coke b dr foster case concern recusant mich James I see Thorpe v Adam lr c p  earl of Abergavenny v brace lt hill v hall ex d Garnett v Bradley App Cas in  re smith estate Ch d by stat Elizabeth c it be enact that every person above  the age of year which shall not repair to some church chapel or usual place of  common prayer c Bridgm a in Macdunock v Stafford roll Rep the judgement in  savil case be say to have be a sudden resolution it have be sanction by the  authority of holt CJ knight v Syms salk sc fl show Mod comb but have be repeat  question in subsequent as well as precedent case joan v hael cro Elizabeth  Hykes v sparrow cro James Royston v Eccleslon cro James Sprigy v Rawlinson cro  car lady Dacres case I lev Hutchinson v puller lev Bindover v Sindercombe l  raym and Vid Cottingham v king burr vin ab ejectment l Rosc on real action   b  hob   b Acc clement v Lewis Brod bing SC b more Vid note to Cheyneys case Rep  b   a roll   b hard   b sty Bulst   a Leon pl coke report b er p contrary to  the tenor of a statute make c for uniformity of common prayer and be thereof  lawful convict shall forfeit to the queen majesty for every month which he or  she shall so forbear twenty pound c upon a information upon this statute hold  the party offend may be convict in the same indictment or information prefer  or exhibit against he for the penalty the I that section direct the manner in  which the forfeiture shall be dispose of extend to the above clause as well as  to the that section of say and hear mass he against who any judgement be give  upon nothing to say or upon demurrer to any insufficient plea plead be convict  within the purview of the stat Elizabeth c the stat Elizabeth do not exclude  the informer from sue who lamb on stat Elizabeth c the stat Elizabeth do not  abrogate the stat Elizabeth as to popular action resolve also the stat  Elizabeth which have inflict the penalty of by the month have not repeal the  stat Elizabeth which give the forfeiture of d for every Sunday and holiday  that part of the Act Elizabeth which enact that every conviction hereafter  shall be in the court common call the court of king bench or before the  justice of assize c and not elsewhere do not abolish the whole power of  justice of the PeAcc the affirmative statute James cap do not take away the  remedy which be give to the king for the forfeiture of a feme covert by the  stat Elizabeth or to the informer by the stat Elizabeth the party indict or  inform against may plead auteifois convict c a affirmative statute shall not  repeal a precedent affirmative law unless the subsequent statute be contrary  to the precedent law such contrariety may be in quality in matter in respect  of the form prescribe note after a popular action bring if the attorneygeneral  enter beyond non vultprosequi or will not reply to the defendant special plea  the informer may prosecute for his part also if the informer who tam c die the  attorneygeneral may prosecute the suit for the king SC Bulstr roll Rep Bac ab  heresy d burn e l dissenter public worship popery burn justice popery  dissenter Lucas Inst palm Cr James Bridgm roll Rep Cawley Leon   Ent Anders  Leon Cawly roll Rep Cr James Bridgm coke b William Shoyle exhibit a  information against Richard foster doctor of physic that the say Richard  foster of the parish of saint Anthony in the ware of cordwainer London June  year domini king nunc be of the age of year and upward and from the say that  day of June until the that of may then next follow videlicet by the space of  entire month and more do not repair to his parishchurch aforesaid nor to any  other church chapel or usual place of common prayer or divine service but per  totum time predictum voluntary et obstinate without aliquan causan rational to  keep back ab the same contraformam to cause to stand in hujusmodi grammatical  case high et provision per quod action to grow progressively eiden lord king  ac prfato William loyle who tam pro lord ring how pro he himself sequitur ad  habendum et to drive out de prfato Richardo foster of moneft England videlicet  pro whithersoever you please manse c c unde idem William Shoyle petit ind  tertian parten juxta form to cause to stand predict to which dr foster plead  that the say William Shoyle who tam c pro preceding in eaden information  content seu aliquan ind parcella attendance non debet for he say that by a Act  of parliament year Reginve Elizabeth it be enact that every person above the  age of sixteen year which shall not repair to any church c but shall absent  himself against the statute de year Elizabeth for the uniformity of coke a  common prayer et e stens ind Le itime convict shall forfeit to the say late  queen oh vam ibn see osxi en pfinem of the say session of parliament c c and  further that all the forfeiture of any sum of money limit by the say Act shall  be divide into three equal part that be to say one three part to the say late  queen to her own use and another three part to the say late queen for the  relief of the poor of the parish c and the other three part to such person who  will sue for it in any court of record per action debt is owed billam  complaint well informationem c and afterward by another coke report b er p Act  of parliament year of the say late queen it be enact that every offender in  not repair to divine service c against the form of the say Act de year which  shall then after happen to be once convict in such term of pasch et saint  michaeli archangel which shall be next after such conviction shall pay into  the receipt of the exchequer accord to the rate of for every month as shall be  contain in the indictment upon which such conviction be and also for every  month after such conviction without any other indictment shall pay into the  receipt of the exchequer c and if any default shall be in any part of payment  c that then and so often the say late queen may by process out of the  exchequer take seize and enjoy all their good and two part of their land  tenement and hereditament lease and farm c and where by the say Act de year  Elizabeth one three part of the forfeiture for not come to divine service be  limit to the poor c by the say Act de year Elizabeth it be ordain that it  shall be lawful for the Lord treasurer chancellor and chief baron of the  exchequer c to assign and dispose of it c and further by the Act of Elizabeth  that pro magisfestiva England more speedy levation and recovery for and by the  say queen omniumetsingularum p6enarum debtor forisfactur and payment that then  after shall become Payable army the same right of way for cattle de year  Elizabeth well dict