Copyright
William Tidd.

The practice of the Courts of King's Bench and Common Pleas in personal actions and ejectment : to which are added the law and practice of extents : and the rules of court and modern decisions in the Exchequer of Pleas (Volume 1) online

. (page 75 of 90)
Online LibraryWilliam TiddThe practice of the Courts of King's Bench and Common Pleas in personal actions and ejectment : to which are added the law and practice of extents : and the rules of court and modern decisions in the Exchequer of Pleas (Volume 1) → online text (page 75 of 90)
Font size
QR-code for this ebook


other security, which has paid the ad valorem duty on bonds or
mortgages : ami also except where the warrant of attorney is given
for securing any sum or sums of money, for which the person giving
the same is in custody under an arrest ; and in those cases, it is
subject to a iluty of one pound." A defeazance however, upon a
warrant of attorney, does not require a separate stamp from that upon
the warrant of attorney'' : And where an instrument has an insufFi-
cient stamp, it may at any time be made available by affixing a proper
stamp, and paying the penalty : Therefore, where a rule nini was
obtained to set asiile a judgment on a warrant of attorney, on tli»;
ground of an insutlicient stamp, the court of Common Pleas dis-
charged the rule, the instrument having been properly stamped since
the motion^

Every warrant of attorney should be given voluntarily, and for a
good consiilcration : Therefore, if a warrant of attorney be obtained
by fraud ', or for a corru])t and usurious consideration*", or for securing
an annuity which is void by the annuity act', or to induce the plaintiff
to live in prostitution with the defendant", ihe courts will order it to
be delivered up, and set aside the judgment and proceedings, if any,
which have been had under it. And the court of King's Bench will
set aside a judgment founded on an usurious security, without com-
pelling the defendant to repay the j)rincipal and interest''. But, in
the Common Pleas, where securities had been acted on, and the
money partly paid by the borrower, the court would not set aside a
judgment and execution on the ground of usury, but upon (he terms
of the defendant's repaying the ])rincipal and legal interest'. In a
late case, that court would not decide the question, whether a joint

» 55 Geo. III. c. 184. Sche<l. Part I. Part Barn. & Aid. 691.

II. § in. And see the statutes 44 Oeo. III. • Cowp. 727. 1 Bos. & Pul. 270. 4 Barn,

c. 98. Scked. A. 48 Geo. III. c, 149, Srhed. 5c Al.t. 92.

Part II. §111. t Anlf,5b\,5.

^ 1 New Rep. C, P. 279. R J^'mei v. Iloskins, T. Ij Geo. III. K. fi.

c 7 Taunt. 174. 2 Marsh. 430. S. C. '' 4 Barn. & AM. 9'2.

«> Doug. 196. 3 Taunt. 473. and s?e 4 "1 Taunt. 41:^

2Q



r)94 OF WARRANTS OF ATTORNEY.

stock company were a nuisance, within the statute 6 Geo. I. c. 18.
upon a motion to set aside a judgment entered up on a warrant of
attorney". So, wliere 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 judg-
ment wliicli liad been signed thereon*'. If a warrant of attorney be
given by an inlanf^, or by one of several executors to confess a judg-
ment against all'', the courts will order it to be delivered up, &c. :
And a joint warrant of attorney, to confess a judgment by an infant
and another, may be vacated against the infant only'. But a war-
rant of attorney under seal, executed by one person for himself and
his partner, in the absence of the latter, but with his consent, is a
suthcient authority for signing judgment against both^. And where a
young man gave bills for the amount of a gaming debt, and when
they were due, renewed them with the holder, and for the last bills,
when due, confessed a judgment by warrant of attorney, the court of
Common PJeas would not set aside the judgment, unless he could
affect the holder of the bills with notice, but permitted him to try
that fact in an issued. A warrant of attorney given to confess a judg-
ment at the suit of a feme covert, is void*" : But where a feme covert,
who lived by herself, and acted as a feme sole, gave a warrant of
attorney to confess a judgment, and afterwards moved to set aside
the judgment, because she was covert, the court of King's Bench
would not relieve her, but put her to her writ of error'. And where
it appeared by the plaintiff's affidavit, that she was resident in an
enemy's country, the court of Common Pleas refused to allow judg-
ment to be entered up on an old warrant of attorney''.

