1834.

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.

ment.

Doe d. HARRIS v. Roe. 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

names of the only peculiarity in the case was, that the names of the

deponents are deponents were omitted in the jurat.

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- On applying to fidavit, the attorney did not swear that he had been ad- torney, it is sufmitted an attorney; but he swore, that, previous to the ficient if the af

fidavit clearly year 1827, he had been a practising attorney, and had shews by its taken out his certificate regularly till the year 1830. That he must have he submitted was sufficient, as the attorney might be in- without posidicted for perjury on his statement, if he had not been tively stating admitted as an attorney.

statements that

the fact.

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

Admitted.

1831.

BORER v. BAKER.

(Before the four Judges.) If a trial takes PLATT shewed cause against a rule nisi obtained by place in vacation, and the Mansel for discharging the defendant out of the custody defendant sur

of the marshal, on the ground that he had not been renders after it, and before the charged in execution within two terms after the trial, purfollowing term, he ought to be suant to the directions of 1 Reg. Gen. H. T. 2 Will. 4, charged in exe

s. 85(a). The words of the rule are, “ The plaintiff shall cution in that term, or he will proceed to trial or final judgment against a prisoner within be supersedeable under 1 Reg. three terms inclusive after declaration, and shall cause the Gen. H. T. 2 Will. 4, s. 85.

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. (6), 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

1834.

BORER

BAKER.

fendant was charged in execution in Michaelmas Term.
It was there moved to discharge the defendant out of cus-
tody, 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 Hi-
lary 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 cus-
tody, 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 dis-
tinction 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 differ-
ent 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

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. returnable on the last day of the 1; Rules and Orders of the Law term; and so likewise the term Courts at Westminster, p.958, An. wherein the defendant was com1778. It is held that the term in mitted to the custody of the marwhich the writ (whereon the de- shal is to be accounted one, alfendant was arrested) is return- though not committed till the last able, is to be accounted one of the day of a vacation. two terms, although the writ be