slatut fact in year inter alian inactitat to be authority  the same parliament de year quod in all respects et 3ingula dictam pcence  debit forisfactur et loosing to bore et to be able be rec uperat et alleviate  ad use dick domince Reginty per act debt is owed billam queream sive  informationem well aliter in Curid de banc king common banc well scaccar in  tali modus et in omnibus looking back prout per of order lesson conmuni law  some other debt is owed solubile England due per coke b aliquan larem mask in  to some place elsewhere grammatical case foret well pot isset be regain sive  alleviate c and further by the same Act de year Elizabeth it be enact that one  three part of the penalty to be recover by the same Act shall be dispose of to  the poor accord to the Act of Elizabeth aforesaid etidem Richard beyond to say  quod to prd set up de year supradido that this only is apparent quod in all  respects et one pooqnce debila forisfactur et loosing queen postprdaclum de  year say in addition to to grow progressively well solubil Jorent army the  same right of way for cattle velprd to cause to stand de year concern recusant  to bore et to be able recuperarietlevari ad use prd Regice grandeur c whoever  it be no one lertia pars pcenarum debtor forisfactur et loosing prdper pr6ed  Act de a some personce queen pro ead to follow volveri bound well to will step  forth et hoc idem Richard pageant be verify unde petit judgment si predict W  Slbo@yle who tam c pro predict c attendance to withhold upon which plea the  attorneygeneral demurrer in law and six objection be make by the defendant  counsel against this information that the defendant be not such a person as be  within the say Act of Elizabeth that the informer be not such a person that  may exhibit any such information upon the say Act of Elizabeth that the  judgement which shall be give in this case be not within the say Act of  Elizabeth admit all these point against the defendant it be further object  that by the say Act of Elizabeth the branch which give a popular action be  take away if the say Act of Elizabeth do not take it away that the statute of  Elizabeth c I have abrogate it that if the defendant shall be charge at the  suit of the informer he may be charge again at the king suit and so twice  charge to the first the person delinquent be describe by the Act by a  attribute which the defendant want for the word of the say Act of Elizabeth be  every person above the age of sixteen year which shall not repair to some  church chapel or usual place of common prayer but forbear the same contrary to  the tenor of a statute make in the first year of her majesty reign for  uniformity of common prayer and be thereof lawful convict shall forfeit to the  queen majesty for every month c c by which it appear that no person shall  incur this forfeiture unless he be before lawful convict so that a recusant  convict be only within the purview of this Act and it do not appear in the  whole record that the say Richard foster have be convict and therefore he be  not a person within this Act and penal statute be to be pursue especial in  inform coke a ations strict and in boundary accord to the purview of the Act  and therefore Paschoe Elizabeth a case a be a Anderson pl Doctrin placit  before a e b coke report b er p adjudge in the exchequer that where a  information be exhibit and show the usurious contract in certain upon which it  appear that above the sum of be reserve and receive for the loan of against  the form of the statute c and although it appear that it be corrupt and that  he conclude contraformam to cause to stand yet because he do not express say  that it wasper corruplam adjustment accord to the word of the penal statute  the information be adjudge insufficient a so in the case at bar forasmuch as  the statute say that every person c be lawful convict shall forfeit he ought  of necessity to have show that the say dr foster be lawful convict vide mark  dyer Elizabeth Elizabeth pl that none can inform upon the statute of Elizabeth  but for the king only for in the former part of that Act it be provide that  every person that shall say or sing mass c shall forfeit the sum of mark and  that every person that shall Willing hear mass shall forfeit the sum of mark  and afterward come in the same Act the clause of forfeiture of by the month to  the queen and afterward inflict by the month for he who keep a schoolmaster  and then follow the clause of distribution of the forfeiture and that all  forfeiture of any sum of money limit by this Act shall be divide into three  equal part c and it be object that this clause extend only to the say  forfeiture of mark and mark c which penalty be not give to any person in  certain but indefinite and general that they shall be forfeit and therefore  this clause of distribution refer to they but the forfeiture of by the month  for recusancy be express give to the queen and so be not any of the other  forfeiture and therefore this clause of distribution shall not extend to that  which be before to the queen but to those penalty which be leave indefinite  and give to nobody the word of the say Act of Elizabeth be be thereof lawful  convict and conviction ought to be either by verdict or confession c and can  extend to a judgement upon a demurrer as in our case for there be not any  conviction for always conviction ought to precede judgement and therefore in  our book the difference between a clerk convict and a clerk attaint be that he  who be convict by verdict or confession c and take his clergy before judgement  be call a clerk convict and he who coke b take his clergy after judgement be a  clerk attaint and therewith agree Stamf fol c who hold that there be two  manner of clerk videlicet clerk convict and clerk attaint a clerk convict be  he who pray his clergy before judgement give against he of the felony and have  his clergy allow to he c a clerk attaint be he who pray his clergy after  judgement upon he for the felony but in the case at bar dr foster be a  recusant if judgement shall be give against he attaint and not convict and  Stamford f b say so it be clear in my judgement that he can be call clerk  convict till upon issue join a verdict have pass against he and thereupon it  be say if the defendant will not answer to the indictment so that he be  condemned by nothing to say that it be out of this statute which speak only of  conviction and therefore upon the statute of I e c which take away clergy in  diverse case the word of which be No person or person that shall be hereafter  in due form of law attaint or convict that these word do not