V. What perfons are disabled to bring fuch an
information or action.

VI. Whether there may be a nonfuit.
VII. In what cafes there fhall be cofts.
VIII. How the defendant may plead.

IX. Whether the penalty of a penal ftatute may
be compounded.

I. In what cafes they lie.

They will lie on no ftatute which prohibits a thing as being an immediate offence against the public good in general, under a certain penalty, unless the whole or part of fuch penalty be exprefsly given to him who will fue for it; because otherwise it goes to the king, and nothing can be demanded by the party. 2 Hawk. c. 26. S. 17.

But where fuch ftatute gives any part of fuch penalty to him who will fue for it by action or information, any one may bring fuch action or information, and lay his demand, as well for our lord the king as for himself. Ibid.

Alfo where a ftatute prohibits or commands a thing, the doing or omiflion whereof is both an immediate damage to the party, and also highly concerns the good of the public, the honour of the king, or of his fupreme courts of juftice, the party grieved may, and, as fome fay, ought to bring his action on fuch ftatute as well for our lord the king as for himself, especially if the king be entitled to a fine.

Ibid.

II. What ought to be the form of them.

It is agreed that an action or information on a public ftatute need not recite the ftatute on which it is grounded, whether the offence be fuch only becaufe prohibited, or be an evil in its own nature, and whether it be prohibited by more than one ftatute, or by one only; for the judges are bound ex officio to take notice of all public ftatutes. 2 Hawk. c. 25. f. 100. c. 26. f. 18.

But if the profecutor take upon him to recite the ftatute, and materially varies from a fubftantial part thereof, this is fatal, because it does not judicially appear to the court, that there is fuch a foundation for the profecution

as

as that whereon it is exprefsly grounded. 2 Haruk. c. 25. f. 100. c. 26. f. 18.

But if an information contain feveral offences against a ftatute, and be well laid as to fome, and defective as to others, the informer may have judgment for what is well laid; as where the words of the ftatute are fully pursued in the description of fome of the offences, and not of others; or where the time is in part certain, and in part uncertain. 2 Hawk. c. 26. f. 19.

Also an action or information qui tam need not conclude against the peace, or in contempt of our lord the king, as an indictment muft. Cro. Jac. 529. Cro. Eliz. 835.

But it feems agreed that every information must be in this form, viz. that the informer, as well for our lord the king as for himself, even where it is brought on a statute which gives one third part of the penalty to a third perfon; but there is a great variety in the form of fuch informations in other refpects, for fometimes they fay that the action accrues to the informer to demand the forfeiture for the king and himself; fometimes that it accrues to the king and to the informer; fometimes that it accrues to the king and to the informer and to JS, viz. where it is divided into three parts; and fometimes they have no clause at all of this kind. 2 Hawk. c. 26. S. 20.

And Hawkins doubts if it be not fatal to have any fuch claufe, where the penalty is not recoverable by the information, but requires a fubfequent one grounded on the conviction. 2 Hawk. c. 26. f. 20.

And he fays, that regularly it is fafcft for every fuch information or action to demand the very fum due to the informer, and neither more nor lefs; as it hath been adjudged, that 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; and it hath alfo been helden, that if the information make no demand at all, or demand more or lefs' for the party than appears to be his due, it is infufficient as to him; though it may perhaps be good as to the fhare of the forfeiture given to the king. 2 Hawk. c. 26. f. 21.

And where the penalty is given for continuing fuch a practice for a certain time, or for not doing fuch an act within fuch a time, the information must be very particular in bringing the offence within the time prefcribed. 1 Bacon's Abr. 39.

2 As for inftance, if a common informer were to fue for the single value of money won at play, when 9 Ann. c. 14, gives the treble value. Buller's Nifi Prius, 196.

Therefore

Informations on

the courts of the

Therefore in an action on a ftatute which requires fome officers, at one certain time after their admiffion, and others at another, to qualify themselves by certain acts, it ought exprefsly to fhew the time when the defendant was admitted to his office, and that he neglected to qualify himfelf in the time limited; and alfo, that he actually exercifed his office after fuch neglect. Lutw. 162. 2 Hawk. c. 26. f. 22.

III. In what courts they may be brought, and where laid.

3

By 21 Jac. I. c. 4, all offences against any penal flatule, penal ftatutes to for which any common informer may ground any popular acbe profecuted in tion, bill, plaint, fuit, or information, before the juftices of afcounties where fize, or nifi prius, or of general gaol delivery, or of oyer and terthe offences were miner, or juices of peace in their general or quarter feffions committed. (A), (except offences against the ftatutes concerning recufancy,

maintenance,

3 Any common informer.] This ftatute therefore doth not extend to any fuit by a party grieved, or by the attorney general; but only to those brought by comman informers. 2 Hawk. c. 26. f. 39.

(A) The following is the form of an information qui tam, at a general quarter feffion of the peace. See Dogherty's Cr. Cir. Com. 404.

