norit, the court refused to set aside the cognovit on the ground that part of the note had been paid, and that it was given for an illegal consideration (r). See the cases as to warrants of attorney, post, 689, 690. СНАР. 1. Faith. Also, if the execution be against good faith, or contrary to Where it is the terms of the cognovit, or the express understanding of the against good parties, the court, we have seen, (ante, 675, 678), will sometimes set it aside. Where the defendant, in an action on the case, gave a cognovit, for 2007., with a defeazance conditioned for the performance of various matters by a given time, and performed the matters in part, at least, in two months after the time stipulated, the plaintiff having issued execution on the cognovit, the Court of Common Pleas referred it to the prothonotary, to see how much, if anything, ought to be paid to the plaintiff (8). If the plaintiff be guilty of any excess in the amount Excessive for which he ought to have levied, the court will either set Levy. the execution aside (t), or, in case of a mistake, refer it to one of the masters; or, if necessary, to a jury, to ascertain for what sum the execution ought to stand (u), and an action might, perhaps, be supported against him by the defendant (r). fession of Action. Implied Confession of Action.] Besides the case of judg- Implied Conment by default, where the defendant's default is deemed tantamount to a confession, (and which shall be fully considered in Chapter III. post, 700), there is also a confession of action in some cases implied in the defendant's pleading; as where an executor or adininistrator pleads plene administravit, or plene administrarit prater, without pleading in bar, this is impliedly a confession of the action; and upon the plea of plene administracit the plaintiff may take judgment of assets in futuro; or, upon plene administravit præter, take judgment presently of the assets acknowledged to be in the hands of the defendant, and of assets in futuro, for the residue. (See further upon this subject, post, Book III. Part II. Ch. 5, Sect. 2). Writ of Inquiry.] In all these cases of implied confessions, Writ of Inand also of express confessions, which do not ascertain the quiry. amount of the damages, the plaintiff must enter up interlocutory judgment only, and then execute a writ of inquiry, except in most actions of debt and in ejectment; in which cases, as the damages recoverable are not of consequence sufficient to warrant the expense of a writ of inquiry, the plaintiff may sign final judgment in the first instance; and except also in a few other cases hereinafter mentioned in Chapter III. post, p. 707. After the entry of the interlocutory judgment on the roll, follow the award of the writ of inquiry, the sheriff's return to it, and final judgment. (See further upon this subject, post, Ch. IV. p. 707). (r) Bligh v. Brewer, 3 Dowl. 266. (s) Charrington v. Laing, 3 Moo. & P. 587; 6 Bing. 242, S. C.: Wilson v. Price, 4 Dowl 213: and see Doe Holt v. Roe, 4 Moo, & P. 177; 6 Bing. 447, S. C. (t) See Tilby v. Best, 16 East, 163: Amery v. Smalridge, 2 W. Bl. 760: post, 698. (u) See per Tindal, C. J., in Shaw v. Marquis of Worcester, 3 Moo. & P. 587: 6 Bing, 289, S. C.: Evans v. Pugh, 2 Dowl. 360. (x) Wentworth v. Bullen, 9 B. & C. 840, BOOK II. PART IV. rant of Attor- What, and Form of, &c.] A WARRANT of attorney is a 1. The War written authority to the attorney or attornies to whom it is directed, to appear for the party executing it, and receive a declaration for him in an action at the suit of a person therein mentioned, and thereupon to confess the same, or to suffer judgment to pass by default; it also authorizes the attorney to When given. execute a release of errors. It may be given whether an By whom. action be depending or not (a). It must be given voluntarily Consideration and for a good consideration, and by a party capable of appointing an attorney, or it will be voidable, and the court will order it to be delivered up, and set aside the judgment and proceedings, if any, which have been had under it. (See post, 689 to 692). for. By one Part ner. Stamp on. Defeazance to be written on same Pa It should seem that one partner cannot give a warrant of attorney to bind his copartner without his consent; at all events, he could not do it after the partnership is dissolved (b). But a warrant of attorney under seal, executed by one person for himself and his partner, in the absence of the latter, but with his consent, is a sufficient authority for signing judgment against both (c). It must be on a proper stamp.