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1823

The rule for discharging the brder for that purpose must therefore be made ..

Absolute (a):

WILKINSON,
Demandant,

Foster,
Vouchee.

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(a) So in Plenderlcatk ó. Fråser, 3 Ves. & Beam. 175, the Court of Chan. cery would not direct the taxation of a solicitor's bill, after payment and long acquiescence, unless there were very gross charges distinctly pointed out; and therefore where a bond was given, and the money paid under a judgmedi apon á verdict ;axation was refused, although there were improper charges, but not amounting to fraud.

rant of attor

Davis 0. NORTON..

Friday,

Jan. 31st. Mr. Serjeąnt Hullock, in the last Term, obtained a rule, Where the calling on the plaintiff to shew cause why the writ of cessarily sued

plaintiff unneexecution which had been issued in this cause, and all out a scire facias the subsequent proceedings taken thereon, should not be ment on a warset aside for irregularity, with costs ; on the ground that ney, a fieri judgment had been signed, and a writ of fieri facias sued facias issued on out thereon after a scire façias had been issued into London, after it has

been revived, of which the defendant had no personal notice or service, mnst recite the

sci. fa.; and

the Court set Mr. Sérjeant Taddy now shewed cause, when the facts aside an exe

cution groundappeared on affidavit to be as follows:

ed on such fi.

fa. on the terms In January, 1821, the defendant executed a warrant of the defend

ant's undertakof attorney, with a deféazance for securing to the plain- ing to bring no tiff the sum of 68l. 14s. 5d, with interest, by monthly action. instalments of 21. until the whole amount should be paid, with liberty for the plaintiff to enter up judgment at his discretion ; but no execution was to issue, unless default should be made in one or more instalments; in which case, the plaintiff was to be at further liberty to issue execution, and levy for the whole sum then remaining due and unpaid. The first instalment having become due, parsuant to the terms of the defeazance, and being unpaid

1823.

DAVIS

NORTON

the plaintiff entered up judgment on the 21st February, 1821, and an arrangement was afterwards entered into, by which the defendant was given further time for payment, and it was agreed that no execution should then issue. The instalments were afterwards paid down to the 19th June, 1822, when, the defendant having ceased to make any further payments, the plaintiff, on the soth October following, caused a writ of scire facias to be issued, directo ed to the sheriffs of London, for the purpose of reviving the judgment entered up on the warrant of attorney; which scire facias was tested on the 26th June, and lodged in the secondary's office on the 2d November last, returnable on the morrow of All Souls, being the 3d of that month. On that writ, the sheriffs returned nihil, and a rule to appear was duly and regularly given on the 6th. After the return of the scire facias, an alias scire facias was issued (viz. on the 6th November), and lodged in the secondary's office, returnable on the morrow of St. Martin (being the 12th November); and on the day following, a rule to appear to the writ of alias was duly and regularly entered at the prothonotary's office. On the 20th Nooember, no appearance having been entered to either of the writs of scire facias, the plaintiff signed judgment thereon, and on the 22d issued a writ of fieri facias in the usual form, for levying the balance then due to him from the defendant. Under these circumstances, the learned Serjeant submitted, that the execution had been regularly issued. By the terms of the defeazance, the plaintiff merely undertook to forego execution, unless default should be made in the payment of one or more of the instalments, in which case he might levy for the whole sum then remaining due; and as the instalments had been paid to the 19th June last, there was, in point of fact, no necessity whatever for any scire facias to have been issued;

the question, as to whether personal notice was required to be given to the defendant, falls to the ground;

and if so,

1823.

DAYIS

. NORTON

and the fleri facias, under which the execution was taken out, being in the ordinary form, it must be taken to refer to the original judgment, and not to that on the scire facias; and more particularly so, as the latter writs were not even mentioned, or adverted to therein. At all events, the defendant was not entitled to any notice of the writs of scire facias by the sheriffs to whom they were directed; for if a judgment be under seven years old, the plaintiff may sue out a scire facias as a matter of course, and there is no occasion to serve it on the defendant (a). Besides, by the practice of this Court, if a scire facias be sued out on a judgment for debt and damages against the defendant himself, who was party and privy to the judgment, and the sheriff returns nihil, and the defendant makes default; there shall be judgment against him without awarding a second scire facias (6); and in such a case there is no occasion to serve the first on the defendant. Therefore, quacunque via data, the execution in this case has been regular, and cannot be set aside; and more particularly so, as the defendant caused no appearance to be entered either to the writ of scire fucias or the alias; and a return of two nihils, is, at all events, equi. valent to notice.

