14. Judgments by Cognovit, against an Executor or Administrator. [See the forms, post.] 15. Docket Paper in Q. B. on a Judgment by Cognovit (a). The entry of P. A. gentleman, one &c., on the 1840. · day of · , A. D. (venue). Judgment by confession, between A. B. plaintiff and costs, [or in assumpsit, &c. "for C. D. defendant, for £ debt, £ damages and costs." Roll (its number). 16. Entry of on Docket Roll, in C. P. On the day of Cognovit actionem [or "confession"] in debt [or "case."] (venue) A. D. 1840. A. B. plaintiff, Roll C. D. defendant. (its number). 17. Execution on a Judgment by Cognovit. [Same as in ordinary cases. See forms, ante, 148 to 268.] (a) Docketing judgments under the 4 & 5 W. & M. c. 20, is now abolished by the 2 & 3 Vict. c. 11, See which substitutes registration. CHAPTER II. 3 JUDGMENT UPON A WARRANT OF ATTORNEY. 1. Warrant of Attorney, to confess Judgment (a). To P. A. and D. A. gentlemen, attornies of her Majesty's Court of Queen's Bench [or " C. P." or " Exchequer of Pleas"] at Westminster, jointly or severally, or to any other attorney of the same court. These are to desire and authorize you, the attornies above-named, or any one of you, or any other attorney of the Court of Queen's Bench [or "Common Pleas," or "Exch. of Pleas"] aforesaid, to appear for me C. D. [or in case of several defendants, "for us C. D. and E. F., or either of us"] (b) of -, in the said court, and to receive a declaration for me [or "us, or either of us"] in an action of debt for £ for money borrowed [or if a bond were given, on a bond or obligation made and entered into by me the said C. D. to A. B. in the penal sum of £," at the suit of [the said] 4. B., his executors or administrators (b); and thereupon to confess the same action, or else to suffer a judgment by nil dicit or otherwise to pass against me [or " us, or either of us"] in the same action, and to be thereupon forthwith entered up against me [or "us, or either of us"] of record in the said court, and thereupon that execution may issue for the said sum of, together with costs of suit [and all other reasonable and incidental costs and charges attending the said judgment and execution and sale:] And I [or "we"] the said C. D. [and E. F. and each of us] do hereby further authorize and empower you the said attornies, or any one of you, after the said judgment shall be entered up as aforesaid, for me and in my name, [or "for us and in our or either of our names,"] and as my [or "our"] act and deed, to sign, seal, and execute a good and sufficient release or releases in the law to the said A. B., his heirs, executors and administrators, of all and all manner of error and errors, writ and writs of error, and all benefit and advantage thereof, and all misprisions of error and errors, defects and imperfections whatsoever, had, made, committed, done or suffered, in, about, touching or concerning the aforesaid judgment, or in, about, touching or concerning any writ, warrant, process, declaration, plea, entry, or other proceedings whatsoever, of or in any way concerning the same: And for what you the said attornies, or any one of you, shall (a) See 2 Chit. Ar. Pr. 682. (b) Id. 638. 46 do or cause to be done in the premises, or any of them, this shall be to you, and every of you, a sufficient warrant and authority. In witness whereof [or "we"] have hereto set my hand and seal [or our hands and seals"], the day of in the year of our Lord 18-. Signed, sealed and delivered by C. D., in the C. D. (L. s.) presence of, and witnessed by, me, D. A. of attorney of the court of - as the attorney of the said C. D., named by him and attending at the execution hereof, at his request, to inform him of the nature and effect hereof, before the same was executed, and I hereby declare myself to be such attorney for the said C. D., and I subscribe myself as such attorney, having first informed him of the nature and effect of this warrant of attorney, before he executed the same (a). , A. D. 2. Defeazance thereon (b). ; the Memorandum: The within warrant of attorney is given to secure the payment from the within-named C. D. to the within-named A. B., of the sum of £ [with interest] on the day of, [or if by instalments, then thus: "on the days and in manner following, that is to say, the sum of £- -, part thereof, with interest for the same, on further sum of £- other part thereof, with interest for the same, on -; and the further sum of £-, residue thereof, with interest for the same as aforesaid, on ;" and if a bond were given, add," according to the condition of a certain bond or obligation made and entered into by the said C. D. to the said A. B., and bearing even date the day of or "with these presents:"] And it is hereby agreed by and between the said parties, that no action, execution, or other process or proceedings shall be commenced, sued out, or prosecuted against the said C. D., his heirs, executors, or administrators, or against his or their lands, goods or chattels, upon the judgment to be entered up in pursuance of the within warrant, until default shall happen to be made in payment of the sum above-mentioned, [or "of some or any one of the instalments above mentioned,"] and interest for the same as aforesaid, [and then only for the amount of the instalment or instalments which shall then be due and unpaid, together with interest for the same, (or if all the instalments are to become due on one default, then say, " and then for the whole of the said sum of £(with interest), or such part thereof as shall not have been paid, notwithstanding the periods for the payment of the residue of the said instalments shall not have arrived.")] And it is hereby agreed by and between the said parties, that it shall not, in the event of the said A. B.'s delaying to sue out execution on the said judgment after a year and a day from the signing thereof, or in any other event whatsoever, be necessary for the said A. B., his executors or administrators, to revive the said judgment by scire facias or otherwise, and that execution may issue without it (c); and that no writ of error shall be brought, or bill in equity filed, or any advantage taken or attempted to be taken, by the said C. D., his heirs, executors, or administrators, for or on account of the premises, or any other matter, cause, or thing (a) This attestation is now necessary, whether the person giving the warrant be a prisoner or not; see 2 Chit. Ar. Pr. 684. (b) As to