Whether the words "contra pacem" be necessary. WHAT MISRECITALS ARE FATAL.

338. s. 101

334 If a prosecutor take upon him to recite a public statute, and materially vary from a substantial part, and conclude contra formam statuti, he vitiates the indictment.

ib.

Instances given in which a variance from the statute on which the prosecution is founded, vitiates the indictment.

No indictment or information can be good, except it expressly suppose the offence to have been done against the peace of the king in whose reign it was committed. ib. But an information for intrusion or other wrong of a civil nature against the king, does not reib. quire the words contra pacem. ib. But the omission of a synonimous word, having In what manner au indictment for erecting a no other meaning than what is fully expressed weir, done in one reign, may be made good in in the words which are recited: or the joining another reign. 335. s. 93 of words which are either wholly synonimous, It seems that the words contra coronam et digni- or much of the same sense, as signifying such tatem regis are not absolutely necessary in an things as generally include one another, are indictment. ib. s. 94 not fatal. $39. s. 102 Quare, if the words in contemptum regis are ne-Instances in illustration of this rule. ib. ib. s. 95 No advantage can be taken of any part of a private statute, without shewing such private statute in a proper manner. ib. s. 103 misrecital of the place or time at which the parliament in which the statute passed was holden, vitiates the indictment; instances given.

cessary.

It seems the word illicitè is not absolutely necessary in an indictment at common law, especially for a riot; but where a statute uses the word A unlawfully, the indictment on it must use the word illicitè or some other tantamont.

336. s. 96 WHETHER A DEFECTIVE INDICTMENT BE AMEND-A 336. s. 97

ABLE.

No criminal prosecution is within the benefit It
of any of the statutes of amendment; and
therefore all amendment which can be made
must be by the common law.
ib.
Generally, an indictment removed from an infe-
rior court can in no case be amended. ib.
But the body of an indictment removed from
London may be amended, because the tenor
only is removed.

ib.

repugnancy also in setting forth the time when the parliament was holden, is fatal. ib. seems, that the admission of the party with respect to the misrecited statute will not make good the indictment. 340 Whether the misrecital of the title of a statute be fatal. ib. s. 105 A variance in reciting a statute to commence after the making, where the statute is express that it shall commence after the sessions, is ib. fatal. ib. s. 106 Quare, if in either case an amendment can be Sed quære, if a variance no way altering the sense made when the record is filed. ib. of the statute does any hurt. The caption of an indictment from any place A variance from an immaterial part of a statute may, upon motion, be amended, so as to make it agree with the original record, during the term in which it came in; but not in a subsequent term. ib. And quare, if it can be amended after it is filed. ib.

does no hurt.

ib.

ib. If a recital vary only in such a part of the description of the offence as is put into the statute only by way of flourish et ex abundanti, and makes no necessary ingredient in the offence prohibited, nor needs any proof, it is not fatal. ib.

A misrecital of the preamble of a statute is not
material, where the substantial part of the
purview is well recited.
ib. s. 107
The Court has not been so strict in recitals as
formerly, and if an indictment fully recite a
statute so far as it concerns the indictment, a
misprision in what concerns other matters has
been helped by the several authorities. 341
A total omission of the clause of a statute which
ordains what the party shall forfeit does no
hurt. But see exceptions to this rule. ib. s.109
How FAR THE OFFENCE MUST BE BROUGHT
WITHIN THE VERY WORDS OF THE STATUTE.
342. s. 110
Unless the statute be recited, neither the words
contra formam statuti, nor any periphrasis, in-
tendment, or conclusion, will make good an
indictment which does not bring the offence
within all the material words of the statute.

with them the bare denial of a matter, the What is the proper process on an information affirmation whereof is a proper and natural (See PROCESS). plea for the defendant; this rule illustrated.

343. s. 112

ib. s. 113

INFAMY.

ch. 27

603

Where it disables a man to be a witness or ju-
ror (See EVIDENCE, JURORS).
How far infamy is cleared by pardon (See PAR-
DON).

INFORMATION.

the king and qui tam.

