The King against Kirk and Cage

JurisdictionEngland & Wales
Judgment Date01 January 1796
Date01 January 1796
CourtHigh Court

English Reports Citation: 88 E.R. 1337

COURTS OF KING'S BENCH, CHANCERY, COMMON PLEAS AND EXCHEQUER

The King against Kirk and Cage

case 494. the king against kirk and cage. If a principal and his second in a duel go abroad on the death of the adversary, and on an indictment found, appear and give notice of trial to the prosecutor's clerk in Court, the prosecutor ought to bring on the trial the same term or session, unless there be some special cause to prevent it.-S. C. post, 309. S. C. 5 Mod. 454. S. C. Holt, 86. Popham Conway, alias Seymour, having a sudden falling out with Kirk in St. James's Park, after hot words and some blows there, Seymour, Kirk, and one Cage, Kirk's friend, immediately walked out of the park; and Seymour, in his way, took up one Morely as his friend with him ; and as soon as they got out of the park they all four fought, where Seymour received a wound from Kirk, which put him into a fever, whereof he died; whereupon Kirk and his friend Cage fled. The coroner's inquest found this murder, and a bill was likewise found by the grand jury; and process thereupon; and non est inventus returned. Afterwards in the vacation, they, having surrendered themselves, gave the prosecutor's clerk in Court notice that they would move the first day of next term to have a trial. And upon that motion the Court seriatim delivered their opinions. (6) This judgment is said to have been reversed on a writ of error, Stringer v. Phillips, 1 Eq. Abr. 291 ; but this seems to be a mistake, for upon a search made by order of Lee, Chief Justice, it does not appear that any writ of error was brought, Goodtitle v. Stakes, I Wils. 341, and in the case of Rigden v. Vallier, Lord Hardwicke approves of the judgment upon the principles and doctrines laid down by Turton and Gould, Justices, 3 Atk. 371. 2 Vezey, 252. See also Denn v. Gaskin, Cowp. 660, and that the words " equally to be divided " make a tenancy in common in a will, see also Prince v. Heylin, 1 Atk. 493. Owen v. Owen, 1 Atk. 494. Heath v. Heath, 2 Atk. 122. Hawes v. Hawes, 3 Atk. 525. Stone v. Hemtly, 1 Vezey, 165. Stratton v. Best, 2 Brown's C. C. 233. 1338 MICHAELMAS TERM, 11 WILL. 3. IN B. R. H MOD. SOB. Gould, Justice. Here is a murder found by the coroner's inquest, and a trial ought not to be spurred on specially, where there is no affected delay in the prosecutor: and here they fled from justice, but afterwards surrendered, and lately gave notice; and their surrender ought to be reckoned...

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