extend to he who  will not answer vide Stamford fol a so that the case at bar be casus to let go  out of the say Act for here upon the demurrer upon the defendant plea no  conviction can he before judgement but if the law shall serve for the informer  judgement will be give without any conviction whereof the statute speak and  such Penal Act shall not be take by intendment or equity but admit it shall be  a conviction within the statute then by the say Act   b Br indictment dyer pl  pl jenk cent hale pi Cr die pl roll Rep a Acc Woodys case cro James Nevison v  Whitley cro car Robert v Tremaile roll Rep per croak I Farrall v shaw keb and  where a defendant be indict for usury without save quod corrupted parts  agreatum to be the indictment be quash king v gast or gaith keb but it be say  by croak I Robert v Tremaile ub sup to be otherwise in a verdict which be the  find of lie gentle and Vid   b coke report a er p of Elizabeth the whole  penalty of by the month be give to the queen for the word be that every such  offender in not repair to divine service c as hereafter shall fortune to be  once convict shall in such of the term of easter or Michaelmas as shall next  happen after such conviction pay into the receipt of the exchequer after the  rate of for every month which shall be contain in the indictment whereupon  such conviction shall be and shall for every month after such conviction  without any other indictment or conviction pay into the receipt of the  exchequer c after the rate of the month c and if default be make c the queen  majesty shall and may by process out of the exchequer seize all the good and  two part of the land c by which it appear that the whole penalty for recusancy  be give to the queen and by consequence the informer be exclude the stat of  Elizabeth be strong for that by express term coke a give the whole penalty  give by the say Act of for recusancy to the queen the letter of which Act be  and for the more speedy levy and recover for and by the queen majesty of all  and singular the pain duty forfeiture and payment which at any time hereafter  shall accrue grow or be Payable by virtue of this Act or of the statute of the  d year c be it enact that all and every the say pain duty forfeiture and  payment shall and may be recover and levy to her majesty use by action of debt  bill plaint information or otherwise in any of the court common call the king  bench common plea or exchequer in such sort and in all respect as by the  ordinary course of the commonlaws of this realm any other debt due by any such  person in any other case shall or may be recover or levy in which these word  in the preamble be to be observe for the more speedy recover and levy for and  by the queen majesty here be the person express who shall recover of all and  singular the pain which word contain what thing the queen shall recover  videlicet all and singular the pain c  etgenerale dictum generally be to come  to know the body of the Act be it enact that all and every the say pain c  shall and may be recover and levy to her majesty use and if all the pain and  every of they shall be recover to the queen use then it follow that the  informer shall recover nothing and many case be put where a latter Act shall  take away a former and the ground be take that a law m earlier times opposite  direction abrogate but more particular and more to the purpose two reason be  allege why the latter statute of b Elizabeth take away and abrogate the  distribution of the Act of c Elizabeth c the first that when a Act of  parliament give power or interest to one person certain by that d express  designation of one all other be exclude although such statute be in the  affirmative and so it be hold in blow Com in Stradlings case e b that where  the statute of f e enact that error in the exchequer shall be correct and  amend before the chancellor and treasurer and therefore it can be correct  before any other b and there a general rule be put that when a thing be to be  do before one person certain by any statute it can be do before any other and  yet the statute of e be in the affirmative so in the case at bar the certain  designation of the queen be a absolute exclusion of all other because g  inclusio One be exclusion of one another and a case be cite out of justice  Dallisons report in a Elizabeth that forasmuch as the statute of h h c coke b  of forcible entry design justice of peaceto make a Jones   b   b b Cr James    b Stam Prea b   roll Rep hawk Max Inst godb b Elizabeth c Elizabeth c c  Elizabeth c d carter e Plowd b   a Savil b by car c on the vacancy of a Lord  treasurer judgement may be give by the Lord keeper and Vid king v Hornely and  William Carth g hawk Max h roll Rep Dall pl Dall in Kel pl Dall in ash pl  postea a   b coke report a er p restitution thereby although the statute be in  the affirmative other be exclude and therefore I neither justice of oyer and  terminer or gaoldelivery c shall do it c vide h b in waste ass in redisseizin  Elizabeth Commission upon king h of the admiralty c the second reason be in  respect of the generality of the word videlicet all and singular the pain c  and all and every the pain c which word imply a negative for if the queen  shall recover all and singular and all and every the pain c then no other  person shall recover any of them et a who all things to say nothing to shut  out et generale so much valet in omnibus quantum singular in one and thereupon  they cite the case in b h that where the word of h c be that all grant by  letter patent to be make for term of life or year of any office concern the  land within the survey of the court of augmentation c shall be seal with the  great seal of that court and it seem there that they imply a negative so that  if the grant be under the great seal of England it shall be void and any  townsend case blow Com and many other case be put to such effect which I here  have purposely omit it be object that if the defendant shall be charge at the  suit of the informer he may be by force of the say two statute and especial of  the statute of Elizabeth charge again and so twice charge and c no one debet  his to punish pro to make one fault and the case have the great mischief  because by the statute of James Reg c no traverse to any indictment of  recusancy shall be allow but to the direct point of not come to church or that  the party have conform himself so that he can plead that another information  be depend or that he be autre Joits convict c at the suit of the informer as  to the first objection it be answer and resolve by the whole court that he may  be convict in the same