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1834.

BORER

trial, and the preceding term. The Court could not divide the vacation; and therefore, if he was in custody at any time during it, he must be considered, by relation, to be in custody during the whole of it. Had he not surrendered until the last day before Easter Term, it would have been sufficient.

BAKER.

Lord Denman, C. J.-I am of opinion that the defendant ought to be superseded. It is true, there may be some doubt on the construction of this rule, as to whether it applies to the case of a prisoner actually in custody at the time of the trial, or of one who surrenders afterwards, during the vacation. But, as the application concerns the liberty of the subject, we think it better to hold that the defendant ought to have been charged in execution in Easter Term; and therefore, not having been so charged, he is now supersedeable.

LITTLEDALE, J., TAUNTON, J., and WILLIAMS, J., concurred.

Rule absolute.

Pyke v. GLENDINNING. COMYN shewed cause against a rule obtained to vacate the provisions

of the 1 Will. 4, a judgment entered against the defendant, and to arrest

c. 7, ss. 2, 4, bethe judgment. The costs were taxed, and judgment ing extended to

proceedings besigned upon the day before the first day of full term. The fore the sheriff

under the 3 & 4 cause was tried before the sheriff of Middlesex, upon a Will. 4, c. 42, s. writ of trial under 3 & 4 Will. 4, c. 42, s. 17. He con- 17, the Court

will, in the next tended, that the judgment operated as a judgment as of term, entertain the preceding term (a), and therefore that the Court had cate and arrest

a judgment

signed in vaca(a) It was held in Price v. day of the term are now part of tion. Hughes, ante, Vol. 1, p. 448, that the vacation. the three days before the first

1834.

no power now to vacate it (a); and that the defendant must resort to a writ of error.

PYKE

GLENDINNING.

Mansel, in support of the rule, contended, that, under the provisions of the stat. 3 & 4 Will. 4, c. 42, ss. 17, 18, the Court must have the same power as is given by 1 Will. 4, c. 7, ss. 2, 4(6), because the vacating provisions of that statute were, by the 3 & 4 Will. 4, c. 42, s. 19, extended to the writ of trial; and the former statute expressly authorized a judgment to be arrested or vacated, though entered in vacation.

PATTESON, J.-Taking these statutes together, I feel myself bound to hear this motion. It was afterwards disposed of upon terms.

(a) Held, in The King v. Richard Carlile, 2 B. & Ad. 971, that a judgment could not be altered in

a term subsequent to that in
which it was delivered.
(6) Ante, Vol.1, p. 601; 3 Tyr.145.

BREWSTER v. Meaks. Where a sci fa. BALL shewed cause upon a rule obtained to set aside is unnecessarily the proceedings in scire facias, on the ground that they the defendant's

were unnecessary, and contended, that, as the defendant's attorney, on his behalf, proposes attorney had, during such proceedings, made terms of terms of compromise, on

compromise, which had been acted upon pro tempore, the which the party defendant ought not now to be allowed to object that such the defendant scire facias was unnecessary, or to other irregularities. cannot after wards object to pay the costs of the sci. fa.

Mansel, in support of the rule, contended, that as process of execution had been sued out and returned within a year after judgment, no scire facias was necessary; and that, unless it could be shewn that the attorney had full knowledge of the facts; and that, under 3 & 4 Will. 4, c. 42, s. 34, his client was then liable to costs upon such

1834.

writ, though upon a judgment by default, his client could not be held responsible for them—they were wholly unnecessary, and there was no advantage or consideration for an agreement to pay them.

BREWSTER

MEAKS.

Patteson, J.—The treaty made by the attorney, and acted on, binds the client, even as to these costs, admitting the scire facias to be unnecessary.

CAREw v. EDWARDS. FOLLETT shewed cause against a rule obtained by the person of a Mansel to set aside a writ of habeas corpus ad satisfaci- charged by cerendum against the defendant, and under which he was

tificate, after

prior insolvency, detained in custody of the marshal.

although 15s. in

the pound were The defendant having previously taken the benefit of not paid.

