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It is now perfectly settled that the parents are competent to prove or disprove their marriage (c), or to establish the legitimacy or illegitimacy of a child, by proof that it was born after or before marriage. A mother has been al- Competency. lowed to prove a clandestine marriage, in the Fleet, to the father of the child, previous to its birth (d); and the dowager Countess of Anglesea was admitted in the House of Lords to prove her marriage with the Earl of Anglesea previous to the birth of their son, Lord Valentia, where the question was as to the legitimacy of the latter (e). So the evidence of parents is admissible to bastardize their own issue (f), by proof that they have never been married. But such evidence is open to great observation (g).

The wife is competent to prove acts of incontinency with others, because, as it is said, this is a matter peculiarly confined to her own knowledge; but it is fully settled that neither the wife nor the husband can *prove the fact of * 1122 non-access (h), a rule founded upon grounds of policy and of decency (i).

Where the parties, if living, would have been compe- Declarations. tent witnesses to negative the marriage, their declarations

to that effect are evidence after their decease (k).

The declaration of the father is, after his death, admissible to prove that the son was born before the marriage ().

(c) Cowp. 593.

(d) Per Lord Mansfield, Cowp. 593.

(e) Ap. 22d, 1771; and per Lord Mansfield, Cowp. 594.

(f) R. v. Bramley, 6 T. R. 330. St. Peters v. Swinford, B. N. P. 112.

(g) Per Lord Kenyon, 6 T. R. 330.

R. v. Kea, 11 East, 131. Rex

(h) R. v. Reading, B. N. P. 112. v. Book, Sayer, 61. 1 Wils. 340. [See tit. Bastardy, & notes.] (i) Per Lord Mansfield, Cowp. 594; and per Lord Ellenborough. 11 East, 133.

(k) R. v. Bramley, 6 T. R. 330. B. N. P. 112. May v. May, ibid. (1) Goodright v. Moss, Cowp. 591. May v. May, B. N. P. 112; where, upon an issue out of chancery, the preamble of an act of

Letters purporting to have been written in a foreign country, by a widow, in which she speaks of the death of her husband, and of the existence of children by him—and testimony of a third person that he had seen a letter from the husband, in which he mentioned his marriage and his children-and reputation in the vicinity that the husband had died abroad leaving children-are not admissible evidence for the tenant in a real action, wherein the demandant (a co-heir of such supposed deceased) claims title by descent-the tenant not claiming under him or his heirs. Crouch & ux. v. Eveleth, 15 Mass. Rep. 305. Whether such evidence would be admissible in a suit against the demandant by persons claiming as heirs at law of the supposed deceased-Quære. ibid.]

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Particulars of proof.

ment.

* 1123

But as the evidence of parents would not be received in their life-time to prove the bastardy of children born during marriage, by evidence of non-access, so neither are their declarations to that effect admissible after their death (m).

PENAL ACTION.

In an action of debt to recover a penalty under a statute, issue being joined, on the usual plea of nil debet, it is necessary to prove,

1st. The affirmative of all the essential averments. 2dly. In qui tam actions, that the offence was committed within the county, &c.

3dly. That the action was commenced within time, &c. *It has been seen, that where a person is charged with Proof of aver- a criminal omission, the proof of the negative lies upon the party who makes the charge (n); where, however, the action is founded on the doing an act without a legal qualification, the existence of which, if it exist at all, is peculiarly within the knowledge of the defendant, it seems to be incumbent on him, notwithstanding the rule, to prove his qualification (o).

Variance.

Where a contract is averred, a material variance will be as fatal as in an action of assumpsit. Where the plaintiff declared for a penalty for fraud in the measuring of coals purchased from the defendant by A. and B., and it appeared in evidence that the purchase was made by A. B. and C., the variance was held to be fatal (p), although a separate delivery was made to A. and B. of their shares. The same was held where the plaintiff declared for a penalty for an illegal insurance of a particular lottery ticket for the sum of 421., and it turned out that this sum had been given for that and other tickets (q).

parliament, reciting that the plaintiff's father was not married, and to the truth of which he was proved to have been sworn, was given in evidence, yet, upon proof of a constant cohabitation, and his owning the mother upon all other occasions to be his wife, the plaintiff obtained a verdict.

