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 present case. There 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.

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

*the parties to charge, where no charge is actually made, is not sufficient.

*586] 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.

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 attor ney is given, following the authority which it confers, would, but for the provisions 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 irregularity, 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.

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.

F. Pollock, contrà. The statute 17 Car. 2, c. 8, s. 1, authorizes the entering up of judgment in the name of a deceased party, within two terms after the verdict; and his attorney, having a lien for his costs, may avail himself of the statute to enforce his demand against those who have given security. THE COURT, (a) being of the same opinion, made the

Rule absolute.

*592] *The KING v. The HUNGERFORD MARKET Company. April 15.

(Ex parte STILL.)

The act 11 G. 4, c. lxx. (passed May 1830) incorporating the Hungerford Market Company, empowers them to purchase certain estates; and section 17 enacts, that every lessee or tenant for years or at will of any messuages, &c., to be purchased under the act, shall deliver up possession to the company at three months' notice, they making compensation to every such tenant, &c., who shall be required to quit before the expiration of his term: such compensation, in case of dispute, to be assessed by a jury. Section 19, provides, that all tenants for years, from year to year, or at will, occupiers of any messuages, &c., forming part of the estates to be purchased, who shall sustain " "any loss, damage, or injury in respect of any interest whatsoever for good-will, improvements, tenant's fixtures, or otherwise, which they now enjoy, by reason of the passing of this act," shall receive compensation from the company, by such means as are provided in respect of the tenants of certain hereditaments mentioned in a schedule to the act; namely, by assessment, as before stated.

A lessee, whose term expired on the day the company came into possession, (June 24th, 1830,) obtained leave to hold on till the premises were wanted, and did so for a year and three quarters, at the end of which time he quitted, having received half a year's notice. His under-tenant, who came in at Christmas 1828, and had held from year to year, and who knew of the above proceedings, and also received notice to quit, was held entitled to compensation for good-will (to be assessed by a jury) under section 19.

A RULE nisi was obtained, last term, for a mandamus, calling on the company to summon a jury, pursuant to the statute 11 G. 4, c. lxx., to assess compensation to John Still for his being compelled to leave certain premises, called the Cannon public-house, in Hungerford Street, Hungerford Market. In support of the rule it was stated, that the party took the premises at Christmas, 1828, paid the outgoing tenant 4127. for good-will and fixtures, and had expended large sums of money in improving the premises and extending the business; that since the passing of the act (May 29th, 1830), the company had brought an action of ejectment against him, which was still depending; and had also, by pulling down the neighbouring houses, rendered his house so unsafe (in and about October, 1832), that it was condemned by the annoyance jury, and the parish authorities were taking it down; that he was tenant from year to year, *593] and had never entered into any agreement to alter the terms of *his tenancy, to determine it on less than the usual notice, or not to part with the premises without leave, and he had occupied them upon this footing till after the passing of the act, when he received notice to quit.

On behalf of the company it was sworn, that the Cannon public-house was upon the estate purchased by them of the Rev. Henry Wise; (see Ex parte Farlow, 2 B. & Ad. 341); that by their agreement with him, they were to be entitled to the rents and profits of the estate from the 24th of June, 1830, on which day the then existing lease of the premises in question expired; that the company, on applying to Still upon the subject, were informed by him that Mr. Tritton was his landlord, and thereupon requested him to see Tritton, and refer him to the company; that shortly after the 24th of June it was communicated to them that Tritton wished to hold the premises till the company wanted them

(a) Denman, C. J., Littledale and Parke, Js. Patteson, J. was gone to chambers. During this term, Taunton, J. was absent on account of indisposition. Patteson, J. sat in the Bail Court at Nisi Prius and at chambers.