MICH. TERM,-9 GEO. III. 1768.—K. B. DICKSON v. FISHER. S. C. 4 Burr. 2267. fice must be in which it is found. ACTION for bribery (a), at the election for members of Par- A record found liament, at Colchester. Verdict for the plaintiff on this special in the proper of case: The precept for election had been directed "To the tended to have Mayor and Commonalty of Colchester," but the words" and been always in commonalty" were struck through with a pen; and the plaintiff the plight in gave it (that is, the precept) in evidence, disannexed and sepa- And parol evirate from the writ and indenture of return, though it was ori- dence shall not ginally annexed to and returned with the writ and indenture to be admitted to the sheriff, but not filed with the same in the Crown-office. prove it wrong. The defendant offered, but was not permitted to give, parol evidence to prove, that the words " and commonalty" were in the precept, and not obliterated, when the same was delivered to the mayor, and returned by him. Q. 1. Whether the instrument above stated and given in evidence proved the declaration, viz. that the precept issued, directed to the mayor of Colchester? 2. Whether the above parol evidence ought to have been admitted for the defendant? The Court held, that the words "and commonalty" were mere surplusage, and that the precept, being found in the proper office with those words obliterated, shall be intended to have been always right, and therefore proved the declaration (b). 2. That parol evidence ought not to be admitted to vitiate the record and prove it to have been wrong, though it might have been admitted in order to prove it right (c). (a) On 2 G. 2, c. 24: see next case, note (c). (b) So, where the declaration set forth the precept from the sheriff to the portreeve of a borough, the improper insertion of the word "if" in setting forth the writ in the declaration is not a fatal variance, but may be rejected as surplusage; King Postea to the plaintiff. v. Pippet, 1 T. R. 235. And it is not a (c) See Bul. N. P. 221; Leighton v. HILARY TERM,-9 GEO. III. 1769.-K. B. SUTTON V. BISHOP. S. C. 4 Burr. 2283. YATES, J., delivered the opinion of himself, ASTON and [ 665 ] SUTTON v. BISHOP. On the statute against bribery, making an affi Parliament at Reading, in order to indemnify himself, made affidavit before one Gray, a commissioner to take affidavits, of the same bribery by one Earles, the person that bribed him: upon which, Mr. Bindley, one of the candidates, brought an action against Earles: and, e converso, the present plaintiff' brought this action for bribery against Bishop (a). By some management on the part of Sutton and Earles, and laches on the part of Bindley and Bishop, the present action was tried first (b). Qu. How far Bishop, the defendant, is indemnified under statute 2 Geo. 2 (c). Objection 1. That Bishop is not a discoverer, within the meaning of that act, because he is not the plaintiff. the plaintiff. But this making affidavit was held a sufficient discovery (d). Objection 2. That the prosecution against Earles was not followed up with due diligence (e). But it appears to have been merely by an accident, that the trial of this cause was delayed; and Earles has been since convicted on Bishop's [ *666 ] evidence. *Objection 3. That Bishop did not give evidence But a conviction against Earles till after his own conviction. But we think, that though it is necessary that a conviction should follow, yet the indemnity is given only upon the discovery. And it is not in the witness's power to forward the suit. The reason why a conviction is required, is, 1. To shew, that the discovery is davit is a sufficient discovery to indemnify the discoverer. must follow, and it will be good, though the wit ness be previously convicted of bribery since his discovery. (a) It is no objection to the competency of a witness for the plaintiff to prove such bribery, that a similar action was pending against the witness himself for bribery at the same election, and that he claimed to be the first discoverer of the bribery of the defendant, and meant to avail himself of it, if necessary, in case of the defendant's conviction; Heward v. Shipley, 4 East, 180. So a person, who gives a bribe to another, is a competent witness to prove the bribery; Mead v. Robinson, Willes, 422. So in the principal case, Bishop had received a bribe from Earles, and a verdict had actually passed against him, but no objection was taken to his competency as a witness against Earles; 4 Burr. 2284. (b) Both causes were set down for trial on the same day; and were