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

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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 94 of 120)
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up judgment. (^) If the warrant of attorney be under ttcoiti/ 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 grant an
absolute rule ; but if the warrant be above twentij years old, the rule must
be to show 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 j^ost 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 show
cause. (z) 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 irregularity. (A;)

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

(m) 3 Salk. 322. 7 Mod. 94. 6 Mod. 212. 1 Wils. 3G, arg.

(a) Append. Chap. XXI. g G ; and for tlie form of tlie rule, see id. § 7.

(b) 1 Barn, k Aid. 567, 8, (a). Ante, 493.

(c) 1 Chit. Rep. 721, 2. But an aflidavit sworn before a justice of the peace at Edinburgh^
was deemed in.-ufficient for entering up judgment on an old wnrnuit of attorney, in the ca^e
of Knight v. llnmell, M. 46 Geo. III. K. B. And, in the case of Sinclair v. Afgigneen of lien-
toiil M. 23 Geo. III. K. B., it was said, that the aflidavit should have been made before a
lord of session.

(dd) 1 Chit. Rep. 618, in nnfif. Ante, 485, 6, (;/), 487.

(e) 2 Barn. & Cres. 555. 4 Dowl. & R\l. 5, S. C.

( f) Blahdey v. Vincfnt, T. 'i% Geo. HI. K. B. {g) Barnes. 47.

(h) Id. ibid'.; and see Cas. Pr. C. P. 145, G. (ij 1 II. B'.ac. 94.

(/.) 1 Dowl. & Ryl. 558. Ante, 551.


[ *554 ] wit]i,(^) *or reside out of the jurisdiction of the court, (a) an
affidavit 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 ;{b) and, in
the King's Bench, the acknowledgment of the warrant of attorney by the
defendant, will be no waiver of the objection :{c) but, in the Common Pleas,
if A. 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 up,
under a judge's order, without an affidavit of the attesting witness. (cZ) If
the witness Avill not join in the necessary affidavit, the court will compel
him, by rule, to do so.(ee) And where the plaintiS', 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,
the court of Common Pleas held this to be sufficient. (^) In the King's
Bench, if the defendant reside in town, it should appear by the affidavit,
that he was alive at a ce7'tain time, within two or three days, or, if in the
country, within a iveek or ten days, before the application is made ; an affi-
davit that he was alive on or about a particular day, being deemed insuffi-
cient :{g) And as all judgments, in actions by hilly relate to the first day
in full term, (and the 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 :{h) Information
and belief, even though the party keep out of the way to avoid being seen,
is not sufficient :(z) And judgment cannot be entered up on a joint war-
rant of attorney, against any of the makers of it, unless they are all
proved to be alive within the term.(Z:) In the Common Pleas, it must in
general appear by the affidavit, that the defendant was alive within a
fortniglit before the making of the application :{ll) And by a late rule,(w)
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.(w)
But where the defendant resides abroad, a longer time is of course
allowed, according to circumstances :(o) and, in a late case, the court gave
leave to enter up judgment, on an old warrant of attorney in Michaelmas
term ; the affidavit stating, that the defendant was alive at New
[ *555 ] South Wales, in the *month of August preceding, as appeared
by a letter received from him of that date, and that deponent
verily believed him to be still alive. («a)

By a late rule of all the courts,(&5) " no judgment can be signed upon any

{I) 1 Chit. Rep. 743.

(a) 1 Chit. Rep. 744. {b) Id. 743, {b). 4 Taunt. 132.

(c) 1 Chit. Rep. 743, 4. (/) 2 Bos. & Pul. 85.

{ee) 1 Str. 1. Barnes, 58. 1 Price, 308. 1 Chit. Rep. 743, (6). Caffin cj- another v. Idle, M.
3 Geo. IV. K. B.

(/) Barnes, 42.

lo) Per Cur. H. 41 Geo. III. K. B. 1 Chit. Rep. 617, {a).

[h] 4 Maule & Sel. 174. 1 Chit. Rep. 314, 617, (a).

{*■) 1 Chit. Rep. 314. {k) Id. ibid.

(11) Per IleaUi, J. T. 33 Geo. III. C. P. Imp. C. P. 7 Ed. 451.

{m) R. T. 59 Geo. III. C. P. 1 Brod. & Ring. 385. 3 Moore, 606. 2 Chit. Rep. 380, 81.

\n) 4 Moore, 2.

(o) Barnes, 54, 256. Cas. Pr. C. P. 145. Willes, GQ, S. C. 9 Moore, 389. 2 Bing. 204, S. C.

{aa) 2 Dowl. & Ryl. 12 ; and see 9 Moore, 389. 2 Bing. 204, S. C.

