And note; it must be averred to be a trade within the realm (or kingdom) of England or Wales at the time of making the act.-Queen ▾. Robinson, T. 13 Ann.

Only such trades are within the equity of the act as require skill; but whether it were a trade or not at the time of making the statute, or whether any skill be requisite to the exercise of it, is matter of fact proper for the determination of the jury.-R. v. Slaughter, H. 1699. Salk. 611. Lord Raym. 513.

It has been objected, that the using a trade in a country village is not within the statute, (R. v. Turnith, 21 Car. II. 1 Mod. 26.) and in the case of R. v. Langley, H. 6 Geo. II. Mr. J. Page said he had often known indictments quashed upon such exception: however, I do not apprehend it would now be allowed; for in such case at the sittings at Westminster it was mentioned, but Lee, C. J. made slight of the objection.-Case of London City, 8 Co. 129. Case of Monopolies,

11 Co. 84.

On motion to quash an information against the defendant for exercising the trade of a baker without having served an apprenticeship at the parish of S. in Kent. The first objection was, that it did not appear that the offence was committed in the city, borough, or market town. Secondly, that it did not appear but that the defendant exercised this trade when the act was made. But the court held, that neither the enacting part of the statute, nor the preamble, gave any foundation for the first objection, and that the offence was clearly well laid; though they said, if it came out in evidence that he followed the business only in a small village, it had been the common fendant. As to the second objection, the sumed at this length of time, though the objection would have held whilst the law was recent.-Ball q. t. v. Cobus, T. 30 & 31 Geo. II. 1 Burr. 366.

practice to find for the de- [* 193 ] court said, it must be pre

It has been holden, that serving seven years as an apprentice beyond sea, without being bound, is sufficient, and therefore an indictment was quashed, because it only said he had not served as an apprentice infra regnum Anglia aut Wallia.-R. v. For, E. 1699. Salk. 67. (a)

In an action qui tam for exercising a trade, the question arose, What should be a service? On which Holt, C. J. cited a case between Hopkins and Young, in B. R. on a special verdict, where it was adjudged, that if a person serving seven years in the exercise of his trade to any person exercising that trade, though that person have no right to use

(a) But serving five years in any country, by the law of which more is not required, will not qualify a per

son to use the trade in England. Ca.
of Law and Eq. 7.

that

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that trade, yet being employed in it seven years, that shall be a good service though he were not an apprentice; also he said he had holden that if a woman marry a tradesman, and be employed therein seven years, and then the husband die, she may use that trade after her husband's death; and also if she marry a second husband, she may continue to exercise that trade, and if she die her husband may continue to exercise it, provided he were employed in the exercise of it seven years in his wife's life-time; he said he had mentioned all these opinions of his to the rest of the judges, who all concurred.-Peaks v. Johnson, H. 1 Ann. Westminster. Salk. MSS.

The foregoing case shews that the construction put upon this statute has been a very liberal one in favour of defendants; however, there has been no case which has been determined to be within the act, unless there have been in some manner a service for seven years; therefore one who is a partner to a person qualified will not be within the act, unless he have served seven years. (Rex v. Driffield, 18 Geo. II. per cur.) But if the defendant can in any manner prove the following of the trade for seven years, it will be sufficient without any binding (and he shall be suffered to make it out by months and weeks): yet the word apprentice is the very material word of the statute, and an indictment without it would be ill.-Regina v. Taylor, E. 1 Ann. 2 Raym. 1159.

It has been holden to be sufficient if the defendant have followed the trade seven years as a master, without any prosecution against him with effect.-Wallen v. Houlton, 1759. 1 Bla. 233.

A person who follows a trade as a journeyman is not subject to the penalties of this statute, though he has not served an apprenticeship.— T. 9 Geo. II. B. R. (a)

On a special verdict the case was, The defendant was a Turkey merchant, and exported woollen manufacture into Turkey; he employed clothiers that had served apprenticeships to work the cloth in his own house at his own charge, and with his own materials; and the court held that the defendant was the trader in this case, because he employed the rest who were but as servants; they held likewise that this was trading within the statute, for whether the utterance be within the realm, or in Turkey, is immaterial.-Hobbs q. t. v. Young, T. 1691. Salk.

610.

But where a special verdict found that the defendant was a money partner in the brewing trade with Cox, who was qualified; but that by

(a) The statute indemnifies a man in using several trades, provided he

has been apprenticed to them all. Hobbs, q. t. v. Young, Carth. 163.

agreement

agreement he was not to interfere in the trade, but that Cor had an allowance for that purpose, the court held it was not within the meaning of the statute.-Reynard v. Chase, M. 30 Geo. II. K. B.

Note; Freemen and their wives cannot be witnesses, where part of the penalty goes to the city or town corporate where the offence is committed.-R. v. Seymour, M. 6 Geo. II. per Raym. Guildhall.

