tiff, for it is a non-fesance, viz., a not setting out of the tithes. Trin. 43 Eliz. in communi banco, adjudged in an action of debt for the treble value upon this statute, not guilty or nil debet, are good uses; and so upon the statute of 5 Eliz. upon perjury: Johns v. Carne (a)." The Statute of Limitations does not extend to actions of this description: Talory v. Jackson (b). Before the late rule, either nil debet or not guilty were good pleas to this action: Bawtry v. Isted (c); and if the right of a general traverse under the plea of not guilty is not affected by the rule, it is difficult to suppose that the rule was intended to take away the plea of nil debet. But, assuming the plea is not allowable, this is not the proper mode of taking the objection, but application should have been made to a Judge to set it aside. [Parke, B.-The pleading rules have become part of the law of the land, and, if the plea is bad, the objection is properly taken on demurrer.] Newman, in support of the demurrer.-Nothing can be more general than the terms of the rule, viz, "that the plea of nil debet shall not be allowed in any action." [Parke, B.--The question is, whether, supposing it to be within the words of the rule, the Judges had any power to take away a plea given by statute. No doubt, it was the intention to do so; but the true construction of the rule is to abolish the plea in all cases in which we have the power to do so.] This is not a penal, but a remedial action: the current of authorities so consider it. The right to plead nil debet was not given by the statute of James, but existed at common law. That statute applies to actions by the king, or at the suit of a common informer. The 31 Eliz. c. 5, which limits the time within which penal actions are to be brought, has been held not to apply to actions 1838. Earl SPENCER v. SWANNELL. 1838. Earl SPENCER v. SWANNELL. brought by the party grieved: Calliford v. Blawford (a). If this had been a penal action, the 31 Eliz. would have applied. In this action, the Courts will grant a new trial where the verdict is against the weight of evidence, which is never allowed in a penal action. The statute against gaming, 9 Anne, c. 14, has been considered remedial when the action is brought by the party injured, but penal where brought by a common informer: Bones v. Booth (b). The 4 Anne, c. 16, enabling a defendant to plead several matters, does not extend to penal actions; and yet, in this form of action, the defendant has been allowed to plead double. But even if it is a penal action, "not guilty" is the proper plea, and not nil debet. Cur. adv. vult. PARKE, B.-This was an action of debt for treble value for not setting out tithes, to which there was a plea of nil debet. To this plea the plaintiff demurred, and assigned for a special cause, that it was a plea not allowed by the pleading rules. The case was argued late in last term before my Brothers Alderson and Gurney and myself, and we have considered it, and are of opinion that the plea is good. Two reasons were urged on the argument for the validity of the plea: the first, that the rules did not extend to actions of debt, except those on contract; the second, that this plea was given by the statute 21 Jac. 1, c. 4, and therefore that the Judges had no power, by reason of the proviso in sect. 1 of 3 & 4 Will. 4, c. 42, to deprive the subject of the benefit of this plea, and of giving the special matter in evidence under it, whatever they may have intended to do by the rules. The Court, on argument, intimated its opinion upon the first point, but took time to consider the second, and look into the authorities. We think, after full consideration, that this is a penal action, within the 4th clause of the 21 Jac. 1, c. 4, and, consequently, that the Judges had no power to deprive the defendant of the right to plead nil debet, or not guilty. That section is as follows:-"That if any information, suit, or action, shall be brought or exhibited against any person or persons for any offence committed or to be committed against the form of any penal law, either by or on behalf of the King, or by any other, or on the behalf of the King and any other, it shall be lawful for such defendants to plead the general issue that they are not guilty, or that they owe nothing, and to give such special matter in evidence to the jury that shall try the same, which matter being pleaded, had been a good and sufficient matter in law to have discharged the said defendant or defendants against the said information, suit, or action; and the said matters shall be then as available to him or them, to all intents and purposes, as if he or they had sufficiently pleaded, set forth, or alleged the same matter in bar or discharge of such information, suit, or action.' There is no doubt, that