Mr. Serjeant Hullock, in support of the rule. Although the original judgment continued in force by the payment of the instalments by the defendant to the month of June last, still the plaintiff had thought proper to proceed by scire facias, under which he obtained a fresh judgment, which formed the basis of the present execution. That second judgment was not only unnecessary and irregular, but as the fieri facias issued under it was founded on the two writs of scire facias, it should either

(a) See Impey's Practice C. P. 6th edit. 466.

(6) Id.

1823.

have referred to, or recited those writs; but as it is in the common form, the execution is irregular, and cánbot be supported.

Davis

NORTON.

Per Curiám. The original judgment of the 21st February, 1821, was waived or suspended by the plaintiff

, on his causing the writs of scire facias to be sued out to revive it. That, in point of fact, was unnecessary, as the defendant did not make default in payment of the instalments until the month of June last: and in Scott v.Whalley (a), where judgment was entered on a bond to secure the quarterly payment of an annuity, and a fieri facias having issued for the arrears of the last half year;- it was held that a second fieri facias inight be taken out for the next quarter, withiout reviving the judgment by scire facias. Here there were two distinct and separate judgments, and the fieri facias should have been adapted to that or which the execution is founded; and as it was sued out in the common form it is clearly irregular, as it is impossible to ascertain to which judgment it refers. The execution must be therefore set aside; but on the terms of the defendant bringing no action : and, subject to this qualification, the rule was made

Absolute (6).

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(á) 1 Hen. Bla. 294. (6) Where judgment is entered up on a warrant of attorney, it is not with: in the statute 8 & 9 Will. 3, c. 11, s. 8; it seems, therefore, unnecessary to proceed by scire facias under that statute, for subsequent arrears or instalments. See Austerbury v. Morgan, 2 Taunt. 195; Cut v. Rodbard, 3 Taunt. 74; and Kinnersley V. Mussen, 5 Taunt: 264. See also Tidd's Practice, 7th edit. 604-1142.

1823.

WELLARD V. Moss,

Saturday,
Feb. Ist.

This was an action of debt, brought by, the plaintiff to. The statute recover the sum of 3681. 6s. 6d, for inoney paid by him c. 108, s.'16, for the defendant, and for money had and received by empowers com

manders-inthe defendant to the plaintiff's use. The defendant chief on foreign

stations to propleaded, first, nil debet; on which issue was joined. mote petty offiSecondly, a set-off; to which the plaintiff replied the cers and sea

men to the rank statute of limitations, on which issue was joined. And, of lieutenant,

master, surlastly, the statute of limitations ; on which issue was geon, boatalso joined.

swain, &c.

Where, there At the trial of the cause, before Lord Chief Justice fore, a boat

swain's mate Dallas, at Westminster, at the Sittings after Hilary Term, was appointed

acting boat1822, a verdict was found for the defendant, subject to swain of a the opinion of the Court on the following cage :

single ship, and

on her return The plaintiff's case consisted of proof of an admission made an assign

ment of his by the defendant, that he had received for the plaintiff, prize-money to or on his account, the several sums of 1631, 18.-1231, the defendant ;

but the warrant 17s.6d.-and 801. 11$, for the whole amount of which of the nary

board, confirmthis action was brought. In answer to the claim as to ing that ap

pointment, was the said sam of 1631. 185. evidence was offered and re

not signed unceived, that on the 10th October, 1819, an account was

til afterwards :

Held, that the submitted to the plaintiff, containing a statement of sums plaintiff must advanced to, and of disbursements made for him by the have been ledefendant, in the whole amounting to 1601.; at the foot gally appointed

in the of which account were the following words :—"I ac- stance, and

might assiga knowledge the above account being correct, and am prize-money fully satisfied therewith.” The plaintiff signed this ac- entitled to recount, but it was not stamped with a receipt, or any

ceive as such

acting boatother stamp. The said sum of 1631. 188. had been re- gwain, when

due, without being subject to the restrictions of the 45 Geo. 3, c. 72, s. 92, by which petty officers and seamen are restricted from the assignment of their prize money,

A written acknowledgment at the foot of an account, stating that such account is correct, may be given in evidence, without a receipt stamp.

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