CRANE US. TAYLOR. WILDEN US. WILKINSON.

CRANE US. TAYLOR.

Construction of divers statutes relating to leases by ecclesiastical persons.

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439

[269]

WILDEN US. WILKINSON.

The condition of an obligation to save the plaintiff harmless, may be expounded by matter dehors.

Where one of two joint judgment debtors give security to the creditor for the payment of the debt, he may, with the consent of the creditor, take out the execution and levy it upon the other debtor. Semb. (1)

Obligation.

Goldsborough.
obligation ex-

matter dehors.

JOHN WILDEN brought an action of debt against John Civit. Eborum. Wilkinson, upon an obligation of one hundred pounds; Condition of an the condition was to save the plaintiff harmless from all pounded by a actions and damages that might arise, upon the release of 1 Roll. 432. the defendant out of execution, (being then in execution 271 or 280. at the plaintiff's suit,) from all persons that might trouble Ant. 263. him concerning the said release.

The defendant pleads that the plaintiff levied a plaint in the court of York, against one Nuttall, for a debt of an

(1) In this case it does not appear that this judgment creditor had himself taken out any execution, or that the judgment had been actually satisfied. The security for payment, not being of so high a degree as the judgment, did not operate as an extinguishment. Vide ante 68. n. But if a judgment creditor discharge one of several defendants taken on a joint execution, he cannot afterwards retake him or any of the others. 6 T. R. 525, Clark v. Clement. So where one of two judgment debtors paid to the creditor's attorney the amount of the judgment, taking his receipt therefor in full satisfaction, but the payment was not endorsed on the execution; it was held that the execution could not afterwards be levied on the goods of the other debtor for his moiety of the debt for the benefit of him who had made the payment, such payment being, in law, a discharge of the execution and a satisfaction of the judgment. 9 Mass. 138, Hammatt v. Wyman. So where one of two judgment debtors gave security for the debt, but instead of the execution being returned satisfied, it was, with the assent of the creditors returned unsatisfied, and an alias execution taken out, upon which the other judgment debtor was committed, for the purpose of compelling him to contribute his share of the debt for the benefit of him who had given security, it was held, on audita querela, that the imprisonment was unlawful, it appearing that the debt was actually paid before suing out of the audita querela. In delivering the opinion of the court, Parker C. J. says, 'We think it immaterial whether payment was made before or after the issuing of the alias execution. If before, the execution issued improvidently or fraudulently, and would be therefore void; if after, its virtue was gone, and the plaintiff could not lawfully be held in prison under it.' 17 Mass. 153, Brackett v. Winslow. See also ante. p. 206. n. (2.)

Winch. Ent.

1

:

[269 a] hundred pounds; and that he and one Hart became his bail; that the plaintiff had judgment against Nuttall, and also against the bail; and this defendant was thereupon taken in execution, and the plaintiff released him; which is the same release in the condition, and so concludes, that he did save him harmless, &c. The plaintiff replies, and confesseth the plaint, bail and judgment, ut supra, but saith further, that before the defendant was taken in execution, Hart, the other bail, gave him security for his money, and in consideration therereof, the plaintiff promised Hart that he might take out and lay the execution upon the defendant, and that he would not release him without the consent of Hart; whereupon Hart procured him to be taken in execution, and then moved the plaintiff to discharge him, who acquainted him with his promise to Hart, ut supra, and thereupon the defendant made him this bond, with condition, prout; and then showed that thereupon he discharged him; and Hart brought his action for breach of the promise in the king's bench, and recovered an hundred and fifty pounds

Ant. 264.

[270]

damage; et sic damnificatus: whereupon the defendant demurred in law, and judgment was given for the plaintiff, against the opinion of Hutton, who thought that the condition was to be understood only by the word of damage directly growing by the release, and not by any collateral act dehors, as is this promise. But the reason that moved the judgment, was, that this condition did carry a forcible and apparent intent of saving harmless of some damage that might arise, not upon the release alone, but upon some external and collateral thing besides the release, and yet by the means and occasion of the release; for the words are, 'to save harmless, &c. from all persons that might trouble him concerning the said release.' Now no other person could molest or trouble him for the release of his own debt only, wherein no man could have to do but by means dehors; and where it was said the replication was but matter of equity, it is not so, but it was a necessary part in law to make it appear to the court, that this breach was within the condition, which was otherwise general, and to be taken as Hutton took it, and as the bar is; and the declaring of this promise to the defendant, whereupon he gave the bond, doth also somewhat help the case, though I am of opinion it would have served without it, for he takes upon him at his peril to defend him against all damage concerning the release. Now Hart's action was exactly laid according to the promise, for otherwise there could have been no lawful damnification.

[270 a]

COURTEEN'S CASE.

