caufe into the King's Bench by certiorari 6; after which it may be tried, either there or in the county, by nifi prius. 2 Hawk. c. 26. S. 37. Alfo, where a ftatute limits fuits by an informer qui tem 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. 2 Hark.c. 25. S. 25. IV. Within what time they may be brought. By 31 Eliz. c. 5, all actions, fuits, bills, indictments, or informations on any penal fatute, whereby the forfeiture is limited to the king, shall be brought within two years after the offence committed; if limited to the king, and to any other who Jhall profecute, then within one year; and in default of fuch profecution, then to be brought for the king in two years after that year ended, provided, that if they are limited by the fatute to be brought within fhorter time, then they fhall be brought within fuch time limited. f. 5. And by 18 Eliz. c. 5, upon every information which shall be exhibited by a (common) informer (except for maintenance, champerty, buying of titles, or embracery), a special note fhall be made of the day, month, and year of the exhibiting thereof; and it shall be taken to be of record from that time forward, and not before: and no process fhall be iffued on fuch information, till it be exhibited in form aforefaid. I. 1. And by 21 Jac. 1. c. 24, no officer fall enter any informa tion, bill, or plaint, count or declaration, till the informer hath made oath before fome of the judges of the court, that he believes in his confcience, that the offence was committed within a year before the information or fuit: the oath to be there entered of record 7. f. 3. In the construction of these ftatutes, it feems to have been holden: 1. That if an offence, prohibited by any penal ftatute, be alfo an offence at common law, the profecution of it, as of an offence at common law, is no way reftrained by any of these ftatutes. 2 Hawk. c. 26. S. 44. 2. That if a fuit on a penal ftatute be brought after the time limited, the defendant need not plead the ftatute specially, but may take advantage of it on the general iffue. 2 Hawk. c. 26. f. 45. 6 It being a fettled rule, that the jurifdiction of the court of King's Bench to grant a certiorari cannot be taken away but by exprefs words. See vol. i. P. 448. 7 For the construction of this claufe, fes p. 45, fupra, n. 5. 3. That 3. That if an information qui tam be brought after the year on a penal ftatute, which gives one moiety to the informer, and the other to the king, it is naught only as to the informer, but good for the king. 2 Hawk c. 26. s. 46. 4. Tha the party grieved is not within the restraint of these statutes, but may fue in the fame manner as before. 2 Hawk. c. 26. f. 47. And it feems questionable, whether 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 these ftatutes. 2 Hawk. c. 26. /. 49. 5. It has been determined, that fuing out a latitat within the year, is a fufficient commencement of the fuit to fave the limitation of time. Carthew, 232. Shower, 353 But if the writ was not fued out till after the year, though by relation it would be within the time, the plaintiff ought to be nonfuited. 3 Burrows, 1241. Bull. N. Pri. 195. And the real day of fuing out the writ, which shall be confidered as the commencement of the fuit, may be fhewn in the pleadings. 3 Burrows, 1423. V. What perfons are difabled to bring fuch an information or action. It seems to have been held, that a corporation cannot fue as a common informer. 2 Strange, 1241. And by 31 Eliz. c. 5, no perfon, other than the party grieved, fhall be received to inform, or fue upon any penal fta tute, that before that time hath been for any misdemeanor, by any order of the king's courts, ordered not to follow or purfue any fuit, upon any penal ftatute 3. f. 1. And by 8 Eliz. c. 5. f. 1, every informer upon any penal ftatute fhall exhibit his fuit in proper person, and pursue the fame only by himself, or by his attorney in court, and he fhall not ufe any deputy at all. f. 1. Therefore an infant cannot be an informer, for he must fue by guardian. Buller's Nifi Pri. 196. And he cannot be an attorney, because he cannot be fworn. March, 92. VI. Whether there may be a nonfuit. Notwithstanding the king cannot be nonfuit in any information or action wherein he himself is the fole plaintiff, 8 Sec Div. IX. infra. yet yet any informer qui tam, or plaintiff in a popular action, may be nonfuit, and hereby wholly determine the fuit, as well in refpect of the king as of himself. 2 Hawk. c. 26. 1.52. Alfo the attorney general may enter a moli profequi, which has the effect of a nonfuit, to any information or action brought by the king only. 2 Hawk. c. 26. f. 52. VII. In what cafes there fhall be cofts. An informer on a popular ftatute fhall in no cafe what- Against the de foever have his cofts, unless they be exprefsly given him by fendant. the ftatute. 2 Hawk.c. 26. f. 57. But wherever a ftatute gives a certain penalty to the party grieved, he is entitled to his cofts within the ftatute of Gloucefter, 6 Ed. 1. c. 1, which gives cofts in all cafes where the party is to recover damages; for otherwife it would be in vain for him to fuc, fince in many cafes the cofts would exceed the penalty. 2 Hawk. c. 26. 6.57. But where the duty is uncertain, as to recover treble damages, as upon the ftatute of waîte, or on 2 Ed. 6. for not fetting out of tithe, there the plaintiff fhall not have any cofts. Buller's Nifi Pri. 8vo ed. 333. For the jury may confider the coils, fo as to give damages accordingly. 2 Hawk. c. 26. f. 57. By 18 Eliz. c. 5, if -any informer, or plaintiff, on a penal Against the Statute, fball willingly delay his fuit, or fhall difcontinue, or be plaintiff. nonfuit 9, or have the trial or matter passed against him therein, by verdict or judgment of law, then he shall pay unto the defendant his cofts. f. 3. This ftatute extends only to common informers, who are to have the benefit of the penalty, and not where the penalty, or part of it, is given to the party grieved. Salkeld, 30. Bull. Nifi Pri. 8vo ed. 334. And all profecutors qui tam are looked upon as common informers. 