When the defendant is in custody by arrest, it is a rule of both
courts', that *' no bailiff or sheriff's officer shall presume to exact or
" take from him, any warrant to acknowledge a judgment, but in the
" presence of an attorney for the defendant, who shall subscribe his
" name thereto ; which warrant shall be produced, when the judg-
" ment is acknowledged ; and if any bailiff or sheriff's officer shall
" offend therein, he shall be severely punished : And no attorney

a 4 Taunt. 387. f 1 Chit. Kep. 707.

'' 8 Taunt, 439. 2 Moore, 495. S. C. e 4 Taunt. 683.

« 1 H. Blac. 75. Chambers v. Burnett, T, ^2 Wils. 3.

32 Geo. III. C. P. Imp. C. P. 612. i 1 Salk. 400. and see 3 Bos. & Pul. 128.

d 1 Str. 20. and see 1 Rol. Abr. 929. pi. 220.

5. 2 Vts. & B. 54. 1 Chit. Rep. 708. in notis. ^ 2 New Rep. C. P. 97.

e 2 Blac. Rep. 1133. 1 Chit. Rep, 708. ' R. E. 15 Car. 11. reg. 2. K. B. R. H. 14

»« "ods. & 15 Car. II. reg. 4. C. P.



OF WARRANTS OP ATTORNEY. 595

" shall acknowledge or enter, or cause to be acknowledged or en-
** tered, any judgment, by colour of any warrant, gotten from any
*' defendant, being under arrest, otherwise than as aforesaid." Upon
this rule, the defendant in the Common Pleas was held to be in cus-
tody, though the officer left him for some time, whilst the plaintitV
got from him the warrant of attorney" : And in that court, a defen-
dant lodging within the rules of the Fleet, at the house of tlic ofllccr
who arrested him, and who was his security to the warden, was
deemed to be a prisoner within the meaning of the rule**. So where
a <lefendant, on being arrested at the suit of a third person, is taken to
the house of a sherilV's olVicer, to whom he voluntarily offers to give
a warrant of attorney, it is necessary for an attorney to be present on
his part, at the time of its execution*'. But it having been deemed
sufficient for the plaintiff's attorney to be present, and subscribe the
warrant, as attorney for the defendant*, another rule was made, in
the King's Bench*, that " no warrant of attorney executed by any
" person in custody of a sheriff or other oflicer, for the confessing of
*' judgment, shall be valid or of any force, unless there be present
*' some attorney on the behalf of such person in custody, to be
** expressly named by him, and attending at his request, to inform
" him of the nature and effect of such warrant of attorney, before the
'' same is executed ; which attorney shall subscribe his name as a
" witness to the due execution thereof." And, to prevent frauds and
impositions in the execution of warrants of attorney for confessing
judgments, a rule was made in the Common Pleas, that " every
" warrant of attorney for confessing judgment, shall be read over by
" the person who is to execute the same, or by some other person to
** him, before the execution thereof: and that if judgment siiall be
" entered up on any such warrant of attorney, which shall not be
*** so read over as aforesaid, such judgment, upon motion, may be
" set aside as irregular*^ :" But this latter rule appears to be
disused^.

The object of these rules was not merely to procure the attendance
of an attorney, to explain the nature of the instrument to be exe-
cuted, but also to advise the defendant confidentially, and as a friend ;
and rules thus framed for the protection of a prisoner, cannot be
waived by him, when in a situation where he is incapable of exercising
his judgment : Therefore, when a defendant in custody executes a

a Cas. Pr. C. P. 123. * R- E. 4 Geo. II. K. B. 2 Str. 90'2.Cowp.

•> 2 Bine. Rep. 1297. and see iff. 1097. 281.

c 2 Moore, 176. 8 Taunt. 233. S. C. ^ R. T. 1 V & l.i Goo. II. C P.

«» 2 Str. 1245. « 2 II. Bl.»c. 383.

