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assigned them, and that therefore they are within this clause of the statute.

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.

in a civi


S. C. 1 Wils. 217; Fost. Cr. L. 61. An attainted THE defendant was a native of Great Britain, but a banker person charged

Tv at Paris, and indebted to the plaintiff in a bond of 10001. He leave of Chief' came to England, and was attainted of high treason; and being Justice not to be in prison, was by leave of the Chief Justice charged with a civil discharged on

" action on the part of the plaintiff. motion. | *31 1 * 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. 215; 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. Stanley's Case, 1 Sid. 159, 1 Keb. 649, 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. Hasting's Case, Noy, 1; Action of debt: defendant pleads an attainder, judgment quod respondeat; though the King if he pleases may execute him. An outlaw or attaint shall answer but not be answered. Hall

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and Trussel, Moor 753, same point. Foxworthy's Case, Salk.
500, cited by Attorney-General, was thus: He was pardoned
on condition to go beyond sea: motion to charge him *as in cus- -
todia marescalli. Holt denied it, because it might tend to de- [
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 un-
necessary, 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 un-
doubted. 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 con-
victed 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 par-
don 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 import-
ance 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, Raym. 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 have * been given. Asking leave of the Court to charge [ 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 prejudice the Crown or no, and is not bound to grant leave. Nor 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

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RAMSAY on condition of exile, the prisoner may be detained on a civil

suit; the consequence is, that he must be hanged if he can't :: pay the debt (f). 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 Foxworthy's 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 (h).

(f) 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's Ca., 3 East, 232; in Lawrence v. Laidler, 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 Crown side.

(g) 2 Stra. 873, 1 Barnard. B. R. 339, 341, 356, S. C.

(h) But the Court of C. P. will not bring a prisoner up by habeas corpus in order to charge him; Walsh v. Davies, 2 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. I Wils. 244. Court will not MOTION to set aside pleas in abatement, to an information in set aside upon

Gotion, a les 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 in the information) but a gentleman; the Aldermen that they
in the nature of
quo warranto.

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

and equally necessary on informations which is for matters in- The King dictable. No difference between an information for usurpa

HEYDON, tion, and for a misdemesnor. Usurpations at common law

(Mayor). punished by fine and imprisonment: But by statute these informations are allowed; and less strictness is not necessary on the statute, than at common law. K. and Bennet (i), a Shaftesbury Case, Geo. 1, information in nature of quo warranto and acquittal. Motion for a new trial. Opposed, because it was a criminal prosecution. Said on the other side it was a civil suit. Referred to the twelve Judges, who were equally divided, two of each Court (K). This a criminal suit, because a Crown-office suit. In Ward of Hackney's Case ((), process of outlawry went against him. The Court considers the usurpation as a crime, else they would not fine the defendant. K. and Jones (m) of the borough of Grampound, H. 15 Geo. 2, information in nature of quo warranto: Plea, not a proper addition: Set aside, because no affidavit annexed to the plea, not because a bad plea. K. and Wightwick, Mayor of Romney, 1734, same plea as the present; the Court refused to set it aside upon motion.

Sir Thomas Bootle, in support of the rule, argued, that at common law no addition is necessary; first required by stat. Hen. 5: and it may be questioned, if these prosecutions fall under this statute. Consider what the judgment here is, viz. to seize the office. No outlawry can be consequent upon it. * True, there may be a capias pro fine; but, 2 Inst. 665, in an [ *35 ] assise of novel disseisin, and capias pro fine thereon, it is said, that it does not come within the stat. Hen. 5, of additions(n). This is not a personal action, nor an appeal. Process of exigent does not lie here. No case cited to shew it. Bro. Addition 2, 2 Inst. 665; In return of rescous, though process of outlawry lies; yet the statute extends not to it, because the statute relates only to the original writ. In the K. and Wightwick, the plaintiff had replied; and not moved as now, to set it aside in the first instance as a sham plea. These pleas will bring in all the mishief that the statute 9 Ann.(0) was made to prevent. Their validity may be determined on motion, as well as on demurrer. The defendants have appeared generally, and by such appearance they have waved all advantage of this exception.

