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[81b] pleaded, that since the last continuance, scil. since Octab. Mich. last, from which day the said plea was continued till this Octab. Hillar. the plaintiff's administration was revoked and committed to the defendant.

Plea puis darrein continu

And it was agreed that upon these adjournments and ance after de- continuances of demurrers, the plaintiff might be nonsuit murrer or is- at the day in another term, whereunto it is adjourned, and

sue.

317.

2 Cr. 35,

3 Le. 28. by the same reason he may plead a plea puis darrein conDy. 226. Pl. 40. tinuance. And it was also agreed, that if he or the plaintiff should here take issue or demurrer upon this plea, yet the court must consider also upon the first demurrer; for if upon that standing confessed by the demurrer, the plaintiff could not have his action, the court cannot give judgment for him, howsoever the latter issue or demurrer pass. But otherwise it were if the first had been an issue, for then nothing were confessed to his prejudice, and then that had been utterly relinquished by a second issue on demurrer. Quare. Carter's R. f. 134,

Ante 67. Trin. 13 Jac. Rot.933. Calling a man thief after a

CUDDINGTON vs. WILKINS.

An action lies for calling one a thief after a pardon general or special. CUDDINGTON brought an action of the case against Wilkins, and declared, that 1 Martii 10 Jac. the defendpardon, general ant had spoken to him these words, viz. he (meaning the or special. Mo. plaintiff) is a thief, and why will you take his part? To 294. Latch. 81. which the defendant pleaded, that 1 Augusti 36 Eliz. the sur case B. 104. plaintiff did steal six sheep of one I. S. by force whereof, 23. 217, 218, &c. and so he justifieth them. The plaintiff by protesta

863, 872. Post.

Ant. 67. Act.

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tion saith, that he stole not the sheep, and pleads the general pardon, 7 Jac. and avers that he is none of the persons excepted. Whereupon the defendant demurred in law. And now this term it was adjudged for the plaintiff; for the whole court were of opinion, that though he were a thief once, yet when the pardon came, it took away not only pœnam but reatum, for felony is contra coronam et dignitatem regis. Now when the king had discharged it and pardoned him of it, he hath cleared the

[81 c]

[82]

Ant. 67. Char

ter d' pardon,

B. 2.

person of the crime and infamy, wherein no private person is interested but the commonwealth, whereof he is the head, and in whom all general wrongs reside, and to whom the reformation of all general wrongs belongs. And therefore suits for defamation by private persons in Spiritual Courts are pardonable by the king, even after 5 Co. 50. sentence, because though they be sued sometime by the party grieved, yet he is not but in the nature of an informer, and the sentence is not to give him amends, but pro salute animæ, for example's sake. And so are the suits in the Star Chamber. And to show the force of the king's pardon, the chief justice then cited two books, 1 and 2 E. 3. Fitz. Coronæ 281, 154, wherein it is adjudged, that if in an appeal of felony, the defendant do offer trial by battle, the plaintiff may counterplead it, by saying the defendant, being apprehended, escaped, or brake prison, which presumes a guiltiness. And yet those books are ruled, that if the king pardon that breaking of prison, the defendant shall be restored to the battle, and the counterplea taken away. And yet the reason of the presumption of the guiltiness is the same after pardon as it was before. But the reason of the case is, that the king's pardon doth not only clear the offence itself, but all the dependencies, penalties and disabilities incident unto it, and that against the appellant. For though the appellant hath an interest 5 Co. 47. a. in the original fact, which the king would not discharge 14. a. as against him, yet in the breaking of the prison he had none but oblique. And it was said, that he could no more call him thief, in the present tense, than to say a man hath the pox, or is a villain, after he be cured or manumissed, but that he had been a thief or villain he might say. And it was held no great difference, though Cr. Jac. 573. this had been a special pardon, and not known to the defendant, for he must take heed at his peril that he do no man wrong. And there is no necessity nor use of slanderous words to be allowed to ignorants. But it may well be, that if a man had committed felony, and got a secret Ant. 67. Syd. pardon, yet another man not knowing of the pardon may fame a suffijustify the apprehending of him for felony, because it is ad- to arrest for

6 Co. 13. b.

52. Common,

cient warrant

felony. Lon

don.

[82 a]

vancement of justice; even as a common voice and fame is a sufficient warrant to arrest for felony, though the 1 Syd. 52. False imprissame be not true. But so it is not to call him thief, onment, B. 16. for that is neither necessary nor advanceth nor tends to justice. Vide residuum supra. See for the force of a par

don in parliament, C. lib. S.
upon it there. (1)

13, 14. and my discourse

(3) This case is cited with approbation by Starkie in his Treatise on Slander, p. 180.

Hill. 10 Jac.
Rot. 1763.

An action of debt brought upon a lease.

7 Co. 56. b. 1 Ro. 459. 1 Brnl. 75.

Goldsb. 129. Statute merchant, Br. 41.

is not forfeited without de

mand. Post.

GROBHAM VS. THORNBOROUGH.

The extent of a statute does not change the possession of the land until liberate executed.

In an action of debt of one hundred pounds part for rent and part nomine pœnæ, the judgment may be divided so that the plaintiff may recover for the rent only. (Vide post. 133:)

Nomine pænæ is not forfeited without demand.

Want of venue is cured where the adverse party confesses the matter.

