CASES ARGUED AND DETERMINED IN THE COURT OF KING'S BENCH, IN EASTER TERM, IN THE NINETEENTH YEAR OF THE REIGN OF GEORGE III Ex parte COLE. struck of the roll CWPER moved, on the part of Cole, who had formerly wards called to the bar, the court on his own applibeen an attorney of this court, and had, at his own desire, cation, and after- been struck off the roll, and was then called to the bar, that he might be again put on the roll of attorneys. The court will not give him refused to comply with the application, there being no inleave to be again stance of a barrister being admitted an attorney. They said, put upon the roll of attorneys. he ought first to have applied to his society to be disbarred [+49]. [+49] Vide Moody's Case, C. B. T. 16 Geo. 2. Barnes, quarto ed. p. 42. where an attorney, having, at his own instance, been struck off the roll, and having been put into the commission of the peace, and made a commissioner of the land tax, and having moved to be restored, on an affidavit, setting forth his reasons, the motion was granted, he consenting to take no advantage of any action pending, if there' should be any. 1779. RICHARDS (qui tam, &c.) against BROWN. THE Davenport now shewed cause, and contended, that there warrant. The Solicitor General, for the rule, contended, that the distinction where there has been laches on the part of the plaintiff in error, has no foundation in reason, and that the cases cited by Davenport were decided on grounds which go to the discretion, not the power of the court. In a case in Moore (d), an amendment was allowed in the name of the attorney, after error brought; and in the case of Henriques v. The Dutch West India Company (e), it was determined that a warrant of attorney may be entered at any time, pendente lite. As to this being a penal action, since the mistake was merely in form-the blunder of a clerk-he did not conceive hat could make any difference []. In Sedg (a) Dyer 190. pl. 48. (b) 1 Roll. Abr. 289. (H). pl. 3. (c) Dyer 230. b. pl. 58. (d) Heley v. Rigs, Moore 711. (e) B. R. T. 2 G. 2. 2 Stran. 807. 2 Ld. Raym. 1532. [] In Goff (qui tam, &c.) v. Popplewell, B. R. M. 29 Geo. S. 2 Term Rep. 707. the court said, there VOLI, wick was no difference between civil and penal actions as to amendments at common law. But as the action (for usury) had been depending four years, they would not permit the sums and dates in the declarations to be amended, as it would, in effect, amount to leave to bring another action, after the time limited by law was expired. K 1779. RICHARDS against BROWN. wick v. Richardson (f), it was held, that penal actions are (f) C. B. T. 5 W & M. 3 Lev. 374. (g) B. R. M. 5 G. 1. 1 Stra. 136. (1) In the case in Moore, the attorney was called, in the warrant, John Keeling, and, in the declaration, William Keeling, and the amendment made was to alter William to John. The court allowed the amendment, on the ground, that by intendment, the warrant of attorney is antecedent to the declaration. The present case was just the reverse; and, if there is any weight in that reason, it rather made against the amendment in this case. In Short v. Coffin, Exr. B. [116] R. E. 11 G. 3. (h), the court amended a judgment by changing it from, " de bonis propriis,' to "de bonis testatoris si, &c." after (h) 5 Burr. 2730. [] And even after the record has been sent back from the Exchequer Chamber. Green v. Bennett, The Rule made absolute. not error brought, and an argument in the Exchequer Chamber []. In Tully v. Sparkes (i), on a writ of error.in the Exchequer Chamber, it was assigned for error, on a judgment, on a demurrer to the plea, that the damages occasione detentionis debiti were said to be awarded ex assensu suo; and Pengelley, Chief Baron, having some doubts whether the case was within 16 & 17 Car. 2. c. 8. § 1. the court of B. R. was moved, and amended the judgment in the original record, and, the transcript being afterwards amend ed, the court of Exchequer Chamber affirmed the judgment. infra, Rex v. Lyme Regis, on the prosecution of the Hon. Heary Fane, p. 135. Vide B. R. E. 27 Geo. 3. 1 Term Rep. 782, 3. (i) 2 Str. 867. 869. 