1846.

BEAUMONT

v.

GREATHEAD.

nominal damages, if the party accept that sum, he can afterwards sue for those nominal damages. I think he cannot. Those nominal damages, in fact, are introduced solely for a technical purpose, because the Statute of Gloucester, (6 Ed. 1, c. 1, s. 2) says "damages;" and are, in effect, only a peg to hang costs on. The creditor, for example, says, you owe me a debt of 50%, and a nominal sum; the debtor thereupon takes out 507., and pays it to him, saying, here is the 50l. debt, and the nominal sum. That nominal sum means, in fact, no sum at all; it is not merely an insignificant sum, but a sum which does not exist, in point of quantity, at all. It has a mere fictitious existence; and, therefore, I say, a man may well receive 501. in satisfaction and discharge of a debt of 50%. and nominal damages. Then the jury, not being bound to give interest, have rightly found that the 501. were paid and accepted in satisfaction of the debt and damages. With respect to the other point, as to this being alleged to have been a payment by the defendant, that payment was made upon a note which was joint and several; the money was paid in discharge of each debtor separately, and all jointly; and if the receiver accepted it on those terms, the proper mode of stating such a payment was as a payment by each.

CRESSWELL, J.-Assuming that the question is not upon the record, the question is, whether my Lord was bound to tell the jury that they must find a verdict for the plaintiff for a nominal sum. I think he was not; but that it was competent for the plaintiff to accept 50%. in satisfaction of the debt and the nominal damages. It is true that the payment of a smaller sum is, in point of law, no satisfaction of a larger sum; but I am not aware of any case in which an action has been brought for nominal damages only, where the actual debt has been paid. Possibly the question is upon the record, for the plea only states that the defendant paid, and the plaintiff accepted, divers moneys, amounting to all the moneys in the declaration mentioned,

and, if that be interpreted as the principal debt, and not the damages, then the question is upon the record, and the plaintiff may remove it to another Court. With respect to the other point, I concur in the opinion expressed by the rest of the Court.

ERLE, J.-I can see no ground for entering a verdict for the plaintiff. There is no authority that I am aware of for saying that a sum of money may not be paid in satisfaction of a debt for that amount, and nominal damages for its detention; and that if it be accepted, the party may nevertheless afterwards sustain an action for that damage. It would be a very pernicious rule if it were so. Justice requires that the payment of one co-contractor should be considered as the payment of each of the contractors; and, therefore, I think the objection as to the form of plea in that respect is unfounded.

Rule discharged.

1846.

BEAUMONT

v.

GREATHEAD.

s. 9.

LEWIS v. LORD KENSINGTON.

a

TALFOURD, Serjt., obtained a rule nisi to set aside warrant of attorney, on the ground that the attestation did not comply with the provisions of the 1 & 2 Vict. c. 110, The attestation was in this form: "Signed, sealed and delivered in the presence of H. Whitaker, 10, Lincoln's Inn, attorney for the said Lord Kensington, expressly named by him, and attending at his request, and I hereby subscribe myself to be the attorney for him, having read over and explained to him the nature and effect of the above warrant of attorney before the same was executed by him, and I hereby subscribe my name as a witness to the due execution thereof."

the above warrant of attorney, before the same was executed by him, and I hereby subscribe my name as a witness to the due execution thereof:" Held, a sufficient attestation within the provisions of the 1 & 2 Vict. c. 110, s 9.

1846.

LEWIS

Sir T. Wilde, Serjt., shewed cause against this rule, and cited the following cases; Poole v. Hobbs (a); Potter v. Nicholson (b); Elkington v. Holland (c); Everard v. Popple KENSINGTON. ton (d); Hibbert v. Barton (e); Knight v. Hasty (ƒ).

v.

Lord

Talfourd, Serjt., (Peacock with him,) supported the rule. As the arguments are fully noticed in the judgment of the Court, they are not given here at length.

Cur. adv. vult.

TINDAL, C. J.-The question in this case is, whether a warrant of attorney executed by Lord Kensington was properly attested within the meaning of the statute 1 & 2 Vict. c. 110, s. 9.

