1 East's P. C. 443. 444. 1 Leach, 237. Phill. Ev. 17. R. v. Tucker, Whether he may be a juror. Woman's age of deed till 21. - bility of children depends upon the sense and reason they entertain of the danger and impiety of falsehood, which is to be collected from their answers to questions propounded by the court. In Brazier's Case, on an indictment for assaulting an infant of five years of age with intent to ravish her, it was agreed by all the judges, that children of any age might be examined on oath, if capable of distinguishing between good and evil: but they cannot be examined, in any case, without oath. This is now the established rule in all cases, criminal as well as civil, and whether the prisoner is tried for a capital offence, or for one of an inferior nature. When the child has appeared not sufficiently to understand the nature and obligation of an oath, judges have often thought it necessary, for the purposes of justice, to put off the trial of a prisoner, directing that the child in the mean time should be properly instructed. Thus in a criminal prosecution that was coming on to be tried at Gloucester, Rooke J., finding that the principal witness was an infant who was wholly incompetent to take an oath, postponed the trial till the following assizes, and ordered the child to be instructed in the mean time by a clergyman in the principles of her duty, and the nature and obligation of an oath. At the next assizes the prisoner was put upon his trial, and the girl being found by the court, on examination, to have a proper sense of the nature of an oath, was sworn, and upon her testimony the prisoner was convicted, and afterwards executed. Mr. J. Rooke mentioned this at the O. B. in 1795, in the case of Patrick Murphy, who was indicted for a rape on a child of seven years old, and the learned judge added, that upon a conference with the other judges upon his return from the circuit, they unanimously approved of what he had done. Vide 2 Bac. Abr. 157. (n.) 1 Leach, 430. (n.) If a child is too young to be sworn, it follows as a necessary consequence, that any account, which it may have given to others, ought not to be admitted. On an indictment, therefore, for a rape on a child five years old, where the child was not examined, but an account of what she had told her mother, about three weeks after the transaction, was given in evidence by the mother, and the jury convicted the prisoner, principally, as was supposed, on that evidence: the judges, on a case reserved for their opinion, thought the evidence clearly inadmissible, and the prisoner was accordingly pardoned. An infant before twenty-one years of age shall not be sworn on an inquest. 7 & 8 W. c. 32. § 4. 1 Inst. 172. A woman at nine years of age may have dower; at twelve may consent to marriage; and at fourteen is of age of discretion, and may choose a guardian. 1 Inst. 78. A man is of age at twelve years to take the oath of allegiance in the torn or leet; and at fourteen is of age of discretion, may consent to marriage, and choose his guardian. 1 Inst. 78. At twenty-one, and not before, persons may bind themselves by any deed, and alien lands, goods, and chattels. 1 Inst. 171. Upon which ground infants may not enter into recognisance to keep the peace, or to be of the good behaviour, but their sureties only. But an infant may bind himself to pay for his necessary meat, May contract drink, apparel, physic, and such like; and also for his good for necessaries. teaching or instruction, whereby he may profit himself afterwards; but if he bind himself in an obligation or other writing, with a penalty for the payment of any of these, that obligation shall not bind him. 1 Inst. 172. Neither will assumpsit lie against an infant on an account stated; for an infant is not competent to state an account. Trueman v. Hurst, 1 T. R. 40.; and Bartlett v. Emery, Ib. 40. n. a. And in Earle's case, 1 Salk. 387., it is said, that an infant may buy necessaries, but cannot borrow money to buy; for he may misapply the money, and therefore the law will not trust him, but at the peril of the lender, who must lay it out for him, or see it laid out. And it shall be only for necessaries, and not for matters of lux- 2 Atk. 35. ury or extravagance; and if, after he comes of age, he is prevailed on, by surprise or other undue means, to give security, yet a court of equity, on consideration of circumstances, will relieve. III. Their Civil Capacities. Also other things of necessity shall bind him, as a present- May present to ation to a benefice; for otherwise the lapse shall incur against a benefice. him. 1 Inst. 172. And infants seised of estates in trust, or by way of mortgage, may make conveyances thereof, as the courts of chancery or exchequer shall direct. 7 An. c. 19. 4 G. 3. c. 16. May convey in a court of equity. May surrender in a court of equity. And they may surrender leases in the courts of chancery or exchequer, in order to renew the same. 29 G. 2. c. 31. Also an infant hath, without consent of any other, capacity to purchase, for it is intended for his benefit; and at his full May purchase. age he may either agree thereunto and perfect it, or without any cause to be alleged, wave or disagree to the purchase; and so may his heirs after him, if he agree not thereunto after his full age. 1 Inst. 2.. The common law seems not to have determined precisely at May make a what age one may make a testament of a personal estate; it is will. generally allowed, that it may be made at the age of eighteen, and some say under, for the common law will not prohibit the spiritual court in such cases. 