No. CCCCXCII.

A Warrant of Attorney for securing Payment of a Debt.
Variations where there are two or more cognizors.

To A. B. and C. D. attorneys (1) of his Majesty's court of
, at Westminster, jointly and severally, or to any

other attorney of the same court.

THESE are to desire and authorize you the attorneys above named, or any or either of you, or any other attorney of the court of aforesaid, to appear for me (the cognizor) (2) of, &c. [or us (the

WARRANT OF

ATTORNEY.

To secure a
Debt.

(1) The warrant is usually given to two attorneys, lest if one were appointed he should die before judgment be entered up, in which case it could not be done, Wild v. Sands, 2 Stra. 718; but being given to two, and one die, the Court will permit judgment to be entered up by the survivor, Todd v. Todd, Barnes, 48; 1 Wils. 312. S. C. per nom. Todd v. Todd; Gladwin v. Scott, Barnes, 53; Futcher v. Smith, 2 Blac. 1301; Findall v. May, 2 Maul. and Sel. 76; Raw v. Alderson, 1 Moore, 145, 7 Taunt. 453. S. C.

In order to obtain leave to enter up judgment on an old warrant of attorney, it must be sworn that the defendant was alive on a day in full term, the essoign day is not sufficient. Eyles v. Warren, 4 Maul. & Sel.

174.

Although the sum to secure which the warrant of attorney is given, be not payable until a future day, yet judgment may be entered up immediately. Anon. Ca. Temp. Hard. 270.

(2) It is to be remarked that the cognizor in a warrant of attorney must be sui juris in all respects, as in other delegations of an authority; if therefore the warrant be given by an infant, it is absolutely void, and the Court will not confirm it, although he may appear to have given it,

Judgment may be entered up by two attorneys.

the survivor of

Warrant of attorney cannot be given by an in

fant or feme covert.

WARRANT OF
ATTORNEY.

To secure a
Debt.

term,

cognizors) of, &c. or either of us] as of this present (1)
term now next ensuing, or any subsequent term (2), and then
and there to file common bail and to receive a declaration for me [or
us or either of us] in an action of debt for money had and received,
for the sum of £ at the suit of (the cognizee) of, &c. [or (cog-
nizees) of, &c. or one of them, their, or] his executors (3), adminis
trators, or assigns, and thereupon to confess the same, or to suffer a
judgment by non sum informatus, nihil dicit, or otherwise, to pass
against me, my heirs, executors, and administrators, [or us or either
of us, our or either of our heirs, executors, and administrators] in the
same action, and to have the same judgment forthwith entered up (4)

Vacation.

Judgment must be entered up as

of the term named.

Executors cannot enter up judgment unless named.

Warrant of attorney not revocable.

knowing it was not valid, and for the purpose of collusion; Sanderson v. Marr. 1 Hen. Blac. 75; and so a joint warrant of attorney by an infant and another will be void against the infant, Motteux v. St. Aubin, 2 Blac 1133; so if it be given by a feme covert, even though a sole trader by the custom of London, Reed v. Jewson, cited in Caudell v. Shaw, 4 Durnf. and E. 362.

(1) If the warrant of attorney be given during a vacation, mention the preceding term, a judgment signed in the vacation being looked upon as a judgment of the preceding term, Odes v. Woodward, 2 Lord Raym.

849.

(2) If the warrant of attorney be given to appear and confess judg ment as of a particular term, the judgment must be entered up as of that term only, and not of any other, which makes it proper to extend the authority to enter up the judgment as of any subsequent term; 1 Mod. 1. (3) These words are necessary in order to enable the executors or administrators of the plaintiff to enter up judgment in case of his death, which they could not do unless they were expressly named, " for all authorities must be strictly pursued, and any supposed omission of the parties cannot be supplied", Cowie v. Allaway, 8 Durnf. and E. 257.

If the warrant of attorney be joint and not several, judgement cannot be entered up against one of the cognizors only, although the other be dead. See Gee v. Lane, 15 East, 592; Tindall v. May, 2 Maul. & Sel. 76; Raw v. Alderson, 1 Moore, 145.

(4) A warrant of attorney to confess a judgment, being for the security of a debt, is not revocable, see Vol. I. p. 255. n. (2), and if the cognizor attempt to revoke it, the Court will notwithstanding give the other party leave to enter up the judgment, Odes v. Woodward, 2 Lord Raym. 766. 850; the death of either party is however primâ facie a countermand of the warrant, Co. Lit. 52 b. 2 Roll. Ab. 9. Plow. Com. 457; for if it appear to the Court that the party were dead, they will not permit it to be done, Chancey v. Needham, 2 Stra. 1080; unless it can be looked upon as a judgment of a time when he was alive, in which case it may be signed after the death of the party who gave it; and per Holt, Ch. J. if a party die in the vacation, the attorney may enter up judgment as of the preceding term, and it will at the common law be a judgment as of that term; although by the statute of frauds it will be binding upon purchasers only from the time of signing, see Odes v. Woodward, 2 Lord

