BOOK II. PART IV. 4. He should inform his Client of the Nature and Effect of War rant. Lastly. He choice. A mere nomination of an attorney by the plaintiff or his attorney, and adoption of him by the defendant, is not a substantial compliance with the rule (9). Therefore, where a defendant offered a warrant of attorney, and the plaintiff's attorney, who had also advised the defendant in previous stages of the business, came at his request to the place where he was in custody, and proposed another attorney, whom he brought with him, to read over the warrant of attorney to the defendant, and attest it on his behalf, and the defendant acquiesced, but the attorney so introduced was not known to or sent for, or expressly named by him, the warrant was set aside (r). And where an attorney who accompanied the clerk of the plaintiff's attorney to the defendant's house (on being told beforehand that there was a cognovit to be executed) with the acquiescence of the defendant acted as her attorney in attesting a cognovit pursuant to the statute, but the same attorney afterwards carried the cognovit to the office to be filed, and there subscribed his name as the plaintiff's attorney's agent, the Court of C. P. set aside the cognovit, observing, that it was meant that the defendant should exercise a free and unrestrained choice in sending for some person who shall act as his attorney on the occasion (s). And where a defendant about to execute a cognovit, having no attorney of his own present, expressed a wish that one might be sent for, and the plaintiff's attorney thereupon sent for and procured one previously unknown to the defendant, who accordingly attended and witnessed the execution, Coleridge, J., set aside the proceedings on the cognovit, as the defendant had not had an opportunity of exercising an option in his choice of the attorney (t). It is to be observed, however, that the rule and statute require the attorney to be expressly named, but not to be originally named by the defendant. The mere circumstance of the attorney having been named in the first instance by the plaintiff's attorney is not material, unless some fraud be shewn (u). Therefore, where the defendant being in custody was about to execute a cognovit, and the defendant's attorney being absent from home, the plaintiff's attorney suggested another to act for him, to whom the defendant made no objection, but went to his office, and, on being asked by that attorney if he wished him to attest the execution as his attorney, answered “yes;" this was held to be an express naming of the attorney, so as to satisfy the rule (x). And a similar decision has been come to in cases under the statute (y). 4thly. The attorney should inform the person about to execute of the nature and effect of the warrant or cognovit before the same is executed. It has, however, been held, that if there be no 'collusion with the plaintiff, a neglect of the attorney's duty in this respect will not vitiate the instrument(). And it is not necessary that it should be read over to the defendant (y), except, perhaps, he be a marksman (a). Lastly. The attorney should subscribe his name as a wit (q) White v. Cameron, 6 Dowl. 476: (r) Walker v. Gardner, 4 B. & Ad. (u) See per Lord Abinger, Oliver v. Woodruffe, 7 Dowl. 166. (a) Bligh v. Brewer, 3 Dowl. 266; 1 C., M. & R. 651, S. C. (v) Oliver v. Woodruffe, 7 Dowl. 106: Taylor v. Nicholl, Exch., 31st Jan. 1840. (3) Haigh v. Frost, 7 Dowl. 743. (a) See James v. Harris, 6 Dowl, 184. CHAP. II. should attest ness to the due execution of the instrument, and should in the attestation declare himself to be attorney for the person executing the same, and state that he subscribes as such attorney, and declare The declaration that the witness is attorney for the person ex- himself to be Attorney for ecuting, might, under the rule, have been made vivâ voce (b). the executing And therefore, under the rule, “ Witness H. K., attorney for Party. the defendant at his request," H. K. at the same time verbally stating that he attested as attorney for the defendant, was held a sufficient attestation (c). But, as already noticed, in order to satisfy the statute, it must now, in every case, appear on the face of the instrument that its requisitions have been complied with, and consequently, the declaration must be in writing (d). “ Witness G. E., defendant's attorney named by him and at his request," has been held insufficient for not further stating that G. E. subscribed