Bachelor v. State ( 1823 )

The Chancellor

said, after the conclusion of the argument on the motion to quash the writ of error, that the Court had doubts whether the State could sue out a writ of error; but that as to the second question no doubt was entertained. That the Court of Oyer and Terminer had rendered a judgment, and therefore the second reason assigned for quashing the writ could not prevail. In Biggins' Case, 5 Co. 50, no judgment had been rendered. It is true that in that case and Hob. 294 it is said that burning in the hand is no part of the judgment; neither was it there, for it appears by Cro.Eliz. 632, 689 that that case was compromised. A pardon had been granted before the defendant was put to pray his clergy. The question was whether the pardon in the case of appeal discharged the burning. Two of the judges held that it did, and two others that it did not; but no judgment or decision was made, and the defendant paid the plaintiff forty marks, who thereupon discontinued the appeal. Sir Thomas Raymond says that case was compounded and that burning is part of the judgment, for the entry is, “Idea consideratum est, quad le offender cauterizetur in manu sua leva.” He cites Rast.Ent. 1, 6 and 56a, Raym.T. 369. In 3 P.Wms. 439, 488, Rex v. Burridge, Lord Hardwicke speaks of the judgment quad, cauterizetur; and in the case Moo. 571 is cited, where it is said Biggins’ Case was compounded. 1 Str. 529, 530, Sir George Ludlam, Chamberlain of London, v. Lopez, Eyre Justice questions whether Biggins’ Case be law, for the burning the hand is part of the judgment.

In Long’s Case, Cro.EIiz. 489, no judgment was really rendered, and therefore a writ of error would not he. And Hawkins, referring to Long’s Case, says that conviction of felony whereon the party has had his clergy may be discharged by exception to the indictment, because no writ of error lies of such a conviction, not being a judgment. 2 Hawk.P.C. Book 2nd, 459, s. 1, and that is certainly in accordance with all the cases in which no judgment had been rendered. And 4 Bl.Comm. 330 says that judgment may be suspended by the benefit of clergy or other causes. And in all cases where a judgment has not been actually given, a writ of error will not lie. But a judgment may be given, and wherever it is, a writ of error will lie. Lord Hardwicke, Eyre Justice, and Sir Thomas Raymond mention the words of such a judgment. And in 2 Hale P.C. 395, Lord Hale says, “The judgment in case of allowance of clergy is thus,” — and then states the judgments in words similar to those used in the judgment against Elizabeth Bachelor. Here a judgment has been actually rendered, and the writ of error will well lie.

The Court said that the counsel might proceed in the argument of the errors assigned, and if they should be of opinion that the judgment was right, they would recommend to the Attorney-General to withdraw the writ of error. . . .