{hh) R. M. 42 Geo. III. 2 East, 136, K. B. R. M. 43 Geo. III. 3 Bos. & Pul. 310, C. P.R. M.
43 Geo. III. in Scac. Man. Ex. Append. 224, 5. 8 Price, 505.


•warrant, authorizing an attorney to confess judgment, without such war-
rant being delivered to, and filed by the clerk of the dockets, or master in
the Exchequer ; who is ordered to file the warrants, in the order in which
they are received." And, by the statute 3 Geo. IV. c. 3*.), § 1, (the pro-
vision*} of which are extended to assignees of insolvent debtors, by the
statutes 5 Geo. IV. c. Gl, § lU, k 7 Geo. IV. c. 57, § 33,) " if the holder
shall think fit, every warrant of attorney to confess judgment in any per-
sonal action, or a true copy thereof, and of the attestation thereof, and
the defeazance and indorsements thereon, in case such warrant of attor-
ney shall be given to confess judgment in his majesty's court of King's
Lench at IWatminster, or a true copy thereof, in case such warrant of
attorney shall be given to confess judgment in any other court, shall,
Avithin (nrnti/-one days after tlie execution of such warrant of attorney,
be filed, together with an affidavit of the time of the execution thereof,
with the clerk of the dockets and judgments in the said court of King's
Bench : And if, at any time after the expiration of twenty-one days next
after the execution of swch warrant of attorney, a commission of bankrupt
shall be issued against the person who shall have given such warrant of
attorney, under which he shall be duly found and declared a bankrupt,
then and in such case, unless such warrant of attorney, or a copy tlicreof,
shall have been filed as aforesaid, within the said space of twenty-one
days from the execution thereof, or unless judgment shall have been
signed, or execution issued, on such warrant of attorney, within the same
period, such warrant of attorney, and the judgment and execution thereon,
shall be deemed fraudulent and void against the assignees under such
commission; and such assignees shall be entitled to recover back and
receive, for the use of the creditors of such bankrupts at large, all and
every the moneys levied, or efi'ects seized, under and by virtue of such
judgment and execution. (c) And if such warrant of attorney shall be
given subject to any defeazance or condition, such defeazance or condition
shall be written on the same paper or parchment on which such warrant
of attorney shall be written, before the time when the same, or a copy
thereof respectively, shall be filed ; otherwise such warrant of attorney
shall be null and void, to all intents and purpose3.((^) By the above sta-
tute,(»') the officer of the court is required to keep a book, containing an
alphabetical list and particulars of each warrant of attorney, and cognovit
actionem, given by any defendant: And the judges are authorized to
order a memorandum of satisfaction to be written upon such
warrant of attorney, cognovit actionem, or copy ^thereof respec- [ *5o(j ]
tively, as aforesaid, if it shall appear that the debt for which such _
warrant of attorney, or cofjnovit actionem, is given as a security, shall
have been satisfied or discharged.((Tf) But the fourth section of the sta-
tute 3 Geo. IV. c. 31>, which re(iuires the defeazance to a warrant of
attorney to be written on the paper or parchment on which the instrument
itself is written, applies only to such warrants of attorney, &c. as fall
within the former sections of the act, viz. warrants of attorney which, in
the event of not being filed within twenty-one days after execution, are
void against the assignees of a bankrupt ; and consequently a warrant of
attorney subject to a defeazance, not written on the same paper or parch-

(f) ^ 2. Tlic provisions of this clause, however, arc not repealed bj stat. 6 Geo. IV. c. IG,
2 81. which is confined to executions bond Jtdr issued. 1 Moody & M. 8.
[d] I 4. Ante, 545, G. (c) g 5. (a) § 8.


mcnt, is not void ao-ainst the assignee of an insolvent debtor. 6 Barn k
Ores. 440 per Ld. Tcnterden, Ch. J. Bayley and Littledale, Js. ; Ilolroyd,
J. dissentiente.

