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event 20007. for the repurchase thereof. The warrant of attorney authorized the parties named to appear for the defendant, and to receive a declaration at the suit of the plaintiffs in an action of debt on a bond (describing it as a bond of even date with the warrant of attorney, under the hand and seal of the defendant, and given to the plaintiffs) and to suffer judgment in such action in the usual manner. The defeazance to this warrant of attorney recited that it was given to secure the payment of one annuity of 2377. 2s., during the life of the defendant, by even quarterly payments on the 3d of March, the 3d of June, the 3d of September, and the 3d of December, the first payment to be made on the 3d day of December next, "as in and by the condition to the bond or obligation referred to by the said warrant of attorney is more particularly expressed in that behalf;" and it authorized the plaintiffs when and as often as the annuity or any part thereof should be in arrear for the space of twenty-one days after the days appointed for payment thereof, to sue out such execution or executions upon or by virtue of the said judgment by one or more writ or writs of fieri facias de bonis ecclesiasticis, or de bonis propriis, or both, or any writ or writs, or to take and adopt such other proceedings, as they should think fit, for the recovery of the annuity and all costs.

Sir James Scarlett and F. Pollock shewed cause in the present term. There is no ground for setting aside this judgment. The validity of it depends solely on the warrant of attorney, and as there is nothing on the face *of that [*582 instrument to shew it was given with intent to charge, and that it does charge, the benefices, contrary to the 13 Eliz. c. 20, it is quite unobjectionable, although the consequence of any execution which may issue upon the judgment foun led on it may be to affect the profits of the living. The want of any objection apparent upon the face of the warrant of attorney, clearly distinguishes this case from Flight v. Salter, 1 B. & Ad. 673, and brings it within the principle recognized in the cases of Gibbons v. Hooper, 2 B. & Ad. 734, and Wynne v. Robinson, 4 Bligh, Parl. C. 27, and further sanctioned by the judgment of this Court in Moore v. Ramsden, 5 B. & Ad. 917, note (d).

Follett, contrà. It is not intended to question the correctness of the decision in Gibbons v. Hooper, 2 B. & Ad. 734, and the class of cases which have followed it. This is clearly distinguishable. The fair result of all the authorities is this where the Court is satisfied that the warrant of attorney was given with an intent that it should operate as a charge upon the benefice, there the judgment founded upon it cannot be supported: but where nothing appears necessarily leading to the conclusion that it was given with such intent, the judgment is free from objection, though the consequence may happen to be, that the profit of the living will probably be taken in execution. If this is the correct rule, and is to be applied to the present case, the judgment must be set aside. In the first place, it is sworn by the defendant (and is not denied) that the warrant of attorney was given for the express purpose of charging the defendant's vicarage and curacy, and of enabling *the plaintiffs to sue out the executions mentioned in the grant, [*583 obviously meaning the obtaining sequestration immediately upon the execution of the deed. [LITTLEDALE, J. Can we take this from the affidavit? We must look to the language of the warrant of attorney to ascertain whether it is or is not a charge upon the living.] The affidavits unanswered are sufficient evidence of the intent of the parties. At all events, the Court is not to look to the warrant of attorney alone. Here the deed of grant, the bond, and the warrant of attorney all bear even date, were executed and given at one and the same time, and all in pursuance of a previous agreement to that effect. They constitute together one assurance. If the recitals and powers contained in the deed were expressly contained in the warrant of attorney, it could not be disputed that the latter would be bad, but those statements are virtually and sufficiently incorporated with the warrant of attorney. It expressly refers to the bond, which it minutely describes, and the defeazance refers to it, for it is there

stated that the warrant of attorney is given as a security for payment of the annuity in the manner more expressly pointed out by the condition of the bond. The bond too as distinctly refers not only to the deed of grant, but to the agreement previously made, and the stipulation relative to the several securities. The warrant of attorney so expressly refers to the bond, and the bond to the deed, as to make it clear that the warrant of attorney was given with intent to charge the benefices; and, if so, it is void. The ground on which the Court, in Flight v. Salter, 1 B. & Ad. 673, set aside the *judgment, was, that the party

*584] giving the warrant of attorney had attempted to do indirectly what the

law would not permit him to do directly; and that is equally applicable here, unless it is to be held indispensable that the intention of the parties to charge the living by the warrant of attorney should be expressed in so many words therein. Gibbons v. Hooper, 2 B. & Ad. 734, cannot be said to govern the preThere the warrant of attorney did not refer to the deeds, and there was nothing necessarily connecting the deeds with the transaction in respect of which the warrant of attorney was given.

sent case.

