4 & 5 Will. 4, c. 29, s. 5. dilatory interference of the Court of Chancery, which the act requires, where there are cestui que trusts under disability (that is, in the great majority of cases), the draftsman framing a trust for investment does not rely on the act, but gives express power to invest on real securities in England, Wales, or Ireland. (3 Davidson, Conv. 24, 2nd ed.) Act not to relieve persons intrusted with trust or power from responsiblity as to title, &c. TRUSTEES TO BE RESPONSIBLE FOR TITLE. 6. Provided always, and be it further enacted, that nothing contained in this act shall relieve or be construed to relieve any person or persons intrusted or clothed with such direction, trust or power as aforesaid from any responsibility as to title, security or otherwise, either at law or in equity, save that of having lent and advanced such money as aforesaid on real securities in Ireland instead of having invested such money on real securities in England, Wales or Great Britain (g). (g) It is the duty of a trustee, who executes a power, to show that he has complied with the exigencies required by it. So, where he varies the investment of the trust fund, the burden of proof lies on him to show that it is a fit and proper investment. (Norris v. Wright, 14 Beav. 291.) This act only relieves a trustee from any liability in respect of an investment in Ireland instead of England, and therefore, where, upon petition under this act, the court sanctioned an investment which was made without proper evidence of value and without the consent of the necessary parties, and there was a loss, the trustees were held liable for a breach of trust. (Ib.) Pending a suit to make trustees liable for the improper investment of trust monies on an Irish estate, the property was put up for sale under the Encumbered Estates Act, and an order was made giving the trustees liberty to buy, which they did: it was held, that the order did not relieve the trustees from any liability in the cause, although it was not expressed to be made "without prejudice." (Ib.) As to what securities are authorized by a power to invest trust moneys on real security in Ireland, sec Macleod v. Annesley, 16 Beav. 600. ENACTMENTS RELATIVE TO JUDGMENTS CONTAINED IN THE 1 & 2 VICT. c. 110; 2 & 3 VICT. c. 11; 1 & 2 VICT. c. 110. An Act for abolishing Arrest on Mesne Process in Civil Ac- OF THE EXECUTION OF WARRANTS OF ATTORNEY. 9. And whereas it is expedient that provision should be made for giving every person executing a warrant of attorney to confess judgment or a cognovit actionem due information of the nature and effect thereof; be it enacted, that from and after the time appointed for the commencement of this act [1 October, 1838], 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, 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 (a). 1 & 2 Vict. c. 110, 8. 9. Warrants of attor ney and cognovit executed in the presence of an atof the party. actionem to be torney on behalf (a) This section has been repealed from the 1st January, 1870 (32 & 33 32 & 33 Vict. Vict. c. 83, s. 20.) And by the Debtors Act, 1869, it is enacted, that after c. 62, s. 24. the 1st January, 1870, a warrant of attorney to confess judgment in any personal action, or cognovit actionem given by any person, shall not be of any force unless there is 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. (32 & 33 Vict. c. 62, s. 24.) In order to make a cognovit valid, its execution must be attested by an attorney attending on behalf of the defendant, other than the attorney 1 & 2 Vict. c. 110, s. 9. By whom warrants of attorney to be attested. Attorney cannot act for both parties. acting for the plaintiff. (Mason v. Riddle, 5 Mees. & W. 513; 4 Jur. 89; Rising v. Dolphin, 4 Jur. 193; 8 Dowl. P. C. 309.) The country agent of an attorney is not a competent witness to the execution of a cognovit, though expressly named by the defendant. (Mason v. Riddle, 8 Dowl. P. C. 207.) A warrant of attorney is not vitiated by the fact that the name of the attorney who attests on behalf of the defendant was first suggested by the plaintiff's attorney, if he was expressly adopted by the defendant as his attorney for that purpose. (Taylor v. Nicholls, 6 Mees. & W. 91; 8 Dowl. P. C. 242; 4 Jur. 271. See Kemp v. Matthew, 8 Scott, 399; Hale v. Dale, 8 Dowl. P. C. 599; 4 Jur. 988; Pease v. Wells, 8 Dowl. P. C. 626; 4 Jur. 679.) But where the attorney acting for the defendant is named by the plaintiff, the defendant must have a full opportunity of exercising his discretion as to the adoption, otherwise the cognovit will be bad. (Barnes v. Pendrey, 8 Dowl. P. C. 747.) It is not necessary that the party executing a cognovit should first name the attorney to attest the execution thereof, nor is it necessary that such attorney should be the regular attorney of the party giving the cognovit; it is sufficient if he be merely employed for the occasion, provided the person giving the cognovit shall ultimately exercise a free discretion in the adoption of him. (Pease v. Wells, 8 Dowl. P. C. 626; 4 Jur. 679.) It is not necessary that the defendant should actually nominate the attorney attesting a warrant of attorney on his behalf; it is sufficient if, of his own free will, he adopts an attorney suggested by the plaintiff. Nor is it necessary that the attorney should be cognizant of the facts under which the warrant of attorney is given, or that he should consult with the defendant in private previous to signing; it is enough if the attorney be there, willing to give the defendant the advice if he asks it; and he cannot