The judgment upon a warrant of attorney, being in debt, is always
final; and signed in like manner as a final judgment by confession or
default in an adverse suit, which will be treated of in the next chapter.
To prove the time of signing the judgment, however, the day-book kept
at the judgment office is not evidence; but an office copy of the judgment
ought to bo produced, or the docket of the judgment.(i)

In order to compound a penal action, an application must be made to
the court wherein it is depending, founded upon the statute 18 Eliz. c. 5,
§ 3,((?6') by which it is enacted, that "no common informer or plaintiff shall or
may compound or agree with any person or persons that shall offend, or that
shall be surjmised to offend, against any penal statute, for an offence com-
mitted, or pretended to be committed, but after answer made in court, to
the information or suit in that behalf exhibited or prosecuted ; nor after an-
swer, but by the order or consent of the court in which the same informa-
tion or suit shall be depending ; upon pain of standing on the pillory, being
disabled to sue on a penal statute, and forfeiting ten pounds, half to the king
and half to the party grieved:" And, by a previous statute, (cM) "actions
popular prosecuted by collusion, shall be no bar to those which are prose-
cuted with good faith ; and the defendant, being lawfully condemned or
attainted of covin or collusion, shall suffer imprisonment for two years."
But these statutes extend only to common informers, and not to cases where
the penalty is given to the party grieved. (e) And, in the Common Pleas,
a notice of action required by a penal statute, was held to be no com-
mencement of the suit, so as to subject the plaintiff or his agent to an
attachment, for attempting to compound an offence, previous to the suing
out of the writ.(/)

The application for leave to compound a penal action must be made to
the court in baric, and not at nisi 2^^' ins, on the trial of the cause :{g) and
it is made by consent,(7i) upon an affidavit, setting forth the nature of the
action, the state of the cause, the agreement of the parties, and that no
more than a certain sum is given or taken, (?) &c., Avhich application should
regularly be made in an early stage of the cause ; but under favourable
circumstances, it may be made after verdict :(A;) And in one
[ *557 ] case, where the *defendant was in execution, the court of King's
Bench, on an affidavit of his poverty, gave the plaintiff leave to
compound with him. (a) But, in the Common Pleas, where part of the
penalty goes to the king, the consent of the crown must be obtained, before
the motion can be granted for leave to compound a penal action, whether

(b) 5 Esp. Rep. 177 ; and see 2 New Rep. C. P. 474. 1 Moore & P. 236.
(cc) Made perpetual by 27 Eliz. c. 10. (dd) 4 Hen. VII. c. 20.

(e) 1 Salk. 30 ; and see the statute 18 Eliz. c. 5, g 6. 2 Hawk. P. C. 279.
(/) 2 Blac. Rep. 781. {;/) 1 Chit. Rep. 381.

(A) Barnes, 118. Pr. Reg. 226, S. 0.

(i) R.— 2 Jac. I. ^ 5, C. P. And for the form of the affidavit, see Append. Chap. XXI. § 9,
and for the form of the rule thereon, id. § 10.

(k) Per Cur. H. 22 Geo. III. K. B. 5 Durnf. & East, 93. 1 Bos. & Pul. 18. 1 Chit. Rep. 381.
(a) 1 Str. 167.


the verdict lias passed for tlie plaintiff or Tiot.{h) Upon the application
being made, it is in the discretion of the courts to pive or withliohl their
leave to compound ;((■) and it was refused by tlie court of King's Bcncii, in
a case where an action was brought on the statute 25 Geo. II. c. 3<), for
keeping a disorderly house. (tf) So, where part of the penalty was given
to the poor, the court would not give the parties leave to compound a penal
action, on the statute KJ Geo. II. c. ll>, although the overseers, at a vestry,
had agreed to coinjiound it, without receiving any part of the penalty. (rf)
On a bona fide composition, (//') though not on a collusive im(\[Jf') the jtlain-
tift" may be allowed a reasonable sum for his costs. And, in compounding
a penal action on the post-horse act, which gives costs to the prosecutor,
the court of Common Pleas allowed him to receive the deficient duties, not
amounting to 40^. and full costs of suit, thougli exceeding together the 40x.
paid to the crown. (////) But where no costs are given to the j)laintifl", as iu
an action on the statute of usury, the crown is entitled to a moiety of the
sum agreed to be paid to the plaintift' for his costs ; for whatever the
defendant may pay under the name of costs, is considered in fact as an
addition to the penalty. (///<)

When leave is given to compound a qui tarn action, it is a general rule,
that the king's half of the composition sh.all be paid into the hands of the
master of the crown office in the King's Bench, (»') or one of tlie prothono-
taries in the Common Pleas, (A") for the use of his majesty ; whieh is now
usually done before the rule is drawn up. And where the defendant in a
qui tarn action obtained a rule to stay proceedings, on paying a sum agreed
upon between him and the plaintiff, the court of King's Bench considered
it as an undertaking by him to pay that sum ; and for the non-payment of
it, granted an attachment :(/) But for preventing any doubt in future, an
order was made, that " every rule to be drawn up for compounding any
qui tarn action do express, that the defendant doth undertake to pay the
sum for which the court has given him leave to compound such action. "(w)
So, in the Common Pleas, where a defendant, in a penal action, obtains a
rule to stay proceedings on payment of part of the penalties, the court will
grant an attachment against him for non-payment :(?<) And in
*that court it is a rule, on compounding information on penal [ '''.>o8 ]
statutes, that "if the defendant, after composition made with the
informer, do not voluntarily come in to answer unto the king for his fine,
to be taxed and assessed by the justices of this court for his majesty's use,
then a capias ad mt infacienduni jincm shall be awarded against him, to
compel him thereunto ; whereupon tbe fine, being set and assessed, shall
be presently paid in: and satisfaction ])eing thereupon made, and entered
by the prothonotary upon the roll of the said infornuition, shall be for ever
a full and final discharge of the defendant for the same offence. "(a) Tbe

