That if the owners, &c., shall neglect or refuse to treat, or shall not agree with the commissioners, "the sheriff of the said county of Lancaster, or his under sheriff, or some one of the coroners of said county, shall, upon the warrant of the said commissioners, and he and they is and are hereby required and authorized to cause it to be inquired into and ascertained upon the oaths of a jury, &c., (which oaths the said sheriff, &c., is and are hereby empowered and required to administer), what damages will be sustained by, and what recompence and satisfaction shall be made to such owners," &c., and shall assess and award the sum to be paid for the purchase of such houses, &c., and also for good-will, &c.; and the sheriff, under sheriff, &c., is empowered and required to summon witnesses, and examine them on oath, and shall order a view if necessary, and use all other lawful ways and means for information; and after verdict the sheriff, &c., shall order the sum assessed to be paid by the commissioners; and the verdict shall be final. "And for the summoning and returning of such a jury or juries the said commissioners are hereby empowered to issue their warrant or warrants to the said sheriff, &c., to summon, impannel, and return at some *convenient place in the said town of Manchester, a jury of not less than thirtysix, nor more than forty-eight, &c.; and twenty-one days notice shall be given to the owners, &c., interested in the premises; and the said sheriff, &c., is empowered to impannel, summon, and return such number accordingly, out of whom he shall swear twelve to be the jury for the purposes aforesaid." By sect. 37, no occupier of any house, &c., shall be liable to be removed from the possession thereof by virtue of this act until the expiration of twelve calendar months after notice in writing shall have been given him by the commissioners that such house, &c., will be wanted for the purposes of the act, nor until they shall have paid the compenstion agreed upon or assessed in that behalf. By sect. 43, the powers of this act, so far as they are compulsory upon owners, &c., to sell any messuages, &c., for the purpose of the act, shall cease from and after the expiration of twelve years from the passing thereof.

[*335

Courtenay and Wightman now shewed cause against the rule for a mandamus, which was supported by Cross, Serjt.

THE COURT made the rule absolute, and the mandamus issued.

In the ensuing Easter term the commissioners made their return to the mandamus, containing similar statements to those sworn to in their affidavits in opposition to the rule; they also alleged, that in the course of the year after the giving of their notice, they had been obliged by a vote of the ley-payers to make new purchases, by which great expense would be incurred, and that a great part of the premises for which Newell required compensation, had been bought by him with a full knowledge that they, or part of them, would be required for the purposes of the act; they further stated that a very small portion of the premises was in fact requisite for those purposes; and that the commissioners had not, and did not know that they should ever have funds applicable to the payment of Newall's demands.

A rule was afterwards obtained, calling on the commissioners to shew cause why the return should not be quashed, and a peremptory mandamus issue. In Trinity term Courtenay and Wightman shewed cause, and Cross, Serjt. supported the rule. The Court made the rule absolute.

*BELSHAW v. CHAPMAN MARSHALL, Esquire, HENRY POLAND, Esquire, PHILIP SELBY, and GEORGE ROBINSON. Nov. 24.

[*336

A sheriff executing a fiera facias after notice of the allowance of a writ of error, is liable in trespass, though there has been no further supersedeas of the execution. Notice to the sheriff of such allowance is notice to his officers, and renders them liable in trespass for proceeding with the execution.

TRESPASS for breaking and entering the plaintiff's dwelling-house, and seizing and detaining his goods. Pleas, by Marshall and Poland, the general issue, and justification, as sheriff of Middlesex, under a fi. fa. Replication, that after the judgment, and before the issuing of the fi. fa., a writ of error issued directed to the Chief Justice of the Common Pleas (in which Court the judgment was given) commanding him to return the proceedings into the Exchequer Chamber, which writ of error was duly allowed, and at the time when, &c. was in force, and was a supersedeas to the fi. fa.: and that before the time when, &c. the plaintiff duly gave notice to all the defendants of the writ of error and the

allowance thereof, and duly required them to cease to execute the writ, but that they neglected and refused to comply, and after such notice committed the trespasses. Rejoinder, that the plaintiff did not duly give notice to the defendants. Marshall and Poland of such writ of error and the allowance thereof, nor duly require them to cease to execute the writ: and upon this issue was tendered and joined. The defendants Selby and Robinson pleaded, first, the general issue, and, secondly, a justification by Selby as sheriff's bailiff, and Robinson as the servant of Selby, under a warrant issued by the sheriff in pursuance of the above-mentioned fi. fa. The replication was the same as that above stated. Re