LITTLEDALE, J. I am of opinion that the rule must be discharged. In Flight v. Salter, 1 B. & Ad. 673, it was expressly recited in the warrant of attorney, that it was given to secure the annuity which was to be charged on the living. Here the warrant of attorney does not refer to the deed of grant. It is in the common form which would be adopted for providing payment of an annuity secured by bond, but not charged, or intended to be charged, upon any living. It is true there is some incidental mention of the bond in the warrant of attorney. The warrant itself, instead of simply stating a declaration in an action of debt on bond, describes that bond by mentioning the date, and shewing it to have been given by the defendant to the plaintiffs; and the defeazance notices it by stating that the warrant of attorney is given to secure the payment of a certain annuity on given days, and that the first payment is to be made on the 3d of December then next ensuing, "as in and by the condition to the bond or obli*585] gation referred to by the warrant of attorney is more particularly expressed in that behalf." But this reference to the bond in the warrant of attorney amounts to no more than a mention of that instrument by way of identifying it as the bond on which the action is to be brought, and the mention of it in the defeazance to no more than a precise and distinct reference to the times for, and the commencement of, the quarterly payments. This does not bring the case within the authority of Flight v. Salter, 1 B. & Ad. 673. The stipulation in the defeazance, that a fieri facias de bonis ecclesiasticis may be taken out for the arrears of the annuity is wholly immaterial. If any execution in consequence of arrears could have issued, that writ might have been resorted to as well as any other, without any express stipulation; and the permission given to make use of it was quite unnecessary.

TAUNTON, J. I am of the same opinion. It is sufficient to say that I think this case governed by Gibbons v. Hooper, 2 B. & Ad. 734, and the decisions which have followed it; but even without those authorities, I should have thought that this warrant of attorney was not void under the 13 Eliz. c. 20, the primary object of which was to avoid leases made by persons not residing upon and serving their cures. Another of the reasons for passing it is given by Lord Kenyon in Mouys v. Leake, 8 T. R. 415. But without adverting to what are generally understood to have been the objects of the act, and looking at the language of the clause on which this application is founded, and which declares that all chargings of such benefices shall be void, I think that to bring the case within the statute there must be an actual charging; and that the intention of *586] *the parties to charge, where no charge is actually made, is not sufficient. In Flight v. Salter, 1 B. & Ad. 673, the warrant of attorney did operate as a charge on the benefice. There the warrant of attorney recited the deed and made it part of the warrant of attorney. The provisions of the deed in substance were, that Flight was to be at liberty forthwith to obtain a sequestration, though VOL. XXIV.-17

no default might have taken place in the payment of the annuity, and this sequestration was to be a continuing sequestration during the continuance of the annuity even though it should be regularly paid. After reciting this, the defeazance to the warrant of attorney expressly alleged, that that warrant was given, and judgment was to be entered up thereon, to the intent that a sequestration might be obtained and continued, pursuant to the agreement before mentioned. The present case is widely different. There is no reference at all in the warrant of attorney to the deed of grant, and the reference to the bond is no more than a description of the bond, its date, and the parties to it, and of the times at which the annuity is to be paid. Such a reference does not, because the bond itself also refers to the deed, so incorporate the deed with the warrant of attorney as to give rise to the objection which the Court relied upon in Flight v. Salter, 1 B. & Ad. 673. There, when the terms of the warrant of attorney were acted upon, the plaintiff did charge the living, for he made the sequestration a continuing security for the growing payments of the annuity. In this case the warrant of attorney would authorize no such proceeding. The power to sue out a writ of fieri facias de bonis ecclesiasticis, does not alter the case; *no execution is to be sued out but when the annuity is in arrear. In such an event that [*587 writ, equally with any other, might have been sued out without any express authority provided by the defeazance.