2 Leon. 116. Salk. 30. Yet if a party grieved brings his action, and such action be for any offence or wrong perfonal, immediately fuppofed to be done to the plaintiff, or whatsoever the nature of the action may be, if the plaintiff might have cofts in case judgment fhould be given for him, he fhall pay them on a nonfuit or verdict against him. 2 Hawk. c. 26. f. 59. 9 And the court will not ftay proceedings in a qui tam action, till cofts on a non prof. in a former action, by a different plaintiff, against the fame defendant be paid, because he may, if he please, purfue the costs of the former action, VIII. How 322. VOL. III. E VIII. How the defendant may plead. The court will not quafh an information upon motion, but the party puft either plead, demur, or move in arrest of judgment. Salk. 372. 2 Strange, 953. Neither will the court quah an information filed ex offcio by the attorney general, although the application is made on the behalf of the crown, for the attorney gene ral may stop the proceedings upon it by noli profequi. 1 Doug. 8vo ed. 139. Whenever an action is founded on a penal ftatute, not guilty, or nil debet are good pleas. Hobart, 218. And the defendant muit aniwer to the whole time laid in the information or action; and if he have any fpecial matter for his excufe or justification, he muit fet it forth, with all convenient certainty: and if he pled the general iffue to the whole, he must depend upon it, and not together with it plead also a special plea, either to the whole or part of the charge; for a defendant cannot plead double in qui tam. 2 Hawk.c. 26. f. 62. 2 Strange, 1044. Barnard, K. B. 17. Pleading a prior Whenever any fuit on a penal ftatute may be faid to be fuit depending. actually depending, it may be pleaded in abatement of a fubfequent profecution, being expressly averred to be for the fame offence. 2 Hawk. c. 26. s. 63. Pleading a pardon, releafe, or And if two informations be exhibited on the very fame day, it feens that they mutually abate one another, becaufe there is no priority to attach the right of the fuit in one informer more than in the other. 2 Hawk. c. 25. f. 63. Notwithstanding the king have fuch an intereft in every penal feature, that he may proceed in a fuit brought upon former recovery. it by a common informer, after the death, releafe, or nonfuit of fuch informer, hanging the profecution; and may alfo totally prevent any fuch fuit, by firit fuing for the whole penalty himfelf; or may totally bar it by a pardon, or releafe, precedent to its cominencement; yet if it be actually commenced before any fuit by the king, the informer bath fuch an intereft in the part of the penalty affigned to him by the flatute, that the king can no way difcharge or fufpend the fuit, as to fuch part. 2 Harek. c 25. f. 64. Allo a conviction or acquittal bona fide, in any action or information on a peral ftatute, whether by the party griev ed, or a common informer, or a release bona fide from the party grieved, or common informer, after fuch a conviction, hath always been a good bar of any fubfequent profecution for the fame offence. 2 Hawk. c. 26. f. 64. 10 But the plea mut flate, that the plaintiff, in the other action, had priority of fuit, or, ondemurrer, it will be bad. 2 Strange, 1169. But But to prevent collufive recoveries, it is enacted, by 4 Hen. 7. c. 20, that if any perfon fue with good faith any action popular, and the defendant plead a recovery by a former allion, the plaintiff may aver, that fuch recovery were by covin; and if fuch collufion or covin be found, the plaintiff ball recover, as though no fuch action before had been had: and if the defendant jhall be convicted of fuch collufion, he fhall be imprisoned two years, by process of capias and outlawry; and that as well at the king's fuit, as of every other. And no releafe of any common person, to any such party, whether before or after any action popular, or indictment of the fame, commenced or made hanging the laid action, fhall be any wife available to furceafe the faid action, indictment, process, or execution. Ibid. It is faid, that if a recovery in a former fuit be pleaded in bar of any popular action, the plaintiff may, by reason of the exprefs words of the ftatute, aver, that fuch recovery was by covin, without fhewing wherein the covin confifted. But otherwife, fuch a general pleading would be vicious. 2 Hawk, c. 26. f. 65. And the record of the former recovery cannot be given in evidence upon the general iffue; but it must be specially pleaded; and then the plaintiff may reply, that there is no fuch record, or that it was a recovery by fraud to defeat a real profecutor; which the plaintiff could not be prepared to fhew, upon the general iffue. I Strange, 701. If the defendant plead the general iffue, it is fafeft to fay The general that he owes nothing to the informer, nor to the king. iffue. 2 Hawk. c. 26. f. 66. And if there be more than one defendant, they ought not to plead jointly that they are not guilty, but feverally, that neither they, nor any of them, are guilty. 2 Hawk. c. 26. f. 67. And it is enacted, by 21 Jac. 1. c. 4, that if any informa tion, fuit, or action, shall be brought against any perfon, for any offence against any penal law, either on the behalf of the king, or on the behalf of the king and any other, fuch defendant may plead the general iffue, that he is not guilty, or that he owes nothing, and give the fpecial matter in evidence, which shall be as available as if it had been pleaded in bar. f. 4. And the court will on motion give the defendant liberty Paying money to pay the penalty into court with cofts. Bull. Nifi Pri. 197. into court. IX. Whether the penalty of a penal ftatute may By 18 Eliz. c. 5, (which extends only to common informers, Bud. Nifi Pri. 8vo ed. 196) no informer fhall com E 2 pound |