2 Q 2



596 OP WARRANTS OF ATTORNEY.

warrant of attorney to confess a judgment, there must be an attorney
present on his part ; the presence of the plaintiff's attorney being
insufficient, though the defendant consent to his acting as his attorney
also": And, in the Common Pleas, if a prisoner on mesne process
aive a warrant of attorney, the rule that his attorney must be present
Ts not dispensed with, though two other persons not in custody join
in the war^ant^ The presence of an attorney's clerk is not sufficienf^.
And the above rules have been construed to extend to warrants of at-
torney executed abroad*^.

But still it is sufficient, if there be an attorney present on behalf of
the defendant, though he be not an attorney of the same court in
which the judgment is to be entered" : And, in the Common Pleas, if
the defendant himself be an attorney, or practise as such, it is deemed
sufficient, though no other attorney be present on his behalf". So a
warrant of attorney given by a defendant in custody, was in that
court holden to be good, where an attorney was present on his behalf,
though he was a total stranger to the defendant, and introduced by
the plaintiff's attorneys. These rules only extend to warrants of at-
torney given by a defendant in custody upon mesne process in a
civil action, to a plaintiff at whose suit he is in custody : Therefore,
where a warrant of attorney is given by a defendant in custody upon
process of execution^, or upon criminal process', or to a third person,
at whose suit the defendant is not in custody'', an attorney's presence
is unnecessary. And where a warrant of attorney was executed in
the presence of an attorney's clerk, and it appeared from the defen-
dant's affidavit, that he was the more induced to execute it, because
he had been informed, that if he did execute it under an arrest, and
without his attorney being present, it would be void, the court refused
to set aside the proceedings'.

On the other hand, though the case is not strictly within the rule,
yet the courts will sometimes interpose and give relief, under parti-
cular circumstances ; for it is their province to guard against the arts
of designing men, practised upon persons under the pressure of dis-
tress and imprisonment. Thus, if it could be shewn, that a party,
even in execution, had been prevailed on to acknowledge a judgment,
for more money than was really due, the courts would give relief

• 7 Durnf. & East, 8. I East, 243. per g 4 Taunt. 797.

Lawrence, J. U 2 Str. 1245. Cowp, 281. 1 Duraf. k

b 2 Taunt. 49. East, 715. 7 Durnf. & East, 19. S. P.

c Barnes, 42. i 4 Durnf. & East, 433.

<> 2 Str. 1247. k 5 jjo^j^ 144 3 Ld. Kaym. 797. 3 Bar.

e 1 Str. 530. Barnes, 44. 1792. Cowp. 142. 1 East, 241. 2 Moore, 175.

' Barnes, 37. Cas. Pr. C. P. 94. S. C. • Cowp, 142.



OF WAURANTS OF ATTORNEY. 597

Wilder the circumstances* ; because cases of fraud and imposition are
exceptions (o all rules whatsoever. And in a late case'', where inter-
locutory judgment being signed against a prisoner in custody of the
marshal, the plaintiff's attorney took a cognovit from him for 2001.
with a defeazance on paying 49/. {the real debt,) and costs, but no
attorney was present on the part of the defendant ; though this case
was not strictly within the rule, which only mentions prisoners in
custody of sheriffs' officers, yet the court of King's Bench interfered
for the relief of the prisoner. So where a defendant, on being arrested
by a sheriff's officer, gave a cugnocit to the plaintiff who was attorney
in the cause, without an attorney being ])resent on his part, such
cognoint was boiden to be void, by the court of Common Pleas,
although the plaintiff swore he did not know the defendant was in
custody"^. But, in the King's Bench, a cognovit given by a defendant
in custody on mesne j)rocess is valid, although no attorney be pre-
sent on the part of the defendant, unless it be siiewn that some undue
advantage was taken of him*'.

