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or to do any act, matter, or thing for keeping the same on foot, although there shall have been no proceeding thereon within one year immediately preceding the issuing of such execution : And it is further declared and agreed, that, after full payment of the sum and sums of money intended to be secured as aforesaid, and all the costs, charges, and expenses (if any) occasioned by the non-payment thereof, the said C. D., his executors, administrators, or assigns, shall and will, at the request, costs, and charges of the said A. B., his heirs, executors, admi. nistrators, or assigns, acknowledge satisfaction, or cause satisfaction to be acknowledged upon the said judgment so to be entered up as aforesaid. In witness, &c.
* Defeasance in a Warrant of Attorney to secure an
Annuity. Whereas [recite the instrument by which the annuity is granted.] And whereas the said A. B. hath executed the above-written warrant of attorney, as a further security for the payment of the said annuity or yearly sum of L. , on the several days, and in manner hereinbefore mentioned ; and it is intended that judgment shall be forthwith entered up by virtue of the said warrant of attorney. Now, therefore, it is hereby agreed and declared, between and by the said A. B. and C. D., that no execution shall be issued upon the judgment so to be entered up as aforesaid, until the whole or some part of one of the said quarterly portions of the said annuity or yearly sum of L. , or of the proportional part thereof, shall be in arrear and unpaid for the space of days next after any of the days so appointed for payment thereof respectively as aforesaid ; but, in case any one or more of such quarterly portions, or such proportional part of the said annuity as aforesaid, or some part thereof respectively, shall be so in arrear and unpaid, then, and in such case, and from time to time, so often as the same shall happen, it shall be lawful for the said C. D., his executors, administrators, or assigns, to issue execution, or cause execution to be issued upon the said judg. ment for the amount of arrears, which shall, from time to time, be due, and all costs, charges, and expenses occasioned by the non-payment thereof, without issuing a writ of sciere facias, or doing any other act for reviving the said judgment, although there shall have been no prior proceeding thereon within one year next preceding the issuing such executions, or although the said A. B. shall have departed this life: And it is hereby further agreed and declared, that, after the determination of the said annuity, and full payment of all arrears thereof, and all the costs, &c., [conclude as in preceding form.] In witness, &c.
Warrant of Attorney in Ejectment.
neys of Her Majesty's Court of Queen's Bench'
These are to desire and authorize you, the attorneys above-named, or any one of you, or any other attorney of the Court of Queen's Bench aforesaid, to appear for me, J. B., of, &c., in the said court, as of this present (or last) term, or of any other subsequent term ; and then and there to receive a declaration for me in an action of trespass and ejectment at the suit of John Doe, on the demise of A. B., for four messuages, (as in the declaration of ejectment,] with the appartenances, situate in the parish of, &c., in the county of, &c., which the said A. B., on the
day of, &c., in the year of our Lord 184, had demised to the said John Doe, for the term of seven years from thence next ensuing, and fully to be complete and ended, and thereupon to confess the same action, or else to suffer judgment by nil dicit,
Or Court of Common Pleas or Exchequer.
or otherwise, to pass against me in the same action, and to be thereupon forthwith entered up against me, of record in the said court, for the recovery of the said term yet to come of and in the said tenements, with the appurtenances, and also for the recovery of one shilling damages, [if any thing is to be paid for mesne profits, these damages may be put at the amount required instead of a nominal sum,] besides costs of suit: And I, the said J. B., do Release of hereby further authorize and empower you, the said error attorneys, or any one of you, after the said judg. ment 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 A. B., his heirs, executors, and administrators, of all and all ‘manner of error and errors, writ and writs of error, and all benefit and advan. tage thereof, and all misprisions of error and errors, defects and imperfections whatsoever, 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 proceeding whatsoever, of or any way concerning the same: And for what you, the said attorneys, 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, &c.
* Memorandum : The above (or “ within-written") war. The defearant of attorney is given for the purpose of securing to the sance on a said (or “within-named”) A. B., the delivering up to him on warrant the, &c., next, of a certain messuage, farm, and lands, called,
el, ejectment. &c., situate, &c., [and also the payment to him of the sum of, &c., in satisfaction of all mesne profits and damages up to that time ;] and it is agreed between the said parties that no judgment shall be entered up, nor writ of possession or other execution issued, unless the said J. B. shall make default in delivering up such possession at the time aforesaid, [or "on payment of the said sum of, "&c.,) but in case he shall make default, judgment may be entered up, and a writ or
*OBSERVATIONS ON WARRANTS OF ATTORNEY.
The mode of executing warrants of attorney in personal actions is regulated by the act for the abolition of imprisonment for debt.* The 9th section of that act requires the presence of an attorneys of one of the superior courts on behalf of the party executing “expressly named by him, and attending, at his request, to inform him of the nature and effect of such warrant or cognovit, before the same is executed ;" and directs that such “ attorney shall subscribe his name as a witness to the due execution thereof, and thereby declare himself to be attorney for the person executing the same, and state that he subscribes as such attorney."
The requisition of the act must be strictly complied with in every, even the minutest particular; and so strict are its provisions, that a warrant of attorney, not executed in compliance with them, would be invalid, though the party at the time of executing it actually was informed of and understood its nature and effects, and, therefore, did not stand in need of that protection which was provided by the act.
An objection on the ground that the attorney who attested the execution was, in the first instance, suggested by the party in whose favour it is given, or his attorney or clerk, will not prevail, if he was actually adopted by such person, and the suggestion was not
writs of possession issued, as also execution for the said damages and costs, on which may be levied the costs of such writ or writs of possession, and of such execution as aforesaid, besides all sheriffs' poundage, officers' fees, and other incidental expenses. s 1st and 2d Victoria, c. 110, stated ante, p. 146.
An uncertificated attorney is not sufficient, Vesye v. Dodd, Tidd, Sup. 57; but if the party introduces him as the attorney attending on his behalf, he will not, it would appear, be allowed to take an objection on the ground of bis being uncertificated; Cox v. Cannon, 4 Bing. N. S. 453.
made with any fraudulent or improper intention ;' but it is a circumstance which, as stated by Mr Baron Gurney, in the case cited below, though it does not itself imply fraud, ought to be narrowly watched.
It would appear from what fell from Lord Abinger, in the case of Chipp v. Harris, cited below, that objection to warrants of attorney, on the ground that they are not executed according to the provisions of the act, cannot be made by third parties. The attorney must not be the attorney of the plain. tiff, and an objection on this ground would apply not only to the actual attorney, but to any agent employed on the plaintiff's part, though he might not be his regular town agent, but an attorney in the country employed in some part of the proceedings. There has not yet been any reported decision on the point ; but it would seem that the attestation by an attorney acting as the clerk of an attorney, who is not competent to attest a warrant of attorney, would not be sufficient.
As the provisions of the act, like the previous rules of court, applicable to warrants of attorney, executed by prisoners, were intended to protect persons from the consequences of acts done by them in ignorance of their effect, they have been held not to apply to cases where the party executing the warrant of attorney is himself an attorney, in which case no other attorney need be present or attest its execution.
Warrants of attorney, unlike cognovits, are liable to stamp-duties differing according to the object for which they are given, which have been before noticed in the chapter on Stamps ;d but if they are given as a collateral security with any other instrument
* Taylor v. Nicholl, 9 L. J. N. S. Ex. 78. * Todd v. Gompertz, 6 Dowl. P. C. 296.
Mason v. Kiddle, 5 Mees, and Wels. 513, 9 L. J. N. S. Ex. 37.
• Chipp v. Harris, 9 L. J. N. S. Ex. 64. d See ante, p. 670.