. Evid. 6. h Bredon q. t. v. Harman, E. 12 G. 2. C. B. London Sittings, Eyre, C. J. Str. 701. c Cunningham v. Bennet, T. 1 G. 1. i Jackson v. Gisling, T. 15 G. 2. Bull. C. B. Bull. N. P. 196. d 9 Ann c. 14. e Spieres v. Parker, 1 T. R. 141. f Steel v. Smith, 1 B. & A. 94. N. P. 197. k Stat. 4 H. 7. c. 4. 1 Heyrick v. Foster, 4 T. R. 701. m See s. 4. facias for the trial of any issue in any action or suit, in the king's courts of record at Westminster, should be awarded out of the body of the county, but with a proviso" that nothing in the said act should extend to any action or information upon any penal statute, and that such a proviso had been found inconvenient,) it is enacted, that every venire facias for the trial of any issue in any action or information upon any penal statute, in the king's courts of record at Westminster, in the counties palatine of Lancaster, Chester, and Durham, and Wales, shall be awarded of the body of the proper county where such issue is triable. The proviso in the stat. 16 & 17 Car. 2. c. 8. s. 2. that this act shall not extend to any action or information on any penal statute, must be understood of popular actions and informations, and not of remedies given by statute to the parties grieved. In an action on a penal statute P, 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 power to sue, it is a debt due to him; but if it appeared that the action was brought in a feigned name, they would oblige the real prosecutor to give security. The court will grant a new trial, after verdict for defendant, in a penal action, on account of a mistake or misdirection of the judge'; but where the case is properly left to a jury, although they should draw a wrong conclusion, the court will incline against disturbing the verdict. XI. Debt on Stat. 2 G. 2. c. 24.-Bribery at ElectionsProvisions of the Statute-Stat. 49 G. 3. c. 118.Declaration-Evidence-Stat. 7 & 8 W. 3. c. 4.Treating Act. WHEREVER a person is bound by law to act without any view to his own private emolument, and another, by a corrupt contract, engages such person, on condition of the payment or promise of money, or other lucrative situation, to act in a manner which he shall prescribe, both parties are, by such contract, guilty of bribery $. There are not any traces either n See the 7th section of 4 Ann. c. 16. o Sewel v. Edmonton Hundred, E. 7 G. 1. C. B. Bull. N. P. 197. Lord King's MS. 231. S. C. p Shinley v. Roberts, Bull. N. P. 196,7. of action or prosecution for bribery in elections of members of parliament, in the annals of Westminster-hall, until after the legislature inflicted particular penalties for this kind of bribery by stat. 2 G. 2. c. 24. Informations for this offence were not granted until about the time of the general election in 1754; and the first case, in which an information at common law for this offence was prosecuted with effect, was the case of R. v. Pitt, T. 2 G. 3 B. R. 3 Burr. 1335. 1 Bl. R. 380. S. C. (114). From the nature of this work, the following remarks will necessarily be confined to stat. 2 G. 2. c. 24. By the 7th section ", " If any person having or claiming to have a right to vote in the election of any member or members to serve for the commons in parliament, shall ask, receive, or take any money, or other reward, by way of gift, t Ib. u Stat. 2 G. 2. c. 24. s. 7. (114) In this case, the defendant having been convicted and brought up for judgment, a doubt was raised as to the judgment which the court could or ought to give; the time limited for prosecution, by stat. 2 G. 2. c. 24. s. 11. (viz. two years) not having expired. The court (after consideration) ordered the defendant to be imprisoned for a short term, observing, that in inflicting this punishment they had paid regard to the circumstance of the limited time for prosecuting upon the statute not being expired. The definitions on the subject of bribery in Sir E. Coke, Hawkins, and other writers, on the pleas of the crown, extend to the corruption of persons in judicial offices only. Mr. Douglas ascribes the silence of these writers on the subject of bribery at elections of members of parliament, to fear, on the part of the judges (at the time when this species of bribery first prevailed,) that by exercising a jurisdiction over this offence, they should invade the privileges and judicial powers of the House of Commons. It was, however, remarked by Lord Mansfield, C. J. delivering the opinion of the court in R. v. Pitt, 1 Bl. R. 383. that bribery at elections, taken generally, was and still is punishable at common law; that the statute itself (2 G. 2. c. 24. s. 7.) supposed it to remain punishable at common law by the words, "or any otherwise lawfully convicted." But it did not follow of course, that the court was obliged, ex debito justitiæ, to grant informations for bribery at elections of members, since the stat. 2 G. 2. which inflicts such very severe penalties. He added, that whether the court would ever hereafter grant informations for this offence until the time of limitation was expired, would be a matter of future consideration. In R. v. Heydon, E. 3 Burr. 1387. 1 Bl. R. 404. S. C. the judgment was respited until the limited time was expired, and then the court imposed a fine upon the defendant, and ordered him to be imprisoned. |