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 บ. SWANNELL. 1838. Earl SPENCER v. SWANNELL. some part of the statute was intended to apply to other penal statutes than those in which the remedy was either in the superior or inferior Courts, at the option of the informer; and, if so, the section in question, being in its terms general, may well answer that description. We think, therefore, that there is nothing in the context which limits the general language of the fourth section, and there is not certainly any judicial exposition of this section (though of all the other sections there is (a),) which confines it to that class of actions which was capable of being brought either in superior or inferior Courts at the time of the passing of the 21 Jac. 1, or to actions by common informers. There is, indeed, a dictum of Lord Mansfield's in the course of the argument of the case of Sibly v. Cuming (b), which it is proper to notice. It was an action of debt for bribery on the 2 Geo. 2, c. 24, and the question was, whether, under nil debet, the defendant could prove that he was a discoverer under the act, so as to be excused from the penalties. In the course of the argument Mr. Mansfield contended that the right to give that evidence did not depend upon the old rules of pleading only, for the act of 21 Jac. 1, c. 4, extended to actions upon subsequent statutes, which Lord Mansfield denied. No decision was, however, ultimately given on that point, for the Court held that the defendant was not a discoverer within the meaning of the statute; and Lord Mansfield's denial may have been directed to the general proposition that the whole of the statute 21 Jac. 1, applied to subsequent statutes, as well as those in force at the time, which it certainly does not, as it has been frequently held that every subsequent statute which imposes a penalty to be recovered in the superior Courts, gives a new remedy to which the (a) Lord Kenyon, in Leigh v. Kent, 3 T. R. 364; 1 Salk. 372, 373. (b) Burr. 2467. statute of James does not apply: Hick's case (a). We are strongly inclined to think that the fourth section does apply to all subsequent statutes; probably it was on this ground that the Court of King's Bench intimated their opinion in the case of Faulkner v. Chevell, that not guilty was a proper plea; but whether the subsequent statutes be within this clause of the statute or not, the dictum of Lord Mansfield, above referred to, does not bear on this question, whether the fourth section applies to all penal actions, or only to penal actions of a particular description. It was argued for the plaintiff that at common law, before the statute, not guilty or nil debet were both good pleas to an action of debt for the treble value of tithes: Langley v. Haynes (b), Johns v. Carne (c), Wortley v. Herpingham (d), all prior to the statute 21 Jac. 1, as unquestionably they were, and therefore that the right to plead those pleas was not given by the statute in the case of this particular action. That is true, but it is equally true of every other penal action; and, besides, the statute does more than give the right to plead such pleas, for it allows the defendant to give in evidence, under those pleas, any matter which, if pleaded, would have been sufficient in law to discharge the defendant from that information or suit, and every such matter might probably not have been given in evidence under the general issue at common law, as the law was then understood. For these reasons, which we have given at some length on account of the importance of the case, we think the plea good; but the plaintiff may, if he pleases, withdraw the demurrer, and join issue on payment of costs. 1838. Earl SPENCER v. SWANNELL. I'm Trager. Chadwick, 28. L.S. G.B. 128. 1838, In an action on there was a set off, the cause referred to the was to enter that the plaintiff was not entitled PARKER, executrix, v. SERLE. THIS tax the costs upon the The learned Judge V. Lee now made a similar motion. has power to certify at any time that this was a proper cause to be tried in the superior Courts. In the "directions to taxing officers, the words tried before a Judge in one of the superior Courts, or Judge of assize," do not mean that the Judge is to hear the whole cause, but that the cause is "brought on for trial": Nokes v. Frazer (a), Broggref v. Hawke (b). PARKE, B.-There is no doubt the Chief Justice has power to certify, and without his certificate we cannot grant your application. This Court decided last term, in the case of Wallen v. Smith (c), that when a case was referred to an arbitrator who awarded a sum less than 20%, that was a sum recovered within the meaning of the directions to taxing officers (d). 339. (a) Ante, Vol. 3, p. (d) See Savage v. Lipscombe, ante, Vol. 5, p. 365. |