By the course of the courts, a warrant of attorney given to confess
a judgment is not revocable ; and if the party giving, endeavour to
revoke it, the courts will notwithstanding give the other party leave
to enter up judgment*. But the death of either party is, generally
speaking, a countermand of the warrant of attorney'': And therefore,
upon a motion to enter up judgment on an old warrant of attorney,
if it appear to the courts, that either party is dead, they will not grant
the motion^. Yet, if the warrant of attorney be to enter up judgment
at the suit of A. his executors or administrators, it seems that on
the death of A., the courts will give his executors or administrators
leave to enter up judgment thereon^ And if either party die in vaca-
tion, within a year after giving the warrant of attorney, judgment
may be entered up of course, at any time after, in that vacation' ; and
it will be a good judgment at common law, as of the preceding term,
though it be not so upon the statute of frauds, in respect of pur-
chasers, but from the signing'' : And even where the party dies after

s Cowp. 281. Viii. Abr. tit. Judgment, W. 7. Barnes, 270.

*> 3 Durnf. k East, 616. and see 1 East, •• Barnes, 44,5.

242. {aj. ' T. Raym. IS. 2 Ld. Raym. 766. 830.

c 7 Taunt. 701. 1 Moore, 428. S. C. and 1 Salk. 87. 7 Mod. 2. 93. S. C. 2 Str. 882.

see 2 Taunt. 360. Arnold v. Lowe, T. 37 3 P. Wms. 399. 6 Dtirnf. &, East, 368. 7

Geo. III. C. P. 7 Taunt. 703. /«;. Durnf. & East, 20. Cas. ?r, C. P. ll.

«* 1 Chit. Rep. 267. Willes, 427, 8. Barnes, 267, 8. 270. but see

« 2 Ld. Raym. 766. 830. 1 Salk. 87. 7 Cas. Pr. C. P. 6. contra.

Mod. 93. S. C. 2 Esp. Rep. 363. " 1 Salk. 401. 7 Mod. 39. S. C. Jd. 93.

<■ Co. Lit. 52. b. 1 Vent. 310. 6 Durnf. & East, 368. 7 Durnf. k East, 20.

« 2 Str. 718. 1081. 8 Durnf, & East, 257.



598 OF WARRANTS OF ATTORNEY.

the Nxn'"** 'f ^''<^ courts can be prevailed upon to grant a rule for enter-
ing up judgment, they will not afterwards set it aside**. When a
warrant of attorney is given to enter up judgment at the suit of two
i)crsons, judgment may be entered up thereon, after the death of one
of them, in the name of the survivor**. And, in the Common Pleas,
where a warrant of attorney was given by two persons, to enter up
jud"-ment on a joint bond against me, not us, the court, after the
death of one of them, gave leave to enter up judgment against the
other*=. But a joint warrant of attorney, given to enter up judgment
a""ainst us, upon a joint and several bond, will not, in either court,
authori/e the entering up judgment against the survivor only''. And
a judge at chambers will never make an order for entering up judg-
ment on a warrant of attorney, against a surviving defendant.

When a warrant of attorney is given to a feme sole, who marries
before judgment, the authority is not deemed to be countermanded or
revoked ; because it is for the husband's advantage* : And therefore,
notwithstanding the marriage, judgment may be entered up in the
names of the husband and wife. But, in order to warrant this entry,
there should be a previous application to the court, founded on an
affidavit of the marriage^ And, in an early case^, it was ruled upon
motion, that if a woman give a warrant of attorney, and then marry,
the plaintiff may file a bill, and enter judgment, against both husband
and wife, by the practice of the court. But, in a subsequent case**, it
is said, that if a feme sole give a warrant to confess a judgment, and
marry before it is entered, the warrant is countermanded, and judg-
ment shall not be entered against husband and wife, for that would
charge the husband'. In a still later case, however, judgment was
allowed to be entered up against husband and wife, on a warrant of
attorney given by the feme, dum sola^.

In entering up judgment on a warrant of attorney, the authority
given by it must be strictly pursued : Therefore, if a plaintiff enter
up judgment in debt on a mutuatuSy on a warrant of attorney to enter

a 2 Str. 682. 1081. Vin. Abr. tit. Juilg^ ' 3 Bur. 1471.

merit, W. 7. Barnes, S'O. g i Show. 91 . Say. Rep. 6. 3 Bur. 1470.

b Barnes, 40. Id. 48. 1 Wils. 312. Say. S. C. cited.

Rep. 5. S. C. 2 Blac. Rep. 1301. 2 Maulc h 1 Salk. 399. 7 Mod. 53. S. Ceiled.

