« ForrigeFortsett »
oh\\e defendant should not be returned to them, and the i8o<3. plaintiff pay the costs of the application; the irregu- KlNKAin0Jaritv complained of was, that the writ issued pending «'"' Other* a writ of error in parliament to reverse the judgment npon which it was founded. Xhe original action was brought in this court upon two bills of exchange, and, altera sham plea,judgment was signed in this court and error brought in the Exchequer (Viamfter.which was affirmed on the 13th of November 1,-03 ;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 plaintiff' then sued out, on the 14th of January 1806, a testatum fi. fa. returnable thirt term, and tested the 31st November 1803, founded upon a Ji. fa. 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, jet, that, as the plaintiff in Suing out a writ of execution tested daring 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 ln-en sued out then, it would have been irregular, because there was then a writ of error pending, and no execution could be taken out the;), without the leave of the court, Peiioyer v. Brace*
The Solicitor Gknural and Taunton, W. E. shewed cause and, at first, contended, that, upon the death of the plain tiffin error, the whole of the proceedings in error were nullified, and, that, therefore, it was
180s. as if there was no writ of error pending when the writ Kinnaiho was tested, but by
and Olliors £
verms Lord Elt.enborocgii, C. J. "In the reporlof
^all. I'tnouerw Bruce, in Lord Raymond, (lie reason given is, that,the supersedeas continues until the court benpprized of the abatement of the writ of error by (he death of the party, for they ought either to certify the writ of err'jr, or a mutter of excuse, which they cannot return unless they themselves are certified of the death of the parly which they may be by some entry or suggestion on the record."
Taunton then contended, that it appeared from the report of Petioyer v. Brace,* thai the record had been certified, and that according to digger's case,+ 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 EllenBortouGU,C. J. "There is an actoalstay 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 ihe writ of error, for the judge returns that there is no such record.:'
Lawrence, J. observed upon the statement of the case in Salkeld, 'that the error had been certified'that it seemed inconsistent with the reasoning of Lord Holt in Raymond's report, who says, that the court ought either to certify or send their excuse for not certifying.
* 1 Salk. 3iy.
+ 1 Salk. '265. Action was brough-t by the name otGiggeer and a writ of error was brought ns in an action between Giggure
The plaintiff" then obtained a rule to shew cause 1806. why he should not be at liberty to sue out a writ ofexe- K,nni1111d cution tested of the last term; »»d Others
And cause was shewn by Litti.edale, and 1 L»aiu
The Court held, that, a term having intervened, it could not now be done; for that, it' the record were properly made 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 can- Conviction. not have the benefit of the 43 Eliz. Evidence. Daj
"pHIS was a rule to shew cause why an order of sessions, disallowing the appeal of the defendant against a rate for4he relief of the poor of the township of Bed/ington, in the parish of Jicti/ington, in the county of Durham, should not be quashed for inarid 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 motion, the defendant in error must move for leave to tuke 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.
l80". sufficiency. The appellant, who was an occupier of The Kiss 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 Bedlitigton; but that the township of Bedlington, together with the townships of Netherton, Qhoppington, Bust Sleekbyrn, West Sleekl>urn, and Camboire, fall of which townships are situate 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 townships in the parish of Bedlington were united, and the poor of the parish were maintained by one joint and general rate made by ^he four churchwardens and two overseers appointed for the whole parish, upon the occupiers of rateable property within the same; from 1739 to 1753, it does not appear by what rate the poor of the parish were maintained, or how the overseers,of the poor wereappointed during|that period, but since 1753, to the present time, the parish has been divided into six townships, and the poor of each township have been maintained by a separate rate made upon each respective township., and separate overseers of the poor have been appointed for each, township. The parish of Bedlington has rather de-; creased in population ; but the decrease has been, principally in the township of Bedlington; two. orders, for the removal of paupers have been rrrude, from the township of Bedlington, to the township of Nethertau, dated the 17th of July 1798; and the other from the township of Netherton to the township of Bedlington, dated the 13th day of November 17<j8; which orders
of removal were acquiesced in. The rental of the rate- 1806.
able property in the township of BedHngton appears xhTlCiwa
by the present rate to be S,90ol. 2s. The parish of «TM>
Btdlington, is five miles in length, and three miles in *lh0Sbreadth ; constables have been appointed in each of the six townships.
Const, in support of the rate stated, the case,
Lord Ei-lenborough, 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 stated; for it is with them to decide on a fact and not for
Const then cited Rex v. Leigh,* Peart v. Westgartk,f 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 case.
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 hava 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 townships, immediately after the