McCALLUM v. COOKSON - Cumberland and Westmorland Newspaper Transcriptions

McCALLUM v. COOKSON

McCALLUM v. COOKSON

Court of Common Pleas, Westminster, Nov. 3. (Before Lord Chief Justice
COCKBURN, and Justices WILLIAMS, CROWDER, and BYLES.) This was a plait
tried in the County Court of Newcastle, before the late Mr. LOSH, judge of
that court, in which the plaintiff recovered damages £50. Against this
verdict there was an appeal lodged, and the case was drawn up by either
party, and as they could not agree on its terms, it was, pursuant to the
statute 13th and 14th Victoria, cap. 61, laid before Mr. Losh to settle and
sign. That learned judge died before he had either settled or signed the
case. Mr. UDALL now moved for a prohibition, or a 'certiorari', to prevent
the plaintiff proceeding on his judgment, and to induce him to agree to a
case for the opinion of the superior Court. The proceedings to appeal were
a stay of execution if carried out; but they were not complete because of
the death of Mr. Losh, he referred to "Ex parte M'Free", 9 Exch. 261.

The Chief Justice: We have no jurisdiction except in the appeal, and there
is no appeal; the proceedings are incomplete. Besides, how can we tell
that the plaintiff will proceed to execution ?Mr. UDALL applied for the writ
of prohibition 'quia timet'.

The Chief Justice: Up to the present time nothing wrong has been done.

Mr. Justice BYLES: If, as you say, the appeal is a 'supersedeas' of
execution, no one can move.

The Chief Justice: It is a sort of "stale mate". The whole question is
whether the appeal continues or falls to the ground from the unfortunate
circumstance of the death of the judge. - Rule refused.

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