(m) Cowp. 591.

(n) Supra, Part III. 378.

(0) Supra, tit. Game.

(p) Parish, q. t. v. Burwood, 5 Esp. C. 33. Everett v. Tindall, 5 Esp. C. 169. Vide supra, 354; R. v. Goddard, Leach, 617; infra, note (s).

(q) Philips, q. t. v. Mendez da Costa, 1 Esp. C. 59. Secus, if the

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And the same proof must be given of a contract where the evidence of a contract is essential, as in an action on the contract. Thus, in an action against a master of a vessel for hiring a deserter from another ship, if the prior Variance. hiring was by contract in writing, it must be produced and proved, and cannot be proved by the parol evidence of the deserter (r).

*In debt for using a trade without having served an ap- * 1124 prenticeship, it was held that it need not be proved that Amount of pethe defendant used it for the whole of the time laid in the nalties. declaration, provided that it was alleged that he forfeited,

40s. for every month (s), and proved that he used the trade for a month together.

Where several lottery tickets are insured at the same time, one penalty only can be recovered (t); but it is oth

declaration does not aver a particular premium, but a particular premium is proved to have been given. Ibid.

(r) Martin v. Greenleaf, 2 Esp. C. 729. (8) Powell, q. t. v. Farmer, Peake's C. 57. Under the statute 5 Eliz. c. 4, s. 31, this branch of the statute was repealed by the statute 54 G. 3. c. 96. The averment of the trade is material. Averment of the trade of a sawyer is not proved by evidence of setting to work in the trade of a mast and block-maker. Spencer v. Mann, 5 Esp. C. 110. But semble, a mis-description of the master's trade would not be material. ib. See Beech v. Turner, 4 Bur. 2449.

(t) Holland v. Duffin, Peake's C. 58. So under the stat. 29 C. 2. s. 7, which enacts that no tradesman, artificer, workman, labourer, or other person, shall do or exercise any worldly labour, business or work of their ordinary calling on the Lord's Day, except works of necessity and charity, and except dressing of meat in families, or dressing and selling of meat at inns, cook's shops, or victualling houses, for such as cannot otherwise be provided, &c. on pain of forfeiting 5s. &c.; it was held, that a baker who exercised his trade on a Sunday could not be convicted in more than one penalty in respect of the same Sunday, and that there could be no more than one offence on one and the same day. Crepps v. Durden, Cowp. 640. So if an unqualified person kill several hares on the same day, he cannot, it is said, be convicted in so many different penalties, as the offence for which the statute gives the forfeiture is the keeping of dogs and engines, and not the killing the hare. R. v. Matthews, 10 Mod. 26. Supra, 623. and per Lord Kenyon, in Pechell v. Layton, 2 T. R. 512. Marriott v. Shaw, Com. Rep. 274. Yet qu. whether every distinct instance of killing a hare be not a different using of a gun, &c. to destroy game? For the statute is in the disjunctive, keep or use. See R. v. Filer, 1 Str. 496. R. v. King, 1 Sess. C. 88. In the case of Brooke v. Milliken, 3 T. R. 509. it was held that several penalties might be incurred on the same day, on the 12 G. 2. c. 36. for distinct acts of sale of books reprinted in another country, which were originally printed and published here. If a man first shoot a hare, and afterwards, though on the same day, shoot a pheasant, it seems that the acts of using are as distinct as the acts of sale were in Brooke v. Milliken.

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erwise where several tickets are insured at different times, although on the same day (u). But the plaintiff cannot recover more penalties than are included in the affidavit * 1125 to hold to bail (x).

Penalty.

Within the county, &c.

Contract.

If the Jury find a general verdict for one penalty, it is for the plaintiff to apply it; but, after applying it to one count which turns out to be defective, he cannot afterwards apply it to another, although the evidence would have warranted a verdict on the latter (y).

2dly. Within the county.-An offence against a penal statute must in general be alleged and proved to have been committed within the proper county (z) (1). A variance in this respect is matter of defence upon the trial (a).