the defeazance in general, see 2 Chit. Ar. Pr. 682. (c) Id. 682. whatsoever, relating to, touching, or in anywise concerning the issuing or executing of any such execution aforesaid, or any other proceedings which may be had or taken on the said judgment, or to enforce the execution thereof according to the true intent and meaning of these presents. [If the warrant be for the securing of the payment of an annuity, it is usual to insert the following clause, or one to a similar effect (a): "And it is hereby agreed, that when and as often as any default shall be made in payment of the said annuity or yearly sum of £- and the whole or any part of any quarterly payment of the same shall be in arrear and unpaid by the space of twenty-one days, it shall and may be lawful to and for the said A. B., his executors, administrators, or assigns, to sue out execution or executions upon the said judgment against the said C. D. for so much and such part of the said annuity or yearly sum of £- as shall be then due, together with costs, sheriff's poundage, and officers' fees, and all other incidental expenses whatsoever, and that without making or entering any previous suggestion or suing out or executing any writ of scire facias or inquiry under the statute made in the eighth and ninth years of the reign of King William the Third, or any other suggestion, writ of scire facias, or inquiry whatsoever."] As witness our hands the day of.A. D. 18Witness, D. A. 3. Affidavit to enter up Judgment after a Year (b). In the Q. B. [or " C. P." or " Exch. of Pleas"](c). C. D. Between A. B. plaintiff and C. D. defendant. A. B. of . tailor, the above-named plaintiff, D. A. of - gentleman, and C. C. of, clerk to the said D. A., severally make oath and say: and first this deponent A. B. for himself saith, that before the execution of the warrant of attorney hereinafter mentioned, C. D. the abovementioned defendant, was justly and truly indebted unto this deponent in the sum of £ for (d) goods sold and delivered by this deponent to the said C. D. at his request (state the debt concisely, as in an affidavit to hold to bail): And that the said C. D. being so indebted to this deponent, the said C. D. on in the year of our Lord after the said debt had become payable, gave unto this deponent [his certain bond or obligation in the penal sum of conditioned for the payment of the said sum of £, upon a certain day (or "at certain times") therein particularly mentioned and now elapsed, and also, as a further security for the said debt, the said C. D. duly executed unto this deponent] his warrant of attorney aforesaid, bearing date the day of -, A. D. -, by which the said C. D. authorized certain attornies therein mentioned to appear for him in this honourable court, and to receive for him a declaration in debt for £, at the suit of this deponent, and thereupon to confess the same action, or else to suffer a judgment by nil dicit, or otherwise, to pass against him in the said action, and to be thereupon forthwith entered up against him of record, in this honourable court, for the said sum of £- besides costs, (let this agree with the warrant): And upon which said warrant of attorney was indorsed a certain defeazance, whereby it was agreed that the said sum of £——— should be paid, (a) See 2 Chit. Ar. Pr. 682. (b) As to the necessity for this affidavit and its form, &c. see 2 Chit. Ar. Pr. 693. See a form in Mansel's Practice, 124. (c) As to the title, see 2 Chit. Ar. Pr. 694. (d) As to the statement of the consideration, see 2 Chit. Ar. Pr. 694. or day of term, with interest, on the days and in manner following: that is to say, £on [&c. proceed as in the defeazance]: and that [judgment should not be entered up in pursuance of the said warrant of attorney until "the then next, and that no execution should be sued out, or other proceedings taken upon the judgment so to be entered up, until &c. proceed as in the defeazance]. And this deponent further saith, that the said C. D. hath not paid to this deponent, or to any person for him, or on his behalf, the said sum of £- [or any part thereof], but that the same, together with interest thereon, making altogether the sum of £, is still due and owing from the said C. D. unto this deponent. And this other deponent D. A. for himself saith, that he was present on the day of, A. D., and did then see the said C. D. duly execute the said warrant of attorney, and that the said C. D. did then sign, seal, and as his act and deed deliver the said warrant of attorney in the presence of this deponent, and that the name C. D. at the foot thereof is of the proper hand-writing of the said C. D.; and this deponent further saith, that the name D. A. subscribed to the said warrant of attorney, as the witness thereof, is of the proper hand-writing of this deponent. And this other deponent C. C. for himself saith, that he personally knows the said C. D., and that he verily believes that the said C. D. is now living, this deponent having seen [and conversed with] him alive on —, [or "having received on ———— a letter from him in his own hand-writing, dated the day of —”] (a). Sworn [&c. ante, 207.] A. B. D.A. C.C. B.) V. 4. Rule thereupon (b). Upon reading the affidavit of A. B., D. A. and C. C., and the warrant of attorney therein mentioned, it is ordered that the plain upon the said warrant of attorney. Upon the motion of Mr. [A judge's order may be readily framed from this form.] [See 2 Chit. Ar. Pr.694, 695, 696.] By the Court. 5. Judgment on a Warrant of Attorney where a Bond has been given. In the Q. B. [or "C. P." or " Exch. of Pleas."] On the day of . A.D. ,(day of signing judgment.) Middlesex (venue) to wit: A. B., by P. A., his attorney, complains of C. D., who has been summoned to answer the said A. B. in an action of debt, and he demands of him the sum of f-- (the penalty) which he owes to and unjustly detains from him*. For that whereas the defendant, (the date of the bond), by his certain writing obligatory, sealed with the seal of the defendant, and now shown to the court of our said lady the queen, before the queen herself, [or in C. P. " before the justices of the Bench," or in Exch. "before the barons of her Exchequer,"] here, the date whereof is the day and year aforesaid, acknowledged himself, his heirs, executors and administrators, to be held and firmly bound on (a) See 2 Chit. Ar. Pr. 693. (b) As to when the rule is a rule nisi, see 2 Chit. Ar. Pr. 693. |