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especially at audit time, which would be very inconvenient to the public business of the Chapter.

The rule was granted, but understood to be at all times seasonable (b).

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Prohibition for trying the right of naming a churchwarden in Court Christian.

Williams V. Vaughan.

.M.OTION for a prohibition. Vaughan claims to appoint a churchwarden by custom, and institutes a suit in Court Christian against Williams, who was chosen by the parish. Williams moves for a prohibition. Mr. Pratt shewed for cause, that the nature of the office is entirely spiritual; Raym. 246; K. v. Jtees, Carthew, 393. But per Lee, C. J., churchwardens are considered as temporal officers in several acts of Parliament (a). Rule for a prohibition made absolute.

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Lloyd ». Wooddall.

S. C. 1 Wils. 216.

W OODFALL was a Serjeant in the Guards, and arrested at the suit of Lloyd, for a less debt than is allowed by the annual Mutiny Act to warrant the arrest of a soldier (a). Being removed hither by habeas corpus; it was insisted by Ryder, At- Llotd torney-General, Sir John Strange, and Murray, Solicitor- WoopDALL

Serjeant is privileged from arrests as well as private men.

Co) By the Mutiny Act, 53 G. 3, c 17, s. 114, (same clause continued in the annual Mutiny Acts), it is enacted, that "No person listing or entering himself as a volunteer in his Majesty's service as a soldier shall be liable to process, except for tome criminal matter or for an original

debt of 201. at least, over and above all costs." It seems, that if the original debt be under 202., but with the costs it amount to more than that sum, and then debt be brought on the judgment, a soldier is entitled to the benefit of the act: see Flanders v. Nicholls, Barnes, 433 (8vo. ed.).

General, that he was equally privileged as a common soldier, > „ '>

and therefore they moved for his discharge.

The Secretary at War sent a certificate to the Court, of the Certificate of nature of a Serjeant's station; which, though opposed, was al- wearSecre?ry at lowed to be read as evidence (6). evidence.

It was argued for the motion, that Serjeants are enlisted as common soldiers, quartered as such, under the same discipline, and equally entitled to Chelsea hospital. They may be degraded to private men by the commanding officer, which a commission officer cannot; he therefore remains a common soldier, though in a more exalted degree. If a common soldier is made an officer, he is discharged thereby from his tie of enlisting; and if broke afterwards, he cannot be retained as a private man. Drummers are considered as common soldiers; and in the case of Johnson and Lowth{c), 3 Geo. 1, a gunner was discharged by this Court as a common soldier, though he has a warrant, and one shilling per diem. The end of granting this privilege was to encourage enlisting, and to prevent the service from suffer*ing by having men taken out of it for small debts. [ *«0 J This end more frustrated by the arrest of Serjeants, than of private soldiers.

Mr. Ford, contra, argued that this Act was in derogation of common right, and must therefore be taken strictly. Defendant is an officer, though a non-commissioned one. Whenever the Act intends a distinction, it distinguishes the commissioned from the non-commissioned officers. Though Serjeants are in some respects put on the same footing as common soldiers, yet this does not prove them so in all other respects. If a common soldier resists a serjeant, he is punishable for mutiny; and mutiny is defined to be rebellion against an officer. Serjeants are officers in respect to billetting of quarters. Serjeants have a command, which drummers and gunners have not. The question is, not whether he may be reduced to a common soldier, but whether he is one at present; and the power of reducing him hereafter shews he is not one now. This precedent will extend to all agents, quarter-masters, &c. who are all on the same footing as Serjeants, being all of them equally warrant officers.

Lee, C. J.—This clause of the Act is intended for the encouragement of volunteer soldiers. The single question is, whether a serjeant is to be considered as a listed volunteer soldier. It is said they are properly officers: but they are considered in most respects as listed soldiers. I think they still remain listed soldiers; though they have a particular duty Lloyd assigned them, and that therefore they are within this clause

(i) A copy of the Articles of War, (c) 1 Stra. 7, 10 Mod. 346, S. C. See

purporting to be printed by the King's also Bayley v. Jenners, 1 Str. 2; Melltum

printer, is sufficient evidence of them; but v. Martin, Say. 107; Hickman v. Studwick,

the Court will not take judicial notice of 8 East, 105. But an out-pensioner at

them without; Withers' Case, 1 East, P. Chelsea is not within the Act; Bowltry.

