granted, because the question of non refidence had never been tried Page 374 (N) 4 49 The court will refufe an information quo warranto, where it is in the power of the corporation to remove the officer who is charged with ufurping the office 374 (N) 5 50 In what manner juftices of the peace are to take the information of those who bring felons before them 184 51 Whether an information can be quashc. 25 f. 145 3 ed it INFORMATION QUI TAM. 377 1 IN WHAT CASES IT WILL LIE 2 It will not lie on any penal itatute, unlefs the whole or part of the penalty be expresly given to him who will fue for 377 f. 17 Where a penalty is given to an informer, any one may fue for it, and lay his damage tam pro domino rege quam pro Jeipfo 377 f. 17 4 Where a ftatute prohibits or commands a thing, the doing or omiffion whereof is an immediate damage to the party, and concerns the public, the party grieved may fue tam pro domino, ibid. &c. 5 Wherever the king is to have a fine on an action on a flatute, there are contrary opinions whether the action may be brought tam pro domino, &c. ibid. 6 What ought to be the form of an information or action qui tam 378. 18 7 There is no need to conclude contra pacem ibid. 8 Quere, if it be neceffary to conclude in ibid. contemptum regis 9 They need not recite the ftatute whereon they are grounded 10 What misrecitals of fuch ftatute will be fatal (Vide Indiament, No. 234) ibid. 349.378 11 How far it is neceffary to bring the cafe within the very words of the ftatute (Vide Indi&ment, No. 251) 354. 378 12 How far it is neceffary to conclude contra formam ftatuti 356 to 358 VOL. II. 13 In what cafes one may have judgment on a statute, in an action brought at common law Page 356 14 If an information contain feveral offences against a ftature, and be well laid as to fome only, the informer may have judgment for fo much as is well laid; inftances given 378 f. 19 15 If the whole time that the defendant hath offended be expreffed inconfiftently, the whole is repugnant and void 379 16 An informer on a qui tam ftatute may have a writ against the defendant, either quas eis debit, c, or quas ei debet, which is good, in the declaration, in the name of the plaintiff only 379 f. 2c 17 Quere, if the writ or count need expreis that the action was brought for the ibid. king as well as the party 18 But every information must be in this form, that the informer tam pro domino rege quam pro feipfo fequitur, even where the ftatute gives one third of the penal ty to a third perfon 21 ibid. 19 How the form of the information fhall be in fuch case ibid. 20 It is fafelt for every information or action qui tam to demand the very fum due to the informer, and neither more nor lefs 379 f. 21 If an action on a ftatute demand the whole forfeiture for the informer, where the ftatute gives part of it to the king, it is infufficient-Sed quere, if it is not good for the part due to the king 380 22 Quere, if where the quantum of forfeiture depends on the finding of the jury, a blank may be left for the fum ibid. 23 A popular action may conclude ad grave damnum, without adding of the plaintiff ibid. 24 By 18 Eliz. c. 5. "no perfon shall be fued upon a penal ftatute, but by way of information or original action" if such statute inflict a penalty generally 380 1. 22 25 But former ftatutes, which expressly give a recovery by bill, plaint, &c. are not within the exception of this act; the reafon of it ibid. 3 B 36 No wrong county (Vide fupra, No. 32) by way of plea Page 382 1.28 37 The faid claufe extends not to any fuit by a party grieved, or by the attorneygeneral 382 f. 29 38 The clause (Vide fupra. No. 34) rettrains not an information in the king's bench or exchequer, for an offence happening in the fame county where thofe courts are fitting, for the prerogative of thefe courts thall not be restrained without exprefs words 382 1.30 26 No fuit by bill or plaint, by a party grieved, fuing upon a claufe impliedly relating to himself only, is within the 18 Eliz. C. 5. Page 381 27 But where the party particularly gieved fues for a forfeiture generally limited to any who will fue for it, he is as much within the restraint of the ftatute, as if he were not the party grieved ibia. 28 In an action on a flatute against an officer for not qualifying, it is fafeft to fhew when the defendant was admitted to his office; that he neglected to qua39 By 21 Jac. 1. c. 4. faits for offences Jfy in time; and that he exercifed the against any penal fatote by a common office after the regiect 381 f. 23 informer, fhall be commenced by ac29 1 he fact is fuficiently alledged after a tion, bill, plaint, information, or in quod cum in a qui tam action, but not dictment, before juftices of affizė, nifi in an information 381 f. 25 prius, eger and terminer, and gaol-de30 Where a flatute appoints that a penal- livery, or before justices of the peace, ty fhall be recovered in any of the in every county of England and Wales king's courts of record, the offence wherein the offences fhall be committed, may be inciЯted before juftices of oyer only at the choice of the parties who 3818.25 fhall commence the fuit, &c. and terminer 31 Whara itatete limits faits by an informer qui tam to other courts, yet any one may, by conftruction of law, exhibit an information in the exchequer for the whole penalty, for the ufe of the king ibid. 32 IN WHAT COUNTY A QUI TAM ACTION OR INFORMATION MAY BE 381 f. 26 382 f. 27 36 