was read by Mr. Benton (the secondary on the plea side) but BIGBY v. KENNEDY. On the same day, after several special motions had intervened, Patrick Kennedy was brought into Court by the sheriff of Middlesex, in obedience to a writ of habeas corpus granted the same 22d May; and he also made a return, setting forth [*711 ] the commitment of Matthew and Patrick Kennedy, and Michael Macmahon, to Tothill Fields Bridewell, by a warrant, which was stated verbatim, on suspicion of the murder of John Bigby, and also on a charge by the coroner's inquest for the same; the bill of indictment against them found at January Sessions at the Old Bailey; the conviction and attainder for murder in February Sessions; the respite of execution for one week by Lord Weymouth, dated 24th February, 1770; another respite by the same, during the King's pleasure, dated 1st March, 1770: and that, in April Sessions, 1770, a bill of appeal was there brought by Anne Bigby against Matthew and Patrick Kennedy for the murder of her husband John Bigby, which appeal was adjourned by the said Court to the then next Sessions. (N. B. In pursuance of a writ of certiorari granted the same 22d May, to the Justices of gaol delivery of Newgate, the said Justices returned the said bill of appeal mentioned in the said sheriff's return, and interposed 25th April, 1770; Patrick being then in custody and Matthew not: but the same was not now read.) The defendant Patrick was brought into Court in like manner as Matthew, and was committed to the custody of the marshal on the motion of Serjeant Glyn, for the appellant. The appellant, Anne Bigby, then again came into Court in person, and Glyn moved that she might count against Patrick. Mr. Benton then delivered to her (without any order of the Court, for which the Chief Justice reprimanded him) the identical parchment, which she had delivered in as her count against Matthew, and she delivered the same back to the officer as her count against Patrick. The Court then asked what was become of the bill exhibited against Patrick at the Old Bailey? And by Glyn, Serjeant, "we apprehend that to be totally at an end: we now offer a new bill." Per Cur. "Take * own methods: the Court will direct nothing, either in favour of the appeal or otherwise." The same parchment was then read by Mr. Benton; and Wallace, for the appellee Patrick, prayed your [*712] BIGBY บ. KENNEDY. the same oyer as before, which was granted. And Patrick was also remanded to the prison of the Marshalsea. On Monday, 28th May, being the last day of the Term, the appellees were brought up to the bar of the Court, (it did not appear by what process), and Walker, for the appellant, prayed that the appellees might be arraigned upon, and plead to, the bill of appeal exhibited against them on Friday last. Wallace and Dunning, for the appellees, objected, that they had no notice of this motion, nor did they know till just now that the appellees were to be brought up. It also appeared, that no notice had been given to the officer of the Court to bring down the record, and he had it not in Court: but it was immediately sent for. After all the motions were over, the Court (absentibus Lord MANSFIELD, C. J., and ASTON, J.), waited about a quarter of an hour for the record, which was not yet arrived: and then declared, that if it did not speedily arrive, they would adjourn the Court in the usual course. Glyn, Serjeant, then moved to adjourn the appeal to the next Term, which was opposed by the counsel for the defendants: And while this matter was debating the record arrived. Glyn then moved, that the appellees might be arraigned thereon: to which Wallace, Dunning, and Murphy, for the appellees, objected, that the memorandum of the bill (for so it was now understood to be) was false in fact: because it recited that both the appellees were in custody of the marshal, whereas only Matthew was, and Patrick was not, at the time when the bill was first read. Glyn and Leigh, Serjeants, Walker and Davenport, for the appellant, replied, [ *713] that the Term was all as one day, and that no fraction of a day can be taken notice of (e). That advantage must be taken of this objection, by way of plea, if it all. Or that the appellee's counsel might move to quash the bill: but that it now either must be arraigned or quashed. An objection to the memorandum of the bill not to be taken before arraign ment. And of that opinion were WILLES and BLACKSTONE, Js., viz. that the bill should now be arraigned, and advantage of the objection (if any) should be taken afterwards, by way of plea; or else they might move to quash it, as the appellees should be