indictment or information prefer or exhibit against he  and so be it hold by all the judge of England assemble at Russelhouse where  sir John puckering then keeper of the great seal then dwell vide e b r bar and  that stand well with the word of the statute for he shall forfeit nothing  before conviction and so have the law be always take upon the statute of h  which enact that if a customer c be duly attaint or convict c he shall forfeit  to the king c and all other statute which have such form of pen and it be  impossible that he can be convict without suit and convict in this coke a case  shall be take for attaint for he shall forfeit nothing till judgement vide f n  b d e b in attaint and many book where convict be take for attaint vide before  in the case of Alex powlter of clergy fol b as to the d d point it be answer  and resolve that the say branch of Elizabeth of distribution shall extend as  well to the clause of the penalty for recusancy as to the clause of say and  hear mass c e because it be all one to V say shall g forfeit general and shall  forfeit to the queen for the queen shall have they in both case without say  more et expulsion out the dawn queen tacit sew up I Hardres c Vid I hawk PC c  Com dig forcible entry d Bac ab forcible entry f king dyer pl hob jenk cent Cr  Elizabeth more a Inst dyer pl palm hob postea b   a   b Cawly Nov roll Rep  Bridgm before a roll Rep e strange f vent   light a more ander Cawly g   b   b  a   a roll Rep   light a a Inst sand latch Bulst Mod Rep Hardres roll Rep  palmer   a light Rep coke report b er p nothing overatur a diverse act of  parliament give the penalty forfeit to the king and yet afterward make  distribution of the penalt that to another videlicet to he who will sue as the  statute of h h c by two judgement in parliament videlicet in the say act of  Elizabeth for by the same act the distribution make by the Act of of the  penalty of by the month of recusancy be in modus alter which prove that the  say clause of distribution in Elizabeth extend to recusancy c as to the three  it be unanimous resolve that he against who any judgement be give either upon  nothing to say or a insufficient plea plead and a demurrer upon it be convict  within the purview of this Act for it be true that non sequitur that one be  convict ergo he be attaint or adjudge but it be a good consequence that one be  attaint or adjudge ergo he be convict for he who be attaint or adjudge be  convict and more et ex way termini that extend to he who be condemned as  Cicero Verr to overcome opposite witness idem in Catilinam knowledge conmclus  reticui and where by the statute of Henry it be provide that if the party  grieve shall recover by assize or by action of trespass c and it be find by  verdict or in other manner in due form of law that the party defendant enter  with force into land and tenement c that the party shall recover his Triple  damage against the defendant and in h the case be that in such action bring by  the party grieve if the defendant attorney plead non sum informalus the  plaintiff shall recover his Triple damage for this word find have two  signification sure one by a jury and the other by the judge and the find of  the judge sure their judgement upon non sum shape or upon nothing to say be  within the say Act and so it be adjudge in a writ of error year Ph man and all  this be report by Bendloes sergeant at law so I myself hear the Lord dyer mich  coke b Elizabeth say in the court of common plea that so judgement be give in  such case for the Triple damage upon the defendant default because faletur  deed who judgment jugit and the same law he say if the defendant plead a  insufficient bar which upon demurrer be adjudge against he as to the four  point it be resolve that the Act of Elizabeth have not take away the liberty  which the informer have by the statute of Elizabeth for diverse reason the  title be for the speedy execution of certain branch of the statute make in the  d year c so that the maker of the Act of do not intend any abrogation but the  more speedy execution of diverse branch of the Act of the Act of give more  speedy execution only at the queen suit see upon indictment for the queen for  the whole penalty have not remedy by the statute of Elizabeth but only by  indictment for the statute make it inquirable c before diverse justice name in  the statute and such enquiry be always by indictment also in the same Act  there be a proviso that every person guilty of any offence against this  statute which shall before he be thereof indict or at his arraignment or trial  before judgement submit and conform himself before the bishop of the diocese c  or before the justice where he shall be indict arraign or try c shall be  discharge c by which it appear that in this new case of forfeiture the  parliament give the queen none other remedy to recover the whole penalty but  by way of indictment and the statute of Elizabeth extend only to the queen  suit by the way of indictment as appear by the word of the same Act videlicet  after the rate of for every month contain in the indictment and by diverse  other branch in the Act and namely that proclamation shall be make upon the  indictment c to appear c so that this Act give the queen other remedy than she  bad before by way of indictment but for the more speedy proceed upon the first  fundamental remedy but do not give the informer a more speedy proceed but  leaves he to his former proceed this Act of Elizabeth give not the penalty to  any new person to who it be not give before for the Act of give the forfeiture  to the queen c the word of this Act be every offender that shall hereafter  fortune to be once convict shall c pay for every month contain in the  indictment so that the sense be every offender that shall fortune to a Cawly  Anders before f a roll Rep Cawly coke report a er p be once convict upon any  indictment c shall pay for every month contain in such indictment and thereby  it appear that it extend coke a only to the case of indictment for the queen  and not to the action popular or information upon the same word the defendant  shall not take the benefit of this clause to bar the informer unless he aver  that he be convict at the queen suit for the word be that shall hereafter  fortune to be convict so that if his fortune be not to be convict at the queen  suit he be not within this Act but be leave to the informer the statute be in  the affirmative and regular statute in the affirmative do not take away  precedent act affirmative d unless it be in certain special case as shall be  after say but the statute of Elizabeth as be