« ForrigeFortsett »
OBSERVATIONS ON WARRANTS OF ATTORNEY.
The mode of executing warrants of attorney in personal actions is regulated by the act for the abolition of imprisonment for debt.* The 9th section of that act requires the presence of an attorneys of one of the superior courts on behalf of the party executing "expressly named by him, and attending, at his request, to inform him of the nature and effect of such warrant or cognovit, before the same is executed ;” and directs that such “attorney shall subscribe his name as a witness to the due execution thereof, and thereby declare himself to be attorney for the person executing the same, and state that he subscribes as such attorney."
The requisition of the act must be strictly complied with in every, even the minutest particular; and so strict are its provisions, that a warrant of attorney, not executed in compliance with them, would be invalid, though the party at the time of executing it actually was informed of and understood its nature and effects, and, therefore, did not stand in need of that protection which was provided by the act.
An objection on the ground that the attorney who attested the execution was, in the first instance, suggested by the party in whose favour it is given, or his attorney or clerk, will not prevail, if he was actually adopted by such person, and the suggestion was not
writs of possession issued, as also execution for the said da. mages and costs, on which may be levied the costs of such writ or writs of possession, and of such execution as aforesaid, besides all sheriffs' poundage, officers' fees, and other incidental expenses. * 1st and 2d Victoria, c. 110, stated ante, p. 146.
An uncertificated attorney is not sufficient, Vesye v. Dodd, Tidd, Sup. 57 ; but if the party introduces him as the attorney attending on his behalf, he will not, it would appear, be allowed to take an objection on the ground of his being uncertificated; Cox v. Cannon, 4 Bing. N. S. 453.
made with any fraudulent or improper intention ;' but it is a circumstance which, as stated by Mr Baron Gurney, in the case cited below, though it does not itself imply fraud, ought to be narrowly watched.
It would appear from what fell from Lord Abinger, in the case of Chipp v. Harris, cited below, that objection to warrants of attorney, on the ground that they are not executed according to the provisions of the act, cannot be made by third parties. The attorney must not be the attorney of the plain. tiff,' and an objection on this ground would apply not only to the actual attorney, but to any agent employed on the plaintiff's part, though he might not be his regular town agent, but an attorney in the country employed in some part of the proceedings. There has not yet been any reported decision on the point ; but it would seem that the attestation by an attorney acting as the clerk of an attor. ney, who is not competent to attest a warrant of attorney, would not be sufficient.
As the provisions of the act, like the previous rules of court, applicable to warrants of attorney, executed by prisoners, were intended to protect persons from the consequences of acts done by them in ignorance of their effect, they have been held not to apply to cases where the party executing the warrant of attorney is himself an attorney, in which case no other attorney need be present or attest its execution.
Warrants of attorney, unlike cognovits, are liable to stamp-duties differing according to the object for which they are given, which have been before noticed in the chapter on Stamps ;4 but if they are given as a collateral security with any other instrument " Taylor v. Nicholl, 9 L. J. N. S. Ex. 78.
Todd v. Gompertz, 6 Dowl. P. C. 296. • Mason v. Kiddle, 5 Mees. and Wels. 513, 9 L. J. N. S. Ex. 37.
Chipp v. Harris, 9 L, J. N. S. Ex. 64. a See ante, p. 670.
upon which the ad valorem duty is chargeable, they are liable only to a stamp of L.I.
Judgment may be signed on a warrant of attore ney, as a matter of course, at any time within a year and a day from its execution ; but after that period leave of the court, or a judge, must first be obtained, which, within ten years, will be granted on proof by affidavit of the execution of the warrant of attorney of the amount due on it, and the fact of the defendant having been alive within a short time previous to the making of the affidavit ; but after a period of ten years, a more formal application to the court will be necessary in order to obtain its permission to sign judgment.
