dant at whose suit he arrested him, neither did the defendant demand to see the warrant, or to be informed at whose suit he was arrested. It was holdeu, 1st, that this arrest, without shewing the warrant, and without mentioning at whose suit the defendant was arrested, was legal, and that it was not incumbent on the officer to shew the warrant to the defendant, until he obeyed and demanded it. 2dly, That this arrest was legal, although the officer had not the warrant in his hand, and although he had two warrants in his pocket for the defendant; for, being under the bailiff's arrest, he was in custody for all causes for which the sheriff had made his warrant against him, although the sheriff or bailiff did not mention any specially.

By stat. 29 Car. 2. c. 7. s. 6. "No person upon the Lord's day shall serve or execute any writ, process, warrant, order, judgment, or decree, (except in cases of felony or breach of the peace) but the service of every such writ, &c. shall be void to all intents and purposes."

As it is matter of public policy, that proceedings of the nature described in the statute should not be executed on a Sunday, the regularity or irregularity of them cannot depend on the assent of the party afterwards to wave an objection to such proceedings, because they are in themselves absolutely void by the statute.

In the construction of this statutef, it has been holden, that an arrest cannot be made on a Sunday for non-payment of a penalty by a defendant who has been convicted on a penal statute.

The statute prohibits original arrests only on Sundays.

Hence a defendant, who wrongfully escapes from the custody of the law, may be retaken upon a Sunday, on fresh pursuits, or by virtue of an escape warranth, which is in the nature of fresh pursuit, for it is not original process, and a commitment upon it is only the old commitment continued down.

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But after a voluntary escape, defendant cannot be retaken on a Sunday1.

So where A. was arrested at the suit of B., and discharged, the sheriff not knowing that there was also a detainer in his office against A. at the suit of C. and on the Sunday following the sheriff arrested A. at the suit of C., the court dis

e Taylor v. Phillips, 3 East, 155.

f R. v. Myers, 1 T. R. 265.

g Admitted in Parker v. Moor, Salk. 626.

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h Adjudged in Parker v. Moor, Ld. Raym. 1028. Salk. 626. 6 Mod. 95. i Featherstonehaugh V. Atkinson, Barnes, 373. 142 1

charged him out of custody, considering the arrest on the Sunday, either as an original taking, which was prohibited by the statute, or as a retaking after a voluntary escape, which was bad under the authority of the preceding case*, where the distinction between a voluntary and a negligent escape was recognised.

A person may be arrested on a Sunday on an attachment for a rescue'. But a rule nisi for an attachment for non-payment of a sum of money, pursuant to the master's allocatur, cannot be served on a Sunday".,

If a defendant", after an arrest on mesne process, is rescued as he is conducting to gaol, the only remedy which the plaintiff has, is by an action against the rescuers, since the sheriff is excusable by reason of the rescue; for on mesne process the sheriff is not bound to take the posse comitatus with him, and therefore upon such process it is a good return to return the rescous (2). In an action against the sheriff for an escape on mesne process, if he pleads a rescue, it is not incumbent on him to shew that the rescue was returned°.

4. The plaintiff must prove the damage sustained by the rescue, viz. the loss of the debt by reason of the escape of the defendant (3).

k Atkinson v. Jameson, 5 T. R. 25. 1 Willes, 459.

m M'Ileham v. Smith, 8 T. R. 96.

n May v. Proby, Cro. Jac. 419.
o Gorges v. Gore, 3 Lev. 46.

(2) If the party is once within the walls of the prison*, though the custody is on mesne process only, yet a rescue thence by any persons (except the king's enemiest) will not excuse the sheriff. So on writs of execution the sheriff cannot return a rescue: for the law supposes that the sheriff is attended with his posse comitatus. So if the defendant is brought out of prison after judgment, and before any charge in execution, on a habeas corpus, and is rescued on the way to the judge's chambers, the sheriff will be answerable in an action for an escape; for it is his duty, and so he is directed by the writ to provide for the sure and safe conduct of the party §.

(3) With respect to damages, Holt C. J. in Wilson v. Gary, 6 Mod. 211. said, that the offenders were not entitled to any favour, because they were guilty of a violence against the process of the law, and therefore this case was not to be compared to the case of a negligent escape.

*May v. Proby, 1 Roll. Rep. 441. resolved per tot. cur. recognised in 1 Str. 435.

+ Per Coke in his report of Southcote's case, 4 Co. 84. a. May v. Proby, 1 Rol. Rep. 441. Resolved per tot, cur. § Crompton v. Ward, Str. 429.