By that act it is provided, that no warrant of attorney or cognovit shall be of any force, "unless there shall be present some attorney of one of the superior Courts on behalf of such person, 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; which 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 act, therefore, requires the attorney so named to be present and acting on behalf of the defendant, both before and at the time of the execution of the warrant of attorney, and also afterwards, when he gives authenticity to the execution, by signing his name as a witness; and, in order to secure this, the act directs that he shall in the attestation

(a) 8 Dowl. 113.

(b) 8 M. & W. 294; S. C.

9 Dowl. 808.

(c) 9 M. & W. 659; S. C. 1 Dowl. 643, N. S.

(d) 5 Q. B. 181; S. C. 1 D.

& M. 322.

(e) 10 M. & W. 678; S. C. 2 Dowl. 434, N. S.

(f) Cited from 12 Law Jour. 293, Q. B. Rep.

declare that he is the attorney of the defendant, and state that he subscribes as such attorney.

1846.

LEWIS

v.

Lord

In the present case, the attestation was as follows: Signed, sealed and delivered, in the presence of H. KENSINGTON. Whitaker, 10, Lincoln's Inn, attorney for the said Lord Kensington, expressly named by him, and attending at his request, and I hereby subscribe myself to be the attorney for him, having read over and explained to him the nature and effect of the above warrant of attorney, before the same was executed by him, and I hereby subscribe my name as a witness to the due execution thereof."

To this attestation two objections were taken. It was contended, first, that there was no proper subscription of his name by the attesting witness, the name appearing in the middle of the attestation, and not at the end of it, and that it is uncertain whether the words subsequent to the name H. Whitaker are to be considered as the words of Whitaker or not.

But it must in all cases be a matter of extrinsic proof, whether the name of the attesting witness is in his handwriting, and, in the present case, it appears that the name H. Whitaker was the proper handwriting of the witness, and it seems to us, that the precise place where the name is written is not material, so long as it appears upon the face of the attestation that the attestation contains an assertion that all has been done by the witness which the act requires; for the act does not require the witness to subscribe his name at the foot of the attestation, but only that he should subscribe his name as a witness "to the due execution thereof." Therefore the name seems to us not inaptly to be placed immediately after the words signed, sealed and delivered; and, as there is no other subscribing witness than Mr. Whitaker, it is clear that the concluding words "I hereby subscribe my name as a witness to the due execution thereof," must be taken to be the words of the witness, who is the only person speaking, and, consequently, in conformity with the ordinary rules of gram

1846.

LEWIS

matical construction, the preceding words "I hereby subscribe myself to be the attorney," &c., must also be taken to be his words. This objection, therefore, we think, ought KENSINGTON. not to prevail.

v.

Lord

The second and principal objection was, that the attestation did not comply literally with the act of Parliament, as it was said that it neither contained a declaration by the witness that he was the attorney, nor a statement that he had subscribed it as such attorney. In support of this objection various cases were cited, all of which, however, may, we think, be distinguished from the present.

The first was Poole v. Hobbs (a). In that case the attestation was as follows: "Witness, George Edwards, defendant's attorney, named by him, and attending at his request." The attestation in that case contained no express statement that he subscribed as the attorney for the defendant, nor anything that could be considered as equivalent.

The next case cited was Potter v. Nicholson (b). The attestation was as follows: "Joseph Bamford, one of the attorneys of her Majesty's Court of Exchequer of Pleas at Westminster, attending for the said William Nicholson at his request, to, and did inform him of the nature and effect of the above cognovit before the execution thereof by him." This attestation was also defective, as it did not state that he subscribed as such attorney.

The next case cited was Elkington v. Holland (c). The attestation in that case was as follows: " Signed, sealed and delivered by the said Joseph Ankers in my presence, and I subscribe myself as attorney for the said Joseph Ankers, expressly named by him to attest his execution of these presents." This attestation was held insufficient by Baron Alderson, because it did not contain any express statement that he was the attorney, the statement that he subscribed as the attorney not amounting to a declaration that he was the attorney.

(a) 8 Dowl. 113.

(b) 8 M. & W. 294; S. C. 9 Dowl. 808.

(c) 9 M. & W. 659; S. C.

1 Dowl. 643, N. S.