& Sel. 76. 7 Taunt. 433. 1 Moore, 145. i Tatnen qua-re ; for it seems as reasonable

S. C. but see Barnes, ^5. contra. that he should be charged in this case, as

c Barnes, 53. 1 Chit. Rep. 315. innolis, for a bond or other debt, which he is liable

but see 7 Taunt. 453. I Moore, 145. S. C. for during the coverture, though not after.

d 15 East, 592. 7 Taunt, 453. 1 Moore, 1 Salk. 117. cites 1 Rol. Abr. 351. F. 1. G.

145. S. C. and see 1 Chit. Rep. 322. (aj. 2. F. N.B. 120. F. and see 4 East, 532.

e 12 Mod. 383. 7 Mod. 53. 1 Salk. 117. ^ 2 Chit. Rep. 117.
S. C. Banic*, 45,



OF WARRANTS OF ATTORNEY. 599

up judgment in debt on bond, the court will set it aside as irregular*.
So, judgment cannot be entered up against iwo defendants, on a war-
rant of attorney to confess a judgment against three persons, one of
whom afterwards refused to execute ; and the judgment against the
two was set aside on motion, but widiout costs, and on the terms of
no action being brought**. And if a warrant of attorney be given to
appear and confess judgment of a jiarlicular term, the judgment
should be entered accordingly of that term, and cannot be entered of
any others But if the warrant of attorney be given, to appear and
confess judgment generally, or (as is most usual,) of a particular or
any subsequent term, judgment may be entered of any term after
giving the warrant''. Where a warrant of attorney was given in
vacation, and judgment was entered up thereon as of the preceding
term, the court of King's Bench ordered the judgment to be set aside,
for the danger that might otherwise ensue to purchasers* : And where
a warrant of attorney was given to confess judgment, at the suit of an
executor, as of the preceding term, when the testator was living, and
the judgment was entered up accordingly, the court held it to be
irregular^; for the attorney could have no authority to appear in that
term, at the suit of the executor, and the judgment must be con-
sidered of that term, though to other purposes the day of signing is
material.

Within a year and a day next after the date of the warrant, judg-
ment may be entered of course, without applying to the court or a
judge. But if it be not entered within that time, the court of King's
Bench must be moved in term time*^, or if the warrant of attorney be
not above ten years old, an ap})lication may be made to a judge in
\acation, for leave to enter up the judgment, on an affidavit of the
due execution of the warrant of attorney, that the debt, or part of it,
is still due, and that the parties are living'". This affidavit may be
properly entitled in the cause in which judgment is entered up' :
And it seems that an atTidavit, sworn before a justice of the peace in
Scotland, is admissible, if the handwriting of the justice be authen-
ticated''. If the warrant of attorney be above ten years old, the ap-

»6 Durnf. & East, \53. Per Cur.T. ^5 Wi\s. 36. arg.
Geo. III. K. B. h Append. Chap. XXII. § 5.

'' 1 Cliit. Rep. 322. ' 1 Barn. & Aid. 567, 8. fa). Ante, 499.

^ J Mod. 1. 7 Mod. 53. '' 1 Cliit. Rep. 721, 2. But an affidavit

** Id. ibid. Barnes, 52. sworn before a justice of the peace at Edin-

« 1 Sid. 222. But note, this was before the bitrgh, was deemed insufficient for entering

statute of frauds, by which judgments affect wp judgment on an old warrant of attorney,

purcliasevs, only from liie time of signing. in the case of Knight v. Hennell, M. 46 Geo.

f 2 Sir. 1121. III. K. 15. And, in the case of -VitjcMiV u.

