Does not extend to alien defen dants. (b) 2 Keb. 781. 1 R. Abr. 574. 1 Lutw. 200. 1 Ventris, 133. Salkeld, 206. 3 Levinz, 374. (e) 2 Keb. 781. 517.574. 1 Jones, 447. C. Car. 559. 66 and exchequer, upon penal statutes, and had been drawn up upon process out of the countries where they dwell, and driven to attend and put in bail, to their great trouble and undoing:"For the reformation thereof it is enacted, "That if any person or persons shall be sued or informed against, upon any penal "law, in any of the said courts, where such person or persons bailable by law, or where by the leave or favour of the "Court such person or persons may appear by attorney, in every "such case, the person or persons so to be impleaded or sued, "shall and may, at the day and time contained in the first process served for his appearance, appear by attorney of the same "court where the process is returnable, to answer and defend "the same, and not be urged to personal appearance, or to put "in bail for the answering such suits." 66 are Sect. 56. By 31 Eliz. c. 10. s. 20. it is enacted, "That "this shall extend only to the natural subjects born, or to be "born, within the dominions of the queen's majesty, her heirs or successors, and to persons made free denizens, and to no "others." 66 As to the NINTH POINT, viz. In what cases there shall be costs on such an action or information. I shall endeavour to shew, 1. Whether an informer shall, in any case, have his costs; As to the first of these particulars, viz. Whether an informer shall in any case have his costs. Sect. 57. I take it to be in a great measure settled, (b) that an informer upon a popular statute, shall in no case whatsoever have his costs, unless they be expressly given him by such statute; for it is certain that he cannot recover them by the common law, for that doth not (c) give costs in any case. Gilbert's C. P. 258. Neither can he recover them by the statute of Gloucester (d), which gives the demandant his costs in all cases wherein he shall recover his damages; for this seems to suppose some damages to have been done to the demandant in particular, which cannot be said in any popular action; and therefore such actions have always been construed to be out of the benefit of this statute. But it seems agreed, (e) that an action on a statute, by the 1 R. Abr. 516, party grieved, for a certain penalty given by such statute, is within the statute of Gloucester, because such penalty is intended him by way of recompense for his particular damage by the offence prohibited; and if he could recover that only, and no more, by way of costs, it would be in most cases in vain for him to sue for it, since the costs of suit would exceed it. 1 Lutw. 200. 12 Modern, 46. Comb. 224. But it is said, that no costs shall be recovered in an action on a statute which gives no certain penalty to the party grieved, but only his damages in general, &c. if such a statute be introductive of 1 Lutw. 20. of a new law, and give a remedy in a (f) point not remediable (f) 1 R. Abr. at the common law. But there is not that inconvenience in this 574. case as in the former; because no certain sum being specified, 10 Coke, 16. the jury may give the plaintiff a full satisfaction by way of da- C. Car. 560. mages. + But it hath been adjudged, that in an action brought against Witham v. Hill, a hundred on the statute Geo. 1. c. 5. s. 6. to recover damages 2 Wils. 91. for injuries committed by rioters, the plaintiff is entitled to costs. Also that a party grieved suing the hundred on the statute Jackson v. 9 Geo. 1. c. 22. for setting fire to the plaintiff's house, is entitled Calesworth, 1 Term Rep. 71. to costs, although they together with the damages exceed the sum limited in the statute. † Also that on a bona fide composition of a penal action by leave of the Court, the plaintiff may be allowed a reasonable sum for his costs; and that on motion the defendant may pay the penalty into court with costs. 1157. 2 Black. Rep. Hullock on † Also that if a plaintiff in an action on a popular statute ob- Hullock on tain a verdict, and the judgment is arrested for a defect in the Costs, 203. pleadings, he shall not have costs. As to the second particular, viz. In what cases the defendant shall have costs. Sect. 58. It is enacted by 18 Eliz. c. 5. which is made perpetual by 27 Eliz. c. 10. "That if any informer, or plaintiff, on a "penal statute shall willingly delay his suit, or shall discontinue, or be nonsuit in the same, or shall have the trial or matter "passed against him therein, by verdict or judgment of law, that "then, in every such case, the same informer or plaintiff shall yield, satisfy and pay unto the party defendant his costs, charges, and damages, to be assigned by the Court in which "the same suit shall be attempted, &c." 66 In the construction hereof, I shall take notice of the following particulars : on Sect. 59. FIRST, That it seems to be agreed, that no action any statute by the party (g) grieved, is within the purview of this statute, the whole purport whereof seems clearly to relate only to common informers: yet if such action by the party grieved, be "for any offence or wrong (h) personal, immediately supposed to "be done to the plaintiff or plaintiffs;" or whatsoever the nature of the action may be, if the plaintiff (i) might have costs, in case judgment should be given for him, he shall pay them on a nonsuit or verdict against him, &c. by virtue of (k) 23 Hen. 8. c. 15. and (1) 4 Jac. 1. c. 3. 