Monmouthshire. {

SBE it remembered, that G B, late of the parish of, in the county of M, gent. who, as well for our fovereign lord the now king as for himJelf, doth profecute in this behalf, cometh before the justices of our faid lord the king, affigned to keep the peace of our faid lord the king, in and for the faid county of M, and also to hear and determine divers felonies, trefpaffes, and other mifdemeanors in, the faid county committed, at their general quarter feffion of the peace holden at the Guildhall in U, in and for the faid county, on Wednejday, the day of, in the year of the reign of our fovereign lord George the Third, in his proper person, and as well for our faid lord the king as for himself giveth the court here to underftand, and be informed, that OO, late of

in the county aforefaid, yeoman, on, &'c. [Here infert the offence according to the ftatute] against the form of the fatute in fuch cafe made and provided: whereupon the faid GB, as well for our faid lord the king as for himself, prayeth judgment of the court in the premises; and that the faid 0·0 may forfeit the fum of ~ according to the form of the fta tute

maintenance, champerty, or buying of titles, the king's cufoms, or tranfporting gold, or filver, or munition, or wool, or leather, f. 5), fhall be profecuted before the juflices of affize, or nifi prius, or of general gaol delivery, or of oyer and terminer, or before the juftices of the peace of every county, city, borough, or town corporate, having power to hear and determine the fame, in any of the courts, places of judicature, or liberties aforefaid, at the choice of the parties who shall profecute, and not elsewhere, fave only in the faid counties, or places ufual for thofe counties. f. 1.

And the like procefs in every popular action, bill, plaint, in- Procefs on infere formation or fuit, fall be had, “as in an action of trespass vi et mations armis at common lawt. f. 1.

And in all fuits on penal flatutes, the offence fhall be laid in to be laid in the. the proper county and if on the general iffue, the offence be not proper county. proved in the fame county in which it is laid, the defendant

fball be found not guilty. f. 2.

And no officer ball receive, file, or enter of record any information, bill, plaint, count or declaration, till the informer bath made sath before fome of the judges of the court, that the offence was not committed in any other county than where it is laid to be done; the oath to be there entered of records. f. 3.

In

tute aforefaid; and that he the faid G B may have one moiety thereof, according to the form of the faid ftatute; and also, that the faid OO may come here into court, to answer concerning the premises; and there are pledges of profecuting, to wit, John Doe and Richard Roe. And hereupon it is commanded to the faid 00, that, all other things omitted and all excufes laid afide, he be in his proper perfon at the next general quarter fef fon of the peace, to be holden for the faid county, to answer, as faid lord the king as to the faid GB, who, as well for our faid lord the king as for himself, doth profecute, of and concerning the premises; and further to do and receive what the faid court full confider in this behalf.

well to our

4 And confequently, the procefs in all fuch fuits must be by attachment, or pone ver vadios; and after, by diftrefs infinite, where, by the return, the party appears to be fufficient, otherwife by capias. 2 Hawk. c. 27. f. 13.

But the ufual practice of the Crown Office, on a criminal information, is firft to award a fubpoena, and after the return thereof, if no appearance be entered in four days, and an affidavit be made of the fervice of the fubpoena, to make out a capias of courfe, where the defendants are informed againit in their private capacity, and a diftringas, where they are fued as a corporation aggregate. 2 Hawk.c.27. f. 14. 5 The oath to be there entered of record.] It bath been adjudged, that an officer, by receiving an information without fuch a previous oath, that the of fence arofe in, the fame county, doth not make the proceedings upon it errone

"

In the conftruction of this ftatute it hath been holden, that no action of debt, or other information, or other fuit whatever, can be brought on any penal ftatute made before 21 Jac. 1, in any of the courts of Weftminfler Hall, for an offence not excepted by the ftatute, and for which the of fender may be profecuted in the country, unlefs fuch offence fhall be committed in the fame county in which fuch court fhall fit; and as to the objection, that by this restraint of fuits on penal ftatutes to the faid courts, the offence would become difpunishable by the offender removing from the county, it may be anfwered, that he may be fued to an outlawry, in the fame manner as in an action of trefpafs. 2 Hawk. c. 26. f. 24.

But where a fubfequent ftatute gives liberty to fue for a penalty by information, debt, plaint, or any other remedy, in any court of record generally, it fo far impliedly repeals the restraint of 21 Jac. 1, and confequently leaves the informer at his liberty to fue in the courts of Westminster Hall. Salk. 272. 2 Hawk. c. 26. S. 34.

Neither does the ftatute give jurifdiction to the courts therein mentioned, over any offences in relation to which they had none before; for it only appoints, that where offences might have been brought in the courts at Westmin fter, or before juftices of affize, oyer and terminer, or of the peace, fuch informations fhall in future be brought before fuch juftices, in the counties where the offence was committed; and that for the ease of the fubjects, who are defendants. Cro. Car. 112.

And therefore fuits for fuch offences in relation to which they had no jurifdiction before must be brought in the courts at Weminfter, in the fame manner as before. 2 Hawk. c. 26. f. 36.

For it is to be obferved, that no information by a common informer may be brought before juftices of peace, juftices of allize, or justices of oyer and terminer, unlefs fpecially directed. Jones, 193. pl. 3.

For where any penal law gives power to juftices of peace, of affize, or of oyer and terminer, to hear and determine offences against the ftatute, and fays no more-this is by way of indictment, and not by information, bill or plaint, unless this was fpecially named. Jones, 193.pl. 3.

Neither doth the faid ftatute hinder the removal of any

ous; and therefore the omiffion of it cannot be pleaded, or affigned for error; for, although the officer be punishable for taking it without oath, yet the infor mation is well enough without it; for the act is only directory to the officer, but doth not intend that fuch oath should be made parcel of the record. Cro. Car, 316. Freeman's Rep. 376. 3 Keble, 303.

caufe