In such case the Insolvent Act, a commission of bankruptcy issued

the certificate against him under 5 Geo. 2, c. 30, s. 9, and he had not un- being proved,

but the verdict der that commission paid, clear of all charges, 15s. in the entered genepound. Being sued by the plaintiff for a large debt, he rally, the Court pleaded bis bankruptcy and certificate; but not being able affidavits to as

certain the fact at the trial to make out that he had paid, under the com- of such proof.

After such mission, clear of all charges, 15s. in the pound, a verdict general finding,

the defendant passed against him in general terms. He contended, that

being taken in the motion should have been to have amended the judg- execution, he ment in the terms prayed for, so as to exonerate the per- apply to be dis

charged without son; and that in the present form of application, the exe- moving to recution was correct; and that it did not distinctly appear

strict the judge from the affidavit that the certificate under the commission was proved upon the trial.

may at once

ment.

Mansel submitted, that, as by 1 Reg. Gen. H.T.2Will.4,

1834.

CAREW

EDWARDS.

s. 95 (a), it was not now necessary for the proceedings to be entered on record in order to charge a defendant in execution, there was in fact no judgment; but the execution was sealed upon production of the postea, marked with the damages and costs. That the execution was, , therefore, irregular, as it would not warrant such a judg. ment (6) as the plaintiff could lawfully enter up, under the circumstances; and that this objection could be entertained upon a general verdict (c). That the person was clearly discharged by the certificate; and that these facts in substance appeared on the face of the affidavits in support of the rule; and that at all events it would be better for the plaintiff and his attorney to consent to terms, as upon the writ being set aside, on a second application, an action of trespass will lie against them.

Patteson, J.—As it is not now necessary to enter the proceedings upon record, in order to charge a defendant in execution, the present form of application will suffice; but I doubt whether the affidavits in support of the rule fully shew that the second certificate was proved on the trial.

Follett, upon the intimation of the learned Judge as to the defendant's claim to relief as to his person, offered that the rule should be absolute as to discharging the defendant, without costs-no action to be brought.

Rule accordingly.

(a) Ante, Vol. I, p. 196. In Carew v. Edwards, (the same (6) That is, against the goods and action,) 1 Nev. & Mann. 632; 4 B. chattels (except the tools of trade, & Ad. 351, it was held that this the necessary household goods and

commission, issuing before 6 Geo. furniture, and necessary wearing 4, c. 16, was not affected by it. apparel of the bankrupt, his wife (c) Coverly v. Mosly, 16 East, and children) and the real estate. 225.

1834.

MORTIMER v. PIGGOTT.

ecution, on

(Before the four Judges). SIR JAMES SCARLETT shewed cause against a rule if a writ of exnisi for discharging the defendant out of custody, on the which a defenground that the judgment on which the execution issued, dant is charged

in custody, is and on which he was charged in custody, had been signed a nullity, the more than a year before the issuing of such execution, and does not waive had not been revived by sci. fa., or otherwise kept on

his right to ap

ply for his disfoot (a). The judgment had been signed on the 19th charge. June, 1819, but the defendant was not charged in execution till September, 1821, without a sci. fa. to revive, although the judgment was more than a year old. From that time until the present no effort was made by him to obtain his liberty. Remaining thus in custody for that length of time was a waiver of the irregularity, if any there

were.

Humfrey and Mansel, in support of the rule, contended that the proceeding of the plaintiff was not a mere irregularity, but was a nullity. The words of the statute of Westminster 2 (13 Ed. 1), stat. 1, c. 45, directly required, that, where the judgment was more than a year old, a sci. fa. must be issued to revive it (6). The proceeding to charge him in custody without a sci. fa. was a mere nullity, and therefore the length of time which had elapsed could not be considered as a waiver on the part of the defen

(a) As by a former writ returned and filed within the year. Blayer v. Baldwin, 2 Wils. 82; Barnes, 213, S.C.

(6) The reason why the plaintiff is put to his scire fucius after the year is, because, when he lies by so long after judgment, it shall

be presumed that he hath released the execution; and, therefore, the defendant shall not be disturbed without being called upon, and having an opportunity in Court of pleading the release or shewing cause, if he can, why the execution should not go. 2 Inst. 470.

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