« SebelumnyaLanjutkan »
vantage thereof, and all misprisions of error and ATTORNEY. errors, defects and imperfections whatsoever, had
made, committed, done, or suffered, or to be had,
year of the reign of our sovereign lord George the by 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
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 is. sued 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
and of the now next ensuing ; but that if default shall be ATTORNEY. made of or in payment of the said sum of £
Defearance. 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 judge ment (or to enter up judgment and sue out execution, upon or by virtue of the same] for reco. vering the said suin 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,  (and that it shall not be necessary for the said (creditor) bis 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 fout, 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
 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,
WARRANTS writ or writs of execution, notwithstanding any ATTORNEY. rule or practice of the court in which the said
judgment shall be entered on record to the contrary. And that he the said creditor, his executors, administrators, or assigns, shall not, nor will have, receive, or take, or attempt to bave, receive, or take, any plea, exception, proceeding, or other benefit or advantage, for want of reviving or keepiug the said judgment on foot.
N. B. A defeasance on a warrant of attorney is considered as part of the same, and that therefore an additional stamp on account of the defeasance is unnecessary.
1 N. R. 279. Note also, that by rule of the King's Bench, M. T. 42 Geo. 3, Where any judgment on warrant of attorney is to be subject to a defeasance, such defeasance must be written on the same paper or parchment on which the warrant of attorney shall be written, or cause a memorandum in writing to be made on such warrant of attorney of the substance and effect of such defeasance; but in the case of Shaw against Evans, 14 East. 576. Lord Ellenborough said, in the fair and equitable construction of the court, it would be the greatest injustice to cut down the whole security of the party on account of the omission of the attorney einployed to prepare it. The court only meant to impose a duty upon the attorney as an officer of the court, which if he has not duly exercised, the defendant may move the court against him.
In tue King's Bench,
(A. B. Plaintiff; Between
PC C. D. Defendant. I confess this action, and that the plaintiff bath sustained damages to the amount of, &c. (the damages laid in the declaration) besides bis costs and charges, to be taxed (as between attorney and client] by the master, but no (judginent is to be entered up or] execution is to be issued until, &c. in default of payment of the sum of, &c (the real debt] being the debt in this action, together with costs as aforesaid. And I do hereby agree, that no writ of error shall be brought, por bill in equity filed, and that if [in case the plaintiff shall enter up his judgment default shall be made at the time aforesaid, the plaintiff shall be at liberty to levy the said sum [of, &c.] together with the costs, sheriff's poundage, and all other incidental expences;
as witness my hand, this
If in Debt. I confess the debt in this cause, and that the plaintiff hath sustained damages to the amount of is. besides bis costs and charges to be taxed, as between attorney and client, by the master, &c.
) to withdraw the plea by me pleaded in this cause, and do confess this action, Verificationc. or the debt therein, &c. [as aforesaid.]
N, B. Where the matter of memorandum or agreement shall not exceed the sum of 201. no stamp is required; Peake's Law of Evidence, 2d part, page 207. By the 42 Geo. 3. ch. 98. Schedule A. the old duty is repealed, (Stat. 23 Geo. 3. ch. 58. sect. 1, and 32 Geo. 3. ch.51.) and a duty of 16s. imposed where the length of the agreement does not exceed 30 common law sheets. The same exceptions are continued as are in the stats. 23 and 32 Geo. 3. Vide Peake's Law of Evidence, page 208, in notes.