this case is within the letter of this section, taken by itself. A penal law is a statute which imposes a penalty, and the statute of Edward 6th does impose a penalty, for it trebles the original duty by way of punishment, thus making the defaulting party liable to a forfeiture beyond the amount of the duty withheld. It is true, that it is an action not barely penal, for, on the principle that it is for a duty also such action lies by executors within the equity of the statute, de bonis exportatis in vitâ testatoris, Morton v. Hopkins (a); and, after a recovery in this action, the plaintiff cannot recover the tithe in any other suit, Champernon v. Hill (b); nor is it purely penal within the rule 1838. Earl SPENCER บ. SWANNELL. (a) 1 Sid. 407. (b) Yelv. 63. VOL. VI. Ꮓ D. P. C. 1838. Earl SPENCER v. SWANNELL. adopted by the Courts as to granting new trials after a verdict for the defendant. The question then is, whether, by the context, or any judicial exposition of the words of this section, actions of this kind, or any actions for penalties by the party aggrieved, are taken out of the operation of the words according to their ordinary construction. In the context nothing is to be found which restricts the ordinary meaning of the words of this clause to any particular class of informations. The title (though it is not strictly a part of the act, and is therefore of little weight), is general. "An act for the ease of the subject concerning informations upon penal statutes." The recital in the preamble is," that offences against penal laws may, with more ease and less charge, be commenced and tried in the counties where they are committed, and that the poor commons are grievously molested by troublesome persons commonly called relators, informers, and promoters, by compelling them to appear in his Majesty's Courts at Westminster." This recital applies only to such informations as might be prosecuted either at the assizes or sessions, or in the superior Courts, at the option of the informer; and the first clause removes that particular grievance by restricting such informations to the Courts below; and the third imposes a further check on these informations (namely, such as "by that act are before appointed to be heard and determined in their proper counties"), by requiring the relator to make affidavit that the offence was committed in the county, and within the year. The second section is in its terms general, but it has received a judicial construction, and been held to apply only to the same description of information as before mentioned. See the case of Barber v. Tilson (a); and also Mr. Justice Bayley's observations in Whitehead v. Wynn (b). Its effect (a) 3 M. & Sel. 430. (b) 5 M. & Sel. 427. is, with respect to such informations, to re-enact the provisions of the 35 Eliz. c. 5, s. 2, with some alteration as to the mode of taking advantage of the objection, and to enforce the laying the venue in the proper county. These three sections, therefore, remedy the particular mischief recited. Then comes the section in question, which, instead of confining itself in express terms, like the third section immediately preceding, to the informations before appointed to be tried in their proper counties, uses general language. The words introductory of this (the fourth section) instead of "Be it further enacted" as in the second and third, are "And be it also enacted," as if proceeding to a new head. It then goes on " That in any information, action, or suit," (not in any such information, &c.) "on any penal statute, it shall be lawful for the defendant to plead the general issue, and give the special matter in evidence." Now this section is not, in any mode of construing it, whether as relating only to such suits on penal statutes as are thereafter to be brought in the inferior Courts, or to all suits on such statutes, calculated to remove the particular grievance mentioned in the preamble, viz., that the subject has been vexatiously sued in the superior, when he might have been sued in the inferior Courts, and out of the proper county. The section is, in my view of it, an additional boon to the subject: it goes beyond the grievance recited, but it is within the general object of the act, the ease and relief of persons sued. We see, therefore, no reason in the context contained in the recital for putting a narrow construction on the general words of this clause; and there is no other part of the act which can have that effect. On the other hand, the proviso (the 5th section), which clearly includes some actions in which the remedy was in the superior courts alone, affords an argument, we do not say a conclusive one (for the proviso may have been inserted for the sake of caution),—but still it affords some argument, that 1838. Earl SPENCER v. SWANNELL |