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WARRANT OF

ATTORNEY.

Secure annuity.

No. CCCCXCI.

A Warrant of Attorney to enter up Judgment, to secure Payment of an Annuity; the defeazance incorporated with the Warrant.

of annuity.

To A. B. and C. D. attorneys of his Majesty's Court of at Westminster, jointly and severally, or to

any other attorney of the same court.

Recital of grant WHEREAS (the cognizee, or grantee of the annuity) hath contracted with me (the cognizor, or grantor of the annuity) of, &c. for the purchase of an annuity or yearly sum of £ during the natural life of me the said (cognizor), [or as the case may be] at or for the price or sum of L , to be issuing out of and charged upon certain lands and hereditaments particularly described in an indenture bearing or intended to bear even date herewith, and made or expressed to be made between, &c. AND WHEREAS upon the treaty for the said purchase, it was agreed that for better securing the said annuity, I should execute such warrant of attorney, for confessing and entering up a judgment against me, and with such memorandum of defeazance as hereinafter is expressed. Now these are to desire and authorize you the attorneys above named, or any or either of you, or any other attorney of the court of said, to appear for me the said (cognizor) as of

And agreement to execute the warrant.

Warrant to con

fess the judg

ment.

aforeterm last,

term next, or of any subsequent term, and then and there to file a common bail, and to receive a declaration for me, my heirs, executors or administrators, in an action of debt for money had and received, for the sum of £ at the suit of the said (cognizee), his executors, administrators or assigns, and thereupon to confess the same, or to suffer a judgement by non sum informatus, nihil dicit, or otherwise, to pass against me, my heirs, executors or ad

WARRANT OF
ATTORNEY.

Secure annuity.

rors, &c.

ministrators, in the same action, and to have the said judgment forthwith entered up against me, them or any of them, on record of the said court, for the said sum of £ and costs of suit. AND I the said (cognizor) do further authorize and empower you the said To release erattorneys, or any or either of you, after the said judgment shall have been entered up, for me, my heirs, executors or administrators, and in my or their name or names, and as my or their act and deed, or acts and deeds, to sign, seal and execute a good and sufficient release or releases in the law unto the said (cognizee), his executors, administrators and assigns, of all and all manner of error and errors, and all benefit and advantage thereof, and all misprisions of error and errors, and other defects and imperfections whatsoever, in, about or concerning any warrant, process, declaration, plea, entry or other proceeding whatsoever, of, or in any wise concerning the same; and for what you my said attorneys, or any or either of you, or any other attorney aforesaid, shall lawfully do or cause to be done in the premises or any of them, this shall be to you and them, and every of you and them, a sufficient warrant and authority. So ALWAYS nevertheless (1), that the said judgement so to be confessed and entered up in pursuance of these presents, shall be and be considered as a collateral security only, for the better and more effectually securing the payment of the said annuity, or sum of £

to the said

Defeazance.

cessary on war

rant of attor

ney.

(1) By a rule of the Court of King's Bench, Michaelmas term, Defeazance ne42 Geo. 3 2 East Rep. 136, and a similar rule of the Court of Common Pleas, Michaelmas term, 43 Geo. 3. 3 Bos. and Pul. 310, it is ordered, that every attorney of those courts who shall prepare a warrant of attorney to confess a judgment which is to be subject to any defeazance, do cause such defeazance to be written on the same paper or parchment on which the warrant of attorney shall be written, or cause a memo. randum in writing to be made on such warrant of attorney, containing the substance and effect of such defeazance. Upon this rule it has been decided in the Court of Common Pleas, in the case of Morrell v. Dubost, that the defeazance must not only state the amount of the sum secured by the judgment, but must also notice all collateral securities by which it is secured, and that in default of such statement the warrant of attorney shall be set aside. See 3 Taunt. 235. But in a case in the Court of King's Bench, it has been holden that if an attorney neglect to insert the defeazance, the security will not be avoided, for, per Lord Ellenborough, C. J., in the fair and equitable construction of the rule of court, it would be the greatest injustice to cut down the whole security of the party on account of the omission of the attorney employed to prepare it; the court only meant to impose a duty upon the attorney, as an officer of the court, which, if he has not duly exercised, the defendant may move the court against him. See Shaw v. Evans, 14 East,

WARRANT OF
ATTORNEY.

Secure annuity.