1 Inst. 89. 1 Hale, 17. The age of discretion is fourteen; and therefore it may seem that one may make a testament or personal estate at that age. A person is of age to be executor at seventeen; and an ad- May be an ministration of any one during the minority of an infant ceaseth executor. when the infant comes to that age. 5 Rep. Pigot's Case. 1 Hale, 17. his children. By 12 C. 2. c. 24. 8. Any person having child or children under May bequeath twenty-one years of age, and not married, may by deed or will the tuition of attested by two witnesses, dispose of the custody and tuition of such child or children, until they shall be of the age of twentyone, or for a lesser time; and this, whether such parent be within or above the age of twenty-one. An infant cannot answer but by guardian; but he may sue either by his next friend or by guardian. 3 Salk. 196. May sue by prochein amy. In what case he may release a debt. At what age he may be bound apprentice. Infant appren tice embezzling goods. Infant servant embezzling goods. If an infant of the age of seventeen years release a debt, this is void; but if an infant make the debtor his executor, this is a good release in law of the action. 1 Inst. 264. By the 5 El. c. 4. Persons above the age of ten years, by their own consent and agreement, may be bound apprentices. And by the 5 El. c. 5. Any person above seven years old may be bound apprentice to the sea service. By 56 G. 3. c. 139. § 7. after 1st October 1816, it shall not be lawful for any parish officers to bind out any child as parish-apprentice, until such child shall have attained the age of nine years. (For these matters, see tit. Apprentices, V. I.) By 12 An. st. 1. c. 7. It shall be felony without benefit of clergy to steal goods to the value of 40s. out of an house, though the house be not broken open; but this shall not extend to apprentices under 15 years of age. By 21 H. 8. c. 7. Servants above the age of eighteen, embezzling their master's goods to the value of 40s. shall be punished as felons. 2 Hale, 151. general. Information in LORD Hale says, though informations are practised oftentimes in the crown office in cases criminal, and by many penal statutes, the prosecution upon them is by the acts themselves limited to be by bill, plaint, information, or indictment, yet thus much is observable, that the method of prosecution of capital offences is still to be by indictment; and in all criminal causes not capital, the most regular and safe way, and most consonant to the statute of magna charta and other statutes, is by presentment or indictment of twelve sworn men. 2 Haw. c. 26. $ 1. Mr. Hawkins distinguishes informations into two kinds; such as are merely at the suit of the king, and such as are partly the suit of the king, and partly the suit of the party; and says, it hath been holden that the king shall put no one to answer for a wrong done principally to another without an indictment or presentment of a jury; but I do not find this distinction confirmed by experience; for it is every day's practice, agreeably to numberless precedents, to proceed by way of information, either in the name of the attorney general, or of the master of the crown office, for offences done principally to private persons, as for batteries, cheats, rescuing persons from legal arrest, perjuries, and subornations thereof, forgeries, conspiracies, and the like; as well as for offences done principally to the king, as for libels, seditious words, riots, extortions, disobeying the king's writs, abusing the king's commission to the oppression of the subject, and in general any other offences against the public good, or against the first and obvious principles of justice and common honesty. Informations partly at the suit of the king and partly at the Information qui suit of the party are commonly called informations qui tam, from tam. those words in the information when the proceedings were in Latin, qui tam pro domino rege quam pro se ipso, &c. 2 Haw. c. 26. § 17. Of near affinity to an information qui tam, is an action upon Action upon a the statute; which is either a private action, which is, when an statute. action is given upon a statute to the king and to the party grieved only; or a popular action, which is, where the action is given to the people in general, that is, to any one that will sue for the king and for himself. But if the king commenceth his suit before the informer, the king shall have the whole forfeiture. 