547

In describing the defendant, there is no need to set forth the place where the thing happened which brought him within the description. ib. In describing the defendant, it is sufficient to say that he, existens, so and so, did the fact. ib. There is no need to allege in an indictment, that the defendant is not within the benefit of Informations are of two kinds viz. at the suit of the provisoes of a statute whereon it is 356. ch. 26 founded. But a conviction on a penal statute ought expressly to shew that the defendant is not within any of its provisoes; the reason of this rule. 344 If a statute whereon an indictment is grounded be particularly recited, the general conclusion contra formam statuti, after the allegation of the fact, will supply an omission in it of a circumstance mentioned in the statute, which No information will lie for any cápital crime, or

would be fatal without such recital and conclusion. ib. But the want of a certain description of time or place or thing; or persons concerned, or of the conclusion contra pacem, or an express and direct allegation of the fact itself, cannot be supplied.

ib.

An indictment grounded on a statute which will
not maintain it, may be made good as an in-
dictment at common law.
ib. s. 115
How far it is necessary for an indictment on a
statute to conclude contra formam statuti. 345
What ought to be the form of the caption of an
indictment (See CAPTION).
346. 350
Upon what proof, and within what time after the
offence, an indictment may be found (See Evi-
DENCE).
350

IN WHAT CASES AN INDICTMENT MAY BE QUASH-
354. s. 146

ED.

IN WHAT CASES AN INFORMATION AT THE SUIT OF
THE KING WILL LIE.
ib. s. 1

Informations will lie for offences of a public
nature, done either to the king himself, or to
a subject: instances enumerated.
Information will lie for offences against statutes,
unless expressly or impliedly excluded.

for misprision of treason.

MATION.

ib.

357. s. 2

ib. s. 3 WHAT OUGHT TO BE THE FORM OF SUCH INFORib. s. 4 Information is in every respect like indictment, only that indictment is found by the oaths of twelve men, and information is only the allegation of the officer who exhibits it. 357 Whatsoever certainty is requisite in an indictment, the same is also necessary in an information: the material parts of the crime must be precisely found in the one, and alleged in the other, and not by way of argument or recital. ib.

ib.

Exception as to an information for perjury.
By 4 and 5 Will. and Mary, c. 18. the master
of the crown office shall not, without the ex-
press order of the court, file any information,
nor issue process thereon, until he has taken
a recognizance from the prosecutor in 201. to
proceed with effect, &c.

358

The Court, in discretion, may quash any indictment, the judgment upon which would be The recognizance shall be filed in the crown office for the purpose of public inspection. ib. In what cases the court will order an information to be filed. 359. 361

And no exception can be taken on this act after It will not lie on any penal statute, unless the plea pleaded, Quare, whether the court will quash an informaib. s. 149 What may be pleaded to an indictment, and in what manner. 356. s. 150

tion.

The defendant may plead any plea in abatement
to a felony, and also plead over in bar, and
also take the general issue.
ib.
It is no good plea to an indictment that another
is depending.
ch. 34. s. 1

whole or part of the penalty be expressly given to him who will sue for it. ib. s. 17 Where a penalty is given to an informer, any one may sue for it, and lay his damage tam pro domino rege quam pro seipso.

369

Where a statute prohibits or commands a thing, the doing or omission whereof is an immediate damage to the party, and concerns the public, the party grieved may sue tam pro domino, &c. ib. Wherever

Wherever the king is to have a fine on an action In an action on a statute against an officer for

What ought to be the form of an information or
action qui tam.
ib. s. 18
There is no need to conclude contra pacem. 370
Quare, if it be necessary to conclude in con-
temptum regis.

ib. They need not recite the statute whereon they are grounded.

ib. What misrecitals of such statute will be fatal (See INDICTMENT.)

How far it is necessary to bring the case within the very words of the statute (See INDICTMENT.)

How far it is necessary to conclude contra formam statuti. 370 If an information contain several offences against a statute, and be well laid as to some only, the informer may have judgment for so much as is well laid: instances given. ib. s. 19 If the whole time that the defendant hath offended be expressed inconsistently, the whole is repugnant and void.

ib. An informer on a qui tam statute may have a writ against the defendant, either quas eis debet, &c. or quas ei debet, which is good, in the declaration, in the name of the plaintiff only.

ib. s. 20 Quare, if the writ or count need express that the action was brought for the king as well as the party. ib. But every information must be in this form, that the informer tam pro domino rege quam pro seipso sequitur, even where the statute gives one third of the penalty to a third person. ib. How the form of the information shall be in such 371

case.

It is safest for every information or action qui tam to demand the very sum due to the informer, and neither more nor less. ib. s. 21 If an action on a statute demand the whole forfeiture for the informer, where the statute gives part of it to the king, it is insufficient. Sed quære, if it is not good for the part due to the king.

