the infant (a), on his clearly shewing that he was under age when he gave the warrant (b). But if an infant and another join in a warrant of attorney, and judgment be entered up against both, the judgment may be vacated as to the infant, and remain good as to the other (c). CHAP. II. Woman. So, if a feme covert give a warrant of attorney, the court or a By a married judge will order it to be delivered up to be cancelled, or will set aside the judgment, &c.; the warrant, in such a case, being absolutely void (d). And, on motion, the court set aside a judgment on a warrant of attorney given by a feme covert, although she had been divorced a mensâ et thoro (e); and in another case, though the warrant was given by her in an assumed name, and the plaintiff was wholly ignorant of the marriage (ƒ). But in a prior case the court refused to relieve her, where, at the time she executed the warrant, she lived by herself, and acted as a feme sole, and they put her to her writ of error (g). And even a warrant of attorney to confess a judgment to a feme covert is void (h). Where one of several executors gave a warrant of attorney By one of to confess a judgment against all, the court ordered it to be several Exe delivered up to be cancelled (i). cutors. It is not an objection to signing judgment on a warrant By a Lunatic. of attorney that the defendant has, since its execution, become insane (4). Nor, that he has since given another security for the same Where anodebt, unless there be some agreement that the latter shall be ther Security is given. substituted for the former (7). in Part and by whom to If the warrant of attorney he not altogether void, but good Where good as to part and bad as to the residue, the court will only ind destroy the effect of the bad part (m). Therefore, a warrant given to secure the payment of future costs, and also costs of money already due and advanced, though void as to the client's future liability, is valid as to the actual debt (n). The application to have the warrant given up to be can- Application, celled, or to have judgment or execution on it set aside, may, be made. if the objection be a substantial one,-as, for instance, that it has been given for an illegal or fraudulent consideration, -be made by any person interested in impeaching the warrant, though not a party to it (o). And, where it has been given for a fraudulent purpose, it would seem that the application can only be made by third parties, and not by the defendant (p). But a mere formal objection, even the want of a formal attestation, under 1 & 2 V. c. 110, s. 9, cannot be made by any but the defendant or his representatives (7). (a) Saunderson v. Marr, 1 H. BL. 75: MS., M. 1814: Storton v. Tomlins, 10 Moore, 172; 2 Bing 475, S. C. ibi Weaver v. Stokes, 1 M. & W. 203; 1 T. & G. 512; 4 Dowl. 724, S. C. Motteur v. St. Aubin, 2 W. BL 1133: Wood v. Heath, 1 Chit. 708, n.: Ashlin v. Langton, 4 M. & Scott, 719. (d) Ouids v. Sansom, 3 Taunt. 261. (e) Faithorne v. Blaquire, 6 M. & Sel. 73. (f) Salby v. White, 4 Leg. Obs. 390. (g) Anon., 1 Salk. 400: and see Wilkins v. Wetherill, 3 B. & P. 220: Maclean v. Douglass. Id. 128. (h) Roberts v. Pierson, 2 Wils. 3. (1) Ehwell v. Quash, 1 Str. 20. (k) Pigott v. Killick, 4 Dowl. 287. (1) Stowell v. Eade, 4 Bing. 134: Anon., 2 Chit. 423. (m) See Holdsworth v. Wakeman, 1 Dowl. 532. (n) Holdsworth v. Wakeman, 1 Dowl. 532: and see Smith v. Alexander, 5 Dowl. 13; 2 H. & W. 82, S. C. (0) Harrod v. Benton, 2 M. & Ry. 130; 8 B. & C. 217, S. C.: Martin v. Martin, 3 B. & Ad. 934. (p) Ante, 689, n. (h): and see Doe Roberts v. Roberts, 2 B. & Ald 367. (9) Walker v. Harris, Exch., 8th June, 1839: see Jones v. Jones, 1 D. & R. 558; and post, 697. BOOK II. PART IV. Costs. Filed. As against Bankrupt. The court, in general, give the successful party his costs. In what cases Filed.] By stat. 3 G. 4, c. 39, s. 1, 2, the warIn what cases rant of attorney, or a true copy thereof, and of the attestation thereof, and of the defeazance and indorsements thereon, and an affidavit of the time of the execution of such warrant of attorney, must be filed with [the masters] within twenty-one days after its execution, to render such warrant of attorney, or any judgment or execution thereon, valid as against the Assignees of assignees of the defendant, if he should become bankrupt, unless judgment be signed and execution issued within the