INFORMATIONS But an information or action qui tam will not lie on any statute which QUI TAM, &c. prohibits a thing as being an immediate offence against the public good in general, under a certain penalty, unless the whole or part of such penalty be expressly given to him who shall sue for it; because otherwise it goes to the King, and nothing can be demanded by the party. But where such statute gives any part of such penalty to him who will sue for it by action or information, any one may bring such action or information, and lay his demand, as well for our lord the King as for himself. 2 Hawk. c. 26, s. 17. Time of exhibiting the information to be entered. Oath to be made on exhibiting the information. In what county to be laid. Also, where a statute prohibits or commands a thing, the doing or omission whereof is an immediate danger to the party, and also highly concerns the peace, safety, or good government of the public, or the honour of the King, or of his supreme Courts of justice, it seems to be the general opinion, that the party grieved may bring his action qui tam on such statute. 2 Hawk. c. 26, s. 17. The 31 Eliz. c. 5, s. 5 & 6, shew the time in which these informations are to be exhibited, when not limited by the penal statute itself. See ante, 321; and 1 Chit. Col. Stat. 700. If the King commenceth his suit before the informer, the King shall have the whole forfeiture. 7 T. R. 536. And he may, before the informer begins his suit, release the penalty to the offender, and bar all others; but if, after a popular action is brought by the informer, the King's attorney will enter ulterius non vult prosequi, the informer may prosecute for his part. Wood's Inst. b. 4, c. 4. By stat. 18 Eliz. c. 5, s. 1, upon every information which shall be exhibited by a (common) informer, except for maintenance, champerty, buying of titles, or embracery, a note shall be made of the day, month, and year of the exhibiting thereof; and it shall be taken to be of record from that time forward and not before; and no process shall be issued on such information, till it be exhibited in form aforesaid. And by stat. 21 Jac. I. c. 4, s. 3, no officer shall enter any information, bill, or plaint, count or declaration, till the informer hath made oath before some of the judges of the Court that the offence was not committed in any other county, and that he believeth in his conscience that the offence was committed within a year before the information or suit, within the said county where the said information or suit was committed; the oath to be there entered of record. For, as a warrant deprives a man of his liberty, a summons only ought to issue, and not a warrant, without information upon oath. 2 Barnard. 34, 77, 101. This statute only applies to penal statutes on which proceedings may be had before the justices of assize, justices of Nisi Prius or gaol delivery, justices of oyer and terminer, or justices of peace in their sessions; therefore the Court of King's Bench will not stay proceedings in debt on a penal statute, though no affidavit has been filed that the offence was committed in the county where the action is brought, and within a year before the beginning of it. 3 T. R. 362. By stat. 21 Jac. I. 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 delivery, 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, justices of Nisi Prius, justices of oyer and terminer, and justices of gaol delivery, or before the justices of peace of every county, &c., having power to inquire of, hear, and determine the same, &c., in the county wherein such offences shall be committed and not elsewhere [and by 31 Eliz. c. 5, they shall be laid to be done in the county in which the matter alleged to be the offence was in truth done]; and that all informations, actions, bills, plaints, and suits whatever, hereafter to be commenced, sued, prosecuted, or awarded, either by the attorney-general or by any common informer, or other person in any of his Majesty's Courts of Westminster, for, or concerning any of the offences, penalties, or forfeitures aforesaid, shall be INFORMATIONS void and of none effect. QUI TAM, &c. And if the offence is not proved to have been committed in the same Venue. county, the defendant shall be found not guilty. Sect. 5. Provided, that informations, suits, or actions against popish recusants, or persons charged with maintenance, champerty, or buying of titles, may be laid in any county. Against any Penal Statute]—R. v. Gall, 1 Salk. 372; 1 Ld. Raym. 370; Holt, C. J., said, ten judges had agreed that this statute doth not extend to any offence created since; so that prosecutions on subsequent penal statutes are not restrained thereby; but this statute is, as to them, as it were, repealed, pro tanto. For which any Common Informer may ground a Popular Action]—Therefore, this extends not to any suit by a party grieved, or by the Attorney-General; but only to those brought by common informers. 