IX. Of Warrants of Attorney, Cognovits, Judges' Orders, Warrants of Attorney, Cognovits and Judges' Orders.-It is enacted, "That every warrant of attorney to confess judgment in any personal action, given by any bankrupt after the commencement of this act, and within two months of the filing of a petition for adjudication of bankruptcy by or against such bankrupt, and being for or in respect of (wholly or in part) an antecedent debt or money demand; and every cognovit actionem or consent to a judge's order for judgment given by any bankrupt at any time after the commencement of this act, and within two months of the filing of any such petition, in any action commenced by collusion with the bankrupt, and not adversely or purporting to have been given in an action, but having been in fact given before the commencement of any action against the bankrupt, such bankrupt being unable to meet his engagements at the time of giving such warrant of attorney, cognovit actionem or consent (as the case may be), shall be deemed and taken to be null and void, whether the same shall have been given by such bankrupt in contemplation of bankruptcy or not." 12 & 13 Vict. c. 106, s. 135. A warrant of attorney given to a retiring partner to secure the repayment of the capital he had brought into the business, is not given for an antecedent debt or money demand within the above section. Loader v. Hiscock, 1 F. & F. 132. And a debtor is not "unable to meet his engagements" whose assets exceed his liabilities, although he be not able to realise them immediately. Ibid. The above section refers to warrants, cognovits, and judges' orders given for the purposes and under the circumstances pointed out in italics, whether filed or not. With respect, however, to warrants of attorney and cognovits generally, it is enacted, that "if any warrant of attorney to confess judgment in any personal action, or any cognovit actionem (t), in any personal action, shall have been given by any such trader, and such warrant of attorney or cognovit actionem, or a true copy thereof, shall not have been filed with the officer acting as clerk of the docquets and judgments in the Court of Queen's Bench, within twenty-one days next after the execution thereof, in manner and form provided by an Act, &c." (3 Geo. IV. c. 39), "every such warrant of attorney and cognovit actionem shall be deemed fraudulent, null, and void, to all intents and purposes whatever; and if any such warrant of attorney or cognovit actionem which shall be so filed as aforesaid, shall have been given subject to any defeazance or condition, such defeazance or condition shall be written on the same paper or parchment on (t) See Thorne v. Neal, 2 Q. B. 726. which such warrrant of attorney or cognovit actionem shall be written, before the time when the same or a copy thereof respectively shall be filed, otherwise such warrant of attorney or cognovit actionem shall be null and void to all intents and purposes whatever." Ib., s. 136. A deed enabling a creditor to commence an action and proceed to judgment when he shall think fit, has the legal effect of a cognovit, and a judgment obtained on it will be set aside (u). The non-observance of these enactments does not render the warrant of attorney or cognovit void as against the trader himself, but only as against the assignees in case of his bankruptcy (Bryan v. Child, post, p. 311); and they may sue a creditor who has signed judgment on such a warrant or cognovit, although the execution be complete before the act of bankruptcy, for money had and received (x), or in a special action on the statute, or perhaps trover (y). By 3 Geo. IV. c. 39, above referred to, it is enacted (s. 1) "that if the holder thereof 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" (which, by sect. 4, must be written on the same paper or parchment) " and indorsements thereon, in case such warrant of attorney shall be given to confess judgment in the Court of King's Bench at Westminster, or such a true copy thereof as aforesaid, in case such warrant of attorney shall be given to confess judgment in any other court, shall, within twenty-one days after execution, be filed, together with an affidavit of the time of the execution thereof, with the clerk of the docquets and judgments in the said Court of King's Bench." There is a similar provision for the filing of cognovits (s. 3). The requisites of the filing, &c., must be strictly observed, and if not, the judgment is void, although signed within the twenty-one days (2). The affidavit must state the fact and the day of execution (a). The twenty-one days are to be reckoned exclusively of the day of execution; hence a warrant executed on December 9th was held duly filed on the 30th (6). By 1 & 2 Vict. c. 110, s. 9,-" No warrant of attorney to confess judgment in any personal action, or cognovit actionem given by any person, 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, (u) Hurst v. Jennings, 5 B. & C. 650. Whether it must be filed as a cognovit under the above section, quære, S. C. (x) Bittleston v. Cooper, 14 M. & W. 399. (y) Brook v. Mitchell, 6 B. N. C. 349. But see Whitmore v. Green, 13 M. & W. 104; Young v. Billiter, 6 E. & B. 1., 3 L. T. N. S. 196, Dom. Proc., S. C. (z) Acraman v. Herniman, 16 Q. B. 998. (a) Dillon v. Edwards, 2 M. & P. 550. (b) Williams v. Burgess, 12 A. & E. 635. 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." This enactment, as to warrants of attorney, does not extend to actions of ejectment (c); but as to cognovits it does (d). It extends also to warrants and cog novits executed out of the jurisdiction of the court (e). The act is for the benefit of defendants, and no third party can object that the warrant or cognovit was not duly attested (f); but a bankrupt may, though a fiat against him is still in operation (g). The attorney who is present need not be certificated (h), but he must be an attorney, and not a clerk (i). Where the defendant innocently represented that a person, not an attorney, was one, believing him to be such, he was held entitled to the benefit of the provision (k); aliter, if fraudulently done for the purpose of cheating the plaintiff (7). The attorney being a prisoner makes no difference (m). The attorney must be exclusively the defendant's attorney, and not the plaintiff's also (n), and this although the defendant assents to the plaintiff's attorney acting for him (0) ; the same attorney, however, may attend on behalf of several defendants (p). "If there be a clear and express adoption by the defendant of the party as his attorney, that will