twenty-one days. The master's fee for the filing is 18. (r). And if afterwards the debt be satisfied or discharged, a judge, upon being satisfied of that fact, may order a memorandum of satisfaction to be written on the warrant of attorney, or copy filed (s). An affidavit made by an attesting witness to the warrant of attorney, and filed with it, merely stating its date, and that he saw the party execute the same, without verifying the day on which it was executed, has been deemed insufficient under the above act; and the sheriff, who had seized and sold goods under a writ issued at the suit of a judgmentcreditor on a judgment entered up on the warrant of attorney, was holden to be liable to the assignees of the party whose goods were seized in an action of trover, a commission of bankrupt having issued against him after the seizure and before sale (t). But in order to let in the objection, that the statute has not been complied with, it must first appear that there is a valid commission against the party, and it seems that it lies upon him who seeks to impeach the warrant of attorney, to shew that it was not filed (u). Of Insolvent. 3. The Judg ment. When to be Signed. The 7 G. 4, c. 57, s. 33, and 1 & 2 V. c. 110, s. 60, extend these provisions in favour of the creditors of an insolvent debtor. It being questionable whether warrants of attorney, executed by insolvent debtors, before adjudication made in the matter of their petition, pursuant to the several acts passed for their relief, were to be deemed secret warrants of attorney within the 3 G. 4, c. 39, it was enacted by the 1 W. 4, c. 38, s. 3, that such warrants of attorney should not be within that act, and that the same should be deemed valid. 2. The Judgment. When to be Signed.] Judgment may be entered up on a warrant of attorney, at the time therein specified for that purpose; and if the warrant were given to secure the payment of money, it is not necessary that the plaintiff should delay the signing of the judgment until default be made in the payment (x), unless that be expressly stipulated for in the defeazance (y). And if the warrant be given for a sum certain, to indemnify the plaintiff against the payment of a smaller sum, the plaintiff need not defer signing judgment and issuing (r) 3 G. 4, c. 39, s. 6. (s) Id. s. 8. See also the provisions of (t) Dillon v. Edwards, 2 Moo. & P. 550. 9 Bing. 740, S. C (a) MS., M. 1814: and see Anon., Hardw. 270. (y) See Nicholl v. Bromley, 2 B. & B. 464; 5 Moore, 307, S. C.: Capper v. Dando, 1H & W.11; 2 A. & E. 458; 4 Nev.& M. 335, S.C. Judgment, when to be Signed.—Leave for Signing. execution until the contingency happen (a). If the defeazance state that it is given to secure the payment of a sum on demand, and in case default shall be made, then judgment to be entered up and execution issued; an actual demand must be made, and a proposal to settle amicably does not amount to such demand (b); and it seems that a demand on a lunatic is insufficient (c). A stipulation that judgment shall not be entered up on a warrant of attorney before a certain day, unless the party giving it shall, in the meantime, have become bankrupt or insolvent, does not oust the party to whom it is given from the right to enter up judgment before the day specified, if the former be in insolvent circumstances, although he may not have become bankrupt, or taken the benefit of an Insolvent Debtors' Act (d). Where the warrant of attorney was given with a defeazance stating it to be given as a security for a certain sum, and interest thereon, the court held that it was to be construed as a continuing security, and not merely as a security for money then due (e). If the warrant specify any particular time at which the judgment is to be signed, it cannot be entered up at any other time (ƒ). It may be added, that a warrant of attorney, to confess judgment generally of a term, is regular, notwithstanding R. G., H. T., 4 W. 4; and the judgment should be signed of a particular day in that term (g). See further the cases as to cognovits, ante, 678. 