Nesbit against Rishton
| Jurisdiction | England & Wales |
| Judgment Date | 09 January 1839 |
| Date | 09 January 1839 |
| Court | Exchequer |
English Reports Citation: 112 E.R. 1273
IN THE EXCHEQUER CHAMBER.
in the exchequer chamber. (error from the queen's bench.) nesbit against KiSHTON. Wednesday, January 9th, 1839. Under stat. 11 G. 4& 1 W. 4, c. 70, s. 8, error lies to the Court of Exchequer Chamber on judgments given in the Queen's Bench upon error from the Common Pleas at Lancaster. This was a writ of right, brought by the plaintiff in error against the defendant in error, in the Court of Common Pleas, Lancaster, upon which judgment was there given for the tenant. On this judgment error was brought in the Court of King's Bench: and that Court in part affirmed and in part reversed the judgment of the Court of Common Pleas, Lancaster (Eishton v. Nesbit, 6 A. & E. 103). The tenant brought error in the Court of Exchequer Chamber on the judgment of the Court of King's Bench. On December 3d, 1838, Wightman, for the defendant in error, obtained a rule calling upon the plaintiff in error to shew cause why the proceedings on the writ of error should not be quashed for irregularity. The rule was drawn up on reading the writ of error. [427] Starkie now shewed cause (a). The question is whether sect. 8 of stat. 11 G. 4 & 1 W. 4, c. 70, applies to judgments given in the Court of Queen's Bench on error from a Court below. The words are, "Writs of error upon any judgment given by any of the said Courts:" and these are large enough to comprehend the case now before the Court. The effect of the section was discussed in Rex v. Wright (1 A. & E. 434). The question there was whether, the Crown not being named in the statute, this Court had cognisance, in error, of indictments; and it was held that it had. That is not a direct authority on the present question : but the language of Tindal C. J. is important, as shewing the general principle upon which the Act should be construed. His Lordship says, " In the case, therefore, of an Act of Parliament passed expressly for the further advancement of justice, and in its particular enactment using terms so comprehensive as to include all cases brought up by writ of error, we think there (a) Before Tindal C.J., Bosanquet, Vaughan, and Coltman Js., and Alderson and Gurney Bs. 1274 NESBIT V. RISHTON 9 AD. & E. 428. is neither authority nor principle for implying the exception of criminal cases, upon the ground that the King, as the public prosecutor, is not expressly mentioned in the Act. By such a construction of the Act, its object and intent can best be attained." In Tra/ord v. The King (c), this point was never made. Stat. 27 Eliz. c. 8, s. 2, gave a writ of error into the Exchequer Chamber in actions "first commenced" in the Court of King's Bench, "other than such only where the Queen's Majesty shall be party." This clause was held inapplicable to cases where the action was commenced by original out of Chancery (d). [428] Nor could it apply to indictments, on account of the words of limitation. For the same reason, a judgment given in the King's Bench on error from a Court Palatine was held not to be within the clause. In stat. 11 Gr. 4, & 1 W. 4, o. 70, s. 8, there are no words of limitation. In Rex v. Wright (1 A. &...
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