#### Markham vs. Cob.

Trin. 2 Car.

TRESPASS for breaking the plaintiff’s house in D. in Nottinghamshire, and taking and carrying away £. 3000 in divers bags of money, &c. The defendant pleaded quod coram domino Hubbard and the Justices of Assize of said county, he was indicted by the procurement of the plaintiff for the same offence, for breaking the house burglariter, and carrying away the said £. 3000, and he put himself upon the country, and one, &c. was found guilty as principal, and he as accessary; whereupon he prayed and was allowed his clergy; &c. And the question was whether trespass lies?

Calthrop.

It lies not. When the plaintiff has made his election to proceed criminally, he shall not afterwards resort to a civil prosecution, as in 4 Rep. 43. It is a good bar in an appeal of mayhem, that the plaintiff has recovered in trespass for the same battery. 2 R. 3. 14. 2. The rule is nemo debet bis puniri pro uno delicto, 4 rep. 39. Auterfois convict is a good plea to an indictment, 4 Rep. 40. a. Indictee of murder pleaded, that he had been convicted and had his clergy; and it was held well. 3. When the party was indicted and convicted, there was no remedy at the common law to regain his goods, as appears by 8 E. 3. 11. 22 E. 3. Coron. 460. Stamford’s Placit. de Corone 167. 12 E. 2. Corone 379. Stamf. 165. But now restitution is only given to the party by writ of restitution.

Jones, J. If he be discharged on an ignoramus on an indictment at the suit of the party: He shall not be liable to action. The statute of 21. H. 8, 11; p. 189. gives restitution in case of goods or money: But then what shall be done if the party has neither the money or the goods stolen?

Crew, C. J. The other shall have as much money as the goods were worth.

Jones, J. It is so: Because the statute giving restitution gives an action therefore.

Whitlock, J. Concessit.

Jones, J. Bracton says that the party has his election to sue in trespass or to proceed criminally. But it is not just that the King should take away the action of the party; who perhaps was compelled to prosecute, having been bound in a recognizance to prosecute the felon.

Sed adjournatur. And on another *day the case was moved again.

Doderidge, J. The action well lies. And the conviction *146on the indictment has not taken away the action of trespass. 6 E. 4. 4. One condemned and imprisoned on redisseisin, was utlagatus for felony, and pardoned: he remained in prison at the suit of the party, yet for the outlawry all his goods were forfeited to the King, and after the pardon the party sued him. 3 M. Sir Peter Carew was indebted to the King, and afterwards convicted of treason and pardoned, yet he paid all his debts to the King, although he had forfeited all his goods before the pardon. One Trushel procured himself to be convicted of felony, and afterwards pardoned, yet his debts remained and he had to satisfy his creditors. 1 R. 3. 1. 11 H. 7. 22. Felony presentable in a leet is made petit treason, it cannot be presented there as petit treason, but as felony it may. When a statute gives a new remedy, it does not take away the common law remedy; 2. The averment in the bar, that it is the same offence is bad; for by the indictment it is found to be a burglary, and here it is only a trespass; but he might have averred that it is the same taking.

To which Whitlock, and Jones, J. assented.

3. Jones, J. Doderidge, J. and Whitlock, J. held the plea in bar bad, for another reason, for it is laid that the plaintiff procured himself to be indicted and was convicted, and that the plaintiff may have restitution on such a conviction. But the statute relates only to cases in which the offender is convicted by the evidence of the party; and it is not pleaded here, wherefore judgment was given.

And on another day:

Jones, J.

In point of law, it seems to me the action does not lie: I deny none of the cases put by my brother Doderidge, but this case differs from those. There were several acts; here is but one. I agree that the party has his election to have trespass or appeal. But here when the jury have found the other guilty of felony, the party shall not be admitted to contradict what they have said upon their oaths, and say it is only a trespass. I rely strongly on this 45 E. 3. F. Coron. 100. A man brings an appeal, and it appears that the offence was only a trespass; yet he shall not be received, in the face of his own writ, to bring trespass. Trespass is invito homine. Felony is invito domino and also animo furandi, which is of a higher nature.

Doderidge, J.

I remain of the same opinion still.

Jones, J.

In 3 E. 3. Tit. Corone and 8. 3 Tit. Corone. If one takes my horse and waves it in the manor of the lord, and afterwards it is found by a verdict that he stole it: the party shall not have trespass.

Whitlock, J and Doderidge, J.

thought the indictment does not take away the action of the party: and the plaintiff here is not to have restitution under the statute. For the statute precisely says attaint per evidence: *But here he is not attainted. Judgment was given on the third point. Noy 82. Roll. 557. Bendl. 185. Jones 147. Entr. 248, 246. 1 Cr. 213, 216. 3 Inst. 215. 2 And. 45. Ow. 69. 1 Leon. 326.