693 CHAP. 11. Judge neces When Leare of the Court or Judge necessary before signing When Leave Judgment.] Within a year and day from the date of the of Court or warrant, judgment may be entered up as of course (h). But sary before after a year and day from such date, judgment cannot be signing Judgentered up until leave of the court in term time, or of a judge in vacation, is obtained for that purpose (i). ment. how made. By a general rule of all the courts of H. T., 2 W. 4, r. 1. Application, s. 73, "leace to enter up judgment on a warrant of attorney above one, and under ten years old, must be obtained by a motion in term, or by order of a judge in vacation; and if ten years old or more, upon a rule to shew cause." On this rule a rule nisi was holden to be unnecessary for entering judgment on a warrant of attorney under ten years old, notwithstanding it appeared that the defendant was insane, and had been so for a considerable period, and there did not appear to be any chance of his recovery (j). In a case decided before this rule, where judgment had not been entered up within a year and day on a warrant of attorney, given with a post-obit bond, and no application was made by the obligee to enter it until after the death of the person on whose death it was payable, the court granted a rule nisi only (k). (a) Barber v. Barber, 3 Taunt. 465: and see Partridge v. Frazer, 7 Id. 307; 1 Moore, 54, S. C.: Carr v. Roberts, 5 B. & Ad. 78: Skin v. Brook, 1 Id. 124. b) Nicholl v. Bromley, 5 Moore, 307; 2 B. & B. 464, S. C: Abbott v. Greenwood, Q. B., 2 Jurist, 989: see Cupper v. Dando, 4 Nev. & M. 335; 2 A. & E. 458; 1 H. & W. 11, S. C. (el Capper v. Dando, ubi supra. (d) Biddlecombe v. Bond, 5 Nev. & M. 621; 1 H. & W. 612, S. C.: see Partridge v. Frazer, 7 Taunt 307; 1 Moore, 54, S. C. (e) Woolley v. Jennings, 5 B. & C. 165: 7 D. & R. 824, S. C.. and see Stoveld v. Eade, 12 Moore, 370: 4 Bing, 154, S. C. 53. (g) Todd v. Gompertz, 6 Dowl. 296. (i) Anon., 6 Mod. 212: Lushington v. (3) Piggott v. Killick, 4 Dowl. 287; 1 H. & W. 518, S. C. In the report of this case in Dowling the warrant is stated to have been more than eleven years old; sed quare. (See 1 H. & W. 518). (k) Lushington v. Waller, 1 H. Bl. 94, See form of the rule, Chit. Forms, 326. BOOK 11. PART IV. Affidavit in support of. It must shew ant is alive. The application for such leave is founded upon an affidavit, stating the consideration for the warrant of attorney; its execu tion; the amount remaining due to the plaintiff (1), and alleging positively (m) that the defendant was alive at a certain time therein mentioned (n). The affidavit may or may not, it seems, be intitled in the cause in which the judgment is entered up (o). It must appear, from the affidavit, in support of the apthat Detend- plication, that the defendant is alive, either from the deponent's having seen him alive, or otherwise. Formerly, before the R. H., 4 W. 4, r. 3, (ante, 341), it must have appeared from the affidavit that he was alive upon some day within the term, in order that the court might be satisfied that he was alive on the day to which the judgment would have relation; and even where the affidavit stated the defendant to have been alive on the essoign day of term, the court held it to be insufficient, saying, that it must appear from the affidavit that the defendant was alive on some day in full term (p). Now, however, as, by that rule, all judgments, whether interlocutory or final, shall be entered of record of the month and year, whether in term or vacation, when signed, and shall not have relation to any other day, the affidavit must be framed without reference to that doctrine of relation. And since that rule it is sufficient in all cases if the affidavit shew that the defendant was alive within a reasonable time before the day on which the motion or application is made (q). As to what is a reasonable time, must depend upon the circumstances of each particular case. An affidavit that the defendant was alive on the 8th April, the term commencing on the 15th, was held sufficient (r). And in another case, the court granted a rule moved for on the third day of term, upon an affidavit stating that the defendant was alive on a day six days before the commencement of the term (s), and, in another case, a rule was granted where the defendant had last been seen alive above three weeks (t), and in another (u), five weeks before the application. So judgment has been allowed to be entered up against a defendant residing in Jamaica, upon an affidavit that he was alive four months before (y); and against a defendant at Nice, on production and verification of a letter from him, dated thirteen days before (2); and