11 May 1805.

4 Blac. Com. 156. (note 3.)

Crowder v.
Wagstaff,

1 Bos. & Pull.
18.

North q. t. v.
Smart,

1 Bos. & Pull,
51.

4 H. 7. c. 20. Collusive action.

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.-
No process was sued out or information given before
any magistrate. Judgment was respited on a doubt which oc-
curred to the learned judge at the trial, whether this offence was
within the 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 ob-
tained. The judges on conference were all of opinion that the
conviction was right; the 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.
This statute extends to penal actions, where the whole penalty
is given to the prosecutor.

But it does not apply to offences cognizable only before magistrates; and an indictment for compounding such an offence was holden bad in arrest of judgment. R. v. Crisp & others, 1 B. & A. 282.

The court will not give leave to compound in a penal action after verdict, unless the defendant can shew circumstances which entitle him to such an indulgence.

In compounding a penal action on the post-horse act (which gives costs to the prosecutor) the prosecutor was allowed to receive the deficient duties (not amounting to 40s.) and full costs of suit, though together exceeding the 40s. paid to the crown. The court observed that as the act was made for the benefit of the farmers of the post-horse duties, it was not unreasonable that they should make the composition on their own terms; besides, with respect to costs, this was not like other popular actions.

The court of C. P. will not permit the defendant in a qui tam action to compound, unless the counsel for the crown are instructed to consent on behalf of the treasury. Sheldon v. Mumford, 5 Taunt. 268.

And by 4 H. 7. c. 20. if the defendant plead a recovery by 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.

Form of an Information qui tam.

in the

Westmorland. BE it remembered, that A. I. of
county of -gentleman, who as well for
our lord the now king as for himself doth prosecute, cometh before
the justices of our said lord the king assigned to keep the peace in
the said county, and also to hear and determine divers felonies, tres-
passes, and other misdemeanors in the said county committed, at

their general quarter sessions of the peace, holden at

day of

in the

in and

year

in the county
in the year

for the said county, the day of
in the reign of in his proper person; and as well for our
said lord the king as for himself giveth the court here to under-
stand and be informed, That A. Ö. late of
aforesaid, yeoman, on the
aforesaid, at
aforesaid in the county aforesaid, not re-
garding the laws and statutes of our said lord the king, but intend-
ing to
with force and arms [here insert the offence
with the same precision as in an indictment] against the form of
the statute in that case made and provided; whereupon the aforesaid
A. I. as well for our said lord the king as for himself prayeth the
advice of this court in the premises; and that the aforesaid A. O.
may forfeit the sum of according to the form of the statute
aforesaid; and that he the same A. I. may have one moiety thereof,
according to the form of the statute aforesaid; and also that the
aforesaid A. O. may come here into this court to answer concerning
the premises; and there are pledges of prosecuting John Doe and
Richard Roe. And hereupon it is commanded to the said A. O.
that all other things omitted, and all excuses laid aside, he be in
his proper person at the next general quarter sessions of the
peace
to be holden for the said county to answer as well to our said lord
the king as to the said A. I. who as well for our said lord the king as
for himself doth prosecute of and concerning the premises, and further
to do and receive what the said court shall consider in this behalf.

Ingrossing. See Forestalling, Vol. II.
Inns and Inn-keepers. See Alehouses, Vol. I.

Insolvent Debtors.

[32 G. 2. c. 28. — 26 G. 3.

c. 38. — 31 G. 3.

c. 46. § 6.
33 G. 3. c. 5. — 37 G. 3. c. 85. — 39 G. 3. c. 50. — 52 G. 3.
c. 34. 53 G. 3. c. 102.. 54 G. 3. c. 23. 56 G. 3. c. 102.
· 59 G. 3. c. 129.]

-

BY stat. 32 G. 2. c. 28. f 13. usually called the Lord's act, How prisoners from its having originated in the house of lords. If any per- may be disson shall be charged in execution for any sum not exceeding 1007. charged on delivering up [and by the 33 G. 3. c. 5. § 1. the same is extended to any sum their effects. not exceeding 300l. (a),] and shall be minded to deliver up to his creditors who shall so charge him in execution all his estate and effects towards the satisfaction of the debt wherewith he shall so stand charged, it shall be lawful for such prisoner, before the end of the first term which shall be next after his being so charged in execution, to exhibit a petition to any court of law from whence

(a) The 33 G. 3. c. 5. was at first but temporary, but by 39 G. 3. c. 50. the same is made perpetual.