66

ib.

ib.

not qualifying, it is safest to shew when the defendant was admitted to his office; that he neglected to qualify in time; and that he exercised the office after the neglect. 372. s. 23 The fact is sufficiently alledged after a quod cum in a qui tam action, but not in an information.

373. s. 25

Where a statute appoints that a penalty shall be recovered in any of the king's courts of record, the offence may be indicted before justices of oyer and terminer. ib.

Where a statute limits suits by an informer qui tam to other courts, yet any one may, by construction of law, exhibit an information in the exchequer for the whole penalty, for the use of the king.

ib. IN WHAT COUNTY A QUI TAM ACTION OR INib. s. 26 By 31 Eliz. c. 5. the suits by common informers on any penal statute shall lay the offence in any other county but where the matter alleged was in truth done, which fact may be traversed by the defendant.

FORMATION MAY BE BROUGHT.

ib. Suits for champerty, buying of titles, extortion, the king's customs, &c. or usury, or forestalling, &c. are excepted from the restraints of the act. ib. All suits for unlawful games, for not having bows and arrows, for using a trade contrary to 5 Eliz. shall be sued in the general quartersessions or assizes of the same county where the offence shall be committed, &c. &c. ib. s. 27 The defendant can only take advantage of the offence being laid in a wrong county, by way of plea.

374. s. 28.

The clause restrains not an information in the king's bench or exchequer, for an offence happening in the same county where those courts are sitting, for the prerogative of these courts shall not be restrained without express words. ib. s. 30.

By 21 Jac. 1. c. 4. suits for offences against any penal statute by a common informer, shall be commenced by action, bill, plaint, information, or indictment, before justices of assize, nisi prius, oyer and terminer, and gaol-delivery, or before justices of the peace, in every county of England and Wales wherein the offences shall be committed, only at the choice of the parties who shall commence the suit, &c. ib. s. 31The same process shall be awarded in every popular action commenced according to this act, as in an action of trespass vi et armis at common law. 375

Quare, if where the quantum of forfeiture depends on the finding of the jury, a blank may be left for the sum. ib. A popular action may conclude ad grave damnum, without adding of the plaintiff. By 18 Eliz. c. 5. " no person shall be sued upon a penal statute, but by way of information or "original action"--if such statute inflict a penalty generally. ib. s. 22. But former statutes, which expressly give a recovery by bill, plaint, &c. are not within the exception of this act; the reason of it. ib. If on the general issue the offence be not proved in the same county, the defendant shall not be found guilty. ib. s. 32, No information shall be filed until the relater hath made oath that the offence was not committed in any other county.

No suit by bill or plaint, by a party grieved, suing upon a clause impliedly relating to himself only, is within the 18 Eliz. c. 5. 372 But where the party particularly grieved sues for a forfeitute generally limited to any who will sue for it, he is as much within the restraint of the statute, as if he were not the party grieved.

ib.

And all other informations, &c. either by the attorney-general or any officer, or by a common informer or other person, shall be void. ib.

ib.

No information qui tam, &c. can be brought in Westminster Hall on any penal statute made before 21 Jac. 1. for which the offender may be

be prosecuted in the country, unless committed in the county where the Court shall sit.

time to any one who will sue, be within the restraint of these statutes.

378. s. 49 And quare, whether the exception of certain offences out of the 31 Eliz. c. 5. do except the. said offences.

ib. s. 50

375. s. 34 Where a subsequent statute gives a remedy in any court of record generally, the informer may sue in Westminster Hall, notwithstanding By 31 Eliz. c. 5. none but the party grieved shall 21 Jac. 1. 376. s. 35 inform, &c. upon a penal statute, if he hath The 21 Jac. 1. gives no jurisdiction to the courts been ordered by any of the queen's courts not therein mentioned over any other offences to sue, &c. where they had none before. ib. s. 36 A corporation cannot sue as a common informer.

ib. s. 51

The 21 Jac. 1. does not hinder the removal of ib. 379 any indictment into the king's bench by cer- The king cannot be nonsuit in any information tiorari, after which it may be either tried there or action wherein he himself is the sole plainor at nisi prius. tiff. ib. s. 52 Yet an informer qui tam, or plaintiff in a popular action, may be nonsuit, and thereby determine the suit, as well for the king as for him- * self. ib.

ib. s. 37 A writ of error also lies from the king's bench to the exchequer chamber in a qui tam action of debt. ib.

