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 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 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- 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 IN WHAT CASES AN INDICTMENT MAY BE QUASH- ED. IN WHAT CASES AN INFORMATION AT THE SUIT OF Informations will lie for offences of a public 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. 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 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 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, 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 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 The party grieved is not within the restraint of yet he shall pay costs within the 18 Eliz. c. 5. 381. s. 59 In an action qui tam on 5 Eliz. c. 4. the plaintiff shall pay costs. Determination on this statute. 382 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. OF PLEADING TO AN INFORMATION QUI TAM. 383. s. 62 The defendant must answer the whole time laid; if he have any special matter in justification, it must be alleged with certainty; but if he plead the general issue, he cannot also plead a special plea. ib. A penal suit actually depending, may be pleaded in abatement to a subsequent prosecution, it being averred to be for the same offence. ib. s. 63 It is no objection to such a plea, that the offence in the subsequent suit is laid on a different day. 384 A mistake of the day is not material on nul tiel | record, if the prior suit appear to have been really first commenced. ib. Two informations exhibited on the same day may mutually abate each other; for there is no priority. ib. ib. s. 70 And if the plaintiff shall not prove the offence to have been committed in the county in which it is laid, the defendant shall be found Whether the last words of the proviso of this not guilty. act do not restrain the exception respecting recusancy, champerty, &c. to that part of the statute which relates to laying the offence in ib. s. 71 a proper county. 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. ib. The king can in no case bar the suit of the party! grieved, nor proceed in it after the death of the plaintiff. ib. A conviction or acquittal, or release bona fide, whether by a party grieved or a common informer, is a good bar to any subsequent prosecution for the same offence. ib. By 4 Hen. 7. c. 20. if any defendant shall be found pleading any recovery, &c. or bar to a popular action,, &c. which in fact has been obtained by fraud or covin, the plaintiff, if he sue with good faith, shall recover, and the defendant shall suffer two years' imprisonment. ib. In actions qui tam, the replication is to be made by the plaintiff only. ib. ib. A demurrer may be made by an informer qui tam, without mentioning the attorney-general. ib. If the attorney-general refuse to reply, the informer may make the replication himself. ib. The time which is allowed for pleading. ib. notis. OF JOINING ISSUE AND TRIAL. Where the king is to have no part of the thing demanded, but only a fine or amercement, there is no necessity either in the issue or venire facis to use the words qui tam pro domino, &c. but the party may be simply named, as in actions at common law; but it is no fault to use them. ib. s. 73 But the plea must state, that the plaintiff in the If OF THE GENERAL ISSUE. ib. s. 66 By 18 Eliz. c. 5. no jury shall be compelled to appear at Westminster to try any issue by a common informer on a penal statute committed thirty miles from Westminster, except the attorney-general require it to be tried at bar, which request shall be on the back of the distringas. 388 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. ib. ib. If the offence be alleged from matter in pais, the If an offence against a penal statute be in its VOL. II. 3 F nature |