Sidebilder
PDF
ePub

of the defendant should not be returned to them, and the
plaintiff pay the costs of the application; the irregu-
larity complained of was, that the writ issued pending
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 1805; and on the 16th
of November, after the record had been remitted to this
court, a writ of error was brought and allowed in par-
liament, pending which, and before it was returned
and certified, the defendant died, viz. on the 9th of
December. The plaintiff then sued oat, on the 14th of
January 1806, a testatum fi. fa. returnable this
term, and tested the 21st November 1805, founded upon
a fi. fa. tested the first day of last term and return-
able the 21st of November 1805. The objection taken.
to the writ was, that, although the writ of error in par-
liament abated by the death of the party in vacation,
yet, that, as the plaintiff in suing out a writ of execu-
tion tested 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 pro-
ceedings 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. E. shewed cause and, at first, contended, that, upon the death of the plaintiff in error, the whole of the proceedings in error were nullified, and, that, therefore, it was

* 1 Lord Raym. 244. Carth. 404. Salk, 319.

NO. XXXI. N. S..

1806.

KINNAIRD and Others

Densus LYALL

1806.

KINNAIRD and Others

versus

LYALL.

as if there was no writ of error pending when the writ was tested, but by

Lord ELLENBOROUGH, C. J. "In the report of Penoyers. Brace, 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 death; of the party, for they ought either to certify the writ of error, or a matter of excuse, which they cannot return unless they themselves are certified of the death 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, 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 ELLENBOROUGH,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 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.

RULE ABSOLUTE.

*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

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 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.

RULE DISCHARGED.

1806.

KINNAIRD and Others

versus

LYALL.

1

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.

THIS
was a rule to shew cause why an order of ses-
sions, disallowing the appeal of the defendant
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 motion, the defendant in error must 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.

Evidence. Day and years.

The KING

versus

WATSON.

1306.

The KING

versus

WATSON.

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, East Sleekburn, West Sleekburn, and Camboire, (all 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 the 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 were appointed duringsthat 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 decreased in population; but the decrease has been principally in the township of Bedlington; two orders for the removal of paupers have been made, from the township 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 13th day of November 1798; which orders

1806.

versus

of removal were acquiesced in. The rental of the rateable property in the township of Bedlington appears The KING by the present rate to be 3,9051. 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, in support of the rate stated, the case,

"They have not

Lord ELLENBOROUGH, C. J. 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 us."

CONST then cited Rex v. Leigh, Peart v. Westgarth, 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 have the benefit of the 43 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

3 Term Rep. 746. 3 Burn, 1610. 1 Term. Rep. 374.

WATSON.

« ForrigeFortsett »