SIR RICHARD GROBHAM brought an action of debt of one hundred pounds against Thornborough and others, and declared upon a lease made at London of the manor of Leckford Richards, in the county of Southampton, and of a capital messuage in the same county of Southampton, and four closes pasture to the same messuage adjoinNomine pænæ ing, lying in Leckford in the same county of Southampton, &c. rendering one hundred and twenty pounds a year, 133. Hutt. 23. with a nomine pœnæ of eight shillings a day for nonpayment, and then shows that sixty pounds was behind for half the year, at such a feast, and so remained behind by the space of a hundred days, making forty pounds, so together the one hundred pounds. The defendant confessed the demise, and pleaded an extent of the land by a stranger, upon a statute acknowledged before the demise, but shows that the liberate was executed after the rent due: whereupon the plaintiff demurred, and judgment was given for him for the sixty pounds rent, because it was due

An hundred

pounds de

manded, part for rent, part for pain, judg ment is divid ed. Extent charges not

possession till

liberate. Cr.

Car. 149. 2 Le.

21, 28. 2 Cr. 25. 3 Cro. 906,

478. Post. 89.

Tender, B. 20, 43. Cr. Jac. 618. Cr. El.

363. 2 Cro.125, before the liberate executed. (1)

365.

(1) On a statute-staple, or recognizance in the nature of a statutestaple, if the conusor cannot be found within the staple, nor his goods to

And though the lease were ill laid in the declaration, [826] inasmuch as the capital messuage is laid in no town, but

in the county at large, neither can be holpen by the town set for the four closes, for the sentence is perfected for the house and finished before; yet that fault, being but want of visne, is cured, because the defendant hath confessed the lease.

Want of visne

where the ad

fesseth the

But for the forty pounds pain, it was adjudged against 6 East. 348. the plaintiff, because he laid no actual demand of his hurts not rent at the day, without which a pain is not forfeited. (2) versary conThough a demurrer confess the fact well pleaded, yet if matter 2 Cro. the defendant here had demurred, he might have taken Mo. 358. Post. advantage of the ill laying; but here the defendant did 153, 133, 331. both admit the lease by pleading the extent to defeat it, and yet more did confess it directly by a bene et verum, reason of the &c. And a lease so made is good. (3)

the value of his debt, the first process, after the certificate under seal in chancery, is a writ, in nature of an extent, to take the body, land and goods, which is returnable into chancery. The sheriff, after the extent, cannot deliver the lands to the conusee, but must seize them into the king's hands; and in order to get possession of them, the conusee must sue out a liberate, which is a writ issuing out of chancery, reciting the former writ and return, and commanding the sheriff to deliver to the conusee all the lands, &c. if the conusee will have them, by the extent and appraisement made thereof, until his debt shall be satisfied. 2 Tidd's Prac. 949.

(2) 1 Saund. 287, b. in notis, accord.

(3) In an action of debt for use and occupation, it is not necessary to set forth any demise of the premises, nor for what term they were demised, nor what rent was payable, nor for what length of time the defendant held and occupied the premises, nor when the sum demanded became due, nor for what space of time, nor where the premises lay. 6 T. R. 62, Wilkins v. Wingate. 6 East 348, King v. Fraser. 6 T. R. 63, Stroud v. Rogers, n. (b.)

See infra 89.fo.

Rich's case.

Observe the

difference. 2 Co. 20, 123, 686.

VIRELY US. GUNSTONE.

[83]

A writ of inquiry of damages directed to the sheriff cannot be executed by the bailiff of a liberty.

13 Jac. & T.

THOMAS VIRELY brought an action of the case against Norfolk H. Roger Gunstone, clerk in the king's bench, for calling 12 Jac. Rot. him perjured fellow, and had judgment by nihil dict.; 252. Checq. cham. Perjured and thereupon had a writ of inquiry of damages to the fellow. 1 Cr.

319. 4 Co. 65. b.

[83 a]

Breif de Br. 19. ages by in

Inquiry of dam

quest of office

by a baily of liberty.

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sheriff of Norfolk, thus; Præceptum est vic. quod per sacramentum duodecim proborum et legalium hominum de balliva sua diligenter inquirat quæ damna, &c. Whereupon the sheriff returned, Quod mandavit Johanni Gestingham ballivo libertatis Rad. Hare mil. hundredi de Blackclose cui execut. præd. brev. totaliter restat. fiend. et quod alibi infra Com. præd. per se fieri non potuit. Qui quidem ballivus sic sibi respondit. And so sets down an inquisition before the bailiff, and forty pounds. damages. Hereupon a writ of error was brought into the exchequer chamber, and agreed by all the judges that the return was insufficient, for it was apparently untrue, and against law, because the warrant was directed to the sheriff himself to be executed in any part of his shire, and no venue contained in this inquest of office, as there is in sheriff false in other writs, which entitles the bailiffs of liberties. But yet the court would not reverse the judgment, because there were diverse of the like, both in the king's bench and common pleas, especially in Suffolk and Norfolk in later times.

Return of a

law.

2 Cro 319.

Co. Ba.

Pasch. 19 Jac. in Co. B. it

was adjudged, &c. that after

an administration committed, the ordinary hath not power to dis

pose of the rest

SLAWNEY'S CASE.

The ordinary cannot, by stat. 21. H. 8. order distribution of the surplus of an intestate estate, among the kindred of the intestate.

The meaning and exposition of statutes and obligations are to be judged by courts of common law.

In the prerogative court, Sir John Bennet, the judge, according to the custom, hath taken bonds of one Slawney, upon granting of an administration, upon the conditions usual there; whereof one is, that the administrator shall dispose of the surplusage of the goods, after the of the goods to debts and legacies paid, according to the direction of the court. Whereupon, the intestate having left a wife, to whom the administration was committed, the judge did now find a surplusage in her hands, and did sentence that the administra- she should give certain portions to certain of the kindred of V. Winch Re- her husband, being not of his children; whereupon a pro

the children of the intestate, but by the in

tent of the stat. of 21 H. 8. they shall remain to

tor. 1 Cro. 202.

ports 11. The

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