Though the plaintiff in this action be not entitled to costs if he recover, yet he must pay them if the verdict be found against him.-Jeynes v. Stevenson, E. 10 Geo. C. B. (a)

(a) Note. By 31 Eliz. c. 7. all suits for using a trade, without having been brought up in it, shall be sued and prosecuted in the general quarter sessions of the peace or the assises, in the same county where the offence shall be committed.

In the construction of this statute, it has been held, that it restrains not a suit in the King's Bench or Exchequer, for the negative words are not, that such suits shall be brought in any other county; the prerogative of these high courts cannot be restrained without express words. Shoyle v. Taylor, Cro. Jac. 178. Davison v. Barber, llob. 184. Hicks's Ca. 1 Salk. 373.

The stat. 5 Eliz. c. 4. having of late rendered divers industrious persons the sport of informers, who inquisitively sought out those who had not served an apprenticeship as the

objects of their prosecution, the legislature, in the fifty-fourth year of his present majesty, thought fit to pass an act (cap. 96) for their relief, and by that statute it is enacted, in sect. 1. that so much of the statute of 5 Eliz. as prohibited persons from exercising any art, except they had served an apprenticeship of seven years, should be repealed; and by sect. 2. all other parts of the same act which respect apprentices are repealed; but by sect. 3. justices may hear complaints in other matters as before; and sect. 4. declares, that the custom of London respecting apprentices shall not be affected.

The above statute (says Mr. Tidd, p. 15.) extends to all penal statutes, whereby the forfeiture is limited to the king, or to the king and the party, whether made before or after the statute.

CHAPTER IV.

GENERAL RULES CONCERNING ACTIONS ON PENAL STATUTES.

BY 31 Eliz. c. 5. it is enacted, That all actions, &c. brought for any forfeiture upon any penal statute made or to be made, whereby the forfeiture is limited to the king, shall be brought within two years: and all actions upon any penal statute, the benefit whereof is limited to the king and to the prosecutor, shall be brought within one year.

And in default of such pursuit, then the same to be brought for the king at any time within two years after that year ended. And if any

suit

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suit upon any penal statute made or to be made, except the statute of Tillage, shall be brought after the time in that behalf before limited, the same shall be void and of none effect.

Upon this statute it has been holden, I. That 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 act. (R. v. Marriott, T. 4 W. III. 4 Mod. 144. Culliford v. Blawdford, T. 4 W. III. 2 Show. 353.) II. That the defendant may take advantage of this statute on the general issue, and need not plead it. (Anon. Noy. 71.) III. That the party grieved is not within this statute, but may sue as before: (Culliford v. Blandford, T. 4 W. III. Carth. 282.) but quære, where the suit is first given to the party grieved, and then to the common informer?-Chance v. Adams, E. 8 W. III. 1 Raym. 78.

On a case reserved it appeared that the action of debt was brought on 9 Ann. c. 14. by a commou informer against Sir T. F. for winning £525 of G. L. at cards. The money was lost and paid 11th March, 1757, and the original not sued out till Mich. 1762. The court of C. B. held it a case within 31 Eliz. though the action was given in the first instance to the party grieved, and afterwards to the common informer for himself and poor of the parish: for such action would have been within the 7 Hen. VIII., 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.-Lookup q.t. v. Sir T. Frederick, 6 Geo. III. (a)

It has been determined that suing out a latitat within the year, is a sufficient commencement of the suit to save the limitation of time. (Culliford v. Blandford, supra.) (b) But if the writ were not sued out till after the year, though by relation it would be within the time, the plaintiff ought to be nonsuited.-Morris v. Harwood, M. 3 Geo. III. 3 Burr. 1241.

(a) N. B. Lookup was indicted for perjury in this case, by Sir T. F. and was found guilty, but the judgment was afterwards reversed for informality. Vide R. v. Lookup, 3 Burr. 1901.

In Cullifford v. Blandford, sup. an action qui tam was brought in B. R. on stat. 23 Hen. VI. c. 15. for a false return of a burgess in parliament; by the record it appeared the bill was not filed within a year after the offence.

After judgment it was resolved in the Exchequer Chamber, that, where the whole penalty is given to the informer, the stat. 31 Eliz. does not extend to it, for penal statutes are not extendible by equity, and it is not within the words of the act.

(b) This was determined in Hardyman v. Whitaker, 2 East, 574 (n), which recognizes Culliford v. Blandford, Carth. 232.

By

By 21 Jac. I. c. 4. s. 1. All offences against penal statutes, for which any common informer may ground an action, &c. before justices of assize, &c. (except offences concerning recusancy or maintenance of the king's customs, or transporting gold and silver, ammunition or wool, &c.) shall be commenced, sued, tried, recovered and determined by action, &c. before the justices of assize, &c. or before justices of the county, &c. (a) and the like process in every popular action, &c. shall be as in actions of trespass vi et armis at common law, and in all suits on penal statutes the offence shall be laid in the proper county; and if on the general issue the offence be not proved in the same county in which it is laid, the defendant shall be found not guilty. (b) (c)