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"than where, by the said information, bill, &c. the same is supposed to have been committed, and that he believes "in his conscience, that the offence was committed within a year before the information or suit, within the same "county." By the 4th section, defendants are permitted to plead the general issue, not guilty, or nil debet, and give the special matter in evidence. By the 5th section, several statutes now obsolete, e. g. the statute against popish recusants, and actions for maintenance, &c. are exempted from the operation of this act.

With respect to this statute, it is to be observed, 1st, That it does not extend to subsequent penal laws; consequently, in an action founded on stat. 12 Ann. c. 16. against usury, it is not necessary that there should be an affidavit that the offence was committed in the county where, and within a year before, the action was brought? (131). 2dly,

o Hicks's case, Salk. 373. R. v. Galle, Salk. 372. Ld. Raym. 370. Harris q. t. v. Renny, cited in French q. t. v. Coxon, Str. 1081. Messenger v.

Robson, cited in Garland v. Burton,
Andr. 292.

p French v. Coxon, Str, 1081.

(131) An opinion, however, seems to have prevailed, that, where a subsequent statute gives a popular action, the venue must be laid in the proper county within the equity of 21 Jac.1. c. 4. The only authority, of which I am aware, for this position, is a dictum of Holt C. J. in Hicks's case, Salk. 373. adopted in Bull. N. P. 196. The following note of French q. t. v. Coxon, which is fuller than that in Strange, may tend to remove the doubts which have arisen on this point: This was an action brought against the defendant on the 12 A. st. 2. c. 16. against usury. A motion was made to stay the proceedings for irregularity, because there was not an affidavit annexed to the declaration, as is required by stat. 21 Jac. 1. c. 4. s. 3. But for the plaintiff it was insisted, that the 21 Jac. 1. did not extend to subsequent penal laws, and Harris q. t. v. Rayney, E. 7 G. 2. B. R. was cited, which was an action commenced on stat. 22 and 23 Car. 2. c. 19. for selling cattle alive, &c., and on motion to set aside the proceedings for want of an affidavit, it was holden, that the stat. 21 Jac. 1. did not extend to subsequent penal laws. Per Lee C. J. In 1 Salk. 372, 3. it was solemnly determined, that the 21 Jac. 1. did not extend to subsequent penal laws and that has prevailed ever since, whatever the private opinion of Holt then was. So that offences created by subsequent statutes must be governed by the directions therein given, as to the remedies upon them. And though an action brought on the st. 12 Ann. must be laid in the county where the offence was committed, yet this is by the directions of that statute; and it has never

Wherever, by any act in force at the time when this statute passed, the informer might have sued by action, bill, plaint, suit, or information, in the inferior courts, as well as in the courts at Westminster, he is now confined to sue in the former; but as the statute does not give any new jurisdiction to the inferior courts', the party may still sue in the courts at Westminster, for all penalties, which could not, before the passing of that statute, have been recovered in the inferior courts. Hence, an informer may bring an action of debt in the courts at Westminster, on the stat. 1 Jac. c. 2. s. 14. for the recovery of the penalties for selling leather, which has not been searched and sealed; because this statute' gives no jurisdiction to the inferior courts to distribute the penalties, but only to inquire of the premises; which inquiry means in their accustomed manner, namely, by indictment or presentment at common law. 3dly, 'This sta tute applies to those penal statutes only, on which proceedings may be bad before the justices of assize, justices of the peace', &c.

By stat. 18 Eliz. c. 5. s. 1. (made perpetual by statute 27 Eliz. c. 10.) "Every informer, upon any penal statute, "shall sue in proper person, or by his attorney." Hence an infant cannot be a common informer; for he must sue by prochein amy or guardian".

By the 3d section of stat. 18 Eliz. "No informer shall "compound with any person that shall offend against any penal statute, for an offence committed, but after answer "made in court to the suit, nor after answer, but by order or consent of the court" (152). This statute extends to

66

t Leigh v. Kent, 3 T. R. 362.
u Maggs v. Ellis, M. 25 G. 2. B. R.
Bull. N. P. 196. and MS.

See R. v. Galle, Carth. 466. and Gar- 9 See s. 50.
land qt. v. Burton, Str. 1103. Andr.
291. S. C.
Shipman q. t. v. Henbest, 4 T. R.
109. R. v. Ferris, H. 37 G. 3. Exch.
1 Wms. Saund, 312. c. n. (1) S. P.

been usual to annex an affidavit to the proceedings. Page, Probyn, and Chappel Js. of the same opinion. So the rule to set aside proceedings for irregularity was discharged, by the opinion of the

whole court.

(132) The court will, on application being made, give the defendant liberty to pay the penalty into court with costs. Walker v. King, T. 31 G. 2. B. R. Bull. N. P. 197. and MSS. For the manner in which application to the court must be made, and at what time, see Tidd's Pr. 2d. ed. p. 470. 3d. ed. p. 500.

suits by common informers only, and not to those by party grieved; it extends, however, as it seems, to subsequent penal statutes, as well as to those which were in being when it was made.

A common informer cannot sue for a less penalty than the statute gives2; if he do, though he have a verdict, judgment will be arrested: e. g. if a common informer were to sue for the single value of money won at play, the statute giving the treble value.