actually tried within half an hour of each other: but the cause of Sutton v. Bishop standing first upon the judge's paper, he would not invert the order by trying the cause of Bingley v. Earles first, though the latter had been commenced two months before the former. The consequence was, that Sutton got a verdict against Bishop; for the latter could not shew that he had made a discovery of another person so as to be thereof convicted. On the argument, two points were made:-1. Whether Bishop was entitled to avail himself of the protection of this eighth clause of the act; (see next note); 2. In what mode he could avail himself of it, supposing him entitled to it; 4 Burr. 2284. (c) C. 24, s. 8, by which it is enacted, "that if any person offending against that act, shall, within twelve months after the election, discover any other person offending against it, so that such person so discovered be thereupon convicted, such person so discovering, and not having been before that time convicted of any offence against the act, shall be indemnified and discharged of all penalties, &c." (d) Where C. D. procured E. F. to make an affidavit disclosing bribery, and afterwards brought an action against a third person, who was convicted on the testimony of E. F., E. F. was held to be the discoverer, and not C. D, so as to be indemnified as such in an action against himself; Sibly v. Cuming, 4 Burr. 2464. So where C. D., in a similar action against himself, proved at the trial that he had been plaintiff in an action against another person for bribery at the same election, and had therein obtained judgment, by producing the record thereof, Lord Mansfield observed, "that the Court had not said, nor would say, 'that a plaintiff cannot be the discoverer:' but the act of Parliament does not make him so, or consider him as the discoverer. Here is no evidence that the plaintiff was the discoverer: and another person must have been the witness; for the plaintiff could not be the witness himself. It is not to be presumed, without any evidence at all of it, that the plaintiff in the action was the discoverer:" and a new trial was granted; Curgenven v. Cuming, 4 Burr. 2504. (e) See s. 11, of the act, and 9 G. 2, c. 38: as to what shall be considered due diligence, see Petrie v. White, 3 T. R. 5. SUTTON v. BISHOP. verdict only, viction. true; 2. That the offender may be punished. But the great question that arises on this case is, What is a sufficient conviction on this act, in order to give an indemnity; whether a verdict, or a judgment. Though there is a distinction in cri- And a naked minal cases between the conviction (ƒ) and attainder, yet there without a judgis no such distinction in civil cases between verdict and judg- ment, is not a ment, so as that any effect can follow from a naked verdict. In sufficient cona civil action no penalty takes place till judgment be given on the verdict. The penalty is demanded as a debt, and is not due till judgment is given. Any other construction would open the door to frauds. An offender would prosecute another to verdict, and thereby secure his own indemnity, and then proceed no further. Therefore we think, that in the present case there is no conviction till judgment. The verdict alone cannot be pleaded, and therefore cannot be given in evidence. But when judgment is obtained, the reward of the discoverer's merit by such discovery will take place. We at first thought, the regular and correct way for the defendant, in this particular instance, to take advantage of it would be by auditâ querela. But we now think, we may save the expence of it by a special rule. We also think that Sutton should enter up judgment upon this verdict, in order to indemnify himself (g). And then, both records being brought into Court, a special rule (h) may be made to stay execution on Sutton's judgment, on the circumstances of the case. And such rule will countervail all the operations of the judgment, such as disability, &c. as well as an audita querela (k). (f) To render a witness, convicted of a crime, incompetent, it is necessary to prove the judgment, as well as the conviction, which can only be done by producing the record or a copy of it. The conviction alone is not sufficient; for it may have been quashed upon motion in arrest of judgment; Lee v. Gansel, 1 Cowp. 3. See Phil. Ev. 26, (ed. 1817); Com. Dig. Testmoigne, (A)5; R. v. Careinion, 8 East, 77. (g) Quære tamen, whether such judgment would be an indemnity, inasmuch as Sutton was only the plaintiff? See note (d), ante. (h) A similar rule to stay proceedings was made, on the authority of this case, in Petrie v. White, 3 T. R. 12. (k) But the Court, in the case of Pugh v. Curgenven, 3 Wils. 35, refused to stay judgment upon the postea, on the ground As to actions for bribery, see Sulston v. THE KING V. The Guardians of the Poor in CANTERBURY. [ S. C. 4 Burr. 2290. 