course be necessary: as if the debtor, being in the county gaol, was charged with a writ of execution, by lodging it with the sheriff, it will be necessary to prove the fact of his so being in custody.

In debt for an escapes, where the party, who had been taken in execution by the sheriff, was afterwards brought up by habeas corpus, and committed to the custody of the mar shal of the King's Bench, the declaration alleged, that the prisoner was brought by habeas corpus before a judge of the King's Bench, and by him committed to the custody of the marshal," as by the said writ of habeas corpus, and the said commitment thereon, now remaining in the said court, more fully appears." It was holden, that the production of the writ of habeas corpus, with the commitment of the judge endorsed thereon, but which appeared to have been brought from the office of the marshal, but had not been filed of record in the court, was not sufficient to support this allega tion: for, admitting it not to be necessary, that the commitment should be of record, in order to entitle the plaintiff to the action, yet the plaintiff having averred a commitment of record, he was not at liberty to prove any other species of commitment; for the commitment, though matter of inducement, was material, and the latter part of the averment, now remaining in the said court," was not capable of being separated from the former part, or treated as an immaterial or distinct averment (124).

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If the plaintiff declare that he had J. S. and his wife in execution, and that the defendant suffered them to escape, and the jury find specially that the husband only was taken in execution, (it being a debt due from the wife before co

a Peake's Evid. 392.

c Turner v. Eyles, 3 Bos. & Pul. 456. b See stat. 8 & 9 W. 3. c. 27. s. 9. ante, d Roberts v. Herbert, 1 Sidf. 5. p. 564.

(124) A different rule holds, where an action is brought for an escape after a commitment on a habeas corpus, of a person arrested on mesne process; there the "prout patet per recordum remaining in the court," may either be rejected as surplusage, on the ground of such commitments not being records, nor capable of be coming so; or, if considered as quasi of record, the allegation is sufficiently proved by the production of the writ, with the committitur annexed by the clerk of the papers of the King's Bench Prison, with whom, as servant of the marshal, such papers are usually deposited. Wigley v. Jones, 5 East, 440.

verture) and that he escaped, the plaintiff shall have judgment, for the substance of the issue is found (125).

If the defendant plead no escape, he cannot give in evi◄ dehce no arrest, for the plea admits an arrest.

X. Of the Statutes, and general Rules relative to Actions founded on penal Statutes.

Of the time within which Actions on Penal Statutes must be brought.-By stat. 31 Eliz. c. 5. s. 5. " All actions brought for "any forfeiture upon a penal statute, whereby the forfeiture " is limited to the king only, shall be brought within two years next after the offence committed. And all actions brought for any forfeiture upon a penal statute, (except "the statute of tillage) the benefit whereof is limited to "the king and the prosecutor, shall be brought within one year "after the offence committed; and, in default thereof, the

same shall be brought for the king, at any time within "two years after that year ended. And if any action shall "be brought after the time before limited, the same shall "be void. Provided', that, where a shorter time is limited "by any penal statute, the action shall be brought within "that time."

It is to be observed, first, that this statute extends to all actions brought upon penal statutes, whereby the forfeiture is limited to the king, or to the king and the party, whether made before or since the statute. 2dly, If any offence prohibited by any penal statute be also an offence at common law, the prosecution of it as an offence at common law is not restrained by this statute. 3dly, The defendant.

e Bull. N. P. 67.
f S. 6.

g Tidd's Prac. 15.

(125) In debt for an escape against the marshal, it was alleged, that the prisoner was surrendered to him at the chief justice's chambers in the parish of St. Bride's, whereas it appeared upon evidence, that it was in the parish of St. Dunstan. But the judges held it well enough, this being debt, and the surrender [not the place of the surrender] being the only thing material, and that it differed fromftrespass, where every part of the declaration was descriptive. Oates v. Machen, Str. 595. at Nisi Prius, in Middlesex, coram Fortescue and Raymond, justices.

may take advantage of this statute, on the general issue, and need not plead it. 4thly, It is said, that the party grieved is not within this statute, but may sue as before (126).

On a case reserved', it appeared that an action of debt was brought on stat. 9 Ann. c. 14. by a common informer, against the defendant, for winning a sum of money of J. S. at cards. The money was lost and paid 11th March, 1757, and the original not sued out until Mich., 1762. The court of C. B. held it a case within stat. 31. Eliz.; for such action would have been within stat. 7 H. 8. c. 3.* and the 31 Eliz. was made to narrow the time given by that statute, and therefore could never mean to leave any actions unrestrained in time: the latter part of the clause must therefore be construed to extend to them.

The suing out a latitat is a sufficient commencement of the suit to save the limitation of time, in an action for the penalty forfeited by the statute'.

In actions brought on penal statutes, it is incumbent on the plaintiff to shew that the action was commenced within the limited time (127); in some cases this will appear by

h Noy, 71. Tidd's Prac. 2d edit. 15.
i Lookup v. Sir T. Frederick, M.
6 G. 3. Bull. N. P. 195.
Repealed by 31 Eliz. c. 5. s. 7.
1 Hardyman v. Whitaker, M. 22 G. 2.

