#### Anonymous.

^pHE plaintiff had taken a capias which was returned non est inventus, then an attachment upon which the sheriff return* ed levied on two negroes but net taken into custody, because there was no yawl of the county to keep them in. Upon this return the phlutiif took a judgment by default and afterwards cr-ecu’ted a writ of inquiry, and had judgment final; and now Hill, fur the defendant, moved to set it aside for irregularity, and he cited Blacksioue’s Commentaries ; and he pi educed an tSdavic of the defendant stating that he had not anj notice of these p.o-ce,-dings.

jcahjii, e conti a

The judgment was obtained a term or two ago, and cannot now be set aside unless by writ of error.

Haywood, Justice .“

When this court pastes a judgment and the term expires, it cannot in general be set aside but by writ of error, and then only in a case where the error is in a matter of fact, to be tried by a jury i if the error be in matter of law, this court cannot reverse its own judgment for any such error, for '¿hen proseedingn would be endless ; but if the judgment be absolutely void, and not voidable only as if given against a person who was not served with process; or if it be taken irregularly against the known rules of the court, it may be set aside at any time on motion : here the property was not taken into the actual custody of the officer ,; had it been so, the law supposes notice would have come to the defendant; and without such an actual taking of the property levied on, into the officers custody, the attachment is not well executed, and does not bring the defendant into court, consequently this judgment was irregular, as having been taken against one not la court and must be set aside.

Judgment set aside,,