*joinder, that before the time when, &c. the plaintiff did not give notice

*337] to Selby and Robinson of the writ of error and allowance thereof, nor

require them to cease, &c. Issue thereon. At the trial before Lord Tenterden, C. J. at the sittings in Middlesex after Easter term, 1832, it appeared that the writ of execution was issued, and the warrant thereupon made and delivered to the officers, on the 3d of December, 1830, and they on that evening, between seven and eight o'clock, entered the plaintiff's premises and took possession. On the same 3d of December, about five in the evening, a clerk of the plaintiff's attorney served a copy of the allowance of the writ of error (at the same time producing the original) at the sheriff's office in Red Lion Square: he also served another copy shortly after on the attorney for the party at whose suit the judg ment had been signed. The same evening, about eight o'clock, the plaintiff's attorney went to the premises where the officers were in possession shewed them the original allowance, told them that it operated as a supersedeas, and warned them against proceeding with the execution: he also informed them that the allowance had been served at the sheriff's office, and on the attorney for the party who had obtained judgment. The officers did not withdraw. No distinct evidence was given as to the hour at which the writ of execution came to the sheriff's office, or when the warrant was issued; but Selby had stated that he did not receive the warrant till seven that evening. It was urged on behalf of the defendants, that the sheriff could not be considered as having due notice to cease from executing the fi. fa. till he was served with a writ of supersedeas, and that at all events no regular notice appeared to have been given to the officers. *338] *Lord Tenterden, in summing up, stated the question for the jury to be, whether the allowance of the writ of error was served at the sheriff's office before or after the writ of execution came there: in the former case, he directed them to find for the plaintiff; in the latter, for the defendants. The jury were of opinion that the allowance arrived first at the office, and gave a verdiet for the plaintiff. Leave having been given to move to enter a non-suit,

Campbell, in last Trinity term, moved for a rule nisi to that effect, or for judgment non obstante veredicto. (Before Lord Tenterden, C. J., Littledale, J., and Parke, J). The principal question is, whether a sheriff, acting under a fi. fa. regularly sued out, can be made a trespasser by merely having been served with the allowance of a writ of error, no supersedeas having issued. It is undoubtedly established by Perkins v. Woolaston, 1 Salk. 322; Meagher v. Vandyck, 2 B. & P. 370; Braithwaite v. Brown, 1 Chitt. Rep. 238, and other cases, (See 2 Wms. Saund. 101 g.) that a writ of error operates as a supersedeas from the time of allowance, even without notice served. But to what purpose does it so operate? To stay execution, but not to make the sheriff a trespasser, when the allowance which is to make him so has perhaps been kept secret by the party interested. So long as there is no actual supersedeas issued, the fi. fa. is a justification to the sheriff, though by the practice of the Court, the allowance of a writ of error supersedes the execution. At all events the officers are not liable, for there was nothing which could be construed as notice to them till they had [*339 entered to make the levy. [PARKE, J. In *Bleasdale v. Darby, 9 Price, 606, it was held by Wood B. that trespass would lie against the plaintiff and the sheriff, where a fi. fa. had been issued and executed after the allow

ance of a writ of error had been served. Is there any precedent of the actual ssuing of a supersedeas by the Court in a case like this?] The statute 3 Ja. 1, c. 8, provides, that in the actions there enumerated no execution shall be stayed by any writ of error, or supersedeas thereupon to be sued, unless the plaintiff in error shall, before such stay made or supersedeas to be awarded, enter into recognizance as required by that act. Cur. adv. vult.

PARKE, J. on this day delivered the judgment of the Court. We have looked into the authorities, and are clearly of opinion that the notice of the allowance of a writ of error was sufficient to render the sheriff liable in this action, without any supersedeas being issued; nor does there appear to be any precedent for such a proceeding: and notice to the sheriff was notice to the officers. There will, therefore, be no rule. Rule refused (a).

JOHN and THOMAS WAGSTAFF v. WILSON.

A letter written to the plaintiff's attorney before action brought by the attorney who afterwards appears in the cause for the defendant, is not evidence of a fact admitted therein, without further proof that the defendant authorized the communication.