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PATTESON, J. I am also of opinion that this rule must be discharged. Without going the length of saying that the object and intent of the parties to the warrant of attorney must necessarily appear upon the defeazance to it, I am of opinion that it must appear that their intention of charging the benefice has in fact been accomplished; in other words, that the benefice is by the warrant of attorney so far actually charged, that the party to whom the warrant of attorney is given, following the authority which it confers, would, but for the visions of the statute of Elizabeth, obtain an actual charge on the living. Now, whatever may have been the intention of the parties here, it is quite clear to my mind that they have not, by this warrant of attorney, charged the living. If it were their object, they have failed to do so. The defeazance only gives a power to issue a writ of fi. fa. de bonis ecclesiasticis in case the annuity is not paid, and then only for the arrears. If, by means of the writ, those arrears should be obtained, it would have no further operation, and any sequestration founded upon it would be at an end. For though it is said in the books that a sequestration is a continuing writ, by that is meant that it is a continuing execution for the purpose of levying a given sum, viz. that for which the writ of fi. fa. de bonis ecclesiasticis issues, and no further. That sum, in the present case, could only be the amount of arrears due. Even, therefore, if by referring to the deed, and gathering from that the intention of the parties, I should be of opinion that they meant the warrant of attorney so to operate as [*588 to create a perpetual charge on the benefice, it is sufficient to say they have not, by the warrant of attorney, carried that object into effect. The rule for setting aside the judgment must therefore be discharged.

Sir J. Scarlett applied that it might be discharged with costs. LITTLEDALE, J. This is an application to set aside a judgment for irregu larity, the alleged irregularity being that the warrant of attorney is void, and that, consequently, there is nothing to support the judgment. Rules to set aside proceedings for irregularity, if discharged, are usually discharged with costs; and we think this case must follow the general rule.

Rule discharged with costs. (a)

(a) This case was decided in the early part of the term, when Denman, C. J. was absent, on account of a domestic affliction.

*REGULA GENERALIS.

IT IS ORDERED, That in case a rule of Court or Judge's order for returning a bailable writ of capias, shall expire in vacation, and the sheriff or other officer having the return of such writ shall return cepi corpus thereon, a Judge's order may thereupon issue requiring the sheriff, or other officer, within the like number of days after the service of such order as by the practice of the Court is prescribed with respect to rules to bring in the body issued in term, to bring the defendant into Court by forthwith putting in and perfecting bail above to the action. And if the sheriff or other officer shall not duly obey such order, and the same shall have been made a rule of Court in the term next following, it shall not be necessary to serve such rule of Court or to make any fresh demand thereon, but an attachment shall issue forthwith for disobedience of such order, whether the bail shall or shall not have been put in and perfected in the mean time. Signed by the fifteen Judges.

MEMORANDUM.

In the course of this term Thomas Noon Talfourd, of the Middle Temple, Esquire, was called to the degree of Serjeant at Law, and gave rings with the motto "Magna vis veritatis."

END OF HILARY TERM.

CASES

ARGUED AND DETERMINED

IN THE

COURT OF KING'S BENCH,

IN

Easter Cerw,

IN THE THIRD YEAR OF THE REIGN OF WILLIAM IV.

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IN the course of the last vacation, David Pollock, Philip Courtenay, John Blackburne, and William Henry Maule, Esquires, were appointed His Majesty's Counsel learned in the law.

CHAUVEL v. CHIMELLL. April 15th.

Plaintiff's attorneys gave defendant's attorneys their own undertaking as security for costs; the defendant obtained a verdict and died, and judgment was entered up in his name within two terms: Held, that the attorney for such deceased party, having a claim against his estate in respect of the costs, might enforce the security, to satisfy such claims, without any scire facias having been sued out by the personal representatives.

F. POLLOCK, in Michaelmas term, obtained a rule, calling on the plaintiff's attorneys to shew cause why they should not pay to the defendant's attorneys 1197., the taxed costs in this cause, pursuant to their undertaking. [*591 *The plaintiff residingabroad, the attorneys for the defendant had demanded security for costsfrom the plaintiff's attorneys; and the latter signed a memorandum, by which they undertook, as sureties for the plaintiff, to pay such costs, if any, as he should become liable to pay the defendant in that action. At the sittings in London after Trinity term, the defendant had a verdict; final judgment was signed on the 15th of November, and the costs were taxed, but between the verdict and judgment the defendant died. The plaintiff's attorneys being called upon for the costs by the defendant's attorneys, to whom the defendant had been indebted on account of the costs in a larger amount than 1197., declined paying them, alleging that there was no person entitled to receive them till a scire facias should be sued out by the defendant's representatives.

Sir James Scarlett now shewed cause, and contended that the attorneys, if they paid these costs under the present circumstances, would do so in their own wrong, and could not recover them from the plaintiff.

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