advised. The defendants were then brought to the bar, and Leigh, Serjeant, arraigned the bill in English, leaving out the memorandum: it was then arraigned by Mr. Benton, the Secondary, in like manner, and the defendants severally asked, whether guilty or not guilty. Wallace then objected to any farther proceeding, for want of notice; but declined to move for time to plead, lest any advantage might be taken against his clients on account of such dilatory motion. And being asked by BLACKSTONE, J., whether they had in fact had the oyer which was prayed on Friday, he said they had not. Glyn, Serjeant, being then asked if he would move any thing, he moved that (e) Ante, 71, n. (k). the defendants might plead immediately; which was opposed by the counsel for the defendants, because they had no notice of this day's proceedings, and because they had not had oyer of the record. Upon which the Court declared, they would not put the appellees to plead till oyer was had; and adjourned the appeal to the first day of the next Term, and remanded the appellees to the prison of the Marshalsea. *ON Friday, 15th June, being the first day of the Term, the appellees being brought into Court, Glyn, Serjeant, moved, that they might plead to the bill of appeal exhibited against them the last Term. Wallace objected, that they had not yet had oyer of the writ of appeal, and could not safely plead without it. Glyn. We know nothing of the writ. It is not in our custody. We cannot therefore give the oyer prayed. You must resort to the record or the Sheriff of Kent for it. It is not in Court, nor returned with the habeas corpus, but only its general contents. Wallace.-Oyer may be prayed of the writ before it is in Court, and if the appellant thinks herself delayed by the sheriff's not returning it, she may move the Court for a rule on the Sheriff to return the writ; Child's Case, 2 Bulstr. 19. Walker, for the appellant.-We have nothing to do with the writ. We put in a bill last Term, and the defendants were arraigned thereon, and not on the writ. There is no reason why the defendants should not plead to the bill because they have not had oyer of the writ, which is totally distinct from the bill. BIGBY V. KENNEDY. Appellees not till oyer had of TRIN. TERM, 10 Geo. 3, 1770. [ *714 ] *Per Cur.-(Lord MANSFIELD, C. J., WILLES, BLACKSTONE, [ 715 ] Js.). When Matthew Kennedy was first brought into Court, the Sheriff of Kent returned, that he was detained by virtue of a writ of appeal against him and his brother Patrick. He was committed to the Marshal. And the appellant delivered in what was then called by her counsel, and understood to be, her count upon that writ against the two defendants; and Mr. Wallace, for the defendant Matthew, prayed oyer of the writ, return, and declaration, which was granted him. Afterwards, Patrick was brought up by the Sheriff of Middlesex, who returns, that he was detained (inter alia) by a bill of appeal preferred against him at the Old Bailey; which the counsel for the appellant then declared to be determined and at an end. He is likewise committed to the Marshal, and the appellant delivers in the same count against him as was before read against Matthew, and the same oyer is prayed and granted without any objection. It was afterwards, and is now said, (and it may turn out to be the fact), that, however it might then be miscalled, it was in reality a bill of appeal, then exhibited de novo, and not a count on the former writ of appeal; and that therefore this bill must be pleaded to without oyer had of the writ, BIGBY ย. KENNEDY. Oyer of all prior proceedings must be had, if demanded, before the defend ants are put to plead. [ *716 ] Mandamus to Leet and Court to which it has no relation. But surely when the Court is informed by the Sheriff of Kent's return that there is such a writ sued out, whatever may be the nature of the proceedings had last Term, the Court will not put the appellants to plead till that writ is forthcoming, and they have had oyer of it. If the proceedings of last Term were founded on that writ, it is necessary to have oyer, that (if proper) the defendant may plead in abatement of the writ. If they are not founded on that writ, but are a mere bill of appeal de novo, perhaps the defendant may be advised to plead the former writ in abatement of the bill. If either side will move for any rule on the Sheriff of Kent, we are ready to hear such motion; but as no motion is now made, and no oyer has been had of the writ, we can make no other order, than that the prisoners be remanded: and they were remanded accordingly. *Afterwards, the appeal was, by consent, adjourned