as such attorney (e). It will, however, it seems, be sufficient to declare that he is attorney for the defendant, and that he subscribes as such, without declaring that he is appointed by him, or the like (d). The safest course is to adhere to the words of the act (ƒ). within the It may be well here to notice what species of custody was What Cuswithin the above rule of H., 2 W. 4, r. 72. It was held in tody was one case to apply even to cases where the defendant had reason rule of H., 2 to suppose himself in custody (g), but this seems doubtful (h). W. 4, r. 72. It was not confined to prisoners in the custody of the sheriff or other officer who arrested them, but also extended to prisoners in the custody of the marshal or warden (i). It did not, however, extend to persons in custody in execution (k); nor, it seems, to warrants of attornies given to any other person than the plaintiff at whose suit a prisoner is in custody(); and, consequently, it did not extend to the case of a person in custody on criminal process (m). But although the rule did not extend to a defendant in custody in execution, yet, if it could be shewn that he was prevailed upon to acknowledge a judgment for more money than was really due, the court, upon application, would relieve him (n). Where a defendant, whilst in custody in Ireland, gave a warrant of attorney to confess a judgment in the Court of Queen's Bench here, the court held that the necessity of an attorney being present on the part of the defendant, at the time of its execution, was as essential as if the defendant were in this country (o). The statute of 1 & 2 V. c. 110, it may be well to repeat, is general in its application, and extends to all warrants of attorney and cognovits, no matter by whom, or under what circumstance, they may be given. (b) Robinson v. Brookbank, 4 Dowl. 395: Wallace v. Brockley, 5 Dowl. 695: Todd v. Gompertz, 6 Dowl. 216. Contra now under the statute 1 & 2 V. c. 110, s. 9. (e) Todd v. Gomperts, 6 Dowl. 296. See per Coleridge, J., in Poole v. (g) Turner v. Shaw, 2 Dowl. 244. (h) See Bligh v. Brewer, 1 C. M. & R. 651: 5 Tyr. 222; 3 Dowl. 266, S. C. (f) Parkinson v. Caines, 3 T. R. 616: and see Waraker v. Gascoyne, 2 W. Bl. 1297. (k) Birch v. Sharland, 1 T. R. 715: Crompton v. Steward, 7 T. R. 19: Fell v. Riley, Cowp. 281: Watkins v. Hanbury, 2 Str. 1245: Lewis v. Gompertz, 6 Dowl. (1) Weatherall v. Long, 6 Dowl. 267: (m) Charlton v. Fletcher, 4 T. R. 433. BOOK II. PART IV. How far Revocable, &c. Effect of Effect of other Parties not executing. How far Revocable. How affected by Death, Marriage, &c.] A warrant of attorney to confess a judgment cannot be expressly revoked; or, if the defendant do that which purports to be a revocation of it, the plaintiff may enter up judgment notwithstanding (f). There are some cases of implied revocation, however, which it may be here necessary to mention. The death of either party is, in general, a revocation of the warrant. Formerly, indeed, this might, in general, have been remedied if the plaintiff were entitled to enter up judgment at the time, by entering up the judgment as of the term in or after which the party died, before the first day of the following term (g). Now, however, since the rule of H. T., 4 W. 4, r. 3, ante, 341, orders that the relation of judgments shall only be had to the day on which they are actually signed, this can no longer be done (h). If it became necessary to obtain the leave of the court (i) to enter up the judgment, even before that rule, they would seldom grant it after the death of the plaintiff, particularly where the application was not made until after the first day of the term following the death (k); and in no case would they allow it to be entered up after the death of a sole defendant (7). If the warrant, however, in its terms expressly authorizes the judgment to be entered up by the plaintiff's representatives, the court or a judge may, perhaps, even now allow them to enter it up; as, if it be to enter up judgment "at the suit of A., his heirs, executors, or administrators” (m). Where the warrant merely empowered the plaintiff to enter up judgment, without mentioning his executors, although the defeazance stated the judgment was to secure the payment of 2007. "to plaintiff, his executors," &c., the court refused to allow them to enter up judgment (n). If the warrant be given to two or more, and one of them die, the court will allow judgment to be entered up by the survivors (o). If