against me or them [or us or either of us, or them or any or either
of them] on record of the said court, for the said sum of £
and costs of suit (1). And I the said (cognizor) [or we the said
(cognizors)] do further authorize and empower you the said at-
torneys, or any or either of you, or other attorney aforesaid, after the
said judgment shall have been so entered up as aforesaid for me [or
us] my [or our] heirs, executors, and administrators, and in my [or
our] or their name or names respectively, and as my [or our] or their
act and deed, or acts and deeds respectively, to sign, seal, and exe-
cute a good and sufficient release (2) or releases in the law to the said
(cognizee), his executors, administrators and assigns, of all and all
manner of error and errors, and all benefit and advantage thereof,
and all misprisions of error and errors, and other defects and imper-
fections whatsoever, in, about or concerning any writ, warrant,
process, declaration, plea, entry, or other proceeding whatsoever, of
or in any way concerning the same. And for what you, my [or our]
said attorneys, or any or either of you, or any other attorney afore-
said shall do or cause to be done in the premises, or any of them,

Raym. 849; Cowie v. Allaway, 8 Durnf. and E. 257; hence the propriety of the warrant being given for the entering up judgment immediately, and not, as is sometimes done, after default made; for in that case, should the cognizor die before default, no judgment can be entered

up.

(1) These words should not be omitted; see Cole v. Fladen, 2 Stra. 718.

WARRANT OF
ATTORNEY.

To secure a
Debt.

Release of errors may be

contained in warrant of attor

ney.

rors.

(2) Although it is usual in warrants of attorney to empower the attorney to sign a release of errors on the part of the cognizor, as in the above precedent, yet the release itself may be contained in the warrant, for the judgment will, when entered up, refer to, and be a judgment of the first day of the term, and the release will stand as a release of the day on which it actually bears date, and operate accordingly; see Landon v. Pickering, 2 Stra. 1215; in which case, say, "And I the said (cognizor) for myself, my heirs, executors, and Release of eradministrators, do by these presents remise, release, and for ever quit claim unto the said (cognizee), his executors, administrators, and assigns, ALL and all manner of error and errors, and all benefit and advantage thereof, and all misprisions of error and errors, and all other defects and imperfections whatsoever touching or concerning the aforesaid judgment, obtained or to be obtained against me the said (cognizor) by the said (cognizee) as hereinbefore is mentioned, or touching or concerning any warrant, process, declaration, plea, entry or other proceeding whatsoever, of or in anywise concerning the same."

WARRANT OF
ATTORNEY.

To secure a
Debt.

this shall be to you and them, and every of you and them a sufficient warrant and authority (1). IN WITNESS (2), &c.

Defeazance.

Need not be by deed.

(1) For the defeazance to this warrant of attorney, see ante, p. 816. (2) A warrant of attorney to confess judgment need not be by deed, although it may be contained in a deed, Kinnersley v. Mussen, 5 Taunt. 264; neither does it require an attesting witness, ibid.

Stamp.

Execution.

*By the 55 Geo. III. c. 184, every warrant of attorney to confess judgment, whether it contain a release of errors, or not, given as a security for the payment of money, must be impressed with the same advalorem duty as a bond for the same purpose, except where such payment shall be already secured by a bond, mortgage, or other security, which shall have paid the ad-valorem duty on bonds or mortgages; or where the warrant of attorney shall be given for securing any sum or sums of money, for which the person giving the same shall be in custody under an arrest, and in those cases a duty only of £1. see the ACT, ante, "STAMP", Schedule.

As to the execution of a warrant of attorney in the presence of the attorney of the debtor, see ante, Vol. II. p. 323, notes.

No. CCCCXCIII.

*Warrant of Attorney to acknowledge Satisfaction on a Judgment for securing an Annuity, on a re-purchase or determination of the Annuity.

term of

To A. B. C. D. and E. F., Attorney of the Court of King's Bench (Common Pleas) at Westminster, jointly and severally, or to any other attorney of the same court. WHEREAS I (grantee) of, &c. heretofore, to wit, in or about the last past, or in the year of the reign of his late [or present] Majesty King George the obtained judgment in his Majesty's Court of King's Bench (or Common Pleas) Westminster, against (grantor) of, &c. for [double the consideration-money] pounds, and costs, as by the record thereof may appear. AND WHEREAS I the said (grantee) have received satisfaction for the same; these are therefore to desire and authorize you the attorneys above-named, or any one of you, or any other attorney of the same court, to acknowledge and enter satisfaction upon the record of the same judgment; and for your so doing this shall be your sufficient warrant and discharge in that behalf. whereof I have hereunto set my hand and seal the

IN WITNESS

day of

in the

Witness

of, &c.

SUP.-VOL. III.

(Grantee).

WARRANT OF

ATTORNEY.

Acknowledge

Satisfaction (annuity).