2 Hawk. c. 26, s. 29. General or Quarter Sesssions, having Power to hear and determine the same]—Yet this gives no jurisdiction to justices of the peace which they had not before; but only appoints that where informations might have been brought in the Courts at Westminster or before justices of the peace, such informations shall be now brought before justices of the peace only. Cro. Car. 112. This act does not extend to all proceedings on penal statutes: it only prohibits the proceedings in the Courts of Westminster in all those cases where popular actions, bills, plaints, suits, or informations might have been brought in inferior Courts. 4 T. R. 115. When a power is given to a jurisdiction, which does not ordinarily entertain actions, bills, or plaints, to inquire of, hear, and determine the of fence generally, it must be understood to mean by the common-law mode of proceeding, viz. by indictment or presentment. 4 T. R. 115. See title Ses= sions, Vol. V. In the County where they were committed]—Smith v. Potter, 1 Str. 415, in the King's Bench. In a qui tam on stat. 5 Eliz. (repealed by stat. 54 Geo. III. c. 96, see Vol. I. p. 156), for exercising a trade without an apprenticeship, it was moved to stay the proceedings, because the nominal plaintiff had released, and the fact was laid at Cambridge, whereas the jurisdiction of the King's Bench is at last settled to be restrained by stat. 21 Jac. I. c. 4, to actions arising in the county where the King's Bench sits, so that if they were to go on to trial, the plaintiff could have no effect of his suit; and of this opinion were the Court, and they made a rule that proceedings should be stayed. And not elsewhere]—But where a subsequent statute gives a remedy for the recovery of a penalty in any Court of record generally, it so far impliedly repeals this restraint, and consequently leaves the informer at his liberty to sue in the Courts at Westminster. 2 Hawk. c. 26, s. 35. Also where a statute limits suits by an informer qui tam to other Courts than those of Westminster-hall, yet any one may, by construction of law, exhibit an information in the Exchequer for the whole penalty, for the use of the King. 2 Hawk. c. 26, s. 25. If jurisdiction be given to the sessions to hear and determine, and it is not said by information, this shall be by indictment, and not information. Cro. Car. 112. Jurisdiction of justices, &c. By stat. 21 Jac. I. c. 4, s. 1, the like process shall be awarded upon an in- Process on an information by a common informer, as in an action of trespass vi et armis at formation. the common law. And consequently, the process in all such suits must be by attachment, or pone per vadios, and after by distress infinite, where, by the return the party appears to be sufficient, otherwise by capias. 2 Hawk. c. 27, s. 13. And by stat. 18 Eliz. c. 5, s. 1, on every process upon an information by a common informer shall be indorsed as well the party's name that pursueth the process, as also the statute upon which the information is grounded. But, on a criminal information, it is the usual practice of the Crown Of Process to be indorsed. Process on a cri ininal information. QUI TAM, &c. INFORMATIONS fice, first to award a subpœna; and, after the return thereof, if no appearance be entered in four days, and an affidavit be made of the service of the subpæna, to make out a capias of course, where the defendants are informed against in their private capacity, and a distringas where they are sued as a corporation aggregate. 2 Hawk. c. 27, s. 14. General issue. Information not quashed upon motion. Certainty required By stat. 21 Jac. I. c. 4, s. 4, if any information, suit, or action shall be brought against any person on a penal statute, the defendant may plead the general issue, and give the special matter in evidence. The Court will not generally quash an information upon motion; but the party must either plead, demur, or move in arrest of judgment. 1 Salk. 372. Str. 185, 953. But seeing that an information differs from an indictment in little more in an information. than this, that the one is found by the oath of twelve men, and the other is not so found, but is only the allegation of the officer or person who exhibits it; whatsoever certainty is required in an indictment, the same at least is necessary also in an information; and consequently, as all the material parts of the crime must be precisely found in the one, so must they be precisely alleged in the other, and not by way of argument or recital. 