well observe have alter the  statute of Elizabeth in one material point videlicet as to jurisdiction in  these word that every conviction hereafter for any offence before mention  shall be in the court common call the king bench or at the assize or general  gaoldelivery and not elsewhere c which clause without question be general  extend not only to the queen suit but also to the suit of the informer and the  say Act of extend not only to the queen suit but give her other remedy than by  indictment know by action of debt bill plaint information and in other court  as in the common plea and exchequer and so as to the queen suit in other court  the statute of S alter but it do not touch the popular suit of the informer  nor alter the statute of concern the restriction to court as to the informer  neither do the Act of James c which give jurisdiction to the other justice as  justice of peace alter it as to the informer for that Act extend only to the  king suit by way of indictment know by enquiry only and do not mention the  suit of the informer but leaves it as it be before so that this Act of  Elizabeth confine the informer only to the court of king bench or of justice  of assize or general gaoldelivery and with negative word know and not  elsewhere as to the that objection the Act of do not abrogate the statute of  as to the popular action for four reason before that Act as have be say before  remedy be give to the queen by way of indictment and to the informer by bill  plaint or information now that Act intend to give more speedy remedy to the  queen only and not to the informer and so be the word of the preamble for the  more speedy recover for and by the queen majesty of all and singular the pain  c so that the purpose of that Act be not to oust the statute of but to oust  delay and to coke b give to the queen a more speedy recovery than she have  before the word of the body of the Act be that every of the say pain c shall  and may be recover to her majesty use c this Act have make three alteration in  the manner of her remedy videlicet where her remedy be by indictment before  now the queen may have a action of debt bill plaint information or otherwise  the second alteration be concern court the queen be not now confine to the  king bench or to justice of assize or general gaoldelivery but may now sue in  the common plea or in the exchequer at her pleasure the three alteration be  concern the charge of one person at the queen suit who be not charge before  for at the say assembly of justice at Russelhouse hill Elizabeth three point  be resolve by all the judge a that a feme covert be within the Act of  Elizabeth cap and shall forfeit d for not repair to church every Sunday and  holiday b that the Act of although it be more penal and inflict imprisonment  for this nonfeasance on he who be not able to pay yet that a feme covert be  within this statute of because this Act refer to the say Act of Elizabeth and  without question she be within the Act of c femes covert be a great part of  the realm and very dangerous because they have the education of their child  and the d Vid Acc Davies v Edmonson Bos pull and Vid vin ab statute e Com dig  parliament r Bac ab statute g a Bulst hob roll Rep Cawly say dalt just b Cawly  hob c bridge coke report a er p govern of their servant that d forasmuch as  the remedy of the queen be by indictment and the feme covert be only indict  and the husband be not party to it he be not subject to the wife forfeiture of  by the month for the husband shall never be charge for the act or default of  his wife but when he be make a party to the action and judgement be give  against he and his wife as for the debt of the wife or for scandal publish by  the wife or for trespass do by her c there the action of debt upon the case  trespass c shall be bring against the husband and wife and the husband shall  plead c and shall be party to the judgement e but if a feme covert be indict  of trespass riot or any other wrong there the wife shall answer and shall be  party to the judgement only f and therefore the fine set upon the wife in such  case shall not be levy upon the husband and therefore the informer be as to a  feme covert in a better case than the queen for inasmuch as remedy be give to  he for the say forfeiture by action of debt bill plaint or information the  informer for the say forfeiture of the feme covert may have a action of debt  bill plaint or information against the husband and wife coke a for the  recovery thereof and so make the husband party but so can not the queen only  by way of indictment and therefore the preamble of the Act be true that for  the more speedy levy and recover for and by the queen majesty of all and  singular the pain forfeiture c by virtue of the statute of the rd year c the  Act give remedy to the queen by action of debt bill plaint or information so  that where the queen for the say forfeiture of femes covert ought before this  Act to have stay till the death of the husband to levy or recover it against  the wife and if the wife have die before her husband in many case the  forfeiture be in danger of be lose now this Act in add remedy for the queen by  action of debt bill c have give the queen present remedy to recoverit against  the husband and wife and to this purpose be the subsequent word add videlicet  in such sort and in all respect as by the ordinary course of the commonlaws  any other debt due by any such person or any other cause shall or may be  recover but for the debt or duty due by feme covert in a action c bring  against the husband and wife the husband shall be charge for it and thereupon  many information upon this statute for the queen be exhibit against husband  and wife for the wife forfeiture upon the statute of Elizabeth in the king  bench c and that be the chief intention of this branch of Elizabeth to make  the husband of femes covert recusant to be charge at the suit of the queen for  the say forfeiture of their wife so that now the husband and wife may be  charge in that case as well at the queen suit by action of debt bill plaint c  as at the informer suit but if the king take his remedy by action of debt bill  plaint or information then no proclamation can be make thereupon for that be  only upon indictment and only upon indictment before the justice of assize or  general gaoldelivery by the Act of Elizabeth and now before justice of peace  upon indictment also by the statute of James Reg cap but the king in case  where be proceed by action of debt bill plaint or information shall have  execution accord to the commonlaw as he shall have upon the say statute