« ForrigeFortsett »
of the defendant should not be returned to them, and the 1806. plaintiff pay the costs of the application ; the irregu- ki larity complained of was, that the writ issued pending and Othere, a writ of error in parliament to reverse the judgment upon which it was founded. The original action was brought in this court upon two bills of exchange, and, after a sham plea, judgment was signed in this court and error brought in the Exchequer Chamber, which was af. firmed on the 13th of November 1305; and on the 16th of November, after the record had been remitted to this court, a writ of error was brought and allowed in parliament, pending which, and before it was returned and certified, the defendant died, viz. on the 9th of December. The plaintif' then sued oat, on the 14th of January 1906, a testatum fi. fa. returnable this term, and tested the 21st November 1805, founded upon a fi. fr. tested the first day of last term and returnable the 21st of November 1803. The objection taken to the writ was, that, although the writ of error in parliament abated by the death of the party in vacation, yet, that, as the plaintiff in suing out a writ of execution testen during the term preceding, when he was alive, availed himself of a fiction of law, it must be altogether consistent with the actual state of the proceedings at that time ; and if it had actually been sued out then, it would have been irregular, because there was then a writ of error pending, and no execution could be taken out then, without the leave of the court, Penoyer v. Brace.*
The SOLICITOR GENERAL and TAUNTON, W'. Fi. shewed cause and, at first, contended, that, upon the death of the plaintiff in error, the whole of the proceedings in error were nuttiged, and, that, therefore, it was
* i Lord Raym. 244. Carth. 404. Salk. 319. NO. XXXI. N. S.
1806. as if there was no writ of error pending when the writ KINNAIRD was tested, but by and Others
Lord ELLENBOROUGI, C. J. “In the report of Penoyerr. Prace, in Lord Raymond, the reason given is, that,the supersedeas continues until the court be apprized of the abatement of the writ of error by the cleati; of the party, for they ought either to certify the writ of error, or a matter of escuse, which they cannot return unless they themselves are certified of the deatli of the party which they may be by some entry or suggestion on the record.”
Taunton then contended, that it appeared from the report of Penoyer v. Brace,* that the record had been certified, and that according to Gigger's case,t there was a distinction, that where error abates by motion, the court must be moved for execution, but it is otherwise, if, for variance, the record is not removed.
• Lord ELLENBOROUG11,C.J.“ There is an actual stay of proceedings by the writ of error, although it is not returned. How do you understand the expression abatement by reason of variance? In that case there is no cause for the writ of error, for the judge returns that there is no such record."
LAWRENCE, J. observed upon the statement of the case in Sulkeld, that the error had been certified'that it seemed inconsistent with the reasoning of Lord Ilolt in Raymond's report, who says, that the court ought either to certify or send their excuse for not certifying,
* 1 Salk. 319.
+ 1 Salk. 265. Action was brought by the name of Giggeer and a writ of error was brought as in an action between Giggure
KINNAIRD and Others
- The plaintiff then obtained a rule to shew cause why he should not be at liberty to sue out a writ of execution tested of the last term ;
And cause was shewn by LITTLEDALE, and
The Court held, that, a term having intervened, it could not now be done ; for that, if the record were properly inade up, the death of the party must appear, in order to shew the abatement of the writ of error, and there would be an inconsistency upon the record in suing out the execution pending the writ of error.
The King against WATSON.- 8th Feb.
The sessions must find as a fact whether a parish can or ean- Conviction. not have the benefit of the 43 Eliz.
and years. THIS was a rule to shew cause wliy an order of ses. The King sions, disallowing the appeal of the defendant
Waison. against a rate for the relief of the poor of the township of Bedlington, in the parish of Bedlington, in the county of Durham, should not be quashed for in
and the defendants ; whereas his surname was Giggeer; and it was moved that the defendant notwithstanding the writ of error, might take out execution ; and the court held this was a fatal variance, and that the record was not removed by the writ of error, but would not meddle as to the execution. Et per Holt, C. J. Where a writ of error abates by mution, the defendant in error inust move for leave to take out execution; but where by reason of variance, the record is not removed, he need not move the court for execution; but at last the record was amended,
1806. The King
sufficiency. The appellant, who was an occupier of lands in the said township, appealed to the sessions against the rate, on the ground that the township of Bedlington was not in point of law entitled to maintain its own poor by a separate rate made upon it, apart from the rest of the parish of Bedlington; but that the township of Bedlington, together with the townships of Netherton, Choppington, Eust Sleekburn, West Sleekburn, and Camboire, (all of which townships are si: tuale within the parish of Bedlington,) ought to maintain their poor conjointly by one general rate for the whole parish ; but the sessions disallowed the appeal, subject to the opinion of this court on the following case :- Previously, and up to the year 1739, the six several toxnships in the parish of Bedlington were ụnited, and the poor of the parish were maintained by one joint and general rate made by the four church. wardens and two overseers appointed for the whole parish, upon the occupiers of raleable property within the same ; from 1739 to 1753, it does not appear by what raie the poor of the parish were maintained, or how the overseers of the poor wereappointed duriogsthat periud, but since 1759, to the present time, the parish bas been divided into six townships, and the poor of each township have been maintained by a separate rale made upon each respective lownship, and separate overseers of the poor have been appointed for each township. The parish of Bedlington has rather decreased in population ; but the decrease has been prin. cipally in the lownship of Bedlington ; two orders for the removal of paupers have been made, from the towuship of Bedlington, to the township of Netherton, dated the 17th of July 1798; and the other from the township of Netherton to the township of Bedlington, dated the 1316 day of November 1798 ; which orders of removal we in the township of bc
The parish of
of removal were acquiesced in. The rental of the rate able property in the township of Bedlington appears by the present rate to be 3,905). 2s. The parish of Bedlington, is five miles in length, and three miles in breadth ; constables have been appointed in each of the six townships,
Const, ia support of the rate stated, the case,
Lord ELLENBOROUGH, C. J. " They have not stated that the parish cannot have the benefit of the stat, 43. Eliz, c. 2, but that should have been staled; for it is with them to decide on a fact and not for
Coxst then cited Rer v. Leigh,* Peart v. West, garth,+ Rex v. Sir Watts Horton, and other cases to shew that the court have considered it a matter of discretion to be inferred from the facts stated in the Çase.
Lord ELLENBOROUGH, C. J. "If I were to draw the presumption, I should draw the contrary, for up to 1739, it would be clear that, till that time, they could have the benefit of the 4s Eliz. c. 2, and it is found as a fact, that the parishes have since decreased in population, I know that, upon that subject, there are different opinions, but I would rather be guided by the words of the act; and the sessions ought to find it as a fact one way or the other, whether the parish could have the benefit of the 43 Eliz.”
Lawrence, J. - - In the case of the King v. Leigh, there might have been a way of providing for the poor in the separate lownships, immediately after the
* 3 Term Rep. 746. † 3 Burn, 1610. | 1 Term. Rep.