B. R. 2 East's R. 574. n. Per Car. recognizing the opinion of the three judges in Culliford v. Blandford, Carth. 233.

(126) See Buller's N. P. 105. S. P. who cites Carth. 232. and Ld. Raym. 78. The case there cited was this; an action qui tam was brought in B. R. by bill, on stat. 23 H. 6. c. 15. (by which a penalty of £40 is given to the king, and £40 to party grieved or common informer) by a common informer against a mayor for a false return of a burgess to serve in parliament; it appeared by the record, that the bill was not filed within a year after the offence committed. After judgment for the plaintiff in B. R., it was resolved, on error in the Exchequer Chamber, by the majority of the judges, that where the whole penalty is given to the informer, the stat. 31 Eliz. does not extend to it; because it is not within the words of the act, and penal acts are not extendible by equity. Culliford v. Blandford, Carth. 232. Ld. Raym. 78.

(127) So where a statute directs that an action shall not be brought until after a certain time, the plaintiff must shew that the action was not commenced until after the expiration of that time. By stat. 2 G. 2. c. 23. s. 23. it is enacted, "that an attorney shall not declare until a month after the delivery of his bill." In an action brought in C. B. by an attorney for the recovery of his fees, it appeared in evidence that the bill was delivered on the 30th Sep

the nisi prius record, but where this does not appear, the plaintiff must be prepared to prove it by the production of the writ (128). In general, it will be sufficient for the plaintiff to shew that a writ, which will warrant the declaration, was sued out in proper time, without shewing such writ to have been served or returned" (129). And this rule holds even where the declaration has not been filed within two terms (130) after the writ sued out, provided it was

m Parsons v. King, 7 T. R. 6.

tember, 1797, and the record was entitled of Hil. Term, 1798. The plaintiff did not produce the writ, but relied on the production of the record. On the part of the defendant it was objected, that although a King's Bench record, in which the day is stated in the memorandum, might be taken as a good primá facie evidence at nisi prius of the time at which the action was commenced, yet a record in the court of common pleas could not; because, such record beginning with the placita of the term only, there was not any thing from which the day, on which the action was commenced, could be inferred. But the court of C. B. overruled the objection, Eyre C. J. observing, that the record was prima facie evidence of the action being properly commenced, and that it was incumbent on the defendant to disprove it by a copy of the writ. Webb v. Pritchett, 1 Bos. & Pul. 263.

(128) In debt on the stat. against usury, the plaintiff having proved the offence, it was objected, ou the part of the defendant, that it did not appear by the record that the action was commenced within a year; and on the plaintiff's counsel then offering to produce the writ, it was contended, on the other side, that it was too late to give this evidence after the objection was made; and though that indulgence was allowed in a civil action, yet it was not proper. or usual in a penal action. Lord Kenyon C. J. overruled the ob-. jection, being of opinion, that it was competent to the plaintiff to prove the commencement of the suit in any stage of the cause. Maughan q. t. v. Walker, Peake's N. P. C. 163.

(129) So when a writ is inducement only to the action, the taking out the writ may be proved without any copy of it, because possibly it might not be returned, and then it is no record; but where the writ itself is the gist of the action, a copy from the record must be produced agreeably to the rule, that the best evidence of which the nature of the thing is capable, must be adduced; and the writ cannot become the gist of the action until it is returned. Gilb. Law of Evid. ed. 1761. p. 21. Bull. N. P. 234. Peake's Evid. 2d edit. p. 50, 51.

(130) By the general rules of law, a plaintiff must declare against a defendant within 12 months after the return of the writ; but by.

PP

filed within a year after. But where two or more writs have issued, it must appear that the writ on which the plaintiff has declared, was a continuation of the first writ, which can be done only by shewing that the first writ was returned; for until the first writ is returned, the court is not in possession of the cause, so as to award an alias or pluries.

By stat. 21 Jac. 1. c. 4. s. 1. "All offences against any 'penal statute, for which any common informer may "ground a popular action, bill, plaint, suit, or information, "before justices of assize, justices of nisi prius or gaol deli"very, justices of oyer and terminer, or justices of peace "in their general or quarter sessions, shall be commenced, sued, prosecuted, tried, recovered, and determined, by "way of action, plaint, bill, information, or indictment, "before the justices of assize, &c. of every county, city,

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&c., having power to determine the same, wherein such "offences shall be committed, in any of the courts, &c. "aforesaid respectively; and the like process shall be as "in actions of trespass vi et armis at common law; and all "informations, actions, bills, plaints, and suits, commenced, "sued, &c., by the attorney general, or other officer, or "common informer, in any of the king's courts at Westminster, for any of the said offences, penalties, or for "feitures, shall be void." And by s. 2. "The offence shall "be alleged to have been committed in the county where "such offence was in truth committed; and if, on the ge"neral issue, the plaintiff or informer shall not prove the offence, and that the same was committed in the county in "which it is laid, the defendant shall be found not guilty." By the 3d section it is enacted, "that no officer in any court of record, shall receive, file, or enter of record, any "information, bill, &c. grounded upon a penal statute, un "til the informer has first taken an oath, which shall be en"tered of record, before some of the judges of the court, "that the offence was not committed in any other county,

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n Harris q. t. v. Woolford, 6T. R. 617.

the rules of the court of B. R., if the plaintiff does not deliver tis declaration within two terms after such return, the defendant may sign judgment of non pros. If, however, the defendant omits to sign such judgment, the plaintiff may deliver his declaration at any time within the year. Worley v. Lee, 2 T. R. 112. Penny Harvey, 3 T. R. 123. Sherson r. Hughes, 5 T. R. 35.