Markham v. . Cob

Decided July 5, 1793

Decided 1793-07-05

¶1The other shall have as much money as the goods were worth.

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Posture: Trespass for breaking the plaintiff's house in D. in Nottinghamshire, and taking and carrying away £ 3000 in divers bags of money, etc. 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 offense, for breaking the house burglariter , and carrying away the said £ 3000, and he put himself upon the country, and one, etc., was found guilty as principal, and he as accessory; whereupon he prayed and was allowed his clergy, etc. 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.