a joint warrant be given by two, and one of them die, the plaintiff cannot, unless the terms of the warrant allow it, have leave to enter up the judgment afterwards; not against both, on account of the rule above mentioned; nor against the survivor, for the judgment would not, in that case, pursue the authority (p). And the same reasoning applies where an instrument, purporting to be a joint warrant, is not executed by all the par (f) Odes v. Woodward, 2 L. Raym. 850; 1 Salk. 87, S. C. (g) Odes v. Woodward, 1 Salk. 87; 2 L. Raym. 766, S. C.: Price v. Hughes, 1 Dowl. 448: Chancey v. Needham, 1 Str. 1081: Fuller v. Jocelyn, Id. 882: Savile v. Wiltshire, Barnes, 270; 1 Saund. 219 e: Calvert v. Tomlin, 5 Bing. 1; 2 Moo. & P. 1, S. C.: ante, 697. (h) Heath v. Brindley, 2 A. & E. 365. There the defendant was dead when the judgment was entered up, and the warrant expressly allowed the judgment to be signed, notwithstanding his death. But the court held the judgment irregular, and set aside the execution, saying that this allowance by the defendant was not binding on his representatives, and still less on the court. (i) It seems a judge at chambers would not interfere. (15 Petersdorff's Ab., Warrant of Attorney, 368). (k) Cowie v. Allaway, 8 T. R.257: Wild Y, Sands, 2 Str. 718. (1) Chancey v. Needham, 2 Str. 1081: Calvert v. Tomlin, 5 Bing. 1; 2 Moo. & P. 1, S. C.: vide post, 693. (m) Coles v. Haden, Barnes, 44: see Baldwin v. Atkin, 2 Dɔwl. 591. (n) Henshall v. Matthew, 7 Bing. 337; 5 Moo. & P. 157: 1 Dowl. 217, S. C.: Manville v. Manville, 1 Dowl. 544, S. P.: Foster v. Claggett, 6 Dowl. 524; though the defeazance in that case stated that the executors and administrators might enter up judgment: and see Short v. Coglin, 1 Anst. 225. (0) Fendall v. May, 2 M. & Sel. 76: Johnson v. Jenkins, 30th April, 1832, M.S.; 1 Dowl. 367, S. C.: Build v. Wightman, Id. 545: Futcher v. Smith, 2 W. BL. 1301: Todd v. Dodd, 1 Wils. 312; Barnes, 48, S. C.: Hind v. Kingston, 6 Dowl. 523. (p) Gee v. Lane, 15 East, 592: Raw v. Alderson, 7 Taunt. 453; 1 Moore, 145, S. C.: Gainsborough v. Follyard, 2 Str. 1121: post, 697. The same, even though the release of error be joint and several. (Wilson v. Portrie, 1 Jebb. & Symes' Rep. Q. B., (Irish), 96). ties; in which case, judgment cannot be signed even against CHAF, IL. those who have executed (7). But if the warrant be to enter up judgment "against us or either of us," judgment may be entered up against one only (r). And where a warrant was given by two persons, to enter up judgment on a joint bond against me, not us; the court, after the death of one of them, allowed judgment to be entered up against the other (8). If a feme sole give a warrant of attorney, it has been holden that her subsequent marriage, before judgment is entered up, is a revocation of the warrant (t). But, from subsequent cases, it appears the court will, notwithstanding the marriage, allow the judgment to be entered up against the husband and wife (u). And in Walter v. White & Wife (x), the Court of Queen's Bench, on an affidavit intitled as against both husband and wife, gave the plaintiff leave to enter an appearance for, and enter up judgment against the husband and wife, on a warrant of attorney executed by the wife, whilst unmarried; and the rule was made absolute in the first instance (y); though the master suggested a doubt whether it ought not to have been a rule nisi. If a warrant of attorney be given to a feme sole, her subsequent marriage will not he a revocation of it (); and upon application to the court, founded upon a proper affidavit of the marriage, the execution of the warrant, and the non-payment of the debt (a), they will allow the judgment to be entered up in the name of the husband and wife (b). And if one feme sole give a warrant of attorney to another, and they both marry, the court will allow judgment to be entered up by husband and wife, against husband and wife. Effect of Mar rige of Par to be given up When ordered to be given up and cancelled.] If the warrant When ordered of attorney have been obtained by fraud (c), or misrepre- and cancelled. sentation (d), or upon an usurious consideration (e), or for a where the gambling debt (ƒ), (unless the defendant represented to the Consideration plaintiff before he purchased the debt that it was a is illegal or valid fraudulent. one (g),) or to defraud creditors, and the application be made on their behalf (h), or by an insolvent debtor previous to his discharge, it being agreed that the debt should be omitted in (q) Harris v. Wade, 1 Chit. 322. (r) Jordan v. Farr, 2 A. & E. 437; 4 Nev. & M. 347, S. C.; — v. Hobson, 1 Chit. R. 314. (8) Gladwin v. Scott, Barnes, 53, C. P. (t) Ano, 1 Salk. 117. (u) Staples v. Purser, 2 Dowl. 764; 3 M. & Scott, 800, S. C.. Anon., 1 Show. 89: Hartford v. Mattingly, 2 Chit. Rep. 117. (z) K. B., 24th June, 1829. ) See Staples v. Purser, 2 Dowl. 764; 3 M. & Scott, 800, S. C. (2) Anon, 1 Salk 117. Barnes, 52: Edmonson v. Popkin, 1 B. & (f) See George v. Stanley, 4 Taunt. 