1831. against NEVILLE but in Rex v. Speed (a), Holt C. J. said, that if a conviction was affirmed in this Court, the Court might award a leyari facias ; but if the defendant had no goods, he made a question if they could imprison him. A ca. sa. is not in the nature of a commitment in execution of a penal judgment. The object is to enforce the payment of a debt. Here, if the defendant had not means to pay the penalty, it might operate as a perpetual imprisonment. But the stat. 10 G. 2. c. 28. only gives authority to the justices, for want of a sufficient distress, to commit the offender to prison for any time not exceeding six months. The justices may, therefore, exercise a discretion as to the period of imprisonment, which this Court cannot. The party convicted ought not to be put in a worse situation by reason of the record having been removed into this court than he would have been in in the court below, and that would be the case if a ca. sa. were to issue. Then, as to the procedendo, it is a general rule, that if a record be filed in the King's Bench upon a certiorari, it never can be sent back or remanded; per Holt C. J. Fazakerley v. Baldo (b). Tidd's Pr. 410. 6th edition. Starkie contrà. The record was removed by the defendant, and, therefore, he has no reason to complain of any inconvenience to which he may be consequently subjected. Where a conviction is removed into this court by certiorari, the Court has the same power of awarding execution which the Court below had, for otherwise there would be a failure of justice, as the Court below cannot award execution, the record being (a) 1 Ld. Raymd. 583. 12 Mod. 328. (b) 1 Salk. 352. here; of im here; and since this Court has a power to confirm as well as to revise or quash, it follows by necessary consequence that they have a power to award execution of what they confirm. Rex v. Speed (a). They therefore had power to levy the penalty by levari facias, and they would undoubtedly have had the power prisoning the defendant, if the period of his imprisonment had been fixed absolutely by the statute. But it enables the justices to exercise a discretion upon that subject. Assuming that this Court has not authority to exercise the same discretion, or that, not having the facts before them, they have not the means of doing so, they will, at all events, in order to prevent a failure of justice, send the record back to the sessions, in order that the conviction may be enforced, as it would have been if it had never been removed. Lord TENTERDEN C. J. I think we ought to make the rule absolute for a procedendo. It is undoubtedly a general rule, that if a record be filed in this court upon a certiorari it cannot be sent back or remanded; but the rule applies to cases where this Court has the power to execute the judgment of the inferior court. Here we have not the power (which the convicting justices have), in case there be not a sufficient distress, of exercising a discretion as to the term of imprisonment; so that, in the event that has happened, this Court cannot enforce the execution of the judgment. In order to prevent a failure of justice, therefore, I think we ought to send the record back to the sessions, in order that that court may cause it to be enforced, as they would have done if it had never been removed. (a) 12 Mod. 328. LITTLE 182 1831. The KING against NEVILLE. 1831. The KING against NEVILLE. LITTLEDALE J. I think that a ca. sa. ought not to issue. The power of imprisonment is given to the justices only, and they are to exercise a discretion as to the term of imprisonment. That discretion this Court has no power to exercise. It is a technical rule, undoubtedly, that if a record removed by certiorari be once filed in this Court, it shall not be sent back; but that rule is not inflexible. In Rex v. Kenworthy (a), the defendant had been convicted of perjury at the Chester assizes, and an entry was made upon the record, that it was ordered the said L. K., the defendant, be transported for the term of seven years; and this Court held, that the entry was merely an order, not a judgment, and to prevent a failure of justice, awarded a procedendo to the Court below to proceed to give judgment. On the same principle the Court ought, in this case, to grant a procedendo to enable the justices below to award execution; for there will be a failure of justice if the record be not sent back to the sessions. TAUNTON J. I think it quite clear that a ca. sa. cannot issue. The statute directs that the penalty shall be levied by distress and sale of the offender's goods, and for want of a sufficient distress, that the offender shall be committed to the house of correction for any time. not exceeding six months. It seems to me, this Court does not possess the authority which the convicting justices do, of committing the party to prison for a period not to exceed six months. In the event, therefore, which has happened, it has no means of enforcing (a) 1 B. & C. 711. the the performance of the judgment. The record ought to be sent back to the justices, in order to enable them to enforce the conviction by the same means which they would have had if the record had never been removed. PATTESON J. It is impossible for this Court to give effect to the judgment of the court of quarter sessions, and, therefore, to prevent a failure of justice, the record must be sent back to the sessions. The rule for a procedendo must be made absolute. 1831. The KING against NEVILLE. Rule absolute. ROBSON and SHARPE against Drummond. Monday, maker, entered into an agree ment to furnish B. with a carriage, for the term of five THIS was an action brought by the two plaintiffs A., a coachagainst the defendant for breach of an agreement, whereby the plaintiff Sharpe, on the 2d of February, 1824, agreed to furnish the defendant with a new chariot, from that day, for the term of five years thence next ensuing, at the yearly payment of seventy-five guineas per annum, each yearly payment to be paid in advance. Sharpe was to keep the chariot in all necessary repair, years, at seventy-five guineas a year. At the time of making the contract, C. was a partner with A., but this was unknown to B., the business being carried on in the name of 4. only. Before the expiration of the first three years the partnership between A. and C. was dissolved, 4. having assigned all his interest in the business, and in the contract in question to C., and the business was afterwards carried on by C. alope. B. was informed by C. that the partnership was dissolved, and that he (C.) had become the purchaser of the carriage then in his, B.'s, service. The latter answered that he would not continue the contract with C., and that he would return the carriage to him at the end of the then current year, and he did so return it. An action having been brought in the names of A. and C., against B., for the two payments which, according to the term of contract, would become due during the last two years of its continuance, it was held, that the action was not maintainable, the contract being personal, and A. having transferred his interest to C., and having become incapable of performing his part of the agreement. violence 1831. ROBSON against DRUMMOND. A violence excepted, to supply the same with new wheels when required, and to new paint it once in the said term; and at the expiration of the term, defendant was to cause the chariot to be delivered to Sharpe, with all its appointments, in good condition, fair wear and tear excepted. At the trial before Lord Tenterden C. J., at the Middlesex sittings after Michaelmas term 1830, it appeared that Sharpe, one of the two plaintiffs, in February 1824, and for several years preceding, carried on business as a coachmaker in South Street, Grosvenor Square, and that at the time of the contract, Robson, the other plaintiff, was a secret partner with Sharpe, but that was not known to the defendant, the business being carried on in the name of Sharpe only. chariot was built according to the terms of the contract and delivered to the defendant, and he kept it from February 1824 to the 1st of February 1827. The business was carried on in the separate name of Sharpe till June 1826, when he retired from the business, and Robson continued to carry it on. On the 30th of June 1826, Robson addressed the following letter to the defendant:"Sir, I beg leave respectfully to inform you, that the partnership between Mr. Sharpe and myself, as coachmakers, carried on under the name of Sharpe only, at No. 19. South Street, is now dissolved, and the whole of the partnership property having been sold by public auction on the 28th and 29th instant under an order of the Court of Chancery, I have become the purchaser of the chariot now in your service, pursuant to contract, and will do myself the honour of waiting on you without delay, to receive your commands relative thereto, and also to give any explanation you may require. I beg at the same time to inform you, that |