C. 233; cited in R. v. Holt, 5 T. R. 446. Oaen, Barnes, 432.

foo*DALi. of the statute.

t Denison, J.—A serjeant is a soldier with a halbert, and a

drummer is a soldier with a drum.

The defendant was discharged per totam Curiam.

Ramsay V. M'donald.

S. C. 1 Wils. 217; Fost. Cr. L. 61. An attainted THE defendant was a native of Great Britain, hut a banker Fn acwSwXby at Paris, and indebted to the plaintiff in a bond of 1000/. He leave of chief came to England, and was attainted of high treason; and being josUce n°l,0 be in prison, was by leave of the Chief Justice charged with a civil motion?6 °" action on the part of the plaintiff.

[ *31 ] * Ryder, Attorney-General, moved to discharge him from this action, as being amesnable only to the Crown in his present state. Henley, contra.—The King hath no absolute property in the body of a person attainted: His property is limited, and if he waives it, the body is liable to all other claims. An attaint is not civiliter mortuus. If he be slain, his wife may have an appeal. He is capable of purchasing (d). If he commits any outrage, an action lies against him when pardoned. 3 Inst. £15; The body of an attaint may be taken in execution; nor can he make use of his attainder, even as a dilatory plea. No inconvenience will accrue to the prerogative, if attaints are allowed to be liable to civil actions; for the Crown may still execute the law. Nor will it limit the King's mercy, for he may still pardon either absolutely or conditionally, though not upon such condition as will be detrimental to the subject, such as going out of the kingdom. In Banyster and Trussel, Cro. Eliz. 516, adjudged that a person attainted could not plead his attainder, but was liable to be sued. Walmsley, J., indeed differed, but on such authorities, as rather made against him, viz. Staundf. 107. An attaint may indeed demand judgment, whether he shall be put to answer another felony; because such second trial can avail nothing to either the King or the subject. Secus, if it will avail any thing; for one attaint of felony, may be again attainted of treason, in order to vest the forfeiture in the King, provided the treason was prior. And if diver persons are robbed, the felon shall be convicted on each prosecution, for the benefit of the subject, in order to have restitution. Stanleys Case, 1 Sid. 159, 1 Keb. 640, 723; One attainted of murder: he comes into Court and pleads a pardon: it was agreed, he was chargeable with whatever was in the marshal's book; but not to be charged in Court, nor eundo vel redeundo, because under the protection of the Court. Hastings Case, Noy, 1; Action of debt: defendant pleads an attainder, judgment quod respondeat,- though the King if he pleases may execute nim. An outlaw or attaint shall answer but not be answered. Hall

(</) Co. Lit. 2 b.

and Trussel, Moor 753, same point. Foxworthy's Case, Salk. Ramsay 500, cited by Attorney-General, was thus: He was pardoned M,D0'

on condition to go beyond sea: motion to charge him * as in cm- - Onaud^

todia marescalli. Holt denied it, because it might tend to de- [ *32 ] feat the condition of the pardon, and the pardon shall not put the creditors in a better case than before (e). But here was an actual pardon: In the present case it is only suggested to be probable. Besides he was not then in custodia marescalli, being pardoned. It was impossible to charge him as such. He was entitled to privilege in going and coming, and during his attendance. Holt's reasons in that case (as reported) were unnecessary, nay, unworthy of himself. They prove too much. They will equally hold in a general pardon as in a conditional. But on a general pardon, the power of charging him is undoubted. If the chance of defeating a supposed conditional pardon be a reason for discharging the present defendant, the Court must declare that he is not liable to arrests, which they will not do. 'Tis strange, that it should be necessary to have the leave of the Court to charge attaints. It seems to have arisen in Charles the Second's time; 1 Lev. 124, 146. Though it is become the practice to ask leave, yet the subject has as much right to have it, as to plead double. It has formerly, Dyer, 245 b, been a practice to get oneself indicted and convicted of a clergyable offence, and then to plead the attainder to defraud the creditors. Trussel's Case arose from the same method. If he cannot be charged, the action is suspended; and a personal action once suspended is gone for ever: Finch L. 100 b; 1 Inst. 280. The Crown can never intend to pardon him (supposing it lawful) on such condition as must be attended with manifest wrong to the subject. And upon the whole, it is submitted that this is a cause of too much importance to determine by way of motion.

