1 Brightly 79 | Philadelphia Court of Nisi Prius | 1845
— (After consulting with Mr. Justice Kennedy, who came into court at the close of the argument,) pronounced his decision as follows: — The first objection which has been taken to the judgment is, that it was entered without a declaration having been filed, according to the terms of the warrant, which is of an anomalous character, as it and the bond are incorporated together, and form in fact but one instrument. But I think that a strict compliance with such a clause in a warrant of attorney accompanying a bond, has been dispensed with by the act of 24th February, 1806. The 28th section of that act requires the prothonotary of any court of record within this commonwealth, on the application of any person being the
The objection to the execution is, that the plaintiff* did not first issue a scire facias calling upon the defendant to show cause why the plaintiff* should not have execution of his judgment, because of the happening of. one of the contingencies specified in the warrant, other than the nonpayment of the several notes. lam inclined to think that the plaintiff* was bound to follow this course. The issuing of a scire fdcias is the most direct and appropriate method to ascertain whether the terms upon which execution was to stay, have been violated by the defendant, or whether any of the contingencies upon which it was to issue have ever happened. Here the plaintiff* alleges, that although none of the notes have matured, yet the partnership between the defendant and William Montelius, Jr., has been dissolved, which, if true, would give the plaintiff* a right to
Execution set aside.
In debt on bond with condition for the payment of money by instalments, the plaintiff must proceed according to the provisions of the statute of 8 & 9 W. 3, c. 11; and, therefore, if judgment be obtained for want of an affidavit of defence or otherwise, in such action commenced by writ, the plaintiff cannot have execution upon motion as to instalments falling due after the impetration of the writ; but must proceed by scire facias, &c. Longstreth v. Gray, 1 Watts 60. But it is otherwise upon a judgment by bond and warrant of attorney, without writ, for the payment of money by instalments, for then, though the better course is to move the court for leave to issue execution for a particular sum, in the first instance, yet this is not the only course, and an inquiry as to whether too much is demanded is equally open to the defendant after execution as before. Skidmore v. Bradford, 4 Barr 296. Judgments on warrants of attorney have never been considered as within the statute. Reynolds v. Lowry, 6 Barr 465; Bank of Chester v. Ralston, 7 Barr 482.