The exceptions in the enacting clause of the statute, which creates the offence, must be negatived by the plaintiff in his declaration"; but, if there be a subsequent exemption, that is matter of defence, and the other party must shew it to exempt himself from the penalty.

Of the Pleas to Actions founded on penal Statutes.-To an action founded on a penal statute, not guilty, or nil debet, are good pleas. A saving proviso may be given in evidence on the general issue; because, if the party is within the proviso, he is not guilty, on the body of the act on which the action is founded; but another statute, whereby the defendant is exempted or discharged from the penalty, must be pleaded, and cannot be given in evidence on the general issue. So a recovery in another action for the same offence, cannot be given in evidence on nil debet, but must be pleaded specially, in order to give the plaintiff an opportunity of replying nul tiel record, or that it was a fraudulent recovery; and in pleading this plea, care must be taken to set forth that the plaintiff in the other action had priority of suit; otherwise the plea will be bad on de

murrer.

To this plea of a prior recovery, the plaintiff may reply that the recovery was had by covin; and if the covin be found, the plaintiff shall recover, and the defendant shall be imprisoned for two years.

No release of any common person shall be available to discharge a popular action. The defendant cannot plead several matters to an action on a penal statute; because the

stat. 4 Ann. c. 16. (which enables defendants to plead several matters) contains a proviso that nothing in the said act shall extend to actions on any penal statute.

By stat. 27 G. 3. c. 29. a parishioner is a competent witness to prove an offence within the parish, although the penalty or part thereof is given to the poor of the parish, provided the penalty or penalties to be recovered do not excecd 201.

Of the Venire.-By stat. 24 G. 2. c. 18. s. 3. (reciting that by stat. 4 Ann. c. 16. s. 6. it was enacted, that every venire facias for the trial of any issue in any action or suit, in the king's courts of record at Westminster, should be awarded out of the body of the county, but with a proviso that nothing in the said act should extend to any action or information upon any penal statute, and that such proviso had been found inconvenient,) it is enacted, that every venire facias for the trial of any issue in any action or information upon any penal statute, in the king's courts of record at Westminster, in the counties palatine of Lancaster, Chester, and Durham, and Wales, shall be awarded of the body of the proper county where such issue is triable.

The proviso in the stat. 16 & 17 Car. 2. c. 8. s. 2. that this act shall not extend' to any action or information on any penal statute, must be understood of popular actions and informations, and not of remedies given by statute to the parties grieved.

In an action on a penal statute, it was moved by the defendant that the plaintiff should give security to pay the costs, upon affidavit that he was a poor man. But the court refused the motion; for the statute having given him power to sue, it is a debt due to him; but if it appeared that the action was brought in a feigned name, they would oblige the real prosecutor to give security.

The court will grant a new trial, after verdict for defen dant, in a penal action, on account of a mistake or misdirection of the judge; but where the case is properly left to a jury, although they should draw a wrong conclusion, the court will incline against disturbing the verdict.

i See s. 4.

k See the 7th section of 4 Ann. c. 16. 1 Sewel v. Edmonton Hundred, E. 7 G. 1. C. B. Bull. N, P. 197.

m Shinley v. Roberts, Bull. N. P.

196, 7.

n Wilsou v. Rastall, 4 T. R.753. Cal craft v. Gibbs, 5 T. R. 19. S. P.

XI. Debt on Stat. 2 G. 2. c. 24.-Bribery at Elections-Provisions of the Statute-Stat. 49 G, 3.

c. 118. Declaration-Evidence-Stat. 7 & 8 W. 3. c. 4. Treating Act.

WHEREVER a person is bound by law to act without any view to his own private emolument, and another, by a corrupt contract, engages such person, on condition of the payment or promise of money, or other lucrative consideration, to act in a manner which he shall prescribe, both parties are, by such contract, guilty of bribery.

There are not any traces either of action or prosecution for bribery in elections of members of parliament, in the annals of Westminster-hall, until after the legislature inflicted particular penalties for this kind of bribery by stat. 2 G. 2. c. 24.

Informations for this offence were not granted until about the time of the general election in 1754; and the first case in which an information at common law, for this offence, was prosecuted with effect, was the case of R. v. Pitt, T. 2G. 3. B. R. 3 Burr. 1335. 1 Bl. R. 380. S. C. (133). From

o 2 Doug. Controv. Elections, 400.

p Ib.

(133) In this case, the defendant having been convicted and brought up for judgment, a doubt was raised as to the judgment which the court could or ought to give; the time limited for prosecution, by stat. 2 G. 2. c. 24. s. 11. (viz. two years) not having expired. The court (after consideration) ordered the defendant to be imprisoned for a short term, observing, that in inflicting this punishment they had paid regard to the circumstance of the limited time for prosecuting upon the statute not being expired.

The definitions on the subject of bribery in Sir E. Coke, Hawkins, and other writers, on the pleas of the crown, extend to the corruption of persons in judicial offices only. Mr. Douglas ascribes the silence of these writers on the subject of bribery at elections of members of parliament, to fear on the part of the judges (at the time when this species of bribery first prevailed) that by exercising a jurisdiction over this offence, they should invade the privileges and judicial powers of the House of Commons. It was, however, remarked by Lord Mansfield C. J. delivering the opinion of the court in R. v. Pitt, 1 Bl. R. 383. that bribery at elections,