Cummings v. State

1 H. & J. 340

• Court: General Court of Virginia
• Decided: October 15, 1802
• Status: Published

Opinion

Chase, Ch. J.

cited the cases of Jenifer vs. The Lord Proprietary, at .September term 1774, and Gale vs. The Lord Proprietary, at April term 1772, where the question had been argued, that an appeal would not lie in a criminal case; but he did not know that the point was decided by the court

(a).

Harper moved for and obtained a writ of dimination to the court below, for the purpose of getting the justices to certify the record; and on the 12th of November* a record was returned, certified by the justices of the court*

But as the return day of the writ of error had elapsed before said writ was presented to, and allowed by the court,

The Genera! Court quashed the writ of error*

See the case of Jenifer vs. The Proprietary, (1 Harr. M‘Hen. 535.) The case of Gale vs. The Proprietary (April term 1774.) was an appeal ?vom Somerset county court in a criminal 'ctCse, and four objections were made by Jenings} (attorney general) against the appeal 1st That the act of 1713, ch. 4, speaks of appeals wherein bonds may be given according to the directions of that act. 2d. It limits the appeal to judgments wherein-•the debt or damage does not exceed a certain sum. 3d. It directs that the party appealing shall get a transcript, &c 4th. The Ijord Proprietary not being named therein, is not bound by the general words of the act

It was answered by the counsel for the appellant — That if a writ of error would lie in this ease, it would follow that an appeal would lie. That a writ of error will lie for the party grieved by an erroneous judgment at the suit of the king—Fitz. N. B. 21 H. 1 Salk. 264, pl. 9 2 Leon 194 The act of 1713, ch. 4, Tecites the great benefit of appeals and writs of error, and speaks of the appeal as a mode of proceeding then in use There is no such thing as an appeal in England from the common law courts —but it is there used in the ecclesiastical courts, andfrom thence Seems to have been introduced here. Its convenience is manifest; it saves trouble and expense.

As to the 1st and 2d objections.—“That the act provides that no execution shall be stayed unless bond be given.” It does not re- <) uire bond to be given, and therefore the party may appeal without bond, remaining subject to execution: nor does the law confine the appeal to a case where bond may be given, as will appear upon consideration of the next section of the act, and the construction which it has always obtained. That section takes away the appeal, &e. where the debt or damage is under a certain sum. And yet it is every day’s practice to appeal in ejectment where there is neither debt nor damages recovered If it is said an ejectment is a case out of the act, and that a writ of error will lie independent of it, it will be admitted; but it is this act only which gives appeal And may it not be said with equal propriety that the act intended to confine the appeal to cases where debt or damage was recovered, as to cases where bond might be given? And if in use and practice the contrary construction has obtained in one case, why should it not in the present case? But why may not bond be given in this case? The judgment is for a sum of money The statutes of 13 Car. II. ch 2, and 16 and 17 Car II. ch 8, sect. 2, provide, (as this act does) that no execution shall be staid,,&c. unless recognizance, &c. be given. But there are provisos that those acts shall not extend to indictments, &c from whence it may be inferred the opinion of the legislature that they would have extended to indictments without the proviso. In our act then there is no proviso excepting indictments.

.As to the 3 d objection . As to the word party used by the act. The word person is made use of in the statute 3 Jac 1 ch. 8, & ch. 13, 2, to which the objection will be as strong—11 Rep 70. The writ of error removes the record itself. Fitz. N. B. 20 F. 1 Roll. Ab. 752. 8 Bac. Ab 2&2.

As to the 4th objection To shew the king was bound by genera! words in a statute. He cited 11 Rep. 72, a. 5 Rep. [4, b. 2 Inst. 68]. 1 Rep. bound by statute dc denis, &c.

No decision however, was had in this case, as by»the death of the appellant it abated.

In the case of Davidson vs. The King, in the provincial court at October 1704, on a conviction in a criminal case, it was objected by T. Bardley, (Attorney General.) that a writ of error did not lie in that case: and answered by Dulany, for the plaintiff, that a writ of eiror was a remedial writ and lay in every case ew mérito Justitia He cited Sho. 13. 260 1 Lev. 149. Hob 116. Vent 30, 34, 353, 42, 203. 1 Leon. 325 Salkeld. Walcott's case. 1 Lev. 189. Latt, 260 a.

This case also abated m the court of appeals at April term 1722,