to the first day of Michaelmas Term; when the appellant, being called to appear, made default, and was nonsuit, having (as was said) accepted a sum of money from the friends of the appellees. N. B. I was present at the Old Bailey on the trial and conviction of the appellees, in February; and it was indeed a most foul murder: but through the powerful mediation of their sister, who was intimately connected with some persons of quality, a conditional pardon for transportation was obtained for Matthew, who struck the stroke; and he was on board a tender, when the appeal was exhibited at the Old Bailey. Patrick had been respited two or three times, on the very mornings appointed for his execution. And the appeal was at last taken up and prosecuted by a set of persons in London, who were in violent opposition to the government, merely to raise an odium and popular clamour on account of so unadvised a pardon. THE KING V. The Corporation of GRANTHAM. DUNNING moved, last Term, for a mandamus to the Corpermit a Court poration of Grantham to permit Lord William Manners to Baron to be held hold a Court Leet and Court Baron in the Town-hall on two in the accustom- prescriptive days, as he was entitled to do by immemorial ed place. usage and prescription, as lord of the manor of A., but had been obstructed last Michaelmas and Easter by the Corporation. Wallace and Cust shewed for cause, that it was also immemorially used, that the first and second company of the Corporation, consisting of twelve each, used to form the grand jury till Lord William Manners's time, who refused to summon them. But per Cur. That is no reason against this mandamus. The Companies may apply for a mandamus to be summoned *on the jury, if they have a right to it (a); though probably the principal grievance is no more than the loss of a dinner (b). Rule absolute. (a) R. v. Willis, Andr. 279; Rector of Wigan's Ca., 2 Str. 1207; Com. Dig. Mandamus, (A), acc. But not to individual jurors; R. v. Banks, ante, 452. and notes. THE KING บ. GRANTHAM. YEAW v. HOLLAND. gable streams, London. TRESPASS for distreining plaintiff's goods. The defendant Commission of justified under the statute 23 Hen. 8, c. 5, concerning commis- sewers extends sions of sewers; that he distreined the same as servant to the only to navicommissioners for non-payment of a tax of 11s. assessed on the unless within plaintiff. Plaintiff replies, De injuriá sud propria; and, on two miles of issue joined, it appeared on the trial that all the proceedings were regular, provided the original authority was good. And as to that, it appeared that the plaintiff was an occupier of lands in Hammersmith, and benefited by the repairs for which the tax was assessed: That, in Hammersmith, Chiswick, and Acton, there are ancient common sewers, but that no passage of boats can be therein: That the water doth not ebb or flow therein, but the same are dry at some seasons of the year; but in wet seasons are necessary to conduct, and do conduct, land waters into the Thames, without which great inundations would happen in the said parishes (c); but that no part of the sewers in question are within two miles of the city of London. Q. Whether the commissioners, by virtue of the laws of sewers, had authority to assess the plaintiff towards the repairs of the said sewers. This case was argued last Term, by Walker, for plaintiff, and Impey, for defendant; and now again by Wallace, for plaintiff, and Dunning, for defendant. 66 For plaintiff it was argued, that by the form of the commission in stat. 23 Hen. 8, it was confined to sea-banks, and where the navigation is obstructed. But there is no tide or navigation in the present case. That by statute 3 Jac. 1, c. 14, for explanation of the laws of sewers," it is recited *that no streams [ *718 ] or sewers were within the statute of Hen. 8, unless the same were navigable; and therefore subjects all streams within two miles of London to the jurisdiction of the commission. This Lord Coke, 2 Inst. (d), calls a good legislative exposition.-That where new powers have been wanted, special acts of Parliament have been always applied for; as 6 Hen. 6, c. 5, and 9 Hen. 6, c. 9, for the river Lee; 1 Mar. Ses. 3, c. 11, for (c)" In truth it was a mere drain for the lands; it was of a private nature, and was not stated to be useful to the navigation of the Thames; and therefore the Court thought it was not within the statute 23 Hen. 8."-" The line may be drawn from this case, where it is stated that the party, over whose land the work is done, is or is likely to be benefited by it: See if he be so, that is sufficient to give the (d) 4 Inst. 276. |