Judges, after a very learned argument; though it must be observed, my Brother Patteson took no part in the decision, and the judgment must therefore be considered as mine and that of my Brothers Littledale and Taunton. We certainly held there that a distinct institution and induction to the prebend were not necessary, and, therefore, unless we were prepared to overrule the case of King v. Baylay on that point, we must now say that Archdeacon King, by his institution and induction to the archdeaconry, was, ipso facto, prebendary, and nothing remained to be done by him but taking the oath. It has been well observed in argument, that an archdeacon is very differently situated, with regard to the church, from a provost of Oriel; the one is a stranger, the other not. The institution and induction of the archdeacon to that office must be well known to the dean and chapter. Induction into the prebend seems an insensible ceremony in his case; and it would be placing him in a stall which would not be his proper seat in the church afterwards. I am therefore of opinion, both on the authority of King v. Baylay, and on the reason of this case, that the mandamus ought to go. PARKE J. I took no part in the decision of King v. Baylay; but I heard a very learned argument in that case, and have fully considered it, and I concur in the judgment there given. It would, in my opinion, be idle to install the archdeacon in a seat where he would not afterwards be entitled to sit; and I think that he became prebendary in fact, when he was made archdeacon. PATTESON J. I took no part in King v. Baylay, but I entirely agree in the decision; and I think, both on H 2 the 1832. The KING against The Dean and Chapter of ROCHESTER. 1832. The KING against The Dean and the authority of that case, and on principle, that the mandamus ought to go. I also concur in the distinction drawn between an archdeacon and the provost of Oriel, who, when he takes the prebend, is a stranger to the church. Rule absolute. Saturday, The stat. 55 G. 3. c. 50. s. 10. abolishes all fees payable to sheriffs on liberate granted to a The KING against The Justices of MIDDLESEX. A RULE nisi had been obtained for a mandamus calling on the defendants to make such compensation to C. R. and H. W., late sheriffs of the county of Middlesex, in lieu of the gaol fees abolished by the debtor upon his discharge from 55 G. 3. c. 50. s. 10., as to them (the justices) should seem fit. It appeared by the affidavits in support of prison, and authorizes the justices of the peace for each county, &c. assembled in quarter session, subject, however, to the approba tion of the justices of assize, to make such compensation to the sheriff the rule that during the year the applicants had served the office of sheriff, 1100 debtors had been discharged from White Cross Street prison, and that before the statute 55 G. 3. c. 50. (a) it had been customary for the sheriff to receive a fee of 4s. 6d. for the liberate granted on the discharge of each prisoner; that the late sheriffs out of the county rate, as shall to them seem fit. The justices of Middlesex have jurisdiction to award compensation to the sheriff of Middlesex under this clause, the Judges of the Courts of King's Bench and Common Pleas being judges of assize for that county. (a) Section 10. "Whereas it has been customary in some places for the sheriff or under-sheriff to demand for the liberate granted to any debtor on his discharge, a fee or gratuity: be it enacted, that such liberate shall be granted to such debtor free of all expences; and that it shall be in the power of the justices of the peace for each county, city, or town, assembled in quarter session, subject, however, to the approbation of the judges of assize, to make such compensation to the sheriff or under-sheriff, out of the county, city, or town rate, as shall to them seem fit." had 1832. The KING against The Justices of had applied to the justices of Middleser, in sessions assembled, for an order for payment to them, out of the county rate, of such a sum as to them, the justices, should seem meet, in lieu of the said fees, and that the justices MIDDLESEX. refused to make such compensation, upon this, among other grounds, that the sheriffs of Middlesex were not entitled to such compensation by the above-mentioned statute, because there were no judges of assize for that county, and that section authorized the justices in quarter session, subject to the approbation of the judges of assize, to make compensation out of the county rate. The affidavits in answer to the rule stated that the justices at quarter sessions had taken the matter into their consideration, and decided that no compensation should be made; but it was not distinctly shewn that they had not so determined partly on the ground of the supposed want of jurisdiction alleged in the affidavits in support of the rule. The jus Campbell and Addison now shewed cause. tices at quarter sessions are authorized to make compensation to the sheriff out of the county rate, subject to the approbation of the judges of assize; and there being no judges of assize for the county of Middlesex, the justices had no authority to make compensation in this case. Burchell contrà. The Judges of this Court and of the Court of Common Pleas are justices of assize in the county of Middlesex, for these Courts have an original jurisdiction for taking an assize without any patent or commission, 4 Inst. 158., Fitzh. N. B. 177. (E), and Com. Dig. Assize, (B) 21. 1832. The KING against The Justices of Lord TENTERDEN C. J. It seems that the court of quarter sessions refused to award compensation to the parties now applying to the Court, partly on the ground MIDDLESEX, that in the county of Middlesex there were no persons who satisfied the description of judges of assize; but it is clear that the Judges of this Court and of the Court of Common Pleas are judges of assize within the meaning of the act of parliament. That being so, the rule must be made absolute. PARKE J. The justices at quarter sessions may have acted under the supposition that they had no jurisdiction, under this act of parliament, because there are no judges of assize for the county of Middlesex. But I am of opinion that they have such jurisdiction, because at common law the Judges of this Court and of the Court of Common Pleas are judges of assize. Then the justices at quarter sessions having jurisdiction, must exercise it fairly and according to the statute, by inquiring what was the legal fee before the statute, in respect of which the sheriff is entitled to compensation, and awarding such compensation as to them shall seem meet. PATTESON J. concurred. Rule absolute. 1832. SLOWMAN against BACK. Monday, Order of the the statute Court, under 1 & 2 W. 4. c. 58., where goods had Been taken by the sheriff THE officer of the sheriff of Middlesex seized goods which he was told were the property of the defendant, on his premises, on the 13th of June 1831, under a fi. fa. at the suit of the plaintiff, indorsed to levy 1017.; and while the same were in the officer's possession (July 1831) another fi. fa. against the defendant's goods, at the suit of Charles Prentice, was lodged in the sheriff's office, returnable November 2d, to levy 34l. On the 6th of August, while the officer still had the goods under the against the first fi. fa., one Lloyd gave notice (dated August 6th) to the sheriff and to the plaintiff, that the goods were his, Lloyd's, property, and that if they were removed or dis posed of he would sue the sheriff. On the 10th of Au gust the officer sold the goods for 1107. (a sum alleged to be much below their value), and paid the proceeds to the sheriff. The sum levied was at that time sufficient to satisfy both executions, part of the debt claimed in the first action having been paid. Lloyd commenced an action in Michaelmas term last, against the sheriff for seizing and selling the goods; after which, in this term, a rule was obtained on behalf of the sheriff, calling upon the plaintiff and defendant, and Prentice, and also upon Lloyd, to shew cause why the sheriff should not be at liberty to pay into Court the sum levied under the first-mentioned fi. fa., to abide the further order of the Court pursuant to the statute (1 & 2 W. 4. c. 58. s. 6.), and why Lloyd should not be restrained from prosecuting his action against the sheriff, under a fi. fa. and sold by him, another fi. fa. having issued in the mean time same goods; and where a party claimed title to the property against both the plain tiffs, the defendant and the sheriff, and complained that been sold imthe goods had providently and in spite of notice from the owner. |