{})) I Taunt. 10.'!, 5 Taunt. 2G8. For the prococdinp.'' on informations on penal statutes,
and tiic manner of conijjounding them, in the Common Pleas, see R. — 2 Jac. I. § 5, R. M.
12 Jac. I. R. H. 20 Jac. I. C. P.

(c) 1 Wils. 79, 130.

\d) JirHii V. Beale. M. 38 Geo. III. K. R., and sec 2 Rlac. Rep. 1157.

(ee) 2 Smith R. 195. (/) 2 Rlac. Rep. 1157.

Iffff) 1 Bos. & Pul. 51. (hh) 2 Taunt. 213.

(iV) R. M. 57 Geo. HI. K. R. 4 Bur. 1929; and see 2 Blac. Rep. 1154.

(k) 2 Blac. Rep. 1154, 1157. (/) 5 Durnf k Kast, 257.

hi) R. E. 33 Geo. III. K. B. (>i) 7 Taunt. 43. 2 Marsh. 35S, S. C.

(a) R. M. 12 Jac. I. C. P.

Vol. I.— 35


plaintiff, in compounding a penal action by consent, having by mistake
abandoned a good cause of action, the court of Common Pleas refused to
interfere, and rescind the order made thereon.(6)


Of Judgments ly Confession, and Default ; the Assessment of Da-
mages, hy Reference to the Master or Prothonotaries, or hy Writ
of Inquiry ; and Proceedings on the Statute 8 &; 9 W. III. c. 11, § 8.

When the defendant, having no merits, cannot compromise or compound
the action, it is usual for him to confess it, or let judgment go by default.

The objects proposed by confessing an action are twofold ; first, in an
action for damages, to save the expense of executing a writ of inquiry ;
and secondly, to obtain terms, such as a stay of execution, &c. And the
confession,(aa) or, as it is usually called from the entry of it, a cognovit
actionem, is either before or after plea pleaded ; in the latter case, the plea
being withdrawn, it is called a confession, or cognovit actionem relicta veri-

An opinion formerly prevailed, that the confession of an action could not
regularly be made before declaration, and particularly if the cause of action
were not expressed in the process ; for if a bill of Middlesex or latitat,
&c. were sued out in a plea of trespass, the confession of that action it was
supposed would be nugatory ; and therefore in such case, if the parties com-
promised before declaration, a warrant of attorney to confess judgment
should have been taken, instead of a cognovit, as a security for the debt
and costs. But it is said to have been the constant practice in the Com-
mon Pleas, to take cognovits before declaration, and judgments have been
entered thereon : which practice was recognized, in a late case, by that
court. (c) And, in the Exchequer, the court would not set aside a judgment
entered up on a cognovit, and order the money levied thereon to be
restored, on the ground that no process had been actually served on the
defendant, before he signed the cognovit, nor was at that time sued out ;
it appearing that instructions had been then transmitted to the agent of
the plaintiff's attorney in London, from the country, to issue a quo minus,
which was afterwards accordingly issued, tested of course after the date of
the cognovit.(d) In general, however, the confession is made after decla-
ration, and before plea ; and written on the declaration, or back of the
inquiry, or on plain paper, thus ; " I confess this action, or (if in
[*560] debt,) the *debt in this cause, and that the plaintiff hath sustained
damages to such an amount, besides his costs and charges, to be
taxed by the master," in the King's Bench, or " prothonotaries," in the
Common Pleas : then follow the terms, if any are agreed on, as that " no
judgment shall be entered up, or execution issue, until default shall be made
in payment of the debt, or damages, and costs, by a certain day ; and that
no writ of error shall be brought, or bill in equity filed ; but that in case

(6) 5 Taunt. 850.

(aa) Append. Chap. XXII. §1,2. (bb) Id. § 3.