suffice, although such party may have been originally suggested by the plaintiff's attorney" (g) or the plaintiff himself (r). "It is not necessary that he should beforehand name or request the attendance of the attorney, if, with full knowledge that he has an option, he adopts him as his attorney " (s). The warrant is not void, if the attorney (without collusion) omit to inform the client of the nature of the transaction, though it is his duty so to do (t). In his attestation the attorney must declare that he is the defendant's attorney, and also that he subscribes as such attorney (u), and this must be so expressed in terms or follow by necessary inference (x); but he need not state more (y). With respect to judges' orders, it is now enacted,—“ That every judge's order, made by consent, given after the commencement of this Act, by any such trader defendant (≈) in any personal action, and whereby the plaintiff in such action shall be authorised forthwith after the making of such order, or at any future time, to sign or enter up judgment, or to issue or take out execution in such action, and whether such order shall be made subject to any defeazance or condition, or not, in case the action in which such order shall be made shall be in the Court of Q. B., or in case the action wherein the same is made shall be in any other court, a true copy of such order shall, together with an affidavit of the time of such consent being given, and a description of the residence and occupation of the defendant, be filed with the officer acting as clerk of the docquets and judgments in the said Court of Q. B., within twenty-one days after the making of such order, in like manner as a warrant of attorney in any personal action and a cognovit actionem given by any defendant in any personal action, or copies thereof and affidavits of the execution thereof respectively, may be filed with the said clerk within the space of twenty-one days after such warrant of attorney or cognovit actionem shall have been executed, otherwise such judge's order, and any judgment signed or entered up thereon, and any execution issued or taken out on such judgment, shall be null and void to all intents and purposes whatever; and the provisions respectively contained in an Act passed, &c." (3 Geo. IV. c. 39), "and in an Act passed, &c." (6 & 7 Vict. c. 66), "for liberty to file warrants, &c., shall extend and be applicable to every such judge's order, in like manner as to warrants of attorney and cognovits actionem mentioned in the said Acts." 12 & 13 Vict. c. 106, s. 137. This section does not render a judge's order which has not been filed void as against the trader himself, but only as against his assignees in case of his bankruptcy (a). A judge's order is obtained by consent within the above section, although it be made on an application by the defendant to stay proceedings upon terms in a hostile action (b). No action will lie against a creditor for filing such an order, although the debt and costs have been paid before the order is filed (c). Bills of Sale. To prevent the frauds practised upon creditors - (x) Lindley v. Girdler, 1 D. & L. 699; Holt v. Kershaw, 5 ib. 419. See Pocock v. Pickering, supra. (y) Oliver v. Woodruffe, 7 Dowl. 166; Gay v. Hall, 5 D. & L. 422. (2) There is no statute or rule of court that makes it necessary to file a judge's order, except as against a bankrupt (a) Bryan v. Child, 5 Exch. 369. 542. by secret bills of sale, the 17 & 18 Vict. c. 36, provides (s. 1) that bills of sale (which by the interpretation clause (s. 7) have a very extensive signification, but do not include assignments for the benefit of creditors, marriage settlements, transfers of ships, bills of sale of goods in foreign parts or at sea, bills of lading, India warrants, warehousekeepers' certificates, or, generally speaking, transfers, warrants, or orders used in the ordinary course of business) of personal chattels, shall be void, as against assignees in bankruptcy or insolvency and execution creditors, so far as regards the property in any such chattels which, at the time of the bankruptcy, insolvency, or execution, and after the expiration of the twenty-one days, shall be " in the possession or apparent possession of the person making such bill of sale" (d), unless filed in the manner pointed out by the act, and which may generally be described as the manner already prescribed for warrants of attorney. It is to be observed, that the words "personal chattels " extend to "goods, furniture, fixtures, and other articles capable of complete transfer by delivery," but do not include "chattel interests in real estate, nor shares in the stock, funds, or securities of any government, or in the capital or property of any incorporated or joint-stock company, nor choses in action, nor any stock or produce upon any farm or lands which, by virtue of any covenant or agreement, or of the custom of the country, ought not to be removed from any farm where the same shall be at the time of the making or giving of such bill of sale" (s. 7). Where trade fixtures pass by a mortgage of the land to which they are affixed, as where they are erected by the owners of the freehold, such mortgage need not be registered as a bill of sale (e). But where the freehold of a mill was assigned by J. to M., and by a subsequent deed, for further security, J. afterwards, by bill of sale, assigned machinery then on the premises, such bill of sale was held void for want of registry, the machinery being personal chattels, and the intention of the parties being that the machinery should pass separate from the realty (f). It has been decided that, in an interpleader issue between the claimant under a bond fide bill of sale duly registered, and an execution creditor of the assignor, the execution creditor cannot set up a prior bill of sale, given to a third party, but void for want of due registration (g) ; and where A. conveyed the same goods by one bill of sale to B., (d) Where therefore the assignee took possession of the goods on the execution of the bill of sale, and removed them to a house of his own, where they were at the time of the execution, Willes, J., held that the statute did not apply. Minister v. Price, 1 F. & F. 686. (e) Mather v. Fraser, 2 K. & J. 536. 876. But as a general rule, machinery affixed to the freehold by the owner for the permanent benefit of the estate passes to the mortgagee, whether affixed before or after the mortgage. Walmsley v. Milne, 7 C. B. N. S. 115, and so a mortgage of them would not require registration. (g) Edwards v. English, 7 E. & B. 564. |