2 Hawk. c. 26, s. 4. Not aided by the And therefore the statutes of jeofails, (from J'ay faille, I have failed), or statutes of jeofails. the statutes that do remedy oversights in pleading, extend not to informations. Wood's Inst. b. 4, c. 4. Information good as to part. Costs against the plaintiff. Costs against the defendant. If an information contain several offences against a statute, and be well laid as to some of them, but defective as to the rest, the informer may have judgment for so much as is well laid. 2 Hawk. c. 26, s. 19. Generally, if a (common) informer shall willingly delay his suit, or discontinue, or be nonsuit, or shall have a verdict or judgment against him, he shall pay costs to the defendant. Stat. 18 Eliz. c. 5, s. 3. And in the Court of K. B. particularly, by stat. 4 & 5 Wm. III. c. 18, s. 2, if the defendant, in such case as in this statute is afore-mentioned, shall appear and plead to issue, and the prosecutor shall not, at his own costs within a year after issue joined, procure the same to be tried; or if a verdict pass for the defendant, or the informer procure a noli prosequi to be entered, the Court of King's Bench may award the defendant his costs, unless the judge shall certify that there was a reasonable cause for exhibiting such information. And if the informer shall not, in three months after such costs taxed and demand made, pay the same, the defendant shall have the benefit of the recognisance above mentioned, to compel him thereunto. Sect. 6. But nothing in this act relating to informations shall extend to any other than such as are exhibited in the name of the King's coroner or attorney in the King's Bench, (i. e. the Master of the Crown Office). Unless the Judge shall certify]—R. v. Woodfall, 2 Str. 1131. Upon trial of an information for a libel, the jury acquitted the defendant contrary to the direction of the Court. Upon which the defendant moved above for costs on this statute, which provides, that, in cases where the defendant is acquitted, the Court is authorized to award costs to the defendant, unless the judge shall, at the trial, certify that there was a reasonable cause. In this case, no such certificate was asked; but it was insisted on for the prosecutor, that it was discretionary in the Court. The Chief Justice certified, ore tenus, that it was a verdict against evidence; but then he, and all the others held, that it was now too late to inquire into the probable cause; and that it was not discretionary, but compulsory, upon them, where there was no certificate. So the defendant had his costs. But it seems to be in a great measure settled, that an informer upon a popular statute, shall in no case whatsoever have his costs, unless they be expressly given him by such statute: for it is certain that he cannot recover them by the common law, for that doth not give costs in any case; neither can he recover them by the statute of Gloucester, which gives the demandant his costs in all cases wherein he shall recover his damages; for this seems to suppose some damage to have been done to the demandant in particular, which cannot be said in any popular action. But it seems &c. agreed, that an action on a statute by the party grieved, for a certain pen- COMPOUNDING alty given by such statute, is within the statute of Gloucester, because such INFORMATIONS, penalty is intended him by way of recompense for his particular damage by the offence prohibited; and if he could recover that only and no more by way of costs, it would be in most cases in vain for him to sue for it, since the costs of suit would exceed it. Jackson v. Colesworth, 1 T. R. 71. But it is said, that no costs shall be recovered in an action on a statute which gives no certain penalty to the party grieved, but only his damages in general, if such a statute be introductive of a new law, and give a remedy in a point not remediable at the common law; but there is not that inconvenience in this case as in the former; because, no certain sum being specified, the jury may give the plaintiff a full satisfaction by way of damages. 2 Hawk. c. 26, s. 57. And by stat. 4 Hen. VII. c. 20, if the defendant plead a recovery by Collusive action. a former action, which former action shall be found to have been collusive, the plaintiff shall recover, as though no such action before had been had; and if the defendant shall be convicted of such collusion, he shall be imprisoned two years, by process of capias and outlawry, and that as well at the King's suit as of every other that will sue. And no release of any common person to any such party, whether before or after any action popular, or indictment of the same commenced or made, hanging the same action, shall be available to surcease the said action, indictment, process, or execution. County of BE it remembered, that A. I., of in the county of year of the reign of in his proper person; and as well for our said lord the King as for Compounding informations on pe nal statutes. V. Compounding Informations on Penal Statutes. THE Compounding of informations on penal statutes is a misdemeanor against public justice, by contributing to make the law odious to the people. 