BOOK 11. The criginal Warrant must be forthcom. ing. The Affidavit must shew that a Debt exists. when the attesting witness to the execution of the warrant was dead, and to prove the execution, an affidavit was made by one of the plaintiffs verifying the handwriting of the witness (p). The court will, by rule, compel the attesting witness to swear to the execution, at all events, if he be an officer of the court (q). The production of an office-copy of the affidavit of the due execution of the warrant at the time it was filed, if it was so, will be sufficient (r). If the defendant be a marksman, it seems that the affidavit should state that the warrant was read over to him before execution (s). It must be observed, however, that as this is a mere matter of practice, if a judge allows judgment to be signed on other evidence, without the affidavit of the attesting witness, such judgment will not afterwards be liable to be set aside merely on account of that deficiency (t). It may here be added, that even where the warrant of attorney is in the hands of the defendant, the court will not allow the plaintiff to enter up judgment on a copy, though in the defendant's handwriting (u). The proper course, in such a case, appears to be to apply for a rule, calling on the defendant to shew cause why he should not produce the original in court for the purpose of having judgment entered on it (u). The consideration, and the sum remaining due, are usually sworn to by the plaintiff himself in the affidavit used on this occasion. And, if not sworn to by the plaintiff himself, it seems that there must be an affidavit stating why not (x). Where the plaintiff was a lunatic, an affidavit of the debt being unpaid, made by a person who had received the interest due upon it for the last three years, was deemed sufficient (~); and an affidavit by the plaintiff's attorney, swearing to the consideration and the money remaining unpaid, and that he has been employed in managing the money and paying over the interest, Alien Enemy, has been admitted as sufficient, without any affidavit by the plaintiff himself (~). Where the warrant was given to secure the doing of an act, as the re-transfer of stock on demand, the court refused leave to enter up judgment on it on proof of a demand, made while defendant was insane (a). Consequences of signing Judgment without leave. Where it appeared by the plaintiff's affidavit that she was then resident in an enemy's country, the Court of Common Pleas refused to give leave to enter up the judgment (b). Although judgment happen to be entered up without the leave of the court or a judge when necessary, yet it seems that none but the defendant himself can object to the irregularity (c). (p) Constable v. Wren, 3 M. & Scott, 210 a: and see Taylor v. Leighton, Id, 423; 2 Dowl. 746. (q) Clark v. Elwick, 1 Str. 1: Caffin v. (r) Webb v. Webb, 4 Dowl. 599. (u) Ahun., M. 1838, B. C.: Littledale, J., 2 Jurist, 944. (x) Anom.. M. 1838, B. C.: Littledale, J., 2 Jurist, 1067. y) Coppendale v. Sunderland, Barnes, 42. (2) Ashman v. Bowdler, 2 C. & M. 212; 4 Tyr. 84, S. C. (a) Capper v. Dando, 2 A. & E. 458; 4 Nev. & M. 335; 1 H. & W. 11, S C. (b) De Luneville v. Phillips, 2 New Rep 97. (e) Jones v. Jones, 1 D. & R. 558; and see Walker v. Harris, ante, 691. СНАР, Ц. Judgment. Judgment, how Signed, &c.] Enter an appearance for the defendant. Make an incipitur of the declaration on plain paper, and an incipitur on a roll, which you will get at the how Signed, master's office. Take these, and the warrant of attorney, to one &c. of the masters, who will sign the judgment, and file the warrant (e). If judgment be signed, and leave of the court or a judge, anner the rule or order to the incipitur, on plain paper, when you take it to the master to sign judgment. There is no occasion to tax the costs of signing judgment, because they are a fixed sum, which cannot be reduced (f). No judgment ean be signed upon any warrant authorizing an attorney to confess judgment without such warrant being delivered to and filed by the master, who is to file the same in the order in which they are received (g). It is prudent, and indeed usual, to docket the judgment immediately, for the reasons mentioned ante, 337, 338, particularly if the warrant of attorney be given to secure the payment of an annuity, or of money by instalments, or the like (h). It must pur If a bond have been given with a warrant of attorney, the Form of declaration is made out in debt on bond; if not, it is usually Judgment. made out on a mutuatus. But, in all cases, the warrant of at- sue the wartorney must be strictly pursued, in entering up the judgment; rant. therefore, if, on