complain afterwards that his interests were not protected, if he withhold from the attorney the necessary information. (Joel v. Dicker, 5 Dowl. & L. 1; Law J. 1847, Q. B. 359; 11 Jur. 589.) An attorney in those cases cannot act for both parties; (Morley v. Davis, 5 Jur. 246 ;) as where the attorney being in the first instance the attorney of the defendant generally, and being so particularly in respect of a warrant of attorney which he subscribes for him, and also superadds, in reference to this instrument, the character of attorney for the plaintiff, such attestation is invalid. (Rising v. Dolphin, 8 Dowl. P. C. 309; 4 Jur. 193.) But one attorney may act for each of three defendants, who freely recognize the attorney as acting for each of them respectively. (Haigh v. Frost, 7 Dowl. P. C. 743.) When on the execution of a warrant of attorney there was but one attorney present, who had previously acted for the plaintiff, and who on that occasion made out his bill to the plaintiff, but delivered it to the defendant, and was paid by him: it was held, that he was not such an attorney acting on behalf of the defendant as required by 1 & 2 Vict. c. 110, s. 9. (Sanderson v. Westley, 8 Dowl. P. C. 412; 6 Mees. & W. 98; 4 Jur. 942.) An attestation of a warrant of attorney on behalf of the defendant, by an attorney, who, besides practising on his own account, was acting at the time as clerk to another attorney, and the latter was acting as attorney both for the plaintiff and defendant in the transaction, was held insufficient. (Durrant v. Blurton, 9 Dowl. P. C. 1015; 5 Jur. 825.) The attorney who subscribed the execution of a warrant of attorney for the defendants was the attorney of the plaintiffs: it was held, that though the defendants were fully aware of the nature of the instrument, yet, as the attorney was not wholly uninterested, this was not a sufficient attestation. (Deverell v. Thring, 3 Jur. 1193.) A warrant of attorney was attested by an attorney introduced by the plaintiff, and who had on one former occasion acted professionally for the plaintiff, and who afterwards acted as the plaintiff's attorney in entering up judgment and issuing execution upon the warrant of attorney. The court set it aside. (Cooper v. Grant, 12 C. B. 154.) In such a case the court will not impose on the defendant the terms of bringing no action. (Ib.) A warrant of attorney to confess judgment, as a security for advances, was attested in due form by an attorney acting for the defendant, and as his attorney and at his request, but who also acted in the transaction for the plaintiff. The defendant was informed that the attorney had been consulted by the plaintiff. The warrant was executed on 6th March, 1847, judgment was signed on 19th July, 1847, and a fi. fa. shortly after issued but was not executed. The plaintiff, after the judgment was signed, gave fresh credit to the defendant in the way of his trade. On 28th June, 1850, a levy was made. None of these facts were concealed. The defendant was adjudged a bankrupt on 29th July, 1850. A rule to set aside the warrant of attorney and all subsequent proceedings was obtained in Trinity Term, 1851. It was held, that the attorney acting for the plaintiff could not act as attorney for the defendant, and that the objection being made must prevail; it was also held, that the circumstances above stated did not preclude the assignees of the bankrupt defendant from raising the objection. It seems questionable, whether lapse of time after execution levied, and other circumstances showing that the plaintiff was knowingly allowed to alter his position on the faith of the judgment thus obtained, may preclude the defendant or his representatives from raising the objection. (Hirst v. Hannah, 17 Q. B. 383.) : Where the attorney, who attested the execution of a warrant of attorney, was London agent to the plaintiff's attorney (who mentioned the name and address in town), and acted as such in filing the instrument, and made charges against the country attorney, with which he was debited it was held, that the attorney so attesting was in substance the plaintiff's attorney, and that he could not, therefore, stand in that independent situation which was required by 1 & 2 Vict. c. 110, s. 9. (Pryor v. Swaine, 2 Dowl. & L. 37; 13 L. J., N. S., Q. B. 214; 8 Jur. 423. See Mason v. Riddle, Mees. & W. 513; Pease v. Wells, 8 Dowl. P. C. 626; Walton v. Chandler, 1 C. B. 306.) Where a cognovit had been attested on behalf of the defendant by an attorney who accompanied the plaintiff's son to the defendant's residence, and who subsequently carried the instrument to the Queen's Bench office to be filed, and there subscribed his name upon the back of it, as the plaintiff's attorney's agent, the court set aside the instrument under 1 & 2 Vict. c. 110, ss. 9, 10. (Rice v. Linstead, 7 Dowl. P. C. 153; 6 Scott, 895.) 66 1 & 2 Vict. c. 110, s. 9. An attestation in this form, "Witness G. E. defendant's attorney, named Form of attestaby him, and attending at his request," is not sufficient without the attor- tion. ney's proceeding to declare that he subscribed as such attorney. (Poole v. Hobbs, 8 Dowl. P. C. 113; Potter v. Nicholson, 8 Mees. & W. 294; 9 Dowl. P. C. 808; 5 Jur. 511.) A warrant of attorney to confess judgment was attested by an attorney as follows: "Signed by the above-named G. C. P., in the presence of us, of whom the said J. H. S. is the attorney expressly named by him, and acting at his request, and by whom the above written warrant of attorney was read over, and the nature and effect thereof explained, to the said