Authority must be sued. it must be entered as of the preceding term: and if the warrant authorise judgment to be entered in term or vacation, this will include the vacation in which the bond was given; and though it is error for the judgment to relate to a term before the bond was executed or due, yet in such case the court will not interfere on motion; as since the statute making judgments a lien only from the time they are docketed, neither parties nor purchasers can be prejudiced; but will leave the defendant to his remedy by writ of error, and the plaintiff to protect himself, if he can, by a release of errors.58 In entering up judgment on a warrant of attorney, the strictly pur- authority given by it must be strictly pursued; therefore if a plaintiff enter up judgment in debt on a mutuatus, on a warFant of attorney to enter up judgment in debt on bond, the court will set aside the judgment as irregular.59 And if a warrant of attorney be given to appear and confess judgment of a particular term, the judgment should be entered accordingly of that term, and cannot be entered of any other:6o and where a warrant 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;61 for the attorney could have no authority to appear in that term, at the suit of the executor, and the judgment must be considered of that term, though for other purposes the day of signing is material. Judgment entered as The judgment upon a warrant of attorney being in debt as always final.62 A judgment may be entered up by agreement of parties, security. for a debt then due, and also as a security for future advances to the defendant; and the plaintiff may collect, by execution, 57 Ld. Raym. 766. 850. S. C. Salk. 87. pl. 6. 401. pl. 9. 6 Johns. Rep. 141. 58 3 Johns. Rep. 142. et vide 1 Tidd. Pract. 598. n. t. 59 8 Durn. & East. 153. Go 1 Mod. 1. 7 Mod. 53. 61 Str. 1121. 62 1 Tidd. Pract. 602. sed vide post, Ch. 12. Sec. 1. surety. not only the sum actually due at the time the judgment was rendered, but the amount subsequently advanced to the defendant, provided the whole does not exceed the condition of the bond on which the judgment is given.63 Where one be- Endorser or comes endorser or surety, and takes a bond and warrant of attorney from his principal, as counter security, he may enter judgment and sue out execution for the sum for which he is liable as surety, the same being due in whole or in part before actual payment by him: and this, though the bond, be not for a specified sum, but conditioned to pay certain endorsements, made and to be made by him for the obligors, and to indemnify against costs, &c. And he may issue execution for the Execution whole penalty of the bond, without motion, subject to specific penalty. directions to the sheriff as to the amount to be levied, as soon as he can ascertain it; if execution be issued for too much, the court will correct this on motion.65 And the court will, in such case, if it appear to be necessary, direct the money which shall be levied, to be brought into court, or otherwise secured to the creditors, to whom the surety is bound.66 An agreement on the part of a creditor, to collect money rateably of the several parties to a note, on their giving a judgment bond for the amount, will be enforced in equity by injunction. for whole cord. Application for relief.] Where a judgment has been improperly entered on a warrant of attorney, the remedy of the defendant is by motion to set aside the judgment. But where Error on rean error is apparent on the face of the record, the court will not interfere in this way, but the defendant's remedy is by writ of error; so that if the warrant contained a release of errors, the plaintiff may use it to protect himself.6 63 16 Johns. Rep. 165. 645 Cowen. Rep. 441. et vide 6 Johns. Ch. Rep. 266. Equitable jurisdiction. rant set aside. On a scire facias upon the judgment, the rule is the same as in other cases, that the defendant cannot plead any matter which he might have pleaded to the original action; but his proper remedy is by application to the court for relief on motion.69 The court possesses an equitable jurisdiction over judgments entered up on warrants of attorney, which they will exercise on application by motion, for the protection of other When war- creditors, and for relief against frauds, &c.70 If the facts on which the party seeks relief, are not denied or rendered doubtful by counter-affidavits on the part of the plaintiff, the court will set aside the warrant of attorney and the proceedings upon it, without awarding a feigned issue." But where the affidavits are contradictory, so that the facts are rendered doubtful, When issue the court will not weigh the credit of those who made them, but will