1723. 1 Siderfin, 311. Sect. 60. SECONDLY, That it hath been holden, that where (m) 2 Keb. 581. judgment is given against an informer because the Court in which 2 Stra. 1103. he (m) sues has no jurisdiction of the cause, or (n) because the 6 Viner, 341. 3 Term Rep. statute on which he grounds his information is discontinued, yet 364. he shall pay costs within the intent of the said statute of 18 Eliz. (n) 2 Keb. 106. c. 5. which shall have a liberal construction, and was intended to 42. Qu.Hutt. 35,36. prevent vide Cowp.367. Bunbury, 72. Rex v. Jones, B. R. H. 159. 3 Burr. 1304. Law qui tam v. prevent all vexatious informations; and surely such ill-grounded prosecutions cannot but be thought as such. †THIRDLY, That in an information, if the prosecutor does not go on to trial, especially after notice and without its being countermanded, the defendant shall have his costs. +FOURTHLY, That if to an information on 8 Geo. 1. c. 19. Worrel, 1 Wils. for killing game, the defendant plead a conviction before a justice for the same fact, and has judgment for want of a replication, he shall have his costs. 177. Wilkinson qui tam v. Allatt, Cowp. 366. Barnes, 124. Town of Dover v. Hodgson, 1 Wils. 139. Elde qui tam v. FIFTHLY, That a qui tam informer is liable to costs on 18 Eliz. c. 5. as well as an informer suing for the whole penalty upon a nonsuit on an action of debt on the 21 Hen. 8. c. 13. s. 26. for non residence, though part of the penalty is limited to the king. + SIXTHLY, That if the defendant obtain a verdict in a qui tam action of debt on the 5 Eliz. c. 4. for exercising a trade contrary to that statute, he is entitled to costs. + SEVENTHLY, That where a defendant obtains a verdict in a qui tam information he shall have costs, although he himself removed the information from the sessions into the court of king's bench. EIGHTHLY, That if it appear upon the record that the plainStephens, 2 Ld. tiff is a common informer, the Court will not, after a verdict for Raym. 1333. the defendant, receive an affidavit that the suit was really prosecuted for the benefit of another person, in order thereby to exempt the nominal plaintiff from costs under 18 Eliz. c. 5. Parker qui tam + NINTHLY, That the Court will not stay proceedings in at qui tam action until the costs of a non pros. in a former action by a different plaintiff against the same defendant be paid. + TENTHLY, That the Court will stay proceedings in a qui tam action when the plaintiff resides abroad, until he give security to pay costs, or, as it is said in one case, where the plaintiff is a foreigner, though resident in England; and that if a prosecution upon a penal statute be brought in a feigned name, Court will oblige the real prosecutor to give security for cost; but that they will not insist on such security merely on account of the poverty of a plaintiff. the + ELEVENTHLY, That if the Court see reason to suspect that v. Macfarlan, 3 a qui tam action is prosecuted merely for the issue money, they Term Rep. 137. will on motion permit it to be paid into court to abide the event of the suit. (0) 10 H. 7. 18. Br. Leygage, 63. 106. Co. Lit. 295. As to the TENTH POINT, viz. Whether the defendant, in such an action or information, may wage his law, or take advantage of a protection. Sect. 61. It is said (0) to have been ruled, that the defendant ought not to be admitted to wage his law in any such action or information, because they are founded on a statute; nor do I find any authority to the contrary. But perhaps it may be questioned, how far the reason given for the opinion above-mentioned may be conclusive, since such an action or information doth not seem so (p) properly grounded on a statute, as on the contempt (p) Vide 21 II. of it. 7.15. But as to the question, Whether the defendant can take ad(q) In the afvantage of a protection? there seems to be near the same num- firmative, F. ber of authorities on each (q) side. But there is no great need Protect. 98.122. nicely to examine these matters, since generally it is expressly Keilway, 135. provided by penal statutes, that neither wager of law, nor pro- F. Protection, tection, shall be admitted in any suit brought upon them. 61. 105. Coke Lit. 131. Vide 2 R. Abr. 323. As to the ELEVENTH POINT, viz. In what manner the defendant is to plead to such an information or action. Sect. 62. I shall take it for granted, that he must answer to the whole (r) time laid in such information or action; and that if (Bridg. 115. (s) Vide Bridg. he have any (s) special matter for his excuse or justification, he 114. 