-The defeazance does not require a separate stamp from that upon the warrant (d). But, although the warrant be not stamped at all, or be improperly stamped, and therefore unavailable, yet it may be made available on payment of the usual penalty (57.), and the proper stamp affixed; and this may be done, even after a rule nisi obtained to set aside a judgment on the warrant of attorney for the want of or a defect in the stamp(e). By rule of M., 42 G. 3, Q. B. and C. P., and R. M., 43 G. 3, Exch., every attorney who shall prepare any warrant of attorper or Parch- ney to confess a judgment, which is to be subject to any defeazance, shall cause such defeazance to be written on the same ment. (a) See Baddely v. Shafto, 8 Taunt. 434: (d) Cawthorne v. Holben, 1 N. R. 279. (e) Burton v. Kirby, 7 Taunt. 174; 2 Marsh, 480, S. C.: and see Rose v. Tomblinson. 3 Dowl. 49: Clarke v. Jones. Id. 277: ante, 711: Pittman v. Humfrey, 2 (b) See ante, 675, as to cognovits. Warrant of Attorney.-Form of.-How Attested, &c. paper or parchment on which the warrant of attorney shall be a 683 CHAP. II. pensing with Scire Facias. The defeazance on the warrant, also, usually contains a Clause disstipulation that no scire facias shall be necessary to revive judgment, and such stipulation will be binding on the defendant(). Also, if the warrant be given for the purpose of securing the payment of an annuity, or of money by instalments, it is also usual to insert a clause in it, dispensing with the necessity of a suggestion of breaches and scire facias thereon under 8 & 9 W. 3, c. f1, s. 8 (1). It may admit of doubt, perhaps, whether this latter clause can have the effect intended by it (m); besides, from several cases recently decided in the Court of Common Pleas, it seems to be unnecessary; that court having determined that a warrant of attorney is not within the stat. 8 & 9 W. 3, c. 11, s. 8, which requires suggestions of breaches and the scire facias (n), even although it be given as a collateral security with a bond (o). cuted. How Executed.] The warrant of attorney is signed, sealed, How Exeand delivered; the defeazance only signed. It is not necessary, however, that the warrant should be sealed, unless for the purpose of the release of errors (p). Neither the warrant nor the defeazance need be read over to the party previously to its being executed, as was formerly required by the Court of Common Pleas (1). How Attested.] Previously to the passing of the act abolish- How Attested. ing imprisonment for debt on mesne process, 1 & 2 V. c. 110, (f) See Barber v. Barber, 3 Taunt. 465: Morell v. Dubost, Id. 235. See the form, Chit. Forms, 324. Share v. Ecans, 14 East, 576: Partridge v. Frazer, 7 Taunt. 307; 1 Moore, 54, S. C.: and see Sansom v. Goode, 2 B. & Ald. 568; 1 Chit. Rep. 311, S. C.: Barber V. Barber, 3 Taunt. 465. (A) 3 G. 4, c. 39, s. 4: 1 & 2 V. c. 110, & 60. (i) Bennett v. Daniel, 10 B. & C. 500: Morris v. Mellon, 6 B. & C. 446: Aireton V. avis, 3 Moo, & Sc. 138; 9 Bing, 740, & D (*) See ante, 675. (7) See forms, Chit. Forms, 324. 675. (n) See post. Ch. 4, Sect. 3: Shaw v. (0) Ansterbury v. Morgan, 2 Taunt. 195. 333. BOOK II. ss. 9 & 10. an attesting witness was not, in general, requisite (r); but the 9th section of that act, after reciting "that it is expedient, that provision should be made for giving every person execut1 & 2 V. c. 110, ing a warrant of attorney to confess judgment or a cognovit actionem, due information of the nature and effect thereof,” enacts, "that from and after the time appointed for the commencement of this act," [1st Oct. 1838,]"no warrant of attorney to confess judgment in any personal action, or cognovit actionem, given by any person, shall be of any force, unless there shall be present some attorney of one of the superior courts on behalf of such person, expressly named by him, and attending at his request, to inform him of the nature and effect of such warrant or cognovit, before the same is executed; which attorney shall subscribe his name as a witness to the due execution thereof, and thereby declare himself to be attorney for the person executing the same, and state that he subscribes as such attorney." And the 10th section enacts, "that a warrant of attorney to confess judgment or cognovit actionem not executed in manner aforesaid shall not be rendered valid by proof that the person executing the same did in fact understand the nature and effect thereof, or was fully informed of the same." These provisions, it will be observed, are extremely similar to, though not identical with, those of the R. H., 2 W. 4, general rule of all the courts of H., 2 W. 4, r. 72, which provided, that "no warrant of attorney to confess judgment, or cognovit actionem, given by any person in custody of a sheriff or other officer upon mesne process, shall be of any force, unless there be present some attorney on behalf of such person in custody, expressly named by him, and attending at his request, to inform him of the nature and effect of such warrant or cognovit, before the same is executed, which attorney shall subscribe his name, as a witness to the due execution thereof, and declare himself to be attorney for the defendant, and state that he subscribes as such attorney" (s). r. 72. Differences between the Statute and the Rule. Con equence There