of  Elizabeth the word of the say Act of Elizabeth be not pen simpliciter know  that all and singular the pain shall be recover to her majesty use for as have  be say that be not the intent of the maker but secundum quid et sub modus see  in such sort and in all respect as by the ordinary course of the commonlaws  any other coke b debt due by such person shall or may be recover or levy by  which it appear that this Act alter the remedy only at the queen suit that  where before she proceed upon the indictment d Savil roll Rep e so it seem a  feme covert may be joint sue with her husband for entice away or harbour the  servant of another faucet v Beavres and wife lev and Vid Bac ab baron and feme  l f in all case where the wife offend alone without the company or coercion of  her husband she be responsible for her offence as much as any feme sole black  command she may be indict alone for a riot dalt cap she may be convict of sell  gin king v Crofts strange she may be indict for be a common scold king v Foxby  Mod and king v tailor burr Vid I hawk PC Russell on crime d Edward coke report  a er p accord to the statute in which case the husband of the wife recusant be  not charge now she proceed by action c as any other debt may be recover at the  commonlaw in which case for the debt of the wife at the commonlaw the husband  be charge and in other statute which have the like reference no alteration be  make of the law before but only as to the point to which the reference be make  as it be hold in h in Everard digby case where it be enact by the statute of I  e cap that the demandant may maintain a formedon in the descender or remainder  against the pernor of the profit and the same pernors to vouch c as if they be  tenant indeed the case be that Everard Digby bring a to know facias against  the pernor of the profit and it be there hold that the pernor shall not vouch  in a to know facias for it shall be intend in such action in which he may  vouch and the say word do not alter the law of voucher in any other point than  in that to which the reference be make videlicet that notwithstanding he be  not tenant of the land but pernor of the profit that yet he shall vouch but  give he no new voucher to other respect and therefore he shall not vouch in a  action bring against he in which no voucher lie before so in the case at bar  the Act of Elizabeth shall be intend to extend to that only to which it be  refer and shall not alter or abrogate any law before so the statute of  Westminster cap which give the quod ei deforceat c to he who have lose by  default and give also to the demandant to vouch in it but not simpliciter but  secundum quid videlicet ac si be to hold in priori shorten si warrantum to  have extend only to the point to which it be refer videlicet notwithstanding  he be demandant but it do not alter or abrogate the law in other case and  therefore if the tenant plead another bar and do not maintain the first  recovery he shall not vouch at all also he shall not vouch other than he in  the reversion also he shall not vouch in any action in which no voucher lie  vide e e counterplea de voucher h h this Act of Elizabeth be all in the  affirmative and therefore shall not repeal or abrogate a precedent affirmative  law before and the say rule that law os io esp let Ipriores contrary abrogate  be well agree but as to this purpose opposite direction be multiplex in  quality sure if one be coke a a express and material negative and the last be  a express and material affirmative or if the first be affirmative and the  latter negative in matter although both be affirmative g as by the statute of  a h cap it be enact that if any person be examine before the king Council or  three of they shall confess any treason misprision or murder or be by they  vehement suspect he shall be try in any county where the king please by his  commission c and afterward another law be make I b p m cap in these word that  all trial hereafter to he have for any treason shall he have accord to the  course of the commonlaw and not otherwise this latter Act although the latter  word have not be have abrogate the former because they be contrary in matter  but it do not abrogate the statute of h cap of trial of treason beyond the sea  notwithstanding the negative word because it be not contrary in matter for  that be not triable by the commonlaw h vide c mark dyer Acc vide Stamford fol  d so the statute of e I e Plowd a b hob Br parliament Br pernor de profit Inst  hob Inst cro James hob more   b before a postea b   b Stamf Prrog b   roll Rep  hawk Max Jones Inst godb g Vid Acc king v justice of Worcestershire m S a Inst  say Anders roll Rep Stamf cor a b Inst Anders roll Rep h that the statute h c  be not repeal by the I p m c Vid story be case dyer b hale PC hawk PC b c S  but it seem to have be hold that at commonlaw treason in adhere to the king  enemy beyond the sea be inquirable and triable where the offender have land  hale PC and Vid hawk PC b c S c Inst roll Rep dyer pl d Stamf Cr b a b e roll  Rep Inst c coke report b er p of chantry be in the affirmative abrogate the  statute of W cap which give the cessavit de cantaria also in the affirmative  for the one be contrary to the other in matter contrariety in respect of the  form prescribe as in any townsend ease in pi Com and many other contrariety  there be which be not necessary to be recite only it must be know that  forasmuch as act of parliament be establish with such gravity wisdom and  universal consent of the whole realm for the advancement of the commonwealth  they ought not by any constrain construction out of the general and ambiguous  word of a subsequent Act to be abrogate send hujusmodi to cause to stand lanta  solennitale et discretion to give out as fortescue speak cap fol ought to be  maintain and support with a benign and favourable construction for fortescue  there say quod England stalula non Princeps volunlate send tolius royal power  assent preserve quo poplar tree la suran that to make out not to be able well  non the dawn just to take care of prudenfia for et supientia self be fill up  to clean be dvn non One or centum solum adviser virorumprudentia sedplusquam  three hundred elector man wicker basket numero formerly senatus of Rome to  keep straight to give out are and therewith agree the case in e b a a b and  the case of Chester mill in the ten part of my report fol b a e dyer pl and  where the statute of r cap enact that coke b all the land and tenement of one  attaint in a prmunire shall be forfeit to the king the case in pasch Elizabeth  be that one a trudgin be tenant in tail of