7 T.R. 536. And he may, before the informer begins his suit, release the penalty to the offender, and bar all others; but if after a popular action is brought by the informer, the king's attorney will enter ulterius non vult prosequi, the informer may prosecute for his part. Wood's Inst. b. 4. c. 4. And in general, it seems that of common right an information 2 Haw. c. 26. at the suit of the king, or an action in the nature thereof, may § 2. be brought for offences against statutes, whether they be mentioned by such statutes or not, unless other methods of proceeding be particularly appointed, by which all others are impliedly excluded. But an information or action qui tam will not lie on any statute 2 Haw. c. 26. which prohibits a thing as being an immediate offence against the § 17. public good in general, under a certain penalty, unless the whole or part of such penalty be expressly given to him who shall sue for it; because otherwise it goes to the king, and nothing can be demanded by the party. But where such statute gives any part of such penalty to him who will sue for it by action or information, any one may bring such action or information, and lay his demand, as well for our lord the king as for himself. Also where a statute prohibits or commands a thing, the doing 2 Haw. c. 26. or omission whereof is an immediate danger to the party, and § 17. also highly concerns the peace, safety, or good government of the public, or the honour of the king, or of his supreme courts of justice, it seems to be the general opinion, that the party grieved may bring his action qui tam on such statute. By the 31 El. c. 5. 5. 6. All actions, suits, bills, indictments, or informations on any penal statute, whereby the forfeiture is limited to the king only, shall be brought within two years after the offence committed; if limited to the king, and to any other who shall prosecute, then within one year; and in default of such prosecution, then to be brought for the king, in two years after that year ended. Provided, that if they are or shall be limited by statute to be brought within shorter time, then they shall be brought within such time limited. 31 Eliz. c.5. In what time a qui tam action shall be brought. On any penal statute.] But if an offence prohibited by a penal 2 Haw. c. 26. statute be also an offence at common law, the prosecution of $ 44. it, as of an offence at common law, is no way restrained thereby. 2 Haw. c. 26. § 47. Two inform ations on the same day. 21 J. c. 4. In what county to be laid. Cra. Car. 112. 4 T.R. 115. To any other who shall prosecute.] That is, to a common informer; and therefore the party grieved is not within the restraint of this statute, but he may sue in the same manner as before. If two informations be exhibited on the same day for the same offence, they mutually abate one another. 2 Haw. c. 26. § 63. By the 21 J. c. 4. § 1. All offences against any penal statute, for which any common informer may ground a popular action, bill, plaint, suit, or information before justices of assize, justices of nisi prius or gaol delivery, justices of oyer and terminer, or justices of peace, in their general or quarter sessions, shall be commenced, sued, prosecuted, tried, recovered, and determined by way of action, plaint, bill, information, or indictment before the justices of assize, justices of nisi prius, justices of oyer and terminer, and justices of gaol delivery, or before the justices of peace of every county, &c. having power to enquire of, hear, and determine the same, &c. in the county wherein such offences shall be committed and not elsewhere [and by 31 El. c. 5. they shall be laid to be done in the county in which the matter alleged to be the offence was in truth done]; and that all informations, actions, bills, plaints, and suits whatever, hereafter to be commenced, sued, prosecuted, or awarded, either by the attorney general or by any common informer, or other person in any of his majesty's courts of Westminster, for or concerning any of the offences, penalties, or forfeitures aforesaid, shall be void and of none effect. And if the offence is not proved to have been committed in the same county, the defendant shall be found not guilty. 5. Provided, that informations, suits, or actions against popish recusants, or persons charged with maintenance, champerty, or buying of titles, may be laid in any county. Against any penal statute.] R. v. Gall, 1 Salk. 372. 1 Ld. Raym. 370. Holt Ch. J. said, ten judges had agreed that this statute doth not extend to any offence created since; so that prosecutions on subsequent penal statutes are not restrained thereby; but this statute is as to them, as it were, repealed pro tanto. For which any common informer may ground a popular action.] Therefore this extends not to any suit by a party grieved, or by the attorney general; but only to those brought by common informers. 2 Haw. c. 26. 29. General or quarter sessions, having power to hear and determine the same.] Yet this gives no jurisdiction to justices of the peace which they had not before; but only appoints that where informations might have been brought in the courts at Westminster or before justices of the peace, such informations shall be now brought before justices of the peace only. This act does not extend to all proceedings on penal statutes: it only prohibits the proceedings in the courts of Westminster in all those cases where popular actions, bills, plaints, suits, or informations might have been brought in inferior courts. When a power is given to a jurisdiction, which does not ordinarily entertain actions, bills, or plaints, to enquire of, hear, and determine the offence generally, it must be understood to mean by the common-law mode of proceeding, viz. by indictment or presentment. 4 T. R. 115. See title Sessions. |