is, however, this important difference between the rule and the statute: that the former affected only warrants of attorney and cognovits given by persons in custody on mesne process, but the latter affects every such instrument by whomsoever given. There is also another difference, viz. that that part of the rule which requires the attesting witness to "declare himself to be attorney for the defendant," was sufficiently complied with by a viva voce declaration; but the statute requires that the attorney who attests the instrument should thereby declare himself to be attorney for the person executing the same;" so that the declaration should now, in every case, form part of the written attestation. (See post, 686). The rule of H. T., 2 W. 4, r. 72, above mentioned, was alof Non-com- ways strictly enforced, and, unless it were complied with, the pliance. judgment, or other proceedings had under the warrant of attorney or cognovit, might be set aside (b), although other persons (r) Kinnersley v. Mussen, 5 Taunt. 264. (8) See R. E., 15 Car. 2, r. 2: R. E., 4 G. 2, Q. B. and R. H., 14 & 15 Car. 2, r., C. P.: Jervis's Rules, 83, n.: Tidd, New Prac. 279: Ruffle v. Hitchcock, 2 W. Bl. 1097. (b) Fisher v. Nicholas, 2 C. & M. 251; 4 Tyr. 44; 2 Dowl. 251, S. C.. Anon., 1 Salk 402, n.: Ruffle v. Hitchcock, 2 W. Bl. 1097. not in custody had also joined in the warrant as collateral securities (c), unless the non-compliance was procured by the contrivance of the defendant purposely to cheat the plaintiff (d). Of course, the statute will be enforced at least as strictly. And cases decided on the construction of the rule are authorities as to the construction of the statute, except where the language is different (e). CHAP. II. The principal requisitions of the rule, and the statute, and Principal Rethe cases decided on them, will now be stated. quisites of the Rule and torney of a this. 1stly. There must be present an attorney of one of the su- Statute. perior courts. He need not be an attorney of the court in. An Atwhich the judgment is signed (ƒ), provided he be an attorney superior of some other superior court. An attorney's clerk is clearly Court must insufficient (g); so is an attorney who has not taken out his be present. certificate within a year(h). Even where the cognovit was executed by a person whom the defendant, without fraud, and in ignorance that he was not an attorney, expressly represented as an attorney, Coleridge, J., held that he was entitled to the protection of the rule, and set aside the cognovit (i). Where, however, in a case under the rule, the defendant, on Exceptions to being informed that an attorney must be present on his behalf, knowingly and for the purpose of cheating the plaintiff, produced as an attorney a person whom he knew not to be so, and in his presence executed the warrant, the court refused to set aside proceedings on the warrant on the ground that the person so produced was not an attorney (k). And, in another case under the rule, where an uncertificated attorney, who was also a prisoner, was introduced by the defendant himself as his attorney, and described himself and witnessed the warrant as such, the court refused to interfere (!). Whether the defendant can, even by fraud, divest himself of the protection of the statute, remains to be decided. It seems, however, that he ought not to be allowed to pervert the statute any more than the rule into an instrument of fraud. Another exception to the rule was, where the defendant himself was an attorney, in which case the attendance of another attorney on his part might be dispensed with, as not being within its meaning (m), and the same has been held under the statute (n). behalf of the 2ndly. The attorney must be present on behalf of the person 2. He must who executes. It is clear, for instance, that the presence of be present on the plaintiff's attorney will not be sufficient, even though the executing defendant consent at the time to his acting as his attorney Party. also (o). But several defendants may be attended by the same attorney (p). 3rdly. The attorney must be expressly named by, and at- 3. He must tending at the request of, the person who executes. It is be named by and attending necessary that there should be some distinct expression of re- at the Request quest or appointment by the person who executes, and that of the executsuch request or appointment should be the result of a free () Valentine v. Gulland, 2 Taunt. 49. It will in such case be let stand as against the sureties. (Ib.) (d) Gilman v. Hill, Cowp. 141. (e) See per Lord Abinger, Oliver v. Woodruffe, 7 Dowl. 166: and per Coleridge, J., Barnen v. Pendry, 7 Dowi. 747. (Bland v. Pakenham, 1 Str. 330: Vilmot v. Barry, Barnes, 44. (g) Barnes v. Ward, Barnes, 42: Paul v. Cleaver, 2 Taunt. 360. () Verge v. Dodd, Tidd, Supp. 57. (i) Wallace v. Brockley, 5 Dowl. 695. (m) Walton v. Stanton, Barnes, 37. (p) See Haigh v. Frost, 7 Dowl. 743. ing Party. |