By the 2d sect. of the 3d George IV., c. 39, it is provided, that if, after twenty-one days from the execution of a warrant of attorney, a commission of bankruptcy shall issue against the person who shall have given the same under which he shall be found a bankrupt, such warrant of attorney, and any judgment and execution thereon, shall be deemed fraudulent and void against his assignees, unless such warrant of attorney, or a copy thereof, and of its attestation, defeasance, and indorsements, together with an affidavit of the time of the execution thereof, shall have been filed with the clerk of the docketts and judgments in the Queen's Bench, or unless judgment shall have been signed, or execution issued upon such warrant of attorney within such period, and such assignees are authorized to recover, for the use of the bank, rupt's creditors, any money or effects that may have been levied or seized under such judgment and execution.
Under the 4th section of that act, a warrant of at
Gray's Country Attorney's Practice, Warrants of Attorney.
'If the affidavit is defective on this point, the warrant of attorney will be void against the assignees ; Dillon v. Edwards, 2 Moo. and Payne, 550.
torney or cognovit, given subject to any defeasance or condition, will be void unless “such defeasance or condition shall be written on the same paper, or parchment, on which such warrant of attorney or cognovit shall be written before the time when the same, or a copy thereof respectively, shall be filed.” But this clause has been held to make such warrants of attorney void only as against assignees in bankruptcy; as against all other persons, therefore, except assignees under the insolvent debtors' act, (to whom the provisions of this act have been extended by 1st and 2d Victoria, c. 110, sec. 60,) a warrant of attorney would be good, though the defeasance be written on a distinct piece of paper.s
To obtain the benefit of the extended force given to judgments by the 1st and 2d Victoria, c. 110, judgments entered up on warrants of attorney must be registered in the Common Pleas in the manner pointed out by the 19th section of that act, and the 3d section of the 2d Victoria, c. 11, which registry, according to the 4th section of the latter act, must be renewed every five years, or it will become “void against lands, tenements, and other hereditaments, as to purchasers, mortgagees, or creditors.”
The value of a warrant of attorney given by a trader is very much affected by the 108th section of the present bankrupt act, which enacts, that “no creditor having security for his debt, or having made any attachment in London, or any other place, by virtue of any custom there used, of the goods and chattels of the bankrupt, shall receive upon any security or attachment more than a rateable part of such debt, except in respect of any execution or extent served, and levied by seizure upon, or any mortgage or lien upon any part of the property of such bankrupt before the bankruptcy, provided that no creditor, though for a valuable consideration,
Morris v. Mellin, 6 B. and Cr. 446.
who shall sue out execution upon any judgment obtained by default, confession, or nil dicit, shall avail himself of such execution to the prejudice of other fair creditors, but shall be paid rateably with such creditors."
Under this section a creditor would not be able to derive any benefit from an execution, which is not compieted by seizure and sale before the commission of an act of bankruptcy by the trader, but must refund to the assignees what he might receive, and be entitled only to be paid rateably with the other creditors. If the act of bankruptcy is committed whilst the sheriff is in possession, and before a sale, the execution would be defeated ;' but if the sale is completed when the act of bankruptcy is committed, it is immaterial whether the return-day of the fieri facias has arrived."
The rather obscure proviso at the end of the section of the bankrupt act above cited, has been decided to apply only to such creditors as are mentioned in the commencement of the clause, namely, creditors having security; and that, therefore, an execution levied, or a judgment on a warrant of attorney, (though it comes under the description of a judgment obtained by default, confession, or nil dicit,) will be sustained if the seizure and sale are complete before the act of bankruptcy.!
The strictness of this act has been somewhat relaxed by the 7th section of the 1st William IV., c. 7, which provided that no judgment signed, or execution issued, on a cognovit signed after declaration or judgment by default, confession, or nil
· Wymer v. Kemble, 6 Barn. and Cress. 479, and 8 Dowl. and Ryl. 511.
Motley v. Buck, 8 Barn, and C. 160, and 2 M. and R. 68.
1. * Higgins v. M'Adam, 3 Young and J. Wymer v. Kemble, 6 Barn. and C.
and 9 Dowl. and R. 511; Taylor v. Taylor, 5 B. and C. 392, and 8 Dowl. and R. 59.