The want of the informer's oath will not make the proceedings erroneous; but the Court may The attorney-general may enter a noli prosequi be moved to set the process aside. ib. s. 38 to any information by the king only. ib. No suit by a party grieved is within the restraint Whether the informer or defendant may appear of the 21 Jac. 1. c. 4. by attorney. ib. s. 53

ib. s. 39

WITHIN WHAT TIME SUCH INFORMATION, &c. By 18 Eliz. c. 5. every informer shall exhibit his suit in proper person, and pursue the same only by himself or his attorney. ib. s. 54

MUST BE BROUGHT.

377. s. 40

By 31 Eliz. c. 5. all informations, &c. &c. upon

any penal statute, where the forfeiture is li- By 29 Eliz. c. 5. the defendant to a penal suit,

mited to the queen only, shall be brought within two years after the offence is committed.

ib. s. 41 And all informations, &c. upon any penal sta

if bailable by law, or by leave of the Court,
may appear by attorney at the day and time
contained in the first process, and shall not be
urged to personal appearance, or to put in bail
to such suits.
ib. s. 55

ib.

tute where the forfeiture is limited to the queen, By 31 Eliz. c. 10. this shall extend only to suband to any other that shall prosecute, shall bej brought by such prosecutor within one year, jects natural-born, and to denizens. 380. s. 56 and in default thereof the queen may prose- OF COSTS ON AN INFORMATION, &c. cute any time within two years after that year An informer upon a popular statute can in no ended. ib. case have costs, unless they are expressly given By 18 Eliz. c. 5. upon exhibiting an information him by such statute; the reason of this rule. on a penal statute, a special note of record shall be made of the very day, month, and year, or no process shall be sued on the same.

ib.

S. 42

By 21 Jac. 1. c. 5. no suit shall be filed upon
any penal statute, within the provisions of this
act, until the informer hath made oath that the
offence was committed within the county with-
in one year preceding.
ib. s. 43

ib. s. 57 But an action on a statute, by the party grieved, for a certain penalty given by a popular statute, is within the statute of Gloucester, which gives the demandant his costs in all cases where he shall recover his damages; and such penalty is in lieu of damage.

ib.

No costs shall be recovered in an action on a statute creating a new offence, which gives no certain penalty to the party grieved, but only his damages in general, &c.

ib.

If an offence prohibited by any penal statute be also an offence at common law, the prosecution of it at common law is no way restrained But the jury in this case may give the party a by these statutes.

378. s. 44

If a suit on a penal statute be brought after the
time limited, the defendant need not plead the
statute, but may take advantage of it in the
general issue.
ib. s. 45
If an information qui tam be brought after the
year, it is bad only as to the informer, but
good as to the king.
ib. s. 46

The party grieved is not within the restraint of
the above statutes, but may sue in the same
manner as before.
ib. s. 47
Suing out a latitat within the year, is a sufficient
commencement of the suit to avoid the limita-
tion of these statutes.
ib. (N. 1)
Quare, if a suit by a common informer on a penal
statute which first gives an action to the party
grieved, and, in his default, after a certain

defendant may plead that he owes nothing, or that he is not guilty; but if it be alleged from matter of record, such a plea is not good. 386. s. 68 ib. If the defendant be within the proviso of the statute, he may give it in evidence on the general issue; but if he have matter in discharge depending on a subsequent statute, he ib. But by 21 Jac. 1. c. 4. defendants to any suit must plead it specially. for any offence against any penal law, may plead the general issue, and give the special matter in evidence.

ib. The king may totally bar a suit on a penal statute, by a pardon or release before its commencement; but if the informer actually commence before the king, he hath such an interest in his part of the penalty, that the king A can no way discharge it.

But the plea must state, that the plaintiff in the If
other action had priority of suit, or on de-
murrer it will be bad.
ib. (N. 1)
The record of the former recovery cannot be
given in evidence on nil debet; it must be
pleaded spedially; and then the plaintiff may
reply nul tiel record, or that it was a recovery
by covin to defeat a real prosecutor, which
the plaintiff could not be prepared to shew on
the general issue.
ib.

If the defendant plead nil debet, it is safest to say, that he owes nothing to the informer By 24 Geo. 2. c. 18. every venire facias upon a

penal statute, in Westminster, Lancaster, Chester, Durham, and Wales, shall be awarded of the body of the proper county where such issue is triable.

they nor any of them are guilty. 386. s. 67 OF THE VERDICT IN QUI TAM.

If the offence be alleged from matter in pais, the If an offence against a penal statute be in its