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MORRISON

KELLY.

entitled to a copy of his indictment in order to prepare a plea of autrefois acquit; but the Court will direct it to be read over slowly; Vandercomb's Ca., 2 Leach, Cr. Ca. 711.

By 7 W. 3, c. 3, s. 1, persons indicted for high treason or misprision thereof shall, at their own expence, have a copy of the indictment delivered to them, five days at least before their trial, to enable them to make their defence. And by 60 Geo. 3 and I Geo. 4, c. 4, s. 8, in prosecutions

for misdemeanors by the Attorney or So-
licitor-General, the party prosecuted shall
have a copy of the indictment free of ex-
pence.

(e) S. P. Evans y. Philips, 2 Selw. N. P.
952, (ed. 1812). So a defendant is enti-
tled to a copy of a conviction by a magis-
trate, in order to defend himself against an
action for the same offence; R. v. Midlam,
3 Burr, 1720. See also Home v. Bentinck,
2 Brod. & B. 130, 146; 4 J. B. Mo. 563,
S. C.; and R. v. Dr. Purnell, ante, 39, n. (f).

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The King v. WARD. NORTON, Solicitor-General, moved for a habeas corpus to Habeas corpus Mrs. Ward, to bring in the body of Elizabeth Vernon, an in- for detaining a

child under age fant under twenty-one, who had eloped from her father, and lived for at Mrs. Ward's house, who was her aunt, and was suspected and rule for into be going to Scotland, with the privity of Mrs. Ward, in formation nisi. order to marry an Irish officer; Mrs. Ward having not only refused to restore Miss Vernon to her father, but also kept her from him by force.

Per Lord MANSFIELD, C. J., et Cur.--Take your habeas corpus, and let Mrs. Ward shew cause why an information should not be filed against her (a).

(a) See Musk's Ca., post, 805; Warman's Ca, post, 1204.

ooks, not a

The King v. Hart. CUST moved for a new trial. It appeared, that Mary Je- Expulsion from rom, the prosecutrix, was a quaker; but, being less rigid than a quaker's meet. the rest of her sect, the brethren, according to their usual ing, and reasons

assigned in their discipline, first admonished her for frequenting balls and concerts; then sent deputies to her, and lastly expelled her; libel. and entered as a reason in their books, “ For not practising “ the duty of self-denial.” This was signed by the defendant, their clerk. The prosecutrix sent her maid for a copy of the entry, which was delivered to her by the defendant, and was the only act of publication proved. She thereupon moved the Court for an information for a libel, which was denied: * whereupon she preferred an indictment, which was found at [ *387 ] Nottingham Sessions, and removed into B. R. by certiorari, and tried at last Nottingham Assizes before Mr. Justice Clive, who left it to the jury, and they brought in the defendant guilty. It was argued to be irregular to leave it at all to the

The King

HART.

jury, upon such an evidence only of publication; 5 Mod. 167 (6). But as the Judge was dissatisfied with the verdict, the whole transaction being merely a piece of discipline (in which the Court strongly concurred), they for that reason granted the new trial, in the first instance, without any rule to shew cause; Serjeant Hewit having attended to watch the motion on the part of the prosecutrix, and confessed the dissatisfaction of Justice Clive at the verdict(c).

(6) It was fully considered what acts amount to a publication, in R. v. Burdett, 4 B. & A. 95, where all the authorities are

referred to See Baldwin v. Elphinston, post, 1037.

(c) Bac. Abr. Libel, (A) 2.

servant from

to the then he commencent, differemust con

Bird v. Randall. (S. C. Ante, 373.) No action lies THIS case was again argued by Norton, Solicitor-General, for

his plaintiff, and Morton for defendant, who argued, that if this master, who has action would lie, actions would lie for seduction during the paid the penalty whole time originally specified in the articles, and yet nobody stipulated by his articles for leav

can be now guilty of seduction, as the service is at an end by ing him. agreement. And he cited, Cro. Eliz. 237; Hutt. 98; Cock

and Jenner, Hob. 66.

Lord MANSFIELD, C. J.-There are two questions in this case; 1st. Whether in case the 1001. had been actually paid to the plaintiff before the commencement of this action, he could then have maintained it. 2dly. Whether the payment of it after the commencement of this action, and before the trial, makes any, and what, difference.

1st. In respect to the first, we must consider the true construction of all articles guarded with a penalty. Upon these there are two remedies to be pursued at the option of the party injured. He may, as often as the articles are broken, have toties quoties an equitable relief upon the footing of the articles themselves, for a partial breach of contract. If the servant absents himself a week or a month, the master may recover a proportionable satisfaction in damages. But there is besides

another remedy given in terrorem, by way of punishment, [*388 ]

beyond the value of the injury done, and * therefore called a penalty. It carries with it a more than equitable satisfaction given to the party, who will rigorously insist upon it. This gives rise to many suits in equity, to relieve against the penalty. And when equity, considers it only as a security to enforce the performance of the thing, it will relieve against it;—when, as a rigorous punishment, it will not then interpose. But when a man once takes the penalty, he totally discharges the other party from any future obligation, and has recovered all that he can ever claim under the articles. The articles are gone, and absolutely determined. In the present case the master has elected the penalty; the servant cannot return again; and therefore there is a total end of the articles as between the master and servant. As to the seduction, a bare solicitation to