LEE, C. J.--I hate and detest all frivolous pleas; but I never will make too much haste, in determining matters which may

(i) 1 Stra. 101.

(k) In R. v. Francis, 2 T. R. 484, the Court said that of late years a quo warranto information had been considered merely in the nature of a civil proceeding; and that there were several instances since the case in Strange, in which a new trial had been granted. “This is properly a criminal method of prosecution, as well to punish the usurper by a fine for the usurpation of the franchise as to oust him or seize it for the Crown; but hath long been applied to the mere purpose of trying the civil right, seising the franchise, or ousting the wrongful

possessor: the fine being nominal only;"
3 Bla. Comm. 263. “ Being a kind of
civil proceeding, there ought to be no great
fine set on the party;" Bac. Abr. Informa-
tion (A). By 9 Ann. c. 20, s. 7, the 4
Ann. c. 16, and all the statutes of jeo-
fails are extended to quo warranto in-

(1) 2 Ld. Raym. 1461.
(m) 2 Stra. 1161.

(n) But Lord Coke says “ that a cap.
pro fine and exigent doe lie.”

() 9 Ann. c. 20; and see 32 Geo. 3, c. 58.

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be of consequence to the subject. Perhaps the merits may as well come before the Court on motion as demurrer. But I shall desire to look into the practice of the Court, and particularly the King and Wightwick.

Postea, Lee, C. J., Wright and Foster, Js., agreed that the plea could not be set aside on motion, and cited Sandwich and Lascelles, T. 8 Geo. 1, but Denison, J., inclined to overrule it. The whole Court expressed their abhorrence of this kind of plea; and Wright said they might consider such behaviour in the fine, if the merits should turn out against the defendant(p).

(p) From the report in 1 Wils. 244, it appears that the Court refused to set aside the plea on motion : that afterwards a demurrer was put in to the plea; and in giving judgment thereon, Lee, C. J., said, he was of opinion, that this case was not within the statute of additions; and judg

ment was given by the whole Court that the defendant respondeat ouster : and Lord Dacre's Ca., Crok. Eliz. 148, is there cited. And see Gray v. Sidneff, 3 B. & P. 395; Deshons v. Head, 7 East, 383, as to the want of an addition in a declaration ; Com. Dig. Abatement (F. 22, 23, 24).

limitations (9).

WILLET v. ATTERTON. The Court will THE plaintiff had signed judgment in assumpsit, which was not set aside a owing to a mistake made by the defendant's attorney's clerk. judgment, so as to allow the de

as I moved to set it aside on payment of costs. See Salk. 402. fendant to plead It was suggested on the part of the plaintiff, that the defendant the statute of meant to plead the statute of limitations. The Court would

not set aside the judgment, unless the defendant would undertake to plead the general issue.

(9) S. P. Stafford v. Rowntree, 1 Tidd's straining the defendant from pleading it; Pr. 585 (7th ed.). Nor to give the defendant Maddock v. Holmes, 1 Bos. & P. 228 : see advantage of a nicety in pleading; Forbes Rucker v. Hannay, 3 T. R. 124. So the v. Lord Middleton, 2 Stra. 1242. But a defendant may plead bankruptcy; Evans plea of the statute of limitations is now v. Gill, 1 Bos. & P. 52; or infancy, Dela. considered a plea to the merits, and there. field v. Tanner, 5 Taunt. 856, 1 Marsh. fore in C. P. an interlocutory judgment 391. See Tidd's Pr. ubi supra. was allowed to be set aside, without re

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pences will not

Bowles v. Johnson, Subpæna with- MOTION for an attachment against one Yerburgh, for not out tender of ex

* giving evidence at the assizes; he was subpænaed, but had no bring a witness offer to have his expences borne; but came to the assizes, where into contempt, money was tendered him for that purpose; but he refused to

nes be sworn, because this was an action of assault against Johnto the assizes and refuses to son, for a joint trespass with Yerburgh, against whom another be sworn. action was brought, in which Johnson was subpænaed to be a

witness against him.

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