(c) 1 Taunt. 701. 1 Moore, 428, S. C. (rf) 8 Price, 513.


default shall be made, tlio plaintiff shall be at liberty to enter up jmlfrment,
and take out execution, for the (K'l>t, or daina^cs, and costs, tof^ethcr with
slicrift's poundage, and all otlier incidental expenses. "(a) A mere cogno-
vit need not be stamped, unless it contain any terms of agreement between
the partie8.(i) But if given by a prisoner, in custody of a nhcriffif officer,
it seems that an attorney must be present, on behalf of the defendant, to
attest the execution of it, in the Common Pleas ;(<-c) thctugh if it be given
by a prisoner in custody of the marshal^ it is otherwise :(//(/) And in the
King's Bench, we have seen,(f;) a cognovit given by a defendant in custody
on mesne process is valid, although no attorney be present on the part of
the defendant, unless it be shown that some undue advantage was taken
of him. When tlie confession is after plea ])leaded, the defen<lant's attorney,
or his clerk, ought to come in person before the master to withdraw it, in
the King's Bench ;(^f) but this is unnecessary in the Conunon IMeas.f//)

Again, tlie confession is either of the whole or part of tlie cause of action.
If it be of the whole, and not upon terms, the plaintift"s attorney may
immediately sign final judgment,(/j) and take out execution thereon ; but
if it be not of the whole, he can only sign judgment for the part confessed,
and the action must proceed for the residue. When a judgment is con-
fessed upon terms, in the King's Bench, it being in effect but a conditional
judgment, the court will take notice of it, and see the terms performed:
but when the judgment is acknowledged absolutely, and a subseriuent agree-
ment made, this does not affect the judgment ; and the court will take no
notice of it, but put the party to his action on the agreement. (i) It has
been Baid,(?") that the court cannot hold plea of an agreement upon motion :
But it is usual in practice, to set aside a judgment entered up, and execu-
tion taken out, contrary to the agreement of the parties, at the time of
confessing the judgment. (A:) And where the plaintiff, on the eve of trial,
accepted from the defendant a cognovit for a certain sum, payable
at a future day, in full discharge of the action, and *the master, [*561]
on the taxation, allowed the plaintiff costs previous to the cognovit ;
the court refused to admit the plaintifi"s affidavit, stating a verbal
agreement that he should have such costs, in case the defendant made
default in payment, and that he had made such default, and made the rule
for the disallowance of such costs absolute. (aa)

By a late rule of the court of King's Bench, (/>^) "no judgment can be
signed upon any cognovit^ without such cognoint being first produced to
the clerk of the dockets, and, after taxation of the costs, filed with him."
And, by the statute 3 Geo. IV. c. 89, § 3, "every cognovit actionem
given by any defendant in any personal action, in case the action, in which
such cognovit actionem shall be given, shall be in the said court of King's
Bench, or a true copy of such cognovit actionem, in case the action wherein

(fl) Append. Chap. XXII. ? 1.

{h) Per Cur. M. 42 Geo. III. K. 2 Bo.^. k Pul. 1.''.0, C. P. 4 East, 188. 1 Car. & P.

(fc) 2 Taunt. 360. Arnold v. Lowe, T. 57 Geo. III. C. P. 7 Taunt. 70.3, (a). Id. 701.
1 Moore, 428, S. C, and sec 3 Durnf. & East, OKi. 1 East, 242, («). 8 Dowl. k RyJ. 56.

{dd) 3 Durnf. k East, 616. 8 Dowl. k Ryl. 5G. Ante^ 650.

(e) Ante, 550.

(/) 1 Ld. Ra^-m. 345. Imp. K. B. 10 Ed. 422. {g) Imp. C P. 7 Ed. 439.

{h) Ajipond. Chap. XXII. <! 5. Ac. 15, kc (i) 1 Salk. 400.

(k) G Mod. 14; and see 2 Blac. Rep. 043. [nn] 7 Dowl. k Ryl. 375.

\bb) R. H. 2 & 3 Geo. IV. K. B. 5 Barn, k Aid. 560. 1 Dowl. k Ryl. 471. 2 Chit. Rep.


the same is given shall be in any other court, shall, together with an affidavit
of the time of the execution thereof, be filed with the said clerk, in like
manner as warrants of attorney, or copies thereof, and affidavits, (c) within
the space of twenty-one day after such cognovit actionem shall have been
executed ; otherwise such cognovit actionem^ and any judgment entered up
thereon, and any execution taken out on such judgment, shall be deemed
fraudulent and void against the assignees of the person giving such cognovit
actionem, under a commission of bankrupt issued against him after the
expiration of the said space of 21 days, in like manner as warrants of
attorney, and judgments and executions thereon, are deemed and taken to

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 94 of 120)