RANDALL

leave the master is doubtless no cause of action. It is the ac- BIRD tual injury sustained, that grounds the suit. For the servant may be unable to pay the damages, and therefore the law subjects the seducer. But here there is no injury remaining: The whole is done away by the exaction of the penalty: Otherwise, it would be adding to the penalty beyond the agreement of the parties. The penalty is the stated ground. Whoever takes another man's servant under fetters, always estimates what he must pay for the purchase of such service, and virtually deducts it out of the servant's wages. He computes, that without paying such a penalty he could afford to give the servant more; if he pays it, he must give him less. Therefore, we are all clear of opinion, that, if the 1001. had been paid before the action brought, no action could possibly lie against the present defendant.

2dly. As to the second point: There is no analogy between In actions on the this case and actions upon trespasses or joint contracts. Tres- case, satisfaction passers are all equally principals. In joint contracts all are

an are plaintiff pending bound to answer in solidum, and the party may take out execu- the snit will tion against one only, and have only one satisfaction. They take away his are also formal precise actions, which are stricti juris. This remedy. is an action upon the case, which I have often observed is almost equivalent to a bill in equity. Whatever appears upon the trial that takes away * the equity, will take away the re- [ *389 } medy (d). The plaintiff' must recover out of the justice of his case. As at the trial it appeared that the money had been paid, therefore the action appeared to have been brought

mad

the

(d) A matter of defence arising after the commencement of the action, and before plea pleaded, cannot be taken advantage of on the general issue; and if pleaded, it cannot be pleaded generally with a prayer of judgment, “if the plaintiff ought to have or maintain his action ;" but it should be pleaded in the nature of a plea puis darrein continuance, and pray judgment, “if he ought further to maintain his action :" if such matter arises after plea pleaded, then it is the subject of a plea puis darrein continuance. For actio non goes to the commencement of the action, and not to the time of pleading: though the contrary was held by Ld. Mansfield in Sullivan v. Montague, 1 Doug. 106. A plea of set-off, that the plaintiff was indebted at the time of the plea pleaded is bad; it should state, that he was indebted at the commencement of the action: and Buller, J., said, that a judgment recovered after action brought and before plea pleaded, could not be pleaded by way of set-off; Evans v. Prosser, 3 T.R. 186. If a plaintiff become alien enemy after the commencement of the action, but before plea pleaded, that fact ought to be taken advantage of, in strictness, by a plea in the nature of a plea puis darrein continuance; Le Bret v. Papillon, 4 East, 502: but in

that case, the Court, looking at the whole
record, gave judgment for the defendant.
Yet a bankrupt's certificate, allowed after
the filing of the plaintiff's bill, and before
plea pleaded, is evidence to support the
general plea of bankruptcy, i. e. where the
bankruptcy arises before action brought;
Harris v. James, 9 East, 82.-See also
Kinnear v. Tarrant, 15 East, 622; Tower
v. Cameron, 6 East, 413, as to pleading
bankruptcy. Where the provisional as-
signee of a bankrupt's estate commenced
an action, and the estate was then assigned
by him to new assignees after the issuing
of the latitat, but before declaration, and
the defendant pleaded the general issue;
it was held that such assignment was no
answer to the action upon that plea : but
the Court intimated that it might have
been pleaded specially. And Abbott, C. J.,
said: “The rule is, that the plaintiff shall
recover, where the general issue only is
pleaded, if it appear that he had a cause of
action at the time of issuing the writ;"
Page v. Bauer, 4 B. & A. 345. So co-
verture arising after the writ issued cannot
be given in evidence, but must be pleaded
in abatement; Morgan v. Painter, 6 T.R.
265. See also Hull v. Pickersgill, 1 Brod.
& B, 282; 3 B. Mo. 612, s. C.

BIRD

v. RANDALL.

against conscience. There was a collusion in the lying by.
After judgment against Burford, before he receives the money,
he brings his action against Randall; and after having brought
the action, then he receives the money. Suppose a man brings
an action on the case for goods sold, and two days after bringing
it he receives the money; I should have no doubt, if this ap-
peared at the trial, that he should not recover. We are all
therefore of opinion, that this circumstance has made no dif-
ference in the case. The Court, on motion, would have stop-
ped the action(e), on shewing the money paid.
Postea delivered to the defendant, with

Judgment of nonsuit thereupon.

(e) Where A. & B. recovered in sepa. rate actions for libel, against two persons concerned in che same publication; and then commenced fresh actions against the same parties, each suing that party against

whom the other had recovered in the former, the Court would not interfere in a summary way, to stay the latter proceedings; Martin v. Kennedy, 2 Bos. & P. 69.

The GOVERNOR and COMPANY for smelting Lead v. RICHARD

son and Others.