[ *340

TRESPASS for taking away a horse. At the trial before Parke, J., at the last Summer assizes for Yorkshire, the plaintiffs, to shew that the taking was authorized by the defendant, put in a letter written before the action was commenced, by Messrs. Smith and Hinde, the attorneys who afterwards acted for the defendant in the cause. The plaintiffs' attorney had written two letters to the defendant, which he received; the first charging him with having seized the horse under a mistaken supposition, and demanding it back; the second complaining that the horse had not been returned but sold, and threatening legal proceedings unless reparation were made. The answer, signed by Messrs. Smith and Hinde, was as follows:-"Dear Sir, Mr. Wilson has brought us your letter of the 16th instant, respecting a horse belonging to Mr. William Storey, his tenant, distrained for rent in arrear. We are fully prepared to prove that the horse in question was legally distrained, with other chattels, by Mr. Wilson's authority, and was afterwards removed from the premises by your client or his agents, and therefore we think Mr. Wilson justified in the steps he has taken. We are," &c. There was no proof that the letter had been written with the defendant's sanction, except that one of the writers was his attorney on the record. No answer was sent by the defendant himself. The learned Judge thought the letter not admissible, and the plaintiff

was nonsuited.

Hoggins (in the early part of this term) moved for a rule to shew cause why there should not be a new trial, on the ground that the letter ought to have been received, being written in answer to a communication upon the subjectmatter of the action, and by the party who was now the defendant's attorney on the record; and he cited Marshall v. Cliff, 4 Camp. 133, Roberts v. Lady Gresley, 3 Car. & P. 380, *Peyton v. The Governors of St. Thomas's Hospital, 3 Car. & P. 363, and Wilmot v. Smith, 3 Car. & P. 453. [*341 PARKE, J. (b) In Marshall v. Cliff, 4 Camp. 133, the attorney's letter relied upon to prove the joint-ownership of the defendants, contained an undertaking to appear for them. That was a step in the cause. In Roberts v. Lady Gresley, 3 Car. & P. 380, the party whose letter was produced, and whose agency was relied upon, had already acted in the business as agent for the defendant, and Lord Tenterden thought there was evidence to go to the jury (a) See Meriton v. Stevens, Willes, 271.

(b) This case was moved before Denman, C. J. took his seat on the bench.

that he continued so when the letter was written. The other cases are clearly

distinguishable. There is no ground for a rule.

TAUNTON, J. and PATTESON, J. concurred.

Rule refused.

*342] *The KING v. The Justices of ST. PETER'S Liberty, YORK.

The 41 G. 3, c. 23, s. 8, enacts, that if on the hearing of an appeal from any poor-rate, the sessions shall order the sum rated on any person to be lowered, and it shall be made appear that such person has paid in respect of such rate a sum which he ought not to have been charged with, the said court may order such sum to be returned, together with all reasonable costs occasioned by the overcharge: Held, that the application for an order to refund, must be made to the same court of general or quarter sessions which heard the appeal, or, at least, to that court which ordered the rate to be lowered; and, therefore, where the sessions confirmed a rate, subject to a case, and this Court sent the rate back to be amended, by reducing the charge on the appellant; and the court below at the Easter (being the next) sessions ordered the sum to be lowered accordingly; an application at the Michaelmas sessions for an order on the overseers to refund the difference between the sum first charged, and which the appellant had paid, and the sum ultimately fixed, was held to be too late.