certain land and tenement be  attaint in a prmunire and the question before all the judge of England be if  the estatetail be bar or not and it be resolve by all the judge that those  general word have not repeal the statute of gift conditional but that he shall  forfeit only for his life and the issue in tail shall inherit and for the same  reason it be resolve in this case first that this statute of Elizabeth which  have inflict the penalty of by the month have not take away the statute of  Elizabeth which have give the forfeiture of d for every Sunday and holiday but  that both shall be pay for the one may well stand with the other for the  forfeiture of d be forfeit as soon as the Sunday or holiday be pass but the be  not forfeit till the end of the month so that the d be forfeit by way of  prevention also the forfeiture of the d be give only to the poor and the to  the queen c and the neglect of divine service on the sabbath and holiday  deserve great punishment and that the statute of Elizabeth have not take away  the statute of as to the say forfeiture of d appear by the statute James king  cap for by the same Act a more speedy remedy be give for the say forfeiture  for the sabbath the say branch of the Act of Elizabeth videlicet that every  conviction hereafter shall be in the court common call the king bench or  before the justice of assize c and not elsewhere do not abrogate the whole  power of justice of the peace and of other justice to who authority be give by  for yet any of they may take a indictment and that by benign interpretation to  abrogate as little as may be forasmuch as the say Act of Elizabeth restrain  only the conviction so that the power to take the indictment remain and so it  be hold by all the judge and baron of the exchequer in Edward Plowdens case  also in the same case it be hold by they that whereas the say Edward be indict  before justice of peace and proclaim before the justice of assize it be as to  the proclamation against the express letter of the Act but such indictment  ought to have be remove into the court of king bench and upon that process to  be make c that the statute of James cap provide that if a feme covert be  convict that she shall be commit to prison until c that this coke a  affirmative law do not take away the remedy which be give to the king for the  forfeiture of a feme covert by the stat of Elizabeth or to the informer by the  stat of Elizabeth because all the say act be affirmative but she shall be  punish upon one of they also the negative clause in the Act of James videlicet  that no person shall be charge for his wife offence c do not extend to a feme  covert to be charge either upon the statute of Elizabeth at the queen suit or  upon the Act of at the informer suit a roll Rep godb   light a a Inst roll Rep  hob Cawly more Jones roll Rep dalt just Cawly coke report b er p for the word  be express pen that no person shall be charge for his wife offence by force of  this Act videlicet of the Act of James and where it be object that the express  designation of one person be the exclusion of all other that be true in all  act which be introductive of a new law as the say act of e h but here be two  act of parliament and the Act of do not give it to a new person but to the  same person that have give it videlicet to the queen and it be but a act of  addition to give a more speedy remedy than be give by the Act of as in a writ  of mesne the process at commonlaw be distress infinite and although the  statute of W cap give more speedy process and in the end forejudger yet the  plaintiff may take which process he will either at the commonlaw or upon the  say statute because both be in the affirmative and therewith agree f n b a  Henry b Henry a e e Henry Stradlings case Plo Com a b Elizabeth dyer e e e  Henry ass pl e e r damage and it be observe that in many case the designation  of a new person in a latter Act of parliament shall not exclude another person  who be authorize to do the same thing by a precedent Act it be enact by the  statute of Henry cap that after office find c he who find himself grieve may  within the month offer a traverse and to take the land and tenement to farm  and that then the chancellor treasurer and other officer shall let they to he  to farm until c vide e a and now by the statute of h he have liberty by the  space of three month and afterward the stat of h c give authority to the  master of the ware with the advice of one of the council to make a lease of  the land of a ware or of a idiot during the time they shall remain in the king  hand although the latter Act design another person yet it do not utter take  away the first for if before any lease make by the master of the ware coke b  the chancellor and treasurer make one accord to the statute of h then the say  master can demise it and so if the master make it first to another the  chancellor and treasurer can demise it to the party grieve as Stamford hold  Pr2ar king fol a b where he mention the say rule quod a law m earlier times  contrary abrogate ass pl the statute of e de mercatoribus which give the  assize to tenant by statute merchant shall not take away the assize which the  tenant of the freehold have before but both well stand together so in h dyer a  if it be enact that the young son shall have a appeal of the death of his  father I that shall not exclude the elder of his suit because there be not any  word of restraint as to the other objection that the generality of the word  all and every c imply a negative because b who all things to say nothing to  shut out to that it be answer and resolve that the say word be not simpliciter  general but secundum quid as have be say which be a full answer to this  objection that in the principal case in c h dyer that a demise make under the  great seal of land within the survey of the court of augmentation by the  authority of the same book be not void d vide porter case in the first part of  my report fol and Gregory case in the six part of my report fol b and the  statute of e Henry cap provide general that all attaffits hereafter to be take  shall be take in the king bench or common plea but the maker of the Act do not  stay there but add these word and in none other Br to know fac roll Rep dyer  pl Benl in kelw pl n Benl pl Benl pl a   b   a b cro James   a   roll Rep hawk  Max Inst godb Jones a cro car roll Rep dyer pl I appeal abolish stat Geo cap b  Inst c dyer pl palm before b hob d roll Rep cro James more e Benl in Kel pl  Benl in ash pl n Benl pl dyer pl   light b coke report a er p court vide dyer  b so it be enact by the statute of f e that the