CHAP. XXXV.

SLANDER.

1. Scandalum Magnatum.

II. Of the Action for Slander, and in what Cases it may be maintained.

III. Of the Declaration, and herein of the Nature and Office of the Innuendo.

IV. Of the Pleadings-Evidence-Costs.

I. Scandalum Magnatum.

SLANDER spoken and published of a peer is termed scandalum magnatum.

The stat. Westm. 1. c. 34. commands, "that none be so hardy to tell or publish any false news or tales, whereby discord, or occasion of discord, or slander, may grow between the king and his people, or the great men of the realm, and he that doth so, shall be taken and kept in prison, until he hath brought him into the court which was the first author of the tale (1)."

And by stat. 2 R. 2. c. 5. "None shall devise or speak false news, lies, or other such false things of the prelates, dukes, earls, barons, and other nobles and great men of the realm, and of the chancellor, treasurer, clerk of the privy seal, steward of the king's house, justices of the one bench or the other, and other great officers of the realm, and he that doth shall incur the pain of the stat. Westm. I. c. 34."

(1) See Sir Edw. Coke's exposition of this statute, 2 Inst. 225.

And by stat. 12 R. 2. c. 11. "When any such person, as is described in the foregoing statutes,] is taken and imprisoned, and cannot find him by whom the speech be moved, he may be punished by the advice of the council, notwithstanding the statutes of Westm. 1. c. 34. and 2-R. 2. c. 5."

The foregoing statutes do not expressly give an action, yet it has been holden, that the party injured may maintain an action on the stat. of 2 R. 2. c. 5. upon the principle of law, that an action lies on a statute, which prohibits the doing an act to the prejudice of another. Though the dignity of viscount was not created at the time when this statute was made, yet it has been holden, that such dignity is within the statute; and a peer of Scotland, since the union, may also take advantage of this statute (2).

The form of declaration is, tam pro domino rege quam pro seipso (3), concluding contra formam statuti. The stat. 2 R. 2. c. 5. is a general law, and consequently need not be pleaded; but if the party undertake to recite it, and fail in a material point, it will be fatals. It must appear on the face of the declaration, that the party injured was unus magnatum at the time when the words were spoken". Special bail is not required in this action, and the venue cannot be changed upon the common affidavit. Neither can a writ of error be brought upon it in the Exchequer Chamber', for it has been holden, that this action is not an

(2) Some of the old precedents state the plaintiff to have vocem et locum in parliamento. See Vid. Ent. 74. and Bohun, 319, 320.; but these words are unnecessary, and they are omitted in one precedent in Herne, 200. Vid. 61. and in another in Herne, 201. Vid. 63.

(3) An action upon a statute which prohibits a thing, but does not give any penalty, must be brought tam pro rege quam pro seipso, because in such case the king is to have a fine. Waterhouse v. Bawd, Cro. Jac. 134. See the precedents cited in n. (2).

action on the case within the meaning of the stat. 27 Eliz. c. 8. which gives the writ of error in Exchequer Chamber in certain actions.

There is a dictum in 2 Show. 506. that in a scand. mag. the plaintiff obtaining a verdict will not be entitled to

costs.

It has been holden, that certain words are actionable in the case of a peer, which would not have been deemed so in the case of a common person; as in Ld. Townshend v. Hughes", where the defendant said of the plaintiff, “he is an unworthy man, and acts against law and reason."

II. Of the Action for Slander, and in what Cases it

IN former times, the action for slander was very rare; the first action for words to be found in the books was in the 30th year of Edw. 3. Lib. Ass. fo. 177. pl. 19. and from that time to the reign of Queen Elizabeth, these actions were few in number, and not brought on frivolous causes. During the reign of Queen Elizabeth and King James, they began to increase, and in modern times the action has been more frequent.

Actions for words should not be brought upon slight and trivial occasions; and where the words are merely words of heat, anger, or passion, spoken suddenly or without deliberation, such actions should be discountenanced; at the same time, it has been truly said (by Wray C. J.) that unless the party injured by false and malicious scandal had a remedy at law, it would be a verbis ad verbera, and the consequences might be fatal.

It would exceed the limits prescribed to this work to enumerate with particularity all the cases which have been adjudged, as to what words are actionable, and what are not so. It may be sufficient for the present purpose to observe, that,

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An action on the case lies against any person for falsely and maliciously speaking and publishing of another, words

m 1 Mod. 232. 2 Mod. 150 S. C.