683; (a) Marder v. Lee, 3 Burr. 1469: Met- in an action on a promissory note was calfe v. Boote, 6 D. & R. 46. (b) Anon., 7 Mod. 53. (e) Duncan v. Thomas, 1 Doug. 196: Fell v. Riley, 1 Cowp. 281: 3 T. R. 616: Bayley v. Taylor, 8 D. & R 56: Martin v. Martin, 3 B. & Ad. 934: Turner v. Shaw, 2 DowL 244. (d) Anon., 2 Ken. 294. (e) Berrington v. Collis, 5 Bing. N. C. 332: Roberts v. Goff, 4 B. & Ald. 92: Cook v. Jones, 2 Cowp. 727: Machin v. Delaval, refused to be set aside, on the ground of (g) Davison v. Franklin, 1 B. & Ad. 142. BOOK IT. Irish Judgment. Where the Warrant has been forged or altered. Where given by an Infant. his schedule (), or for a debt discharged by the Insolvent Debtors' Act (k), or if given to the plaintiff to induce her to live in a state of prostitution with the defendant (?), or expressly and in terms for creating a charge on an ecclesiastical benefice (m), or for securing an annuity void by the Annuity Act (n), or for securing an attorney payment by his client of costs to which he is disentitled for want of re-admission (6), or of future costs (p), or the like (7), the court or judge will order the warrant to be delivered up to be cancelled; or, if judgment have been entered up, they will set it aside, and any proceedings that may have been had upon it. If the fact of the consideration, however, be doubtful, and be fairly contested, the court will direct an issue to try it, and enlarge the rule for setting aside the judgment in the meantime (r), or dismiss it altogether (s). Where a party gives a warrant of attorney to another without consideration, in order that the latter may protect the goods of the former from execution, and judgment and execution are signed against good faith, the court will not, it seems, interfere (t). And the court refused to decide the question, whether a joint-stock company was a nuisance within the 6 G. 1, c. 18, upon a motion to set aside a judgment confessed to them on a warrant of attorney (u). And where the defendant has had an opportunity of pleading the illegality, the court will not, it seems, interfere summarily (v). It has been doubted whether, in an action upon an Irish judgment entered up on a warrant of attorney, the grounds of such judgment are examinable by the courts here (x). If it be alleged that the warrant of attorney is forged, or the like, the court will direct an issue to try whether it has been duly executed or not (y). But, where a joint warrant of attorney had been altered after its execution, in the christian name of one of the parties, who had re-executed the same without the knowledge of the other, the court refused, on the application of the former, to set aside the judgment which had been signed thereon (~). Also, if a warrant of attorney be given by an infant, the court will order it to be delivered up to be cancelled, even although there may be circumstances of fraud on the part of (i) Tabram v. Freeman, 2 Dowl 375: (k) Smith v. Alexander, 5 Dowl. 13. (m) Flight v. Salter, 1 B. & Ad. 673: (n) Er p. Chester, 4 T. R. 694: Steadman v. Purchase, 6 1d. 737: Storion v. Tomlins, 10 Moore, 172: Nash v. Godmond, 1 B. & Ad. 634; in which case the de fendant had to pay the costs of the judgment and motion, &c. (0) Wilton v. Chambers, 2 Nev. & P. 392; 7 Ad. & El. 524, S. C. (p) Jones v. Hunter, 1 Dowl. 462: Holdsworth v. Wakeman, Id. 532. (9) See Jackson v. Darison, 4 B. & Ald. 691. (r) Cook v. Jones, 2 Cowp. 727: Harrod v. Benton, 8 B. & C. 217: 2 M. & R. 130, S. C. (8) See Flight v. Chaplin, 2 B. & Ad. 11: Ferguson v. Sprang, 3 Nev. & M. 665: 1A. & E. 576, S. C.: Er p. Nash, 4 Moo. & P. 793. (t) Ante, 689, note (h). (u) Brown v. Holt, 4 Taunt. 587: and see other cases in Tidd, 9th ed. 547. (v) Bligh v. Brewer, 3 Dowl. 266: Philpot v. Aslett, 1 C., M. & R. 85; 2 Dowl. 669, S. C. (c) Guinness v. Carroll, 1 B. & Ad. 459. (y) Gibson v. Bond, Barnes, 239. (2) Coke v. Brummell, 2 Moore, 495; 8 Taunt. 439, S. C. |