115. must set it forth (1) with all convenient certainty; and that if he plead the general issue to the whole, he must depend upon it, and not (2) together with it plead also a special plea, either to the whole or part of the charge. + And it hath been adjudged, that although the statute 21 Jac. 4 Term Rep. 1. c. 4. s. 4. enables the defendant to plead the general issue, and 109. to give the special matter in evidence, yet he cannot avail himself under such plea of any matter which goes to the jurisdiction of the Court, But for these matters I shall refer the reader to the books which treat of pleading in general: And in this place shall only consider, 1. Where a prior suit depending may be pleaded to such an information or action. 2. Where a pardon, or release, or a recovery in a former suit, may be pleaded to such action or information. 3. What is a good general issue; and where it may be pleaded. As to the first particular, viz. Where a prior suit depending may be pleaded to such an information or action. Sect. 63. It seems agreed, (t) that wherever any suit on a penal (t) C. Eliz. 261. statute may be said to be actually depending, (u) it may be pleaded 1 Roll. 49. 134. in abatement of a subsequent prosecution, being expressly averred (u) Doug. 240. to be for the same offence. Neither (x) will it be any exception to such a plea, that the (1) C. Eliz. 61. offence i Roll. 49, 50. (1) For a quitam information cannot be quashed on motion, Strange, 953. except for defect of jurisdiction, Rex v. Williams, 1 Burr. 385.. (2) 1 Roll. 49, 50. 134. A defendant canuot plead double in qui tum, Strange, 1044. Barn. K. B. 17.; for the statute of 4 Ann, c. 16. which allows double pleading does not extend to penal actions, Heyrick v. Foster, 4 Term Rep. 701. (y) Hobart, 209. offence in the subsequent prosecution is laid on a day different from that in the former. Neither (y) doth a mistake in such a plea of the very day whereon the suit pleaded as prior was commenced, seem to be material on the issue of nul tiel record, if it appear in truth to have been commenced before the other, and for the same matter. And if two informations be exhibited on the very same day, it (*) Hobart, 138. seems (~) that they may mutually abate one another, because there is no priority to attach the right of the suit in one informer more than in the other. (a) C. Eliz. 261. (b) 10 Ed. 4.13. Bull. N. P. 197. (c) C. Eliz. 677. Stra. 137. 701. C. Jac. 11. 5 Coke, 48. 1 Roll. 376. Also it seems, that an (a) information or bill (b) the same day that they are filed, may be so far said to be depending, before any process issued upon them, that they may be pleaded in abatement of any other suit on the same statute. And from the same reason it seems also, that a writ of debt may be so pleaded after it is returned; because then it seems to be agreed, that it may properly be said to be depending; and whether it may not also be so pleaded before it be returned, seems questionable; because, according to some (c) opinions, a writ may be said to be depend1 Bac. Abr. 41. ing as soon as purchased. (5) Con. Salk. 89. (d) 11 Co.65,66. 5 Coke, 48. Noy, 100. 3 Inst. 194. 2 Bulst. 261, 262. As to the second particular, viz. Where a pardon, or release, or a recovery in a former suit, may be pleaded to such an information or action. Sect. 64. It seems agreed, that notwithstanding the king have such an interest in every penal statute, that he may (d) proceed in a suit brought upon it by a common informer, after the death, release, or nonsuit of such informer, hanging the prosecution; and may also totally prevent any such suit, by first (e) suing for the whole penalty himself; or may totally bar it by a pardon or release (f) precedent to its commencement; yet if it be actually commenced before any suit by the king, the informer hath such an interest in the part of the penalty assigned him by the statute, that the king can no (g) way discharge, or suspend the suit, as to (e) Crom. Juris. (h) such part. C. Eliz. 583. Con.C.Eliz.138. 37 H. 6. 5. 20. B. Attaint, 130. 38. 3 Inst. 194. 37 H. 6. 4. Hutton, 82. (i) Noy, 100. Moor, 58. (k) F. Dec. tant. 4, 5. B. Act. Poph. 4.7. C. Jac. 480, 481, 482. 1 H. 7. 3. 11 Coke, 65, 66. (f) F. Dec. tant. 5 Charter, 21. B. Act. Pop. 3, 4. 3 Inst. 194. 5 Edw. 4. 2,3. (g) C. Eliz. 138 1 Leonard, 119. 1 H. 7. 3. B. Act. Popham, 5, 4. 3 Inst. 194. (h) Savil, 23. 11 Coke, 65,66. 9 Edw. 4. 4. (1) 2 Roll. 33. 1 H. 7. 3. 37 H.6, 4. Also it seems that the king can in (i) no case bar the suit of a party grieved, nor proceed in it after the death of the plaintiff, &c. Also it seems agreed, (k) that a conviction or acquittal bonâ fide in any action or information on a penal statute, whether by the party grieved, or a common informer, or a release bonâ fide from the party grieved, or common informer, (1) after such a conviction, hath always been a good bar of any subsequent prosecution for the same offence. B. Act. Popham, 7. 5 Ed. 4. 2, 3. (3) The day of suing forth the writ is the commencement of the suit, 3 Burrow, 1423. But |