Warrant of attorney must be strictly pursued.

the

day of
and the

, the day of

(cognizee) on the days and times, and in the manner and form here-
inafter and in the said in part recited indenture mentioned or ap-
pointed for payment thereof, that is to say, by equal quarterly pay-
ments on the
day of
day of
in each and every
year during the natural life of me the said (cognizor), or [as the
case may be]. And so also that no execution shall be taken or issued
out upon the said judgment under or by virtue of these presents, un-
less default shall be made in payment of the said annuity for the
space of twenty-one days next after some or one of the days or times
hereinbefore mentioned or appointed for the payment thereof; but
in case default shall be made in any or either of such payments for
the said space or period of twenty-one days, then such execution shall
or lawfully may be taken out and issue for the whole sum (1), which
shall be then due, together with costs, sheriffs' and officers' fees,
and poundage, and all other charges and expenses of levy, notwith-
standing judgment may have been entered up for the space of twelve
calendar months or upwards previously thereto, or I the said (cog-
nizor) may be then dead, and in such case I the said (cognizor),
my heirs, executors and administrators, shall be, and am and are
hereby precluded from instituting any suit in equity, or using any
other means to reverse or set aside the said judgment, or supersede
or impede the said execution in anywise howsoever, and in case I or
they shall attempt so to do, these presents shall and may be shewn
and pleaded in bar thereto, any rule or practice of the court to the
contrary notwithstanding. IN WITNESS, &c.

576. Partridge v. Frazer, 7 Taunt. 206, reversing. Morell v. Dubost, 1 Moore, 615. S. C.

If the defeazance be by memorandum separately written, see post. Rider A. p. 823.

If the defeazance be indorsed on the warrant of attorney, see post. Rider A. p. 823. and ante, p. 816.

(1) In taking out execution upon a warrant of attorney, the authority must be strictly pursued; if therefore the warrant authorize taking out execution for the arrears only of an annuity secured by bond, and it be taken out for the whole penalty, it will be bad, Tilby v. Best, 16 East, 163; and so if a joint warrant of attorney be given to two, to enter up judgment against them, without words of severalty, it cannot be entered up against the survivor only, Gee v. Lane, 15 East, 572.

Stamp.

See ante, "STAMP", Schedule.

Rider A.-See ante, p. 821. n. (1).

A Defeazance subjoined to a Warrant of Attorney given for the payment of an Annuity (1).

MEMORANDUM, that the above written warrant of attorney is given as a collateral security for the payment (2) of an annuity or clear yearly sum of £ by the said (grantor) to the said (grantee) by four equal quarterly payments, to be made on the

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day of
and the day of

,

the

. And it is intended that

judgment shall be forthwith entered up, in pursuance of the warrant;
but it is hereby agreed and declared, that unless default shall be made
in payment of the said annuity for the space of twenty-one days next
after some or one of the days and times hereinbefore and in the said in-
denture mentioned or appointed for the payment thereof, no execu-
tion (3) shall be sued out upon the said judgment.
But in case any
such

WARRANT OF
ATTORNEY.

Secure annuity.

(1) The above is the common form of a defeazance under-written upon a warrant of attorney; but the neater mode is, it is conceived, to incorporate the defeazance with the warrant, in a manner similar to a bond with the condition of defeazance annexed, as ante, p. 821. (2) If the defeazance be indorsed on a common warrant of attorney without any recitals, which is often the case, and will be equally effective, say,

"For the payment of an annuity or clear yearly sum of £ the said (grantee) during the natural life of the said

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day of
day of

the

Defeazance indorsed on comunto mon warrant of attorney.

, by equal day of

in every year, granted

to be se

by the said (grantor) in consideration of the sum of £
cured by the above written warrant of attorney, bond or obligation in
writing of the said (grantor), bearing even date herewith, and also by a
charge upon, and assignment of, certain lands and hereditaments de-
scribed in an indenture bearing or intended to bear even date herewith,
and made or intended to be made between the said (grantor) of the one
part, and the said (grantee) of the other part," as above.

(3) If judgment is not to be entered up until default shall be made, say,

66

Judgment not

No judgment shall be entered up by virtue of the above written to be entered up

until default.

WARRANT OF
ATTORNEY.

default shall be made, then it shall be lawful for the said (grantee), his executors, administrators, or assigns, to sue out execution for the whole Secure annuity. of the sum which shall be then due on the said judgment, together with costs, sheriff's and officer's fees and poundage, and all other charges and expenses of levy, notwithstanding the same may have been entered up for the space of twelve calendar months or upwards previously to such default or the said (grantor) shall be then dead; and in such case, also, the said (grantor), his heirs, executors, and administrators, shall be, and is and are hereby precluded from instituting any suit in equity, or using any other means to defeat the said judgment, or to reverse, set aside, or delay any execution thereupon. Dated the year of our Lord 18

day of

in the

Stamp.

WITNESS

(Grantor) L. S.

(Grantee) L. S.

warrant of attorney, but in case default shall be made in any or either
of such payments, then it shall be lawful for the above named attorneys,
or any or either of them, or any other attorney of the court of
to enter up judgment against the said (grantor) for the said sum of
£ and costs of suit, by virtue of the said warrant of attorney, and
for the said (grantee), his executors, administrators, or assigns, to sue
out execution upon the said judgment," &c. as above.

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