667 ] MOTION for a mandamus to make a regular poor's rate, on Mandamus does a suggestion that, in the present rate, no personal property not lie to overwas rated. YATES, J.-The general point in this case seems never to first appealing have been sufficiently determined, notwithstanding the Case of to the Sessions. seers to make a rate, without THE KING v. CANTERBURY. Qu. How far personal estate is rateable. [ *668 ] The King and St. Leonard, Shoreditch (1). And there are is not mentioned in this act. And in the case of lead mines * ASTON, J.-I give no positive opinion about the main question. If the determination in Bulstrode be any thing more than a dictum, it seems strange that it never was carried into execution. Personal property is omitted in 43 Eliz., though inserted in the land-tax acts. Nothing but the clear residue of personal estate, after debts paid, can be liable to rateability. Great difficulties are thereby laid on the overseers. The present application steps over the jurisdiction of the Sessions, and comes here too soon. WILLES, J.-If this were a new case, I should incline to think, from comparing the 43 Eliz. and the land-tax acts, that personal property is not liable. Non-user would go very far to set aside all the dicta in the books. And I would use all the acumen ingenii I am master of to avoid it. I think a clear liquidated personal estate is all that can, in any sense, be rateable (q). But I give no opinion that I will be bound by. I agree (1) 2 Salk. 483, Ca. temp. Holt, 508. (n) But in R. v. Barnstable, Foley, 26; 1 Bott, 79; 1 Barnard. 137, the Court said, We grant a mandamus to make a rate; but where a rate is already made, we cannot grant a mandamus to make an equal rate.' And in R. v. Weobly, 1 Bott, 81, Lee, C. J., said, "It has been determined that this Court cannot grant a mandamus to make a rate, if one be already made; or to make an equal rate, if it be unequal on the face of it." S. P. Liddleston v. Mayor of Exeter, Comb. 422. And see R. v. Edwards, ante, 637. (0) C. 38, s. 4, amended by 50 G. 3, c. 49. See R. v. Portsmouth, ante, 395. (p) Durrant v. Boys, 6 T. R. 580. (q) It appears that in Michaelmas Term following, the Court granted a rule for a mandamus to the justices of Canterbury to rate personal property throughout the town; 1 Bott, 112. And it is now decided that personal property is rateable. The first determination to that effect was Sir Anthony Earby's Ca., 2 Bulst. 354; again the Court seemed inclined to think it rateable in R. v. Andover, 2 Cowp. 550; and in R. v. Hill, Id. 613, stock in trade was held rateable on the ground of usage. with my brothers that we cannot grant this rule, though I fear it is only delay, and that we must by and by determine the principal question. Rule discharged, absente Lord Mansfield, C. J. S. P. R. v. Rodd, Cald. 147; R. v. Dursley, 6 T. R. 53. But it was afterwards expressly held, that personal property is rateable independent of usage, for the usage of a particular place cannot control the operation of a general statute; R. v. Hogg, 1 T. R. 721. Again, it was decided that stock in trade is rateable, in R. v. White, 4 T. R. 771; S. P. R. v. Mast, 6 T. R. 154, in which case Ld. Kenyon said, "if a person choose to keep his property in money, and the fact of his possessing it be clearly proved, he is rateable for it." THE KING v. CANTERBURY. LOVEGROVE v. BETHELL. HELD by Lord MANSFIELD, C. J., et tot. Cur., on a motion (r) See Dunkin v. Mun, T. Raym. 235; Anon. 1 Ventr. 335; R. v. Raynes, 1 Salk. 299, Carth. 457. And see R. v. Dr. EASTER TERM,-9 GEO. III. 1769.-K. B. [ 669 ] THE KING v. WALPOLE ST. PETER'S in NORFOLK. BLACKSTONE moved to set aside an order of Sessions in He then enlisted as a soldier, and continued in the service four years, and was discharged at Cork in Ireland between Candlemas and Lady-day, 1764. About three months after, he came home to his father, who then lived and occupied a farm of 50l. per annum at Walpole, and continued there twelve or fourteen weeks; and then worked at different places as a labourer till Candlemas, 1767, when he married and went back Listing as a soldier, such a separation from his father's family, that the son does not afterwards change his derivative settlement, though the fa ther changes his own. (Not litigated). |