4 Blac. Com. 136. Therefore, in order to discourage malicious informers, and to provide that offences when once discovered shall be duly prosecuted, it is enacted by stat. 18 Eliz. c. 5, s. 4, "That if any person or persons The punishment. (except the clerks of the Court only, for making out of process otherwise than is above appointed) shall offend in suing out of process, making of composition or other misdemeanor, contrary to the true intent and meaning of this statute, or shall, by colour or pretence of process, or, without process, upon colour or pretence of any matter of offence against any penal law, VOL. III. CC &c. COMPOUNDING make any composition, or take any money, reward, or promise of reward, for INFORMATIONS, himself, or to the use of any other, without order or consent of some of her Majesty's Courts at Westminster, that then he or they so offending, being thereof lawfully convicted, shall stand on the pillory (a), in some market town next adjoining where the same offence shall be committed, in the open market time, and there remain by the space of two hours; and shall from and after such conviction for ever be disabled to pursue, or be plaintiff or informer in any suit or information upon any statute popular or penal; and shall also, for every such offence, forfeit and lose ten pounds of lawful English money, the one half thereof to the queen's Majesty, her heirs and successors, and the other half to the party grieved thereby, to be recovered in any Court of record, by action of debt or information, in which no essoin, protection, injunction, or wager of law shall be permitted or allowed; What justices may and that justices of oyer and terminer, justices of assize in their circuits, and justices of peace in their quarter sessions, shall have full power and authority to hear and determine all offences to be committed or done contrary to the true intent and meaning of this present act." hear and deter mine these offences. To what cases the act extends. This statute was passed to restrain the compounding of offences cognizable in the superior Courts. It does not extend to offences cognizable only before magistrates in their summary jurisdiction, and therefore an indictment for compounding such an offence was holden bad in arrest of judgment. R. v. Crisp & others, 1 B. & A. 282. The statute extends to common informers only, and not to cases where the penalty is given to the party grieved. 1 Salk. 30; 2 Hawk. 279. In Gotley's case it was held, that, to compound an offence against 13 Geo. III. c. 84, s. 13, (the then General Turnpike Act), though no action or proceeding be depending, was within the 18 Eliz. c. 5, s. 4. In that case, Richard Gotley was tried and convicted before Le Blanc, J., at the Shrewsbury Lent Assizes, 1805, on an indictment upon the above stat. 18 Eliz. c. 5, s. 4, for compounding an offence against the highway act (13 Geo. III. c. 84, (b) s. 13), and taking a sum of money without process to prevent an action being brought, without the order or consent of any of his Majesty's Courts at Westminster, and without lawful authority. The indictment contained several counts, some of them stated the party of whom the money was taken to have committed the offence, whereby the penalty was incurred; others of them stated only that the prisoner compounded, and took the money by and upon colour and pretence of a certain matter of offence pretended to have been committed. It was satisfactorily proved that Edward Round, the person named in the indictment, from whom the prisoner was charged to have taken money by way of composition, had incurred a penalty of 51. under stat. 13 Geo. III. c. 84, s. 13, by suffering his waggon to be drawn on a turnpike road by more than four horses, he being the owner, and that the prisoner had received from him 51. 2s. (the 2s. over was to have been returned) by way of composition to prevent any legal proceedings, the prisoner having applied to Round for the purpose, and demanded the 57. as a penalty which Round had so incurred; and it also appeared that no process was sued out or information laid before any magistrate. Judgment was respited on a doubt which occurred to Le Blanc, J., at the trial, whether the offence was within stat. 18 Eliz. c. 5, so as to subject the prisoner to the specific punishment prescribed by that act, inasmuch as no action or proceeding was depending, in which the order or consent of any Court in Westminster Hall for a composition could be obtained. The judges, at a meeting (May 11, 1805), were all of opinion that the conviction was right; stat. 18 Eliz. applying to all cases of taking a penalty incurred, or pretended to be incurred, without leave of a Court at Westminster, or without judgment or conviction. R. & R. C. C. 84; 3 Burn's J., 24th ed. S. C. (a) By stat. 56 Geo. III. c. 138, this part of the punishment cannot now be inflicted. But sect. 2 of that statute empowers the Court to pass such sentence of fine or imprisonment, or of both, in lieu of the sentence of pillory, as to the Court shall seem proper. (b) Now repealed by 3 Geo. IV. c. 126, ante, Highways, Vol. III. |