against a defendant in New South Wales, upon an affidavit stating the receipt of a letter from him, dated from that place in the August preceding, the application being made in November (a), and that deponent (1) Hulke v. Pickering, 4 D. & R. 5; 2 B. & C. 555, S. C.: R. H., 2 W. 4. r. 73. (m) v. Hobson, 1 Chit. Rep. 314: Juliet v. Harper, Id. 617 a. (n) See the form of the affidavit, Chit. Forms, 325. (0) Davis v. Stanbury, 3 Dowl. 440: Sowerby v. Woodroffe, 1 B. & Ald. 567; 1 Chit. 315, S. C.. Poole v. Robberds, Id. 568, n.: Er p. Gregory, 8 B. & C. 409. (p) Eules v. Warren, 4 M. & Sel. 174; 1 Chit. 617, 8. C.: Whittaker v. Whittaker, 8 B. & C. 768: Price v. Hughes, 1 Dowl. 448: Willes v. James, Id. 498: Anom., 4 Moore, 2; Man. Exch. Prac., 1st ed. 504. (q) Jordan v. Farr, 4 Nev. & M. 407; 2 A, & E. 437, S. C. (r) Robinson v. Lester, 3 Dowl. 531: and see Cockman v. Hellier, 1 Bing. Rep. N. C. 3; 4 M. & Scott, 487; 2 DowL 816, S. C. (8) Jordan v. Farr, 4 Nev. & M. 347; 2 A. & E. 437, S. C. (t) Watts v. Bury, 4 Dowl. 44. (x) Stockes v. Willes, 13 Leg. Obs. 29; 5 Dowl. 221, S. C.: and see Knell v. Joy, 4 Dowl. 600; 1 H. & W. 670, S. C. (y) Rowndell v. Powell, Willes, 66: Fursey v. Pilkington, 2 Dowl, 452. (2) Grantley v. Summons, 6 Dowl. 478. (a) Hopley v. Thornton, 2 D. & R. 12: and see Pemberton v. Browning, 2 Bing, 204; 9 Moore, 389, S. C.: Johnson v. Fry, 5 Dowl. 215: Holkam v. Plunkett, B. C., 2 Jurist, 494. then verily believed him to be still alive. So judgment has been allowed to be entered up on an affidavit, shewing that a cheque of the defendant's, dated thirteen days before the application, had been paid in the interim (b). An affidavit, stating the receipt of a letter from the defendant, in his handwriting, is sufficient evidence of his being alive at the time it bears date (c). But an affidavit, merely stating that deponent se the defendant, is not enough, unless it state that he saw him alice (d). And where the affidavit stated merely that the deponent was told by the defendant's wife that her husband was living, the court held it to be insufficient (e). It is insufficient, also, for the deponent to swear, that he believes the defendant to be alive from information which he has received, unless he also swears that he believes the information to be true (f). If several persons join in the warrant, it must be sworn that they are all alive (g), unless the warrant be joint and several, and the application be for the purpose of signing judgment against the survivors only (h). CHAP. II. attesting sary. In support of the application, as already observed, there Affidavit of must also be an affidavit by the attesting witness, stating the Witnes in execution of the warrant of attorney. Even though the at- general necestesting witness refuses from malice to make the necessary affidavit, the court will not grant the application (i). The circumstance of the commissioner, before whom the affidavit that the party is alive is sworn, being the attesting witness, does not dispense with the necessity of an affidavit by him of the execution of the warrant (j). An affidavit that the defendant had recently acknowledged the execution, expressly for the purpose of enabling the plaintiff to enter up judgment without being at the trouble of sending for the subscribing witness, has been held sufficient by the Court of Common Pleas (k); though, indeed, the Court of Queen's Bench have decided otherwise (7). If the attesting witness be dead or abroad (m), and that fact be 'substantiated by affidavit, or if he cannot be found, and the affidavit state the endeavours which have been made to find him, then the court will receive secondary evidence of the execution (n). Where the attesting witness was the clerk of the attorney who prepared the warrant, the want of his affidavit in this case was considered sufficiently supplied by that of his master, verifying the handwriting of his clerk and that of the defendant, and stating that the former had absconded and could not be found (9). And a rule was obtained to enter up judgment officer of the court. (See per Williams, J., (j) Field v. Bearcroft, 1 Dowl. 308; 2 (k) Laing v. Kaine, 2 B. & P. 85. (m) Taylor v. Leighton, 3 M. & Scott, (n) Young v. Showler, 2 Dowl. 556: Waring v. Bowles, 4 Taunt. 132: Jones v. Knight, 1 Chit. Rep. 743: and see Appleton v. Bond, Id. 744. (0) Young v. Showler, 2 Dowl. 556. |