The defendant can only take advansage of the offence being laid in a 383 f. 31 40 The fame procefs fhall be awarded in every popular action commenced according to this act, as in an action of trefpafs vi et armis at common law 41 ibid. And all other informations, &c. either by the attorney-general or any of ficer, or by a common informer or other perfon, fhall be void ibid: 42 If on the general iffue the offence be not proved in the fame county, the defendant fhall not be found guilty 383 f. 32 43 No information shall be filed until the relater hath made oath that the offence was not committed in any other county 383, 384 44 No information, qui tam, &c. can be brought in Weftminster hall on any penal ftatute made before z1 Jac. 1. for which the offender may be profecuted in the country, unless committed in the county where the court fhall fit 384 f. 34 45 Where a fubfequent flatute gives a res medy in any court of record generally, the informer may fue in Westminster hall hall notwithstanding 21 Jac. 1. Page 384 f. 35 46 The 21 Jac. gives no jurifdiction to the courts therein mentioned over any other offences, where they had none before 384 f. 36 47 The 21 Jac. I. does not hinder the removal of any indictment into the king's bench by certiorari, after which it may be either tried there or at mifi prius 384. 37 48 A writ of error alfo lies from the king's bench to the exchequer chamber in a qui tam action of debt 385 (N) in marg. 49 The want of the informer's oah (Vide Jupra, No. 42.) will not make the proceedings erroneous; but the court may be moved to set the process aside 385 f. 38 50 No fuit by a party grieved is within the reftraint of the 21 Jac. 1. c. 4. (Vide fupra, No. 38.) 385 f. 39 51 WITHIN WHAT TIME SUCH IN FORMATION, &C. MUST BE BROUGHT 385 f. 40 52 By 31 Eliz. c. 5. all informations, &c. &c. upon any penal ftatute, where the forfeiture is limited to the queen only, fhall be brought within two years after the offence is committed ibid. ftatute be alfo an offence at common law, the profecution of it at common law is no way reftrained by these flaPage 356144 tutes 57 If a fuit on a penal statute be brought 386 f. 46 59 The party grieved is not within the restraint of the above ftatutes (Vide Supra, No. 51. to 55.), but may fue in the fame manner as before 386 f. 47 60 Suing out a latitat within the year is a fufficient commencement of the fait to avoid the limitation of these statutes 61 387 (N) 14 But if the writ be not fued out till after the year, though by relation it would be within the time, the plaintiff ought to be nonfuited ibid. 62 The real day of fuing out the writ may be fhewn in the pleadings ibid. 63 Quere, if a fuit by a common informer on a penal ftatute which firft gives an action to the party grieved, and, in his default, after a certain time to any one who will fue, be within the restraint of thefe ftatutes 387 1.49 And quere, whether the exception of certain offences out of the 31 Eliz. c. 5. (Vide fupra, No. 32, 33.) do except the faid offences 387 1.50 65 By 31 Eliz. c. 5. none but the party grieved thall inform, &c. upon a penal ftatute, if he hath been ordered by any of the queen's courts not to fue, &c. 385 f. 41 53 And all informations, &c. upon any penal ftatute where the forfeiture is li-64 mited to the queen, and to any other that fhall profecute, fhall be brought by such profecutor within one year, and in default thereof the queen may profecute any time within two years after that year ended 54 By 18 Eliz. c. 5. upon exhibiting an information on a penal ftatute, a special note of record fhall be made of the very day, month, and year, or no process fhall be fued on the fame 356 1.42 55 By 21 Jac. 1. c. 5. no fuit fhall be filed upon any penal statute, within the provifions of this act, until the informer hath made oath that the offence was committed within the county within one year preceding 356 f. 43 56 If an offence prohibited by any penal 388 f. 51 66 A corporation cannot fue as a common only attorney profequi to any information by the king! Page 387 1.52 70 Whether the informer or defendant may appear by at orney 387 f. 53 71 By 18 Eliz. c. 5. every informer fhall exhibit his fuit in proper perfon, and purjue the jame only by himself or his 388 f. 54 72 By 29 Eliz. c. 5. the defendant to a penal fuit, if bailable by law, or by İcave of the court, may appear by attorney at the day and time contained in the first procefs, and fhall not be urged to perfonal appearance, or to put in bail to fuch fuits 388 f. 55 73 By 31 Eliz. c. 1o. this fhall extend only to fubjects natural born, and to de388 f. 56 74 OF COSTS ON AN INFORMATION, 75 nize s &C. 389 An informer upon a popular ftatute can in no cafe have colts, unless they are exprefsly given him by fuch flature; the reason of th, rule 3896.57 76 But an act on on a ftatute, by the party grieved for a certain penalty given by a popular ftatute, is within the ftatute of Gloucefter, which gives the demandant his cofts in all cafes where he fhall recover his damages; and fuch penalty is in lieu of damage ibid 77 No cofts fhall be recovered in an action on a flatute creating a new offence, which gives no certain penalty to the party grieved, but only his damages in general, &c. ibid. 82 If judgment be given against an informer because the court had no jurif diation, or because the flatute on which he fues is dilcontinued, vet he shall pay cofts within the 18 Eliz. c. 