bennet who tam c agt smim KB the court refuse to set aside a non pro regular  sign in a action bring by a common informer on a penal statute where no  intention be show of make reparation to the injure party and the defendant  liability will be revive by accede to the motion I burr S c this be a action  of debt for pound on the statute of usury bring by a common informer judgement  of non pro for want of the plaintiff proceed have be regular enter up which  the plaintiff now move to set aside upon payment of cost as it be owe mere to  a mistake of the plaintiff attorney clerk and as the plaintiff be out of time  to bring another action sir Richard Lloyd for the defendant say it be  unprecedented to do it in the case of a penal statute and that upon the same  principle court of equity will not relieve in case of subtraction of tithe c  unless the plaintiff waive all penalty Mr nares on the same side this differ  much from what the case will have be if the action have be bring by the party  grieve it be not a sufficient reason to say that the time for bring this  action will be lapse if the party injure bring the action penal statute be  consider as remedial under the statute James for lie the action in the proper  county hawk PC cro Elizabeth Wynn Bart v myddelton but as to common informer  it be otherwise new trial be never grant on their behalf nor be any other  particular favour show they Maddison v Andrews Kenyon Jervis who tam v hall  pasch Geo which be a information on the statute against horseraces and a new  trial be refuse though the evidence for the plaintiff be very full and clear  and the verdict against the judge opinion Mr Norton e wear down if it be not  the case of a penal statute no doubt the court will do it upon payment of cost  and put the defendant in as good a condition and the court sometime do  interfere in the case of penal statute as in the case of Griffith v holy Tr  and Geo Lord Mansfield CJ we be quite in the dark as to the real justice of  the case as neither the plaintiff have show that he bring this action in order  to obtain justice to the injure party by make the defendant ref and what he  have usuriously take nor have the defendant show whether he have make  restitution to the injure party or not for though it be in the case of a penal  statute yet that may be for redress to the injure party as for waste tithe c  and even though the action do appear to be prosecute by a common informer yet  if it appear to be bring mere to obtain substantial justice to the injure  party I shall think the court ought to interpose in order to compel the  defendant to do justice by refund what he have usuriously take the plaintiff  in such case consent to waive all penalty but this be not a case of that kind  here appear no equitable circumstance on either side but a mere common  informer have prosecute for public vengeance only without any regard to the  injure party and have permit the defendant legal to get discharge be now ask a  favour of the court to permit Kenyon he to revive the prosecution he ask it I  say as a favour for he move it upon payment of cost therefore he admit the  regularity of the non pro he ask it without show any equitable circumstance to  induce the court to grant it and therefore I think it ought to be deny in this  case as to the case Mr Norton cite which be a amendment at commonlaw while the  proceed be in paper there be I take it no difference between penal statute and  other Kenyon er p denison I the sole ground for set aside judgement c in civil  action be the put the other party in as good a condition as before therefore  former the court refuse to do it if a trial have be lose but now they do it on  consent that the judgement if it passes against the party apply shall be enter  nunc pro tunc so they have restrain the party from plead the statute of  limitation or the insolvent debtor Act and confine he to such plead as will  bring the true merit to be try but never have suffer it where it will put the  adverse party in a worse condition which will most certain be the case here  where the defendant have discharge himself from the penalty by a regular and  legal judgement of non pro and the reason urge for grant this application that  the plaintiff be out of time to bring another action weigh strong with I  against it for the cause be out of court and the penalty thereby save the  court can never restore it without put the defendant in a worse condition this  case differ wide from amendment before judgement while all be in paper which  be the case Mr Norton Kenyon cite and that of the duchess of Marlborough v  Whitmore and many other but here the cause be out of court and it will be give  a fresh action to the common informer Wilmot I concur the motion be deny  absent foster I