Gambar halaman


trusts and powers hereby in them respectively ASSIGNvested, any otherwise than each such person for such sum and sums of money as he shall actually Of Bond. receive or come to his hands or custody; nor shall any of them be charged or chargeable with, or answerable or accountable for the acts, receipts, neglects, or defaults of the other of them, but each for his own acts, receipts, neglects, and defaults only; nor shall they the said trustees, their respective executors and administrators, or any of them, be answerable for any loss or defect which may happen by the failure of any stocks, funds, or securities, or by any messuages, tenements, lands, or hereditaments taken or purchased in pursuance of these presents, or by any defect of title to the same respectively, or otherwise in the execution or management of any of the trusts hereby in them reposed, unless the same shall arise or exist with their privity or through their default. AND ALSO, that it shall and may be lawful for them the said trustees, their respective executors and administrators out of the trust monies which shall come to their or any of their hands, to allow, retain, or reimburse themselves for all costs, charges, damages, and expences which they respectively shall or may sustain, or - be put unto in and about the execution and defence of the trusts hereby in them respectively reposed. IN WITNESS, &c.



No. IX.

To John Doe and Richard Roe attorneys of his Majesty's Court of King's Bench at Westminster, jointly and severally, or to any other attorney of the same Court.

THESE are to desire and authorize you the attorneys above named, or any one of you, or any other attorney of the Court of King's Bench aforesaid, to appear for me [1] (the obligor or creditor) of in the county of

in the said court, as of this present Easter Term, or any other subsequent Term: AND then and there to receive a declaration for me in an action of debt on a [2] bond or obligation made and entered into by me the said [obligor] to [the obligee [3] or creditor] of Lincoln's Inn afore

[1] It is the safest way for an executor or administrator, when he confesses a judgment, to prefer one creditor to another, not to confess with costs; for it hath been questioned, and with reason, whether confessing a judgment with costs be not a devastavit; for if the executor or administrator has assets in his hands, he ought to have paid them, and not let judgment go against him. And if he has no assets, he may plead plenæ administravit and so defend himself; but if he has not assets sufficient to pay the principal debt, then it can be no devastavit, for he is himself the only sufferer; (viz.) by paying the costs de bonis propriis.

[2] The condition of a bond is a cesset executio on the warrant of attorney. 4 Com. Dig. 141.

[3] If there be three obligees, the court will permit judgment to be entered up by the survivors. Fendall and others versus May, Bt. Maule and Selwyn's Reports, Michs. 1813.

said, in the penal sum of £

[or in an ac- WARRANTS


tion of debt for £ for so much money ATTORNEY. borrowed] at the suit of the said (obligee or creditor) his [4] executors and administrators. AND THEREUPON to confess the same action, or else to suffer a judgment by nil dicit or otherwise to pass against me in the same action, and to be thereupon forthwith entered up against me of record of the said court for the said debt, besides costs of suit. [5] AND I the said (obligor or creditor) do hereby further authorize and impower you the said attorneys, or any one of you, after the said judgment shall be entered up as aforesaid, for me and in my name, and as my act and deed to sign, seal, and execute, a good and sufficient release in the law to the said (obligee or creditor), his heirs, executors, and administrators, of all and all manner of error and errors, writ and writs of error, and all benefit and ad

[4] As to the necessity of these words, see Barnes, 44. Cole, Executor, v. Fladen, 20 Geo. 2. C. P. Str. 718.

[5] But if to confess judgment in ejectment, say

" and then and there to receive a declaration for me in an action of trespass and ejectment at the suit of (the lessee of plaintiff) for twenty messuages, &c. with the appurte nances in the parish of, &c. which (the mortgagee) on, &c. did demise to the said lessee and his assigns, to hold from, &c. before the date hereof for the term of, &c. from thence next ensuing, and fully to be complete and ended, and thereupon to confess a judgment in the said action, for the said messuages, land, and premises, with the appurtenances, or eise to suffer a judgment by nil dicit or otherwise, to pass against me in the same action, for 2d. damages, with costs, and to be thereupon forthwith entered up against me of record of the said court."


vantage thereof, and all misprisions of error and ATTORNEY. errors, defects and imperfections whatsoever, had made, committed, done, or suffered, or to be had, made, committed, done, or suffered, in, about, touching, or concerning the aforesaid judgment, or in, about, touching, or concerning any writ, warrant, process, declaration, plea, entry, or other proceedings whatsoever, of or any way concerning the same. AND for what you the said attorney or any one of you, shall do or cause to be done in the premises, or any of them, this shall be to you and every of you a sufficient warrant and authority. IN WITNESS whereof I have hereunto set my hand and seal the

day of year of the reign of our soby the grace of God, of the united kingdom of Great Britain and Ireland, king, defender of the faith, and in the year of our Lord

in the
vereign lord George the

Sealed and delivered, being first duly stamped, in the presence of

A Defeasance thereon.

MEMORANDUM. It was agreed immediately before the execution of the within written warrant of attorney, that no execution should be issued on the judgment intended to be entered up [or that no judgment should be entered up] as within mentioned, unless default should be made of or in payment by the within named (debtor) of the sum of £ with interest for the same, at and after the rate of five pounds for every 100 by the year, to the within named (creditor) at his present dwelling house in

in the county of

between the

bours of


of the

day of



now next ensuing; but that if default shall be ATTORNEY. made of or in payment of the said sum of £ and interest, or any part thereof respectively, at the time and place aforesaid, it shall and may be lawful to and for the said (creditor) to sue out execution upon or by virtue of the same judgment [or to enter up judgment and sue out execution, upon or by virtue of the same] for recovering the said sum of £ and interest, or so much thereof as shall or may be then unpaid, together with the costs of taking out execution, and all other costs, charges, and expences, which he or they shall or may bear, pay, sustain, expend, or be put unto, by reason or means of the nonpayment thereof respectively, [6] (and that it shall. not be necessary for the said (creditor) his executors, administrators, or assigns, to revive, or cause to be revived, the said judgment (in case he should not immediately issue execution) or to do any act to keep the same on foot, notwithstanding the said judgment shall be entered of record, for the space of one year or upwards, next immediately preceding the teste or issuing of such

[6] The Statute of Westminster, 2. which gives the Sci. Fa. has no prohibitory words to prevent the plaintiff from issuing execution without a Sci. Fa. or action. The principle upon which the action or judgment was required at common law was, that the defendant should not, after the lapse of a year and a day, have his goods taken in execution without having an opportunity of setting up any defence which might have arisen during that time. The provision of the common law that an action should be brought in that case, was in favor of the defendant; and the provision of the statute is the same, and any person may give up the benefit of a legal provision made in his favor.


« SebelumnyaLanjutkan »