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upon which the ad valorem duty is chargeable, they are liable only to a stamp of L.).
Judgment may be signed on a warrant of attore ney, as a matter of course, at any time within a year and a day from its execution ; but after that period leave of the court, or a judge, must first be obtain. ed, which, within ten years, will be granted on proof by affidavit of the execution of the warrant of attorney of the amount due on it, and the fact of the defendant having been alive within a short time previous to the making of the affidavit; but after a period of ten years, a more formal application to the court will be necessary in order to obtain its permission to sign judgment.
By the 2d sect. of the 3d George IV., c. 39, it is provided, that if, after twenty-one days from the execution of a warrant of attorney, a commission of bank. ruptcy shall issue against the person who shall have given the same under which he shall be found a bankrupt, such warrant of attorney, and any judgment and execution thereon, shall be deemed fraudulent and void against his assignees, unless such warrant of attorney, or a copy thereof, and of its attestation, defeasance, and indorsements, together with an affidavit of the time of the execution thereof, shall have been filed with the clerk of the docketts and judgments in the Queen's Bench, or unless judgment shall have been signed, or execution issued upon such warrant of attorney within such period, and such assignees are authorized to recover, for the use of the bank, rupt's creditors, any money or effects that may have been levied or seized under such judgment and execution.
Under the 4th section of that act, a warrant of at
• Gray's Country Attorney's Practice, Warrants of Attorney.
' If the affidavit is defective on this point, the warrant of attorney will be void against the assignees ; Dillon v. Edwards, 2 Moo. and Payne, 550.
torney or cognovit, given subject to any defeasance or condition, will be void unless “such defeasance or condition shall be written on the same paper, or parchment, on which such warrant of attorney or cognovit shall be written before the time when the same, or a copy thereof respectively, shall be filed.” But this clause has been held to make such warrants of attorney void only as against assignees in banke ruptcy ; as against all other persons, therefore, except assignees under the insolvent debtors' act, (to whom the provisions of this act have been extended by 1st and 2d Victoria, c. 110, sec. 60,) a warrant of attorney would be good, though the defeasance be written on a distinct piece of paper.s
To obtain the benefit of the extended force given to judgments by the 1st and 2d Victoria, c. 110, judgments entered up on warrants of attorney must be registered in the Common Pleas in the manner pointed out by the 19th section of that act, and the 3d section of the 2d Victoria, c. 11, which registry, according to the 4th section of the latter act, must be renewed every five years, or it will become “ void against lands, tenements, and other hereditaments, as to purchasers, mortgagees, or creditors."
The value of a warrant of attorney given by a trader is very much affected by the 108th section of the present bankrupt act, which enacts, that “no creditor having security for his debt, or having made any attachment in London, or any other place, by virtue of any custom there used, of the goods and chattels of the bankrupt, shall receive upon any security or attachment more than a rateable part of such debt, except in respect of any execution or extent served, and levied by seizure upon, or any mortgage of or lien upon any part of the property of such bankrupt before the bankruptcy, provided that no creditor, though for a valuable consideration,
Morris v. Mellin, 6 B. and Cr. 446.
who shall sue out execution upon any judgment obtained by default, confession, or nil dicit, shall avail himself of such execution to the prejudice of other fair creditors, but shall be paid rateably with such creditors."
Under this section a creditor would not be able to derive any benefit from an execution, which is not compieted by seizure and sale before the commission of an act of bankruptcy by the trader, but must refund to the assignees what he might receive, and be entitled only to be paid rateably with the other creditors. If the act of bankruptcy is committed whilst the sheriff is in possession, and before a sale, the execution would be defeated ;' but if the sale is completed when the act of bankruptcy is committed, it is immaterial whether the return-day of the fieri facias has arrived. • The rather obscure proviso at the end of the section of the bankrupt act above cited, has been decided to apply only to such creditors as are mentioned in the commencement of the clause, namely, creditors having security; and that, therefore, an execution levied, or a judgment on a warrant of attorney, (though it comes under the description of a judgment obtained by default, confession, or nil dicit,) will be sustained if the seizure and sale are complete before the act of bankruptcy.'
The strictness of this act has been somewhat relaxed by the 7th section of the 1st William IV., C. 7, which provided that no judgment signed, or execution issued, on a cognovit signed after declaration or judgment by default, confession, or nil
dicit, in any action commenced adversely, shall be deemed within its provisions; but it has been decided, as is apparent on attentively reading the clause, that it does not extend to judgments on warrants of attorney, however free from collusion they may be.
By the 61st section of the 1st and 2d Victoria, c. 110, it is provided, that no person shall, after the imprisonment of an insolvent debtor, avail himself of any execution upon a judgment on a warrant of attorney, cognovit, or bill of sale, either by seizure or sale of his property, or by sale of any property previously seized, but such person shall be a creditor for his debt under the act.
An insolvent debtor, before he is entitled to his discharge under the provisions of the insolvent act," must execute a warrant of attorney authorizing a judgment to be entered up in the name of his assigns, for the amount of the debts stated in his schedule, upon which the court will direct execution to be issued against the insolvent or his representatives, in case of his obtaining any property or leaving assets for the purpose of having what shall be so raised distributable amongst the scheduled creditors. Such warrant of attorney need not be executed as pointed out by the 9th section of the act, and is exempted from the provisions of the before-mentioned act of the 3d George IV., c. 39, and it need not be revived by sciere facias.
A warrant of attorney, by an infant, is absolutely void, even though given by him for the purpose of collusion, knowing its invalidity."
m Crossfield v. Stanley, 4 Barn, and Adol. 87, s. C. I New. and M. 669.
* 1st and 2d Victoria, 110, see sect. 37.
Form in the This is the last will and testament of me, A. B., of,
of * &c., made this day of, &c. First, I give, &c.
In the name of God, amen. I, A. B., of, &c., being of sound mind, memory, and understanding, do make, publish, and declare this to be my last will and testament, in manner following; (that is to say,)
first, I give, &c. Another form. I, A. B., of, &c., do hereby revoke all wills, codicils,
and other testamentary dispositions made by me, at any time or times heretofore, and do publish and declare this to be my last will and testament, in man.
ner and form following ; (that is to say.) Appointment And I nominate and appoint C. D. and E. F. exeof executors. cutors thereof (or) of this my will. Guardians. And I appoint my said wife, during her life, [or
until she shall marry again,) and after her decease, [or marriage,] I appoint the said A. B. and C. D. and the survivor of them, guardians and guardian of the persons and estates of my children, during their
respective minorities. Funeral. I desire that I may be buried in
churchyard, at, as little expense as possible. Directions as In the first place, I direct that all my just debts,
funeral and testamentary expenses, be fully paid and satisfied by my (said] executors (hereinafter named,]