S. C. 3 Burr. 1341. Lead mines not TRESPASS for taking their goods. On not guilty pleaded, rateible to the verdict for plaintiffs on this special case: That plaintiffs were poor.

lessees of certain lead-mines in Aldstone in Cumberland under Greenwich Hospital, rendering for rent a certain portion of the ore acquired. The mines were worked by their servants, but the plaintiffs never resided in Aldstone. That for six years past the profits to Greenwich Hospital were, at an average, 19001. per annum; but the profits to the adventurers were casual and uncertain, nor did it appear on the trial whether they made any profits or not. That lead-mines, in the north of England, have never been rated to the poor till three or four years ago, when a few were rated. That the poor have increased in this parish by means of working the said mines. That a rate was made at Christmas, 1760, in which the plaintiffs were assessed, and refused payment; whereupon a distress was made, for which this action was brought against the overseers, and the justices who granted the warrant. The question upon the whole was, whether the plaintiffs were liable, in respect of the said lead-mines, to be rated to the relief of the

poor. [*390 ] * Morton for defendants argued, that coal-mines, which are

expressly named in stat. 43 Eliz, as rateable to the poor, are put for example only, and intended to extend to other property of a similar nature (f).

But by the Court, Lord MANSFIELD, C. J.—The question only lies upon the occupation under the statute: inhabitancy is out of the case. If any species of property is omitted out of the statute, the Court cannot extend it on reasons or arguments

(5) See 1 M. & S. 616, per Lord Ellenborough.

ab inconvenienti. It must depend on the words of the statute, LEAD COMP. which only mentions coal-mines(g). If it had not meant to ex- . v. cept others, it would have said in general, “mines.” There RICHARDSON. might be a reason, why the Legislature might only name coalmines. Other mines are of a peculiar nature, and governed by particular laws. The occupier of mines is quite different from the owner of the soil; and there is a difference between the bare worker under ground, and the lessee of land in which mines may be situated. Such lessee may certainly be rated in respect of the land. In Cornwall there never was a supposition that mines are rateable.

DENNISON, J., accord. Foster, absent.

WILMOT, J.-In stat. 31 Eliz. (1) as to cottages, the act specífies cottages erected near coal-mines, and other mineral works; which shews, that when other mines are intended to be included, they are particularly mentioned.

Postea delivered to the plaintiffs (i).

(g) A coal mine becoming unproductive, and ceasing to be worked, is not rateable, although the lessee be bound still to pay the reserved rent; R. v. Bedworth, 8 East, 387. But it is rateable although worked at a loss; R. v. Parrot, 5 T. R. 393.

(h) C. 7, s. 4.

(i) See the observations of Lawrence, J., on this case, in 2 East, 167. So iron mines are not rateable ; R. v. Canningham, 5 East, 478. But the lessee under the Crown of lead mines, is rateable for the profits from lot and cope, which are duties paid him by the adventurer without any risk to him; Rowls v. Gell, 2 Cowp. 451. So are persons entitled to toll-tin and farmtin, for the same reason; R. v. St. Agnes, 3 T. R. 480. So are the lessees of the lord of the manor's lot, toll, or freeshare of calamine; R. v. Baptist Mill Comp. 1 M. & S. 612; as occupiers of land, though not actually resident. So where the owner of the soil reserved one-eighth share of tin,

tin-ore, &c., the same being picked, made
merchantable, and fit to be smelted, to
be paid in ore or in money, and he had
received it in money: he was held liable
to be rated for this eighth share as an oc-
cupier of land, conformably to the cases of
Rowls v. Gell, and R. v. Baptist Mill Com-
pany; R. v. St. Austell, 5 B. & A. 693, 1
D. & R. 351. But a non-resident lessor
of lead mines is not rateable for the rent,
whatever question might arise as to a cer-
tain quantity of ore reserved; R. v. Bishop
of Rochester, 12 East, 353; R. v, Welbank,
4 M. & S. 222, S. P. Neither is the owner
of lead ore rateable in respect of duty-lead
reserved in a lease, being one-fifth of the
lead to be smelted from the ore, the re-
servation being considered in the nature of
a rent; R. v. Earl of Pomfret, 5 M. & S.
139, where Ld. Ellenborough delivered an
elaborate judgment upon the rateability of
mines. But lime-works, R. v. Alberbury,
i East, 534; and slate-works, R, v. Wood-
land, 2 East, 164, are rateable.

PRICE v. Neal.

S. C. 3 Burr. 1354 CASE for money had and received for plaintiff's use: On Drawee of a non assumpsit pleaded, verdict for plaintiff on this special case. forged bill who A bill of 401. was drawn in the name of one Sutton on

an accepts and

pays, or pays it the plaintiff, dated 220 November, 1760, which in the course only, cannot reof trade was indorsed to the defendant for a valuable con- cover back asideration, and notice of it left at plaintiff's house the day gain it became due. Plaintiff sent his seryant to take up the bill, who did so, and paid the money. A second bill was drawn, *1st February, 1761, on plaintiff, in the same name, which [ *391 ] plaintiff accepted, and wrote an order thereon for his banker

the payee

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