32 G. 2. c. 28.

Notice to creditors.

Prisoner's oath.

the process issued, or to the court into which he shall be removed by habeas corpus, or shall be charged in custody, and shall remain in the prison thereof, certifying the causes of his imprison

ment.

§ 13. And setting forth therein a just and true account of all the real and personal estate which he or any person in trust for him is or was entitled to at the time of his petitioning, and of all incumbrances and charges affecting the same; and also a just and true account of all the real and personal estate, which he, or any person in trust for him or for his use, was interested in or entitled to at the time of his first imprisonment, either in possession, reversion, remainder, or expectancy, to the best of his belief, and so far as his knowledge extends; and likewise a just and true account of all securities wherein any part of his estate consisteth, and of all deeds, evidences, writings, books, bonds, notes, and papers concerning the same or relating thereto; and the names and places of abode of the witnesses to all securities, bonds, or notes, and where they are to be met with, so far as his knowledge extends.

§ 13. And before such petition shall be received by any such court, he shall cause to be given or left unto or for all the creditors at whose suit he shall stand charged in execution as aforesaid, or their executors or administrators, and at their usual places of abode (or to the attorney or agent last employed in the cause, if such creditors, or their executors or administrators, cannot be met with, but not otherwise,) fourteen days at least before such petition shall be presented and received, a notice in writing signed with his name or mark, importing that he doth intend to petition the court from whence the process issued upon which he stands charged in execution, or into the prison to which he shall have been removed by habeas corpus, or shall stand charged in execution on any judgment recovered on any bill or declaration filed or delivered in any such court; and also setting forth in such notice, a true copy of the account or schedule including his whole real and personal estate which he intends to deliver into court (except the necessary wearing apparel and bedding of him and his family, and the tools or instruments of his trade or calling, not exceeding the value of 10. in the whole):

13. And an affidavit of the due service of such notice shall be delivered with the petition, and openly read in the court:

13. And if the court shall be satisfied with the regularity of such notice, the petition shall be received; and the court shall thereupon, by order or rule of the said court, cause the prisoner so petitioning to be brought up, and the said creditors or their executors or administrators to be summoned to appear personally or by their attorney in the said court.

And on their appearance, or if they shall not appear, then on affidavit of the due service of the said order on them, or on their attorney, if they cannot be met with, such court shall, in a summary way, examine into the matter of the petition, and tender to the prisoner the oath following:

I A. B. do swear in the presence of Almighty God, that the account by me set forth in my petition presented to this honourable court, doth contain a full and true account of the real and personal estate, debts, credits, and effects whatsoever, which I, or any

in trust for me, at the time of my first imprisonment in this 32 G. 2. c. 28. action, or at any time since, had or was in any respect entitled to in possession, reversion, or remainder (except the wearing apparel and bedding of or for me and my family, and the tools or instruments of my trade or calling, not exceeding 101. in value in the whole); and also an account how much of my real and personal estate, debts, credits, or effects hath since been disposed of, released, or discharged, and how, to whom and on what consideration and for what purpose and how much thereof I or any person or persons in trust for me have, or at the time of my presenting my said petition to this honourable court had, or which I am or was, or any person in trust for me, or for my use, is anywise interested in or entitled to, in possession, reversion, remainder, or expectancy; and also a true account of all deeds, writings, books, papers, securities, bonds, and notes, relating thereto, and where the same respectively now are to the best of my knowledge and belief, and what charges are now affecting the real estate I am now seized of or entitled to [if such prisoner shall then be seized of any real estate]; and that I have not, at any time before or since my imprisonment, directly or indirectly sold, leased, assigned, mortgaged, pawned, or otherwise disposed of, or made over in trust for myself, or otherwise, than is mentioned in such account, any part of my messuages, lands, tenements, estates, goods, stock, money, debts, or other real or personal estate, whereby to have or accept any benefit, advantage, or profit, to myself or my family, or with any view, design, or intent, to deceive, injure, or defraud, any of my creditors to whom I am indebted. So help me God.