Star chamber punished transportation of money as an offence at common law. Where several are joined in one bill, for several offences of the same kind, it will be considered as several bills.

A penal statute shall not be extended to life by ambiguous words; and therefore a statute giving forfeiture of body shall be construed to extend only to imprison

ment.

After pleading not guilty, the defendant cannot plead a pardon, by way of rejoinder.
Whether a general pardon extends to aliens, quære?

Star chamber.

YELVERTON, attorney general, exhibited a bill in the 1 Ro. R. 299. Pop. 149. star chamber against William Courteen, and seven or eight score Dutchmen, for buying and transporting of sundry great sums of money, since the beginning of the king's reign; and laid his bill, that they had jointly and severally bought and transported great sums, in general, naming no certain sum; that is to say, William Courteen so much certain, and every one after another his portion certain. Upon this bill, Delew, one of the defendants, Ant. 171. demurred in law, because this offence was made by law penal, and therefore ought to be sued within the time prefixed for penal laws.

Again, the statute gives for this offence forfeiture of body and goods, and so makes it capital. This demur was referred to the chief justice, and to me, overruled it.

To the first, the bill was laid not as an offence against Transportation a statute, but against the state policy, and safety of the of money is an kingdom, and so punishable, and not permitted by the the common common law.

[270 b]

give forfeiture

To the second, we resolved clearly, that no statute could be extended to life by doubtful and ambiguous of body extend words, and therefore the forfeiture of the body shall be understood the loss of liberty, and use of his body, by imprisonment.

not to life. Post. 293.

Many several bills though but in one writing.

Ant. 171.

This case the attorney brought to hearing against divers, and served some of them with proces ad audiendum judicium, and some not.

Now though the common rule of star chamber is, that if one defendant be served to hear judgment, that it serves for all; yet in this case it was resolved upon debate, that it could not be so. For precedents of courts, as well as laws, are built upon reason and justice, et tant. habent de lege quant. habent de justitia. Now in this case, though there is but one writing or bill against all the defendants, yet it is as many bills as defendants, because they are so many several parties and offences; for though he did lay the offence, first, jointly and severally, yet that is corrected or explained by the several application of a distinct portion to every person, and so the word 'joint' is frustrate, and so there is no reason that the serving of one defendant should make another answer, that hath nothing to do with him or his cause; for it is not the parchment, but the matter, that makes one or sundry bills.

[271] In this suit most of the defendants had pleaded in bar Pardon general not guilty, and afterward, in their rejoinder, had pleaded

pleaded in rejoinder after not guilty. cap. 24.

Pardon general, whether it extends to aliens.

the pardon by parliament, 7 Jac., which did extend to buying of money, but not to transporting; whereupon two questions arose :

First, whether so many of the defendants as were neither naturalized nor indenized, were capable of the pardon. Secondly, whether it were receivable, not being pleaded in bar.

To the first it was urged, that the general pardon in the preamble, and in all parts, useth the words of loving and obedient subjects;' whereupon the chief justice did in a manner expressly hold them out of relief. But I did avoid that question, as being not necessary; for we all agreed, that it did no good in the rejoinder, for these [271 α]

reasons.

1. 'Not guilty' is the proper and perfect general issue, and needs no rejoinder.

2. Secondly, rejoinder must not merely depart from the bar, as this doth, and more, for it implieth a contradiction, the one innocent, the other pardoned as nocent.

3. Thirdly, upon answer, which is upon oath, the defendant is examined upon interr.; and both make but one answer: but upon the rejoinder, which is without oath, he is not examined, and yet he pleads matter of fact, that he is none of the parties excepted; and so against the course of the court, he pleads, without oath, matter to bar the suit.

But to the other point, I told the attorney-general, that I held the Dutch, living here within the king's protection, being of a friend country, to be also truly under his subjection, and therefore capable of the title of his loving and obedient subjects;' but they are not capable of the distinct title of natural subjects, which is usually in statute set in opposition against denizens and strangers. And therefore if such a stranger in amity commit treason here, the indict. shall conclude cont. debitam allegiantiam, and Dyer 144. shall call the king dominum suum, but not naturalem cord. dominum.

And besides, the general pardon hath respect of retribution for the subsidy, wherein though the strangers be no grantors, yet they pay more then we, and in a sort may be called grantors; for by living here, they do tacitly submit themselves to our laws, and forms of law making, and so their grant and consent is involved in the consent of parliament. And though they be not admitted to the choice of knights and burgesses, that moved not; for no more are the English themselves that are not freeholders. And I think no judge will doubt but that such a stranger shall have the benefit of such a pardon, against common penal laws, and other common offences. But if the stranger were not in the kingdom at the time of the pardon made, then he were not within the benefit; for he is no otherwise a subject but by his residence here.

7 Co. 6. a. ac