a warrant to enter up judgment in debt on bond, judgment be entered up in debt on a mutuatus, the court will set it aside as irregular (i). So a general warrant given by a person who afterwards became insolvent, was held not to authorize the plaintiff to enter up a special judgment against his future effects (4). Or if a warrant be given to confess a judgment of a particular term or day, judgment cannot be entered up of any other term or day (1). So, upon a joint warrant of attorney given by two, judgment cannot, in general, be entered up against one, even after the death of the other (m). So, a warrant given by one of two executors will not authorize the plaintiff in entering up judgment against both (n). Also, where, on a warrant of attorney given to an executor, judgment was entered up in vacation as of the previous term, when the testator himself was alive, the court set it aside for irregularity (o). Yet, where a judgment-creditor applied to set aside a judgment and execution against the debtor, upon the ground that the judgment was entered up against the defendant by a different christian name from that signed to the warrant of attorney, the court refused even a rule nisi (p). But this was, probably, on the ground that a mere formal objection cannot be taken advantage of by third parties (q). The warrant of attorney, as already mentioned, (ante, 682), Effect of Reauthorizes the attorney to execute a release of errors; and if lease of Errthe defendant, notwithstanding, bring a writ of error upon fe See the form of the entry, Chit. Forms, 326 f See per Patteson, J., Griffiths v. Liversedge, 2 Dowl. 143. (2) R. M., 42 G. 3: R. M. 43 Geo 3. C. P., R. M., 43 G. 3, Exch.: see ante, 691. See the form of the register, Chit. Forms, 334. Paris v. Wilkinson, 8 T. R. 153. (k) Burton v. Mardin, 1 T. R. 80; decided before the 7 G. 4, c. 57. (l) Ante, 678, 692. (m) Gee v. Lane, 15 East, 592: ante, 688. (p) MS, ors. BOOK II. 3 Execution, &c. be Issued. For what when set aside for Excess. the judgment, or upon a judgment in scire fecias to revive that judgment (r), the court, upon application, would probably quash the writ. 3. Execution, &c. In noticing (ante, 692, 693, &c.) the practice as to when the judgment may be signed, we have mentioned several When it may points as to the execution thereon. As soon as judgment is signed, the plaintiff may immediately sue out execution as in ordinary cases, if he be at liberty to do so by the terms of the defeazance. A writ of execution, however, may be sued out before, but it cannot be executed until on or after, the day specified for that purpose in the defeazance (s). In some cases, where the warrant of attorney is given to indemnify the plaintiff against the payment of a debt, judgment may be signed, and execution issued, before he has paid it (t). If the defeazance state that a demand must be made before execution issued, such demand must be made accordingly (u), and upon a person capable of giving a substantial answer (r). If the plaintiff be guilty of any excess in the amount for Amount, and which he ought to have levied, the court or a judge will either set aside the execution (x), 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; and an action might, perhaps, be supported against the plaintiff (y). Where a warrant of attorney was given for securing the payment of an annuity, and upon default made in the payment of the annuity the plaintiff sued out execution and arrested the defendant for the amount of the penalty, the court set aside the execution, and ordered the defendant to be discharged, as the defeazance authorized the plaintiff to take out execution merely for the arrears (). The plaintiff, in such a case, should sue out execution for the amount of the penalty, because the writ of execution must strictly pursue the judgment (a), but should indorse it to levy the amount of the arrears only. But where a warrant of attorney was given for the payment of money by instalments, and by the terms of the defeazance the plaintiff was to be at liberty to enter up judgment immediately, "but no execution to be issued until default made in payment of the said sum of 1,4027. 