IN August 1828 the undertakers of the Aire and Calder Navigation were rated to the relief of the poor of the township of Brotherton, in the West Riding of Yorkshire, in the sum of 1507. on a total annual value of 2,000l. as "the owners and occupiers of a cut or canal, and that part of the river Aire lying within the township of Brotherton, the dams, locks, and weirs, tolls, dues, &c. They appealed against the rate at the October sessions, and the appeal was entered and respited until the Christmas sessions, but the overseers of Brotherton had no notice in writing of the entry and respite, and in December they distrained a vessel belonging to the company for the amount of the rate. The company, to prevent the vessel being sold, paid the 1507. under a protest, and 131. 3s. 3d. costs. At the Christmas sessions the appeal was heard, and a case granted for the opinion of the Court of King's Bench; and that Court on hearing the argument in Trinity term 1829, (see 9 B. & C. 820,) decided that the company were not rateable in respect of the river, and sent the rate back to the sessions to be amended by striking out that part. While this appeal was *343] pending, other rates were made on the company for the same amount, and in the same terms, and appealed against; and on the hearing of an appeal against one of these rates in January 1830, the sessions amended the same by striking out the words "and that part of the river Aire," subject to the opinion of the Court of King's Bench on the question whether the company were rateable for dams on the river; and that Court on the 21st of January 1832, (see 3 B. & Ad. 139,) made a rule that the rate should be sent back to be amended by reducing it from 150l. to 157. 16s., the amount chargeable on the canal and lock. At the April sessions 1832 the rates were reduced from 1507. to 157. 16s. pursuant to the rules of Court. A demand was afterwards made on the overseers of Brotherton for the difference in amount between the sums due from the company on the rates as ultimately amended, and the sums paid to the overseers of Brotherton, under the distress in December 1828, and afterwards upon the subsequent rates. At the October sessions, an application was made by the company for an order of sessions on the overseers to refund the sums of money so paid to them, after deducting the amount of the several rates chargeable. That court refused to make any order, on the ground that the application ought to have been made at the April sessions, when the rates were altered. A rule nisi having been obtained for a mandamus to the justices to make the order.

Alexander and Bliss now shewed cause. The application for an order on the

overseers to refund ought to have been made to the same court of quarter sessions which ordered the rate to be reduced. The stat. 41 G. 3, c. 23, s. 8, enacts, "that if on the hearing of any appeal from any rate for the relief of the poor, the court of general or quarter sessions shall order the sum rated on any person to be decreased or lowered; and it shall be made [*344

appear to the said court that such person has, previously to the hearing of such appeal, paid any sum of money in consequence of such rate which he ought not to have paid or been charged with, then and in every such case the said court shall order such sum to be repaid and returned to the person having paid the same, together with all reasonable costs occasioned by such person having paid or been required to pay the same." It is manifest from the words said court, and "on the hearing of any appeal," that the legislature intended the application for an order of repayment to be made to the same court of general or quarter sessions which ordered the sums assessed on any person to be lowered. The power given by the statute is not an original power, but annexed to the appellate jurisdiction, like the authority to award costs. Here it ceased with the April sessions.

Sir James Scarlett and Wightman contrà. The statute ought to receive a liberal construction; and so construing it, the words said court signify the sessions generally, and not the justices who compose any specific court of general or quarter sessions. It was impossible here to apply for the order to the justices who heard the appeal, for they had ceased to constitute a court of quarter sessions before it had been ascertained by the decision of the Court of the King's bench that the sums paid were not due.

DENMAN, C. J. The motion ought to have been made either to the court of quarter sessions which heard the appeal, or to the court which ordered the sums rated on the company to be decreased or lowered. The application here was too late.

LITTLEDALE, J. concurred.

[*345 TAUNTON, J. The court of quarter sessions had no power to order money improperly paid to overseers to be refunded until this statute gave it them; and the statute limits the power to the court of sessions which heard the appeal, or at least to the court which orders the sums rated on any person to be lowered. No application was made in this case to either the one or the other. PATTESON, J. concurred.

Rule discharged.

The KING v. E. O. JONES and others. Nov. 25.

Indictment, after stating that a commission of bankrupt had issued against A. by virtue of which the commissioners adjudged him to be a bankrupt, charged that he and other defendants conspired to conceal a part of his personal estate: Held, that even since the stat. 6 G. 4, c. 16, s. 112, such an indictment is defective for not shewing that the party had actually become bankrupt.

INDICTMENT stated that "on, &c. (1828) at, &c. a commission of bankrupt founded on the statute made and then in force concerning bankrupts, was duly awarded and issued against E. O. Jones, directed to the commissioners therein named, thereby giving them authority to proceed according to the statute with the body of the said E. O. Jones, as also all his lands which he had in his own right before he became bankrupt, &c. by virtue of which said commission, the commissioners found that the said Jones did become a bankrupt within the true intent of the said statute before the suing forth of the said commission, and did adjudge him to be a bankrupt accordingly." It then charged that all the defendants, contriving and intending to cheat the creditors of Jones on, &c. at, &c. unlawfully did conspire to conceal and *embezzle a great part of the personal estate of Jones so then having been declared and adjudged a

[*346