2 Ld. Raym. 1570, 1571. Saturday, 24th April. A rate cannot be made to repay money borrowed build a work The KING against WAVELL and Others. THIS HIS was a rule to shew cause, why a rate for the relief of the poor of the parish of Effingham, in the county of to repair and re- Surry, and an order of sessions confirming the rate, should not be quashed, on the ground, that the parties applying for the rule were over-rated and over-charged. The court of quarter sessions had refused to state a special case, but the counsel for the appellants being of opinion that the rate house. would would appear to be bad from the title, they removed it, by certiorari, into this court, and obtained the present rule. The title of the rate was as follows: the oc 1779. The KING against "Surry, to wit. An assessment on all and every cupiers of lands and houses, in the parish of Effing- WAVELL. "ham, for the necessary relief of the poor, and towards payment of money borrowed for repairing and rebuilding "the workhouse." The objection being stated to be, that, upon this title, the rate appeared to be made for a purpose not within the statute of 43 El. c. 2. viz. towards payment of money borrowed, &c. WILLES, Justice, observed, that the ground, in the rule, was only, that the parties were over-rated and over-charged, and seemed to doubt whether, upon a rule so worded, the court could go into the jurisdiction, or right to rate; but the Solicitor General answering, that they were over-rated, and over-charged, to the amount of that part of the sum assessed which was to be applied to the repayment of the money borrowed, the counsel in support of the rate proceeded to shew cause against the rule. Dunning, Lade, and Rous, for the rate-The Solicitor General, and Mingay, on the other side. 66 In support of the rate, it was contended, that it was unnecessary to have said more in the title, than "A rate for the relief of the poor," and that the acts and orders of magistrates, (except convictions,) are entitled to every intendment from the court that can support them, and, therefore, the court would intend the whole money to have been assessed for the first purpose expressed in the title, if it should be thought that the other was not within the statute, and would reject the additional words, as surplusage. If the present objection was founded in law, the proper method of getting at it would have been by au appeal from the allowance of the overseers' accounts. However, this purpose, of building or repairing a workhouse, was manifestly within the spirit of the statute of Elizabeth, since it would be in vain to provide for the sustenance of the poor, without being able to furnish them with a lodging. It did not appear, on the face of the rate, but that the money might have been borrowed within the year, and, therefore, it was incumbent on the persons complaining to shew that a rate cannot be made for the repayment of money borrowed for building a workhouse within the year. There is a clause in the act (g), authorizing the parish-officers to build houses on the waste for lodging the poor, and directing the money for that purpose to be levied in the same manner as what is before (h) directed to be raised for the relief of the poor; and such power in the parish-offi cers [ 117 ] 1779. The KING against cers is clearly recognized and confirmed by subsequent statutes (i). On the other side it was said to be a general rule without exception, that parish-officers cannot borrow money for any WAVELL. purpose whatever. The inconvenience of vesting such an authority in them was manifest; for new inhabitants might be called upon to pay money borrowed before they become parishioners, and for purposes from which they could derive no benefit; in order, for instance, to repay money employed in building a workhouse, which may be fallen to ruin at the time of making the rate. It was determined in Tawney's Case (k), that there is no power to re-imburse an overseer for money he may have advanced on account of the parish; that he can only do it himself by a rate made within his year for the relief of the poor. It was impossible that the court should intend that the rate was not made for the very purposes expressed on the face of it, by the persons who made it. The court could not suppose, that no part of this rate was for the money borrowed, or consider that part of the title as surplusage. In the case of Rex v. Rebow (1), the rate was both for the house and the tolls, and the counsel, in support of the rate, contended, that, as the house was clearly rateable, the court, if they should be of opinion that the tolls were not, would intend that the whole was assessed for the house, rather than quash the rate; but the court would not listen to this argument [2]. The present objection would not have been competent, on an appeal from the allowance of the overseers' accounts; for in such case, nothing can be objected, but that the money has not been applied to the purposes for which the rate was made. [118] Lord MANSFIELD absent. WILLES, Justice,-Can we reject as surplusage what is a material part of the title of the rate? If we cannot, is a rate, to repay money borrowed, good? Tawney's Case is in point to this, that a rate cannot be made for the express purpose of re-imbursing an overseer for money advanced by |