1834.

GRAY

v.

KIRBY.

therefore, if they received this money, they, and not Mr. Upton, must be liable to the clients to whom it belonged.

Tomlinson, contrà.-The money here was received by Messrs. Lys as the agents of Mr. Upton. It having come into their hands in that character, the clients had a right to look to Mr. Upton, the country attorney, for an account of that sum. This was like any ordinary case between a country attorney and his town agent. If the town agent was guilty of negligence, the client must bring his action against the country attorney. In the same manner, if the client's money were improperly received by the agent, the country attorney was liable to his client for that money.

PATTESON, J., (after recapitulating the facts of the case). -I think this money must be taken to have been received by Messrs. Lys as the agents of Upton. If so, as there is no privity between them and the plaintiffs, Mr. Upton is the person liable for the money so received by them. The Master's reports must therefore be confirmed. An attachment therefore will issue, but for the sum of 2061. 2s. 2d. only, credit being directed by the last rule to be given to Mr. Upton for 2741. 7s. 2d. for bankruptcy business. The attachment may lie in the office for a fortnight.

Report confirmed.

1834.

DOE d. HARRIS v. ROE.

ment.

KELLY moved for judgment against the casual ejector. Service in ejectThe service had been by leaving the declaration with the turnkey of the prison in which the tenant in possession was confined, with directions to him to give it to him; and the tenant had acknowledged that he had received it before the first day of the term.

PATTESON, J.-That will do.

Rule granted.

Ex parte SMITH.

J.J. WILLIAMS moved to re-admit an attorney. The Where the

only peculiarity in the case was, that the names of the deponents were omitted in the jurat.

names of the deponents are omitted in the jurat through

the inadvertence

PATTESON, J.-As that appears to be only an omission of the Judge's of my clerk, let a new jurat be written, and I will sign it.

clerk, it will be amended by direction of the Judge.

Ex parte WENTWORTH.

DOWLING moved to re-admit an attorney. In his af

fidavit, the attorney did not swear that he had been admitted an attorney; but he swore, that, previous to the year 1827, he had been a practising attorney, and had taken out his certificate regularly till the year 1830. That he submitted was sufficient, as the attorney might be indicted for perjury on his statement, if he had not been admitted as an attorney.

PATTESON, J.-I think he might be so indicted, and therefore that will do.

Admitted.

1834.

BORER O. BAKER.

(Before the four Judges.)

If a trial takes PLATT shewed cause against a rule nisi obtained by

place in vacation, and the defendant surrenders after it, and before the following term, he ought to be charged in execution in that

term, or he will

be supersedeable
under 1 Reg.
Gen. H. T.
Will. 4, s. 85.

Mansel for discharging the defendant out of the custody of the marshal, on the ground that he had not been charged in execution within two terms after the trial, pursuant to the directions of 1 Reg. Gen. H. T. 2 Will. 4, s. 85 (a). The words of the rule are, "The plaintiff shall proceed to trial or final judgment against a prisoner within three terms inclusive after declaration, and shall cause the defendant to be charged in execution within two terms inclusive after such trial or judgment, of which the term in or after which the trial was had shall be reckoned one." The facts were, that the trial had taken place in Hilary vacation, and a few days after, and before the first day of Easter Term, he rendered in discharge of his bail. The plaintiff, however, did not charge him in execution during Easter Term. The present application was founded on the objection, that the defendant ought to have been charged in execution during Easter Term. This, he contended, was unnecessary, as the rule on which the present application was founded applied only to executions in which the defendant was a prisoner at the time of the trial, whereas he was at large when the trial took place. But if it should be said that the vacation of Hilary Term must be considered as part of that term, and being in custody during it, he must be considered as in the same situation as if he had been in custody all the previous term, and therefore at the time of the trial, there were two authorities to the contrary. In the case of Pierce v.

(b), a verdict was found for the plaintiff in Hilary vacation, and the defendant rendered on the 2nd of April; final judgment was signed in Trinity Term, and the de

fendant was charged in execution in Michaelmas Term. It was there moved to discharge the defendant out of custody, on the alleged ground that the plaintiff ought to have proceeded to final judgment in Easter Term, and charged him in execution in the Trinity Term following; but the Court there said, "There is no colour for granting the motion, for the defendant did not render himself until after the trial; and though the plaintiff might have signed final judgment in Easter Term, yet he might have good reason for not doing it." Again, in Smith v. Jefferys (a), the defendant surrendered in discharge of his bail in Hilary vacation, after verdict. Final judgment was signed in Easter Term, and the defendant charged in execution in Trinity Term. He having been discharged out of custody by Mr. Justice Lawrence, on the ground that he ought to have been charged in execution in Easter Term, a rule was allowed to quash the supersedeas, and to allow the plaintiff to issue out a ca. sa. After cause had been shewn against this rule, Mr. Justice Lawrence said that he had made the order for superseding the defendant out of custody, understanding that a surrender in the vacation was considered as a surrender of the preceding term; that that was the rule in other cases in respect to declaring against prisoners, and charging them in execution when the surrender is in the vacation after judgment signed; but that, on inquiry, he had found, that though the words of the rule Hilary, 26 Geo. 3, were general, applying as well to a surrender after verdict as after judgment, a distinction had obtained in practice between those two cases; and that, though, when the defendant surrenders in the vacation after final judgment, the term in which judgment is signed is reckoned as one of the terms in which the plaintiff must charge him in execution, the case was different where the defendant surrenders in the vacation after verdict; there the preceding term is not reckoned as one

(a) 6 T. R. 776.

1834.

BORER

บ.

BAKER.

of the two terms. That this distinction also prevailed in the Common Pleas; and, therefore, he thought that the defendant ought not to have been superseded in this case. From the construction here given by the Court to the rule on which the application in that case was founded, it was clear that the term previous to the surrender of the defendant ought not to be considered as one of the terms within which the defendant ought to have been charged in execution.

Mansel, contrà, distinguished this case from the cases cited, as the words of the rule on which they were founded were different from those of 1 Reg. Gen. H. T. 2 Will. 4, s. 85. The words of the rule of H. T. 26 Geo. 3, were "after such surrender;" whereas those of the more modern rule were" after such trial or judgment." The time of the surrender being made was therefore perfectly immaterial. If it had been made on the last day before Easter Term, it would be sufficient (a) to compel the plaintiff to charge him in execution in Easter Term. But the rule proceeded farther, and provided, "of which the term in or after which the trial was had shall be reckoned one." This still more clearly shewed that the time of the surrender could not affect the rights of the defendant. But it had been said that the rule only applied to those cases in which the defendant was in custody at the time of the trial. Yet, the fact of his having been at large when the trial took place could not affect the question; as at one part of the vacation, during which the trial took place, he was in custody, it would relate back to the time of the

(a) See note on rule T. 2 Geo. 1; Rules and Orders of the Law Courts at Westminster, p. 958, An. 1778. It is held that the term in which the writ (whereon the defendant was arrested) is returnable, is to be accounted one of the two terms, although the writ be

returnable on the last day of the term; and so likewise the term wherein the defendant was committed to the custody of the marshal is to be accounted one, although not committed till the last day of a vacation.