Tilby against Best
| Jurisdiction | England & Wales |
| Judgment Date | 16 June 1812 |
| Date | 16 June 1812 |
| Court | Court of the King's Bench |
English Reports Citation: 104 E.R. 1050
IN THE COURT OF KING'S BENCH
tilby against best. Tuesday, June 16th, 1812. If judgment be entered up for the penalty of a bond given to secure an annuity, and the defendant be taken in execution thereon, when the warrant of attorney under which sucn judgment was entered up only authorized the taking out execution for the arrears, the Court will set aside the execution in toto, and not merely charge the defendant pro tanto. This came on upon a rule for setting aside an execution against the defendant, and for discharging him out of custody for irregularity; which execution had been taken out upon a judgment for the penalty of a bond, entered up under a warrant of attorney given to [164] secure an annuity. The objections urged by Marryat against the execution were two : first, that the plaintiff had taken his judgment for the penalty at common law, without suggesting Breaches upon the Statute of William (a); and supposing a release of errors (which had been given in this case) would release the error of not reviving by scire facias the judgment, which was otherwise out of date ; yet parties could not enter into an agreement to rescind an Act of Parliament: but if the defendant could release his right of objection under the Statute of William, he might equally release all right of objection under the Annuity Act, and 'thus the object of the Legislature would be defeated. Here it was a term in the original contract and annuity deed, though not in the warrant of attorney, that the grant of the annuity should release all errors. Topping and Best, on shewing cause, referred to Henderson v. Lady G-lencairn (b), (a) 8 & 9 W. 3, c. 11. (b) 2 Taun. 235. 16 east, 165. herbert's case 1051 and...
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