Where a contract was made for the purchase of coals, without stating the specific quantity, it was held that the offence of selling coals of a different description from those contracted for, was committed in the county where the *1126 coals were delivered, the * contract having been made in a different county (b). But the not justly measuring such coals, being a local omission contrary to a local act, is completed at the place where the coals are kept for sale, and

(u) See Brooke v. Milliken, 3 T. R. 509. and the preceding note. (x) Phillips v. Mendez da Costa, 1 Esp. C. 34.

(y) Holloway v. Bennett,3 T. R.448. Hardy v. Cathcart, 5 Taunt. 11. (z) By the stat. 31 Eliz. c. 5, s. 2, which enacts that the offence against any penal stat. shall not be laid to be done in any other county than where it was in truth done. This statute extends to all actions by common informers upon a penal statute, whether made before or after that statute (B. N. P. 194. Com. Dig. Action, N. 10. 2 T. R. 238. 2 B. & P. 381. Barber v. Tilson, 3 M. & S. 429.) The statute, however, contains some exceptions as to informations by the Attorney General in the exchequer, champerty, &c.

By the stat. 21 Jac. I. c. 4, all informations either by or on behalf of the King, or any other, for any offence against any penal statute, shall be laid in the county where, &c. This statute, it has been held, does not apply to offences created by subsequent statutes (3 M. & S. 438. B. N. P. 195. 1 Salk. 372, 3). And neither of these statutes extends to actions brought by the party grieved. Ibid. and B. N. P. 195.

The venue of an information for being a tanner and shoemaker under the stat. 24 G. 2. c. 19, need not be within the county. Attorney General v. Farris, 3 Anst. 871.

(a) 4 East, 385. [See Yelv. 12 a. note (2)].

(b) Butterfield v. Windle, 4 East, 385, under the stat. 3 Geo. II.

c. 26.

(1) [An action upon the statute of New Jersey, for restraining certain persons from navigating the waters between that State and New York, was held to be transitory. Gibbons v. Ogden, 1 Halsted's Rep. 285. See Gilbert v. Marcy, Kirby, 401.]

where the bushel is required to be kept for the purpose of measuring (c).

The offence of driving a distress out of the hundred is

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not complete till the cattle have entered the second hun- Within the dred; and if the latter hundred be situated in a different county. county, the defendant will be liable to be nonsuited if the

venue be not laid there (d).

Where a draft was given for usurious interest in the county A., and the money was actually received on the draft in the county B., it was held that the offence was committed in the latter county (e).

An action for non-residence, although the offence consist in an omission, must be brought in the county where the living is situate (ƒ).

In an action of debt for using a trade without having * served an apprenticeship, it must be proved that the de-* 1127 fendant exercised the trade for one entire month (g) within the same county (h).

Although the venue be changed into another county for the purpose of trial, the cause of action must still be proved to have accrued in the county where the venue is laid (i). Where part of the penalty sued for is given by the sta- Parish. tute to the poor of the particular parish where the offence was committed, evidence is also requisite to prove that the

(c) Butterfield v. Windle, 4 East, 385, under the stat. 3 Geo. II. c. 26.

(d) Pope v. Davies, 2 Camp. 266; and see Platt v. Lock, Plow. 35. Sav. 58.

(e) Scurry v. Freeman, 2 B. & P. 381. And see Wade, q. t. v. Wilson, 1 East, 195; where it was held, that if a premium be taken at the time of an usurious loan, receiving interest at the rate of 51. per cent., the offence is complete as soon as any interest is received. If an usurious contract be entered into by a deed executed in London, appointing the lender to be the receiver of the borrower's rents in Middlesex, with a pretended salary, and the lender receive the rents in Middlesex, but settle for the balance with the borrower in London, the venue, in an action on the statute, is well laid in London (Scott, q. t. v. Brest, 2 T. R. 238); and per Ashhurst, it might be laid either in London or Middlesex (ibid. 240). As to the venue in cases of conspiracy, game, libel, &c. see those titles respectively; as to the venue in case of indictments, see Starkie's Crim. Pleadings, Ch. I.

(f) In the K. B. MS.

(g) R. v. Barnett, 3 Camp. 344.

(h) Cunningham v. Watson, 3 Camp. 249.

(i) Robinson v. Garthwaite, 9 East. 296. See the stat. 38 Geo. III, c. 52, s. 1.