Ford, on same side, argued; that being charged he is now a prisoner to the plaintiff, as well as the Crown; and it would be unjust to take away the right of action once allowed. Foxworthy's Case shews, that if a man is once charged, the Court cannot discharge him. So held in 1 Sid. 90, Kaym. 58.

The Attorney-General, in support of the rule, stated that the question was, Whether the Court will give leave to charge him. For though leave has been given by the Chief Justice, ex parte; yet the Court will inquire, whether such leave ought to nave *been given. Asking leave of the Court to charge [ *33 ] shews, that without it there is no right. This practice is certainly as ancient as Dyer's time, as appears by the case cited from him. The Court is to see whether such charging will

Srejudice the Crown or no, and is not bound to grant leave. Tor is this such a case, as will induce the Court to exercise their discretionary power of granting leave. Foxworthy was in custod. mar. till he had paid fees. If, on pardons granted

(e) As to the effect of attainder and con- Cardigan, 6 T. R. 116; R. v. Haddenham, ditional pardons, see Bullock v. Dodds, 15 East, 463; 6 Geo. 4, c. 25. 2 B. & A. 25b. See also R. v. St. Mary

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on condition of exile, the prisoner may be detained on a civ3 suit; the consequence is, that he must be hanged if he can't pay the debt (/). This is a matter of state, and the King is the proper judge, whether it be for the benefit of the public, to grant an absolute or conditional pardon. The Crown has the absolute disposal of the defendant's person; and the plaintiff could have had no remedy against him, except by the pardon. Copping and Gunner, 2 Ld. Raym. 1572(g). Defendant was convicted on the Black Act, and suffered to be charged; but the reason given is, because it did not affect the Crown. The cases cited relate only to the matter of pleadings, and only shew that the defendant shall not be allowed himself to take advantage of his own wrong. Cro. Eliz. 213; Adjudged, that an attainted person shall not be put to answer in B. R. where the Crown is interested, but in C. B. it is otherwise.

Lee, C. J. and Cur.—A person attainted certainly is bound to answer. But the question here is, whether the order for charging the defendant was at the time of making it regular. It then only appeared that M'Donald was attainted. Not so in Foxworthys case, for there was a pardon. The case in Lord Raymond is mistaken. There was then an actual pardon, not barely a hint of one. Let the rule to shew cause be discharged, as the defendant was charged by leave of the Chief Justice. But you may move afresh to discharge the Chief Justice's order, which will bring the merits to be more properly considered.

No farther motion was made (/*).

(/) The bail of a person pardoned on condition of transportation, may bring him up by habeas corpus in K. B., to surrender him in their discharge; Vergen's Ca., 2 Stra. 1217; Fowler v. Dunn, 4 Burr. 2034; Sharp v. Sheriff, 7 T. R. 226. See also Taylor'sCa., 3 East, 232; in Lawrence v. I.aidler, 9 East, 155, n. (c). But not in C. P., Walsh v. Davies, 2 N. R. 245, for the habeas corpus must issue from the Crotim side.

(g) 2 Stra. 873, 1 Barnard. B. R. 339, 341, 35G, S. C.

(A) But the Court of C. P. will not bring a prisoner up by habeas corpus in order to charge him; Walsh v. Davies, i N. R. 245. Neither will the Court of K. B. bring a prisoner up from the house of correction, that prison being under the direction of the justices and not of the sheriff; Brandon v. Davis, 9 East, 154.

[ 34 ] The King V. The Mayor of Heydon and Others.

S. C. 1 Wils. 244.

Court mil not .MOTION to set aside pleas in abatement, to an information in motion, a plea of nature of quo warranto, against the Mayor and two Aldermen false additions in of Heydon. The Mayor pleads he is not an esquire (as stiled an information m the information) but a gentleman; the Aldermen that they are not gentlemen; but one of them a barber, the other a grocer. It was objected, that these are sham pleas; for there was no occasion for any addition, so that, if mistaken, it is only surplusage.

Sir John Strange shewed cause, that additions are necessary on indictments, in order to sue one to outlawry, 2 Inst. 670;

quo warranto.

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