fendant or defendants, against the information, suit, or action, and the said matters shall be then as available to him or them, to all intent and purposes, as if he or they had sufficiently pleaded, set forth, or alleged the same matter in bar, or discharge of such information, suit, or action." This right to plead not guilty by statute is reserved by Rules, 1883, O. xix., r. 12, ants, p. 283; by that rule, that defence shall have the same effect as it before had.

O. xxi. r. 19, ante, p. 284, requires the defendant when relying on the above section to insert in the margin of the defence the words "By Stat. 21 Jac. 1, c. 4 (Public Act), s. 4," otherwise such defence will be taken not to have been pleaded by virtue of the statute. See further on this rule, post, Part III. Actions against constables.

This section applies to actions on statutes subsequent, as well as prior to, its being passed. Spencer, El., v. Swannell, 3 M. & W. 154; Jones v. Williams, 4 M. & W. 375.

To an action for treble damages for pound breach, on 2 W. & M., sess. 1, c. 5, s. 3 (s. 4, Ruff.), the defendant cannot plead "not guilty by statute," for it is not a penal action within 21 Jac. 1, c. 4. Castleman v. Hicks, 2 M. & Rob. 422. See, however, Jones v. Williams, supra.

The effect of bringing an action for a penalty is to make it a debt due to the plaintiff, and judgment obtained in a subsequent action at the suit of another person is no bar to the prior action. Hutchinson v. Thomas, 2 Lev. 141; Girdlestone v. Brighton Aquarium Co., 3 Ex. D. 137. A prior action, however, brought by a person in collusion with the defendant, to prevent a recovery, at the suit of a bona fide plaintiff is no defence, and the fraud may be replied. S. C. As to what amounts to collusion in such a case, ride S. C. & S. C. in C. A. 4 Ex. D. 107.

The recovery of a penalty, by an informer, against a person for keeping a house for music and dancing without a licence under 25 Geo. 2, c. 36, & 2, is a bar to a recovery of a second penalty against the same defendant, at the suit of another informer, although the offence is committed on several successive nights. Garrett v. Messenger, L. R., 2 C. P., 583.

No damages are recoverable in a penal action, except the penalty. Frede rick v. Lookup, 4 Burr. 2018; Cuming v. Sibly, Id. 2489.

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