8 3 Saik. 322. 7 Mod. 94. 6 Mod. 2J2. I Aaignets of JictUoul, M. 23 Geo. III. K. B.



gQQ OF WARRANTS OF ATTORNEY.

plication must be made to the court; and where it is ahoye twenty
years old, there must in general be a rule to shew cause" : but where,
upon such a warrant of attorney, the party had admitted the debt
within two months preceding the motion, the court granted it absolute
in the first illstance^ In the Common Pleas, if a warrant of attorney
to enter judgment be above a year and under ten years old, leave to
enter judgment may be given by a side-bar or treasury rule"^; and ac-
cordingly, the practice in that court is, for the plaintiff's attorney to
move at side-bar on the first day of term, or in the treasury chamber
on other days, for leave to enter up judgment, which is granted of
course, on the usual affidavit; and thereupon the secondaries will
draw up the rule : In vacation, a judge at chambers will make ^n
order for entering up the judgment. But if the warrant of attorney
be above ten years old, the court must be moved for leave to enter
up iud""ment^ If the warrant of attorney be under twenty years
old the common affidavit of the due execution of the warrant, that
the debt is unpaid, and parties living, is sufficient to induce the court
to tyrant an absolute rule; but if the warrant be above twenty years
old the rule must be to shew cause, and served on the defendant*^ :
And where judgment had not been entered within a year and a day,
on a warrant of attorney given with a post obit bond, and the obligee
did not apply for leave to enter it till after the death of the person on
whose death it was payable, the court of Common Pleas would not
grant leave, without a rule to shew cause^ If judgment, however, be
entered up on a warrant of attorney, more than a year old, without
leave of the court, the objection, though available if urged at the
instance of the defendant himself, cannot be taken advantage of by
a third party, a stranger to the proceeding, as a ground of irregu-
larity*^.

The affidavit of the due execution of the warrant of attorney,
should regularly be made by the attesting witness ; or, if he cannot
be met with^, or reside out of the jurisdiction of the court'', an affida-
vit verifying his handwriting will be deemed sufficient. But the
court must be informed by affidavit, of the endeavours which have
been made to find him, before they will admit secondary evidence' ;
and, in the King's Bench, the acknowledgment of the warrant of at-

il was said, that the affidavit should have <^ Id. ibid, and see Cas. Pr. C. P. 143, 6.

been made before a lord of session. * 1 H. Blac. 94.

a 1 Chit. Rep. 6IS. in notis. Ante, 492. f 1 Dowl. & Ryl. 53S. yinle, 591, 8.

(i). s 1 Chit. Rep. 743.

'' Blakdcy v. Vincenl, T. 33 Geo. III. 1» Id. 744,

K. B. J Id. 743. (b). 4 Taunt. 132.



OF WARRANTS OF ATTORNEY. 601

torney by the defeiuiant, will be no waiver of the objection" : but, in
the Common Pleas, if ^. agree to acknowledge an old warrant of
attorney given by him, so as to enable B. to enter up judgment
thereon, judgment may be entered u|>, under a judge's order, without
an affidavit of the attesting witness''. If the witness will not join in
the necessary affidavit, the court will compel him, by rule, to do soS
And where the plaintiff, being a lunatic, did not swear that the
money was unpaid, but another did, who had received the interest
upon the bond for three years, ever since the plaintiff was lunatic, tlie
court of Common Pleas held this to be sufiicient*^. In the King's
Bench, if the defendant reside in town, it sliould apj)ear by the afli-
tlavit, that he was alive at a certain time, within two or three days,
o", if in the country, within a week or ten days, before the application
is made ; an affidavit that he was alive on or about a particular day,
being deemed insufficienf^ : And as all judgments, in actions by bill,
relate to the first day in full term, (and tlie judgment on a warrant of
attorney is always so entered,) it must be positively sworn that the
defendant was alive, either on the first, or upon some subsequent
day in full term*^: Information and belief, even though the party keep
out of the way to avoid being seen, is not sufficient*^ : And judgment
cannot be entered up on a joint warrant of attorney, against any of
the makers of it, unless they are all proved to be alive within the
term''. In the Common Pleas, it must in general appear by the afli-
davit, that the defendant was alive within & fortnight before the
making of the application' : And by a late rule'', the affidavit must
state that "he was alive, at a day within the term in which the motion
is made :" in the construction of which rule, it has been holden not
to be sufficient to swear that he was alive on the essoin day'. But
where the defendant resides abroad, a longer time is of course



Online LibraryWilliam TiddThe practice of the Courts of King's Bench and Common Pleas in personal actions and ejectment : to which are added the law and practice of extents : and the rules of court and modern decisions in the Exchequer of Pleas (Volume 1) → online text (page 75 of 90)