warrant, authorizing an attorney to confess judgment, without such warrant 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. 39, § 1, (the provisions of which are extended to assignees of insolvent debtors, by the statutes 5 Geo. IV. c. 61, § 16, & 7 Geo. IV. c. 57, § 33,) "if the holder shall think fit, every warrant of attorney to confess judgment in any personal action, or a true copy thereof, and of the attestation thereof, and the defeazance and indorsements thereon, in case such warrant of attorney shall be given to confess judgment in his majesty's court of King's Bench at Westminster, or a true copy thereof, in case such warrant of attorney shall be given to confess judgment in any other court, shall, within twenty-one days after the 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 such 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 thereof, 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 effects 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 purposes. (d) By the above statute, (e) 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- [*556 ] tively, as aforesaid, if it shall appear that the debt for which such warrant of attorney, or cognovit actionem, is given as a security, shall have been satisfied or discharged.(a) But the fourth section of the statute 3 Geo. IV. c. 39, which requires 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 (c) 2. The provisions of this clause, however, are not repealed by stat. 6 Geo. IV. c. 16, 81, which is confined to executions bona fide issued. 1 Moody & M. 8. (d) 4. Ante, 545, 6. (e) ¿ 5. (a) 8 8. ment, is not void against the assignee of an insolvent debtor. 6 Barn & Cres. 446 per Ld. Tenterden, Ch. J. Bayley and Littledale, Js.; Holroyd, 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 be produced, or the docket of the judgment.(b) 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,(cc) 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 surmised to offend, against any penal statute, for an offence committed, or pretended to be committed, but after answer made in court, to the information or suit in that behalf exhibited or prosecuted; nor after answer, but by the order or consent of the court in which the same information 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,(dd) "actions popular prosecuted by collusion, shall be no bar to those which are prosecuted 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 commencement 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.(f) The application for leave to compound a penal action must be made to the court in banc, and not at nisi prius, on the trial of the cause :(g) and it is made by consent, (h) 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, (i) &c., which application should regularly be made in an early stage of the cause; but under favourable circumstances, it may be made after verdict:(k) 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, 6. 2 Hawk. P. C. 279. (f) 2 Blac. Rep. 781. (h) Barnes, 118. Pr. Reg. 226, S. C. (g) 1 Chit. Rep. 381. (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, 98. 1 Bos. & Pul. 18. 1 Chit. Rep. 381. (a) 1 Str. 167. the verdict has passed for the plaintiff or not.(b) Upon the application being made, it is in the discretion of the courts to give or withhold their leave to compound;(c) and it was refused by the court of King's Bench, in a case where an action was brought on the statute 25 Geo. II. c. 36, for keeping a disorderly house.(d) 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 13 Geo. II. c. 19, although the overseers, at a vestry, had agreed to compound it, without receiving any part of the penalty.(ee) On a bona fide composition, (f) though not on a collusive one, (f) the plaintiff 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 408. and full costs of suit, though exceeding together the 408. paid to the crown.(gg) But where no costs are given to the plaintiff, as in an action on the statute of usury, the crown is entitled to a moiety of the sum agreed to be paid to the plaintiff for his costs; for whatever the defendant may pay under the name of costs, is considered in fact as an addition to the penalty.(hh) When leave is given to compound a qui tam action, it is a general rule, that the king's half of the composition shall be paid into the hands of the master of the crown office in the King's Bench, (ii) or one of the prothonotaries in the Common Pleas,(k) for the use of his majesty; which is now usually done before the rule is drawn up. And where the defendant in a qui tam 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:(1) But for preventing any doubt in future, an order was made, that "every rule to be drawn up for compounding any qui tam action do express, that the defendant doth undertake to pay the sum for which the court has given him leave to compound such action."(m) 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:(n) And in *that court it is a rule, on compounding information on penal [*558 ] 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 satisfaciendum finem shall be awarded against him, to compel him thereunto; whereupon the fine, being set and assessed, shall be presently paid in: and satisfaction being thereupon made, and entered by the prothonotary upon the roll of the said information, shall be for ever a full and final discharge of the defendant for the same offence."(a) The (b) 1 Taunt. 103, 5 Taunt. 268. For the proceedings on informations on penal statutes, and the manner of compounding 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) Bellis v. Beale, M. 38 Geo. III. K. B., and see 2 Blac. Rep. 1157. (ee) 2 Smith R. 195. (gg) 1 Bos. & Pul. 51. (f) 2 Blac. Rep. 1157. (u) R. M. 57 Geo. III. K. B. 4 Bur. 1929; and see 2 Blac. Rep. 1154. (k) 2 Blac. Rep. 1154, 1157. (m) R. E. 33 Geo. III. K. B. R. M. 12 Jac. I. C. P. VOL. I.-35 (1) 5 Durnf. & East, 257. 2 Marsh. 358, S. C. 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) [*559] *CHAPTER XXII. Of JUDGMENTS by CONFESSION, and DEFAULT; the ASSESSMENT of DaMAGES, by REFERENCE to the MASTER or PROTHONOTARIES, or by 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 verificatione.(bb) 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 compromised 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 Common 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 declaration, 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 (b) 5 Taunt. 850. (aa) Append. Chap. XXII. § 1, 2. (bb) Id. 8 3. default shall be made, the plaintiff shall be at liberty to enter up judgment, and take out execution, for the debt, or damages, and costs, together with sheriff's poundage, and all other incidental expenses."(a) A mere cognovit need not be stamped, unless it contain any terms of agreement between the parties.(6) But if given by a prisoner, in custody of a sheriff's officer, it seems that an attorney must be present, on behalf of the defendant, to attest the execution of it, in the Common Pleas ;(cc) though if it be given by a prisoner in custody of the marshal, it is otherwise :(dd) And in the King's Bench, we have seen, (e) 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 the confession is after plea pleaded, the defendant'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 Common Pleas.(g) Again, the confession is either of the whole or part of the cause of action. If it be of the whole, and not upon terms, the plaintiff's attorney may immediately sign final judgment, (h) 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 confessed 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 subsequent agreement 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. (2) It has been said, (i) 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 execution taken out, contrary to the agreement of the parties, at the time of confessing the judgment.(k) 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 plaintiff'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,(bb) "no judgment can be signed upon any cognovit, without such cognovit 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. 39, § 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 (a) Append. Chap. XXII. 3 1. (b) Per Cur. M. 42 Geo. III. K. 2 Bos. & Pul. 150, C. P. 4 East, 188. 1 Car. & P. 532. (cc) 2 Taunt. 360. Arnold v. Lowe, T. 57 Geo. III. C. P. 7 Taunt. 703, (a). Id. 701. 1 Moore, 428, S. C., and see 3 Durnf. & East, 616. 1 East, 242, (a). 8 Dowl. & Ryl, 56. (dd) 3 Durnf. & East, 616. 8 Dowl. & Ryl. 56. Ante, 550. (e) Ante, 550. (f) 1 Ld. Raym. 345. Imp. K. B. 10 Ed. 422. (9) Imp. C. P. 7 Ed. 439. (bb) R. H. 2 & 3 Geo. IV. K. B. 5 Barn. & Ald. 560. 1 Dowl. & Ryl. 471. 2 Chit. Rep. 377. |