13. And thereupon, the court may order the messuages, lands, tenements, goods, and effects, contained in the account, or as much of them as shall be sufficient to satisfy the said debts and fees due to the gaoler, to be (by a short indorsement on the petition, and to be signed by the prisoner,) assigned and conveyed to the said creditors, their heirs, executors, administrators, and assigns, for the benefit of them who shall have so charged such prisoner in execution (subject nevertheless to all prior incumbrances affecting the same).

13. And the estate, interest, or property, of all messuages, lands, goods, debts, estates, and effects, which shall belong to such prisoner, shall by such assignment be vested in the persons to whom the assignment shall be made; and they may take possession, and sue for the recovery thereof, in like manner as assignees of commissioners of bankrupts.

13. And on such assignment and conveyance being executed by such prisoner, he shall be discharged out of custody by rule or order of such court; which order being produced to and a copy thereof left with the sheriff or gaoler, he shall forthwith discharge him, without taking any fee, or detaining him in respect of chamber rent, lodging, or otherwise.

13. And the person, to whom the estate shall be assigned, shall with all convenient speed sell and dispose thereof, and divide the net produce amongst the creditors who shall have charged such prisoner in execution before the time of presenting the petition, in proportion to their respective debts.

13. But if any person at whose suit such prisoner stood charged in execution shall not be satisfied with such prisoner's

When remanded for further

time.

32 G. 2. c. 28. oath, and shall either personally or by his attorney (if he cannot personally attend, and proof shall be made thereof to the satisfaction of such court,) desire further time to inform himself of the matters contained therein, such court may remand the prisoner, and direct him and the person so dissatisfied to appear either in person or by his attorney on some other day to be appointed by such court at farthest within the first week of the term next following the time of such examination; but sooner if such court shall think fit.

37 G. 3. c. 85. $2. 3. 4. Allowance

when detained.

Out of London, &c.

§ 13. And all objections which shall be made as to the insufficiency in point of form against the schedule shall be only made the first time such prisoner shall be brought up.

§ 13. If at such second day appointed, the creditor dissatisfied shall not appear, or shall be unable to discover any estate or effects of the prisoner omitted in the account set forth in his petition, in such case the court shall by rule order the prisoner to be discharged on his executing such assignment and conveyance as aforesaid; unless such creditor shall insist upon his being detained, and shall agree by writing signed by him (or by his attorney, in case such creditor shall be out of England,) to pay weekly a sum not exceeding 3s. 6d. [37 G. 3. c. 85. § 2. 3.] as such court shall think fit to the said prisoner, to be paid weekly every Monday, so long as he shall continue in execution at the execution of such creditor; and in such case the prisoner shall be remanded: But if failure shall be made in the payment thereof, such prisoner upon application in term time to such court, or in vacation `time to any judge of such court, may by order of such court or judge be discharged, on his executing such assignment as aforesaid; proof being made on oath of the non-payment for any week of such sum.

any

And if any prisoner shall refuse to take the said oath, or shall be detected before such court or judge of falsity therein, or shall refuse to execute such assignment, he shall presently be remanded.

$ 14. Provided that where more creditors than one shall desire to have such prisoner detained, every of such creditors shall only respectively pay such weekly sum, not exceeding 2s. a-week, 37 G. 3. c. 85. § 4. as the court shall order.

§ 15. But where any prisoner shall be charged in execution in any county gaol, or in any other prison above twenty miles from Westminster-Hall, or from the court out of which the execution issued, then, on the like petition as aforesaid to the court from whence such execution issued, or in the prison of which court such prisoner is and stands charged in execution, and on affidavit in like manner as aforesaid being made and left with such petition, such court, on being satisfied with the truth of such affidavit, shall make a rule to cause the prisoner to be brought to the next assizes (or great sessions in Wales and Cheshire) to be holden for the place where he shall be imprisoned; and the expense of bringing him, not exceeding Is. a-mile, shall be paid to the gaoler or officer, who shall bring him, out of the prisoner's estate, if the same shall be sufficient to pay such expense; and if not, then to be paid by the treasurer of the county or place in which such prisoner shall be imprisoned, as shall be allowed by the judge; and the creditors or their executors or administrators,