award an issue to ascertain the truth.72 This is frequently done where fraud, forgery, or usury is alleged. directed. On an application by a creditor to set aside a judgment alleged to have been fraudulently confessed by the defendant to the plaintiff, the court directed an issue to try the charge of fraud, and permitted the creditor to subpœna witnesses to attend the trial in the name of the defendant." The court someDirections as times give special directions as to the manner in which the issue shall be made up, and the county in which it shall be tried ; and if any difficulty arises between the parties as to making up the issue, it must be settled before a judge or commissioner.75 Either party may notice the issue for trial, and there can be no judgment, as in case of nonsuit.76 to issue. 69 8 Johns. Rep. 77. Cowp. 729. Str. 1043. S. C. Cas. temp. Hardw. 235. 70 9 Johns. Rep. 80. 5 Johns. Ch. Rep. 320. 3 Taunt. 478. 71 3 Johns Rep. 250. 6 Johns. Rep. 331. 1 Taunt. 415. 1 Cowen. Rep. 35. et vide 2 Johns. Cas. 258 S. C. 1 Johns. Rep. 531. n. a. 2 Johns. Cas. 280. 3 Johns. Rep. 139. 2 Cowen. Rep. 465. 72 3 Johns. Rep. 142. 2 Cowen. Rep. 465. et vide 5 Johns. Ch. Rep. 137 to 142. 73 9 Johns. Rep. 80. 74 3 Johns. Rep. 140. 9 Johns. Rep. 80. 757 Johns. Rep. 320. not set aside directed. The court will not, on awarding an issue, set aside the Judgment judgment, but will merely stay execution until the further order where issue of the court:" and where the warrant of attorney, and the proceedings thereon, have been set aside, the party is notwithstanding at liberty to proceed by action on the bond.78 by other The court will set aside a judgment confessed on warrant Application of attorney, on the ground of fraud, upon application of creditors. another creditor ;79 but such relief will not be granted until the person applying has completed his title at law, by judgment and execution.80 SECTION II. OF COGNOVITS. Where the defendant has no available defence to make to the action, it is usual for him, instead of proceeding to trial, or of allowing judgment to pass against him by default, to give the plaintiff a cognovit or written confession of the action. On giving a cognovit, the defendant frequently stipulates for terms, as a stay of execution or other indulgence; and in that case, the terms may be stated underneath, or endorsed on the cognovit. When it may It seems that a cognovit may be given before the plaintiff has declared; but this is not usual. When given before be given. plea, it is termed a cognovit actionem simply; if after plea, 772 Johns. Cas. 260. S. C. 1 30 20 Johns. Rep. 296. et vide 2 Johns. Rep. 532. n. a. 3 Johns. ` Johns. Ch. Rep. 144. Rep. 139. 9 Johns. Rep. 80. 78 6 Johns. Rep. 331. 79 9 Johns. Rep. 80. 917 Taunt. 701. et vide 7 Term Rep. 207. n. 2 Archb. Pract. 16. Form and purport. Where assessment and execu a cognovit actionem relicta verificatione, or, for brevity, a relicta; and it then contains an agreement to withdraw the plea. The cognovit or relicta is drawn up in the first instance in the form in which it is to be entered on the record, in the same manner as a plea. It commences with a defence, "the said A B, by CD, his attorney, comes and defends," &c., and expressly acknowledges that the defendant owes the plaintiff so much, or that the defendant has sustained damages to such an amount, according to the form of the action. Where the amount of damages is not ascertained by the necessary. cognovit, the plaintiff must enter interlocutory judgment, and proceed to assess his damages as on a default.92 If made unconditionally, the plaintiff may immediately, or as soon as the damages, if necessary, have been assessed, sign judgment, Judgment although in vacation, and issue execution; but if made on terms, judgment cannot be signed, or execution sued out, contrary to such terms; and if this be done, the court, upon application, will set aside the proceedings:94 but where a judgment is acknowledged absolutely, and a subsequent agreement made, this in no way affects the judgment, and the court will take no notice of it, but put the party to his action on the agreement.95 tion. Cognovit of part of cause of action. Bail. The cognovit may be of part of the cause of action, or of the entire; if of part, the plaintiff may sign judgment for the part confessed, and proceed as to the residue.96 Common bail should be filed for the defendant upon a cognovit, if bail has not been already put in, or an appearance entered; though if the plaintiff afterwards file it nunc pro 92 See post, Ch. 12. R. St. P. 3. Ch. 6. T. 3. s. 1. Vol. 2. p. 356. 93 1 Caines' Rep. 498. 6 Johns. Rep. 325. 94 2 W. Black. Rep. 943. 1 Salk. 400. pl. 6. Bingham on 95 Salk. 400. pl. 6. |