5. ibid. 83 In an action qui tam on 5 Eliz. c. 4. the plaintiff fhall pay cofts 389 (N) 17 84 Quere, if an informer fhall be obliged to give fecurity for cofts on account of his poverty 85 ibid. An informer who is gone abroad, and alfo a foreign informer, fhall be obliged to give fecurity for cofls ibid. 86 If a profecution is brought in a feigned name, the court will oblige the real profecutor to give fecurity .ibid. 87 The defendant, on motion, may pay the cofts and the penalty into court ibid. 88 The 18 Eliz. c. 5 (Vide fupra, No. 79.) ibid. 91 The court will not flay proceedings in a qui tam action, till cofls in a men pres in a former action, by a different pla ntiff against the fame defendant, be paid ibid. 78 But the jury in this cafe may give the party a full fatisfaction by way of da ibid. mages 92 If a profecutor qui tam for kiling 79 By 18 Eliz. c. 5. if an informer on game does not reply, the defendant a penal ftatute fhall delay his fuit, or fhall have ccfts ibid. discontinue or be nonfuit, or have judg-93 Whether a defendant in fuch an inment against him, he fhall pay the de- formation may wage his law 370 f, 61 fendant his colts, charges, and da-94 OF PLEADING TO AN INFORMATION mages, &c. 389,390 QUI TAM 371662 80 No action on any ftatute by the party 95 The defendant must answer the whole grieved is within the purview of this time laid; if he have any fpecial masitatute; it relates to common informers ter in juftification, it must be alledged only with certainty; but if he plead the ge81 But by 23 Hen. 8. c. 15. and 4 Jac. neral iffue, he cannot also plead a spe1. c. 3. if the action be for fome percial plea 391 f. 62 fonal injury, or if the plaintiff is intitled 390 f. 59 96 A penal fuit actually depending, may be 108 If the defendant plead nil debet, it is fafeft to fay, that he owes nothing to the informer nor to the king; the reafon of this caution Page 393 f. 65 109 Several defendants cannot plead joint ly guilty, but they should plead severally, that neither they nor any of them are guilty 393.67 If the offence be alledged from matter in pais, the defendant may plead that he owes nothing, or that he is not guilty; but if it be alledged from matter of record, fuch a plea is not good be pleaded in abatement to a fubfe quent profecution, it being averred to be for the fame offence Page 391 f. 63 97 It is no objection to fuch a plea, that the offence in the fubfequent fuit is laid on a different day ibid. 98 A mistake of the day is not material on nul tiel record, if the prior fuit ap pear to have been really firft commen-110 ced ibid. 99 Two informations exhibited on the fame day may mutually abate each other; for there is no priority ibid. 100 The king may totally bar a ut on a penal itatute, by a pardon or releafe before its commencement; but if the informer actually commence before the king, he hath fuch an interett in his part of the penalty, that the king can no way discharge it 392 101 The king can in no cafe bar the fuit of the party grieved, nor proceed in it after the death of the plaintiff ibid. 102 A conviction or acquittal, or release bona fide, whether by a party grieved or a common informer, is a good bar to any fubfequent profecution for the fame offence ibid 393 f. 68 111 If the defendant be within the provifo of the ftatute, he may give it in evidence on the general iffue; but if he have matter in difcharge depending on a fubfequent ftatute, he mult plead it specially 393, 394 112 But by 21 Jac. I. c. 4. defendants to any fuit for any offence against any penal law, may plead the general iffue, and give the fpecial matter in evidence 394 113 And if the plaintiff fhall not prove the offence to have been committed in the county in which it is laid, the defendant fhall be found not guilty 103 By 4 Hen. 7. c. 20. if any defendant fhall be found pleading any recovery, &c. or bar to a popular ac-14 Whether the laft words of the pro tion, &c. which in fact has been ob tained by fraud or covin, the plaintiff, if he fue with good faith, fhall reccver, and the defendant fhall fuffer two years imprisonment ibid 394 1.70 vifo of this act do not reftrain the exception refpecting recufancy, champerty, &c. to that part of the ftatute which relates to laying the offence in a proper county 115 OF THE REPLICATION 394 f. 71 39+672 1c4 Upon this ftatute the plaintiff may aver covin generally, without fhew-116 A replication to a special plea to an ing wherein the covin confifted 393 f. 65 105 But the plea muft ftate, that the plaintiff in the other action had priority of fuit, or on demurrer it will be bad 393 (N) 21 106 The record of the former recovery cannot be given in evidence on nil debet; it must be pleaded fpecially; and then the plaintiff may reply nul tiel record, or that it was a recovery by covin to defeat a real prolecutor, which the plaintiff could not be prepared to fhew on the general iffue ibid. 107 OF THE GENERAL ISSUE 393 1. 66 information in the courts at Westminfter, fhall be made by the attorney-general only ibid. 117 Such a replication in a fuit before jultices of affize, fhall be made by the clerk of the aflizes only ibid. 118 A replication to a general iffue in an information qui tam in the king's bench. or exchequer, may be made in the name of the attorney-general only 394 395 119 In actions qui tam, the replication is to be made by the plaintiff only 395 120 A demurrer may be made by an in3 E 3 former |