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. Lord DENMAN, C. J.-I am of opinion that the defendant ought to be superseded.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., con curred. 1834. BORER V. BAKER. Rule absolute. PYKE v. GLENDINNING. of the 1 Will. 4, proceedings be COMYN shewed cause against a rule obtained to vacate The provisions 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 signed upon the day before the first day of full term. The fore the sheriff cause was tried before the sheriff of Middlesex, upon a writ of trial under 3 & 4 Will. 4, c. 42, s. 17. tended, that the judgment operated as a judgment as of term, entertain the preceding term (a), and therefore that the Court had (a) It was held in Price v. Hughes, ante, Vol. 1, p. 448, that the three days before the first He con day of the term are now part of under the 3 & 4 Will. 4, c. 42, s. 17, the Court will, in the next a motion to vacate and arrest a judgment signed in vacation. 1834. PYKE บ. GLENDINNING. no power now to vacate it (a); and that the defendant must resort to a writ of error. 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(b), 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. (b) Ante, Vol. 1, p. 601; 3 Tyr.145. sued out, but the defendant's attorney, on his 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 were unnecessary, and contended, that, as the defendant's attorney had, during such proceedings, made terms of compromise, which had been acted upon pro tempore, the which the party defendant ought not now to be allowed to object that such scire facias was unnecessary, or to other irregularities. behalf, proposes terms of compromise, on for a time acts, 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 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. 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 Mansel to set aside a writ of habeas corpus ad satisfaciendum against the defendant, and under which he was detained in custody of the marshal. The person of a charged by certific defendant is dis tificate, after prior insolvency, although 15s. in the pound were In such case the certificate being proved, entered gene but the verdict The defendant having previously taken the benefit of not paid. the Insolvent Act, a commission of bankruptcy issued against him under 5 Geo. 2, c. 30, s. 9, and he had not under that commission paid, clear of all charges, 15s. in the pound. Being sued by the plaintiff for a large debt, he pleaded his bankruptcy and certificate; but not being able at the trial to make out that he had paid, under the commission, clear of all charges, 15s. in the pound, a verdict He contended, passed against him in general terms. Mansel submitted, that, as by 1 Reg. Gen. H. T. 2Will. 4, rally, the Court will make use of affidavits to as certain the fact of such proof. general finding, the defendant After such being taken in execution, he may at once apply to be discharged without moving to re strict the judg ment. 1834. CAREW บ. 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 judgment (b) 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. (a) Ante, Vol. 1, p. 196. Rule accordingly. In Carew v. Edwards, (the same 225. TRINITY TERM, 4 WILL. IV. 1834. MORTIMER v. PIGGOTT. (Before the four Judges). If a writ of exwhich a defendant is charged nullity, the lapse of time does not waive ecution, on a his right to apply for his dis SIR JAMES SCARLETT shewed cause against a rule 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 (b). 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. (b) The reason why the plaintiff is put to his scire facias after the year is, because, when he lies by so long after judgment, it shall be presumed that he hath released |