quartersession in the county  of Anglesey e shall be always hold at Beaumares only et non alibi infra  comilat Anglesey c and session be hold at Newburgh in the same county and  diverse person there indict c and Pb mark it be resolve by all the judge of  England that all be um non judge and void by reason of the say negative  prohibition by which it appear that the general and affirmative word be not  the cause of the resolution and the chief justice say that although there be  negative word in a Act of parliament yet in many case they shall not bind the  king bench king because the plead there be in person Self ring and thereupon  be put the case in e b ass pl the abbot of Westminster case that where it be  enact by the statute of Westminster cap that from henceforth nothing be de  coke a manded nor take nor levy by the sheriff nor by other for the escape of  a thief or felon till the escape be adjudge before justice itinerant the case  be that it be present in the king bench that the abbot of Westminster have  suffer certain clerk attaint before the king which be in the abbot prison  deliver to he out of the Marshalsea to escape and there pole who be of counsel  with the abbot move the court that by force of the say statute till the eire  the abbot ought not to be impeach by which he shall be put to answer c non  allocatur wherefore pole plead that they do not escape so when a statute make  a new law and assign certain justice to execute it although the justice of the  king bench be not by express word authorize by the Act yet they may execute it  as the say statute of h give power to justice of peace to make restitution and  therefore justice of oyer and terminer or gaoldelivery e shall not make  restitution and so it be resolve as have be say yet if the indictment be  remove into the king bench in person ring they shall award restitution and so  upon argument it be resolve in the king bench in h b and thereupon a writ of  restitution be award and therewith agree h b vide e and the chief justice cite  a resolution of the judge mich Elizabeth in this case in the general pardon de  year Elizabeth there be a exception of all penalty or forfeiture convert to a  debt by judgement order decree or agreement now the question move to the  justice be if a recusant convict upon proclamation make accord to the statute  of Elizabeth shall be within this exception and it be resolve not for the word  of the statute be shall be convict as if he have be find guilty by verdict and  do not speak of any judgement also although the parliament upon such  conviction ordain which be in the nature of a judgement that he shall pay the  forfeiture c yet that be not such a judgement as be intend within the say  general pardon but it be resolve that if he have be convict and judgement give  thereupon accord to the statute of that such judgement be within the say  exception and it be well observe that the statute of I James king cap enact  that all statute make against recusant in the reign of queen Elizabeth shall  be put in due and exact execution as to the last objection it be resolve that  no such double charge can accrue to he but that he may plead that he be auter  foil convict c and so by plea avoid the coke b double charge and where by the  statute of James c it be enact that no indictment c nor any proclamation  outlawry or other proceed thereupon shall be avoid by reason of any default of  form or lack of form or other defect whatsoever other than by direct traverse  to the point of not come to church or not receive the sacrament whereof such  person shall be indict but that the same indictment shall stand in force any  such default in form or other defect whatsoever notwithstanding the recusant  may well plead any collateral bar f dyer pl   a roll Rep king in general the  jurisdiction of the king bench can be take away but by express word or  necessary implication king v Morelei burr eat v wright TR shipman v Henbest TR  roll Rep Dall pl Dall in kelw pl Dall in ash pl before a b   b Br forcib Ent  Fitzherbert Ent dyer oh Br restitute roll Rep palm Cawly coke report a er p as  pardon submission auter foil convict or other bar dehors for this Act extend  only to defect within the indictment or other proceed and that the informer  can charge any who be convict before at the queen suit upon the statute of  Elizabeth Elizabeth or James king but those who be conceal and not charge at  the king suit the informer may exhibit information against they upon the  statute of Elizabeth in the king bench or before justice of assize or general  gaoldelivery and so charge they who peradventure otherwise will never be  change for by the statute of Elizabeth he ought to be charge within a year and  a day so that for any forfeiture before the year and the day no remedy can be  take either by the king or by the informer because the time be limit in  certain by the say Act of Elizabeth c and therefore it be say that in this  case the informer be nor falcator nor messor but spicilegus videlicet a glean  and those recusant feme covert or other who have not be convict at the king  suit that the informer may find they and charge they otherwise they may escape  unpunished and in the principal case for a great part of the time if the  informer have not exhibit his information the king will have lose all for so  much of the time as be before the year whereas in this case he shall have two  part whereof one shall be to the use of the poor and afterward judgement be  give against the defendant notam reader Trin Elizabeth in this court inter  Stretton who tam c and tailor it be adjudge that after a popular action bring  although the king attorney will enter beyond non vullprosequi or if the  defendant plead a special plea although the use be that the attorneygeneral  reply only yet if he will not reply or prosecute for the king the informer may  prosecute for his part for by the suit of the informer commence he have make  the popular action his private action which the king nor any coke a other can  release as to his interest and the condemnation or acquittal of the party at  his suit be a bar against all other and against the king and yet the king in  all these case before any action commence by a informer may pardon and release  it and that shall be a bar against all people and this difference be grant and  deny by none h a and therewith agree h a e a r also mich Elizabeth it be  adjudge in this court that if pen the information the informer who tam c die  that yet the king attorney may prosecute the suit for the king for the  information by the party shall serve for the king after his death