18s. 8d. with interest as aforesaid, by the instalments and in the manner hereinbefore mentioned;" the court held that the plaintiff, upon a fair construction of the above terms of the defeazance, was at liberty to sue out and execute a writ of execution for the entire sum, upon default in payment of any one of the instalments (b). În such or similar cases, where the sum secured by the warrant is payable (z) See Tilby v. Best, 16 East, 163: Amery v. Smalridge, 2 W. Bla. 760: see ante, 417, 618. (y) Wentworth v. Bullen, 9 B. & C. 840. (b) Leveridge v. Forty, 1 M. & Sel. 706: and see Rose v. Tomblinson, 3 Dowl. 49. ante, 678: Gowlett v. Hanforth, 2 W. Bla. 957. by instalments, and default is made, the defendant may be taken (e) or charged in execution for each of those defaults as they are made, without any leave of the court or a judge (d). Where a warrant of attorney made no mention of interest on the principal, but the defeazance did, the court allowed execution to be issued for the principal and interest (e). Interest at £4 per cent may now in all cases be levied from the date of the judgment under the 1 & 2 V. c. 110, s. 17. CHAP. II. Bankruptcy, &c. of Breaches, and Sci. Fa. under 8 & 9 we al unnecessary. As to how far an execution under a warrant of attorney is In Case of or is not available in case of the bankruptcy or insolvency of the defendant, see ante, 432, 433, &c. Although a warrant of attorney be given to secure the pay- Suggestions ment of an annuity, or of a sum of money by instalments, or the like, it seems a scire facias is not necessary, previous to suing out execution for every periodical payment or instalment, as would be the case if a bond only had been given; for it has been decided in several cases in the Court of Common Pleas (ƒ), and it seems also to be the opinion of the Queen's Bench (g), that the stat. 8 & 9 W. 3, c. 11, s. 8, which requires suggestions of breaches and the scire facias in such cases (h), does not extend to warrants of attorney to confess judgment on a mutuatus, even when given merely as a collateral security with a bond (¿). Also, in other cases, by an express stipulation in the war- Agreement to rant of attorney, a scire facias to revive the judgment may be dense with annecessary, in cases where it would otherwise be required (k). See Atkinson v. Baynton, 1 Hodg. 7; 1 Bing. N. C. 444. Daris v. Gompertz, 2 Dowl. 407. e) Shipton v. Shipton, 1 Dowl. 518. (f) Shaw v. Marquis of Worcester, 6 Bmg, 385. 4 Moo, & P. 21, S. C.: Austertry v. Morgan, 2 Taunt. 195: Cox v. Rodberd, 3 Id. 74: Kinnersley v. Mussen, 5 Id. 264 and see Howel v. Hanforth, 2 W. Bl. 845. (g) MS., E. 1814: and see Tilby v. (k) See port, Ch. 4, Sect. 3, p. 723. Sci. Fa. What, and in what Cases. Nil dicit. formatus. What, and in what Cases.] WHEN a defendant bath a day certain given him in court, and is then demandable, and being demanded doth not appear, the court thereupon give judgment against him by default (a). The defendant allows judgment to go by default, either intentionally, or through mistake or neglect: intentionally, where he has no merits, or when he does so according to a previous agreement with the plaintiff; through mistake, when he puts in a plea, or rejoinder, &c., so informal or defective, that it is treated as a nullity; and through neglect, when perhaps he has merits, but he neglects to plead, rejoin, &c., within the time limited by the rules of court for that purpose. This is also an implied confession of the action. Judgment by default is either by nil dicit, that is, where the defendant is stated to have appeared, but to have said noNon sum in- thing in bar or preclusion of the action;-or by non sum informatus, where he is said to appear by attorney, but the attorney says that he is not informed by the defendant of any answer to be given. The latter is used only in cases where judgment is entered in pursuance of a previous agreement between the parties; the former, where the defendant has not pleaded within the time limited by the rules of the court, or in a proper manner, or where he has pleaded some plea not adapted to the nature of the action or circumstances of the case, or the like (b). As to judgment for want of a plea, and where the plea, from some irregularity in the form of it, or in the manner or time of pleading it, may be treated as a nullity, see ante, 165 to 170, &c. As to judgment for want of a rejoinder, rebutter, &c., see ante, 197, 198. Default at Default as to Part of the If the defendant make default at the trial, this is not such a default as will entitle the plaintiff to sign judgment; but he must proceed regularly to verdict and judgment, in the same manner as if the action were defended. Where judgment by default is signed as to part, and issue is joined as to the residue, a special venire is always awarded, tam ad triandum quam ad inquirendum, as well to try the issue as to inquire of the damages; and the jury who try the issue, in that case, assess the damages for the whole (c). (a) Morice v. Green, 3 Salk. 213. (c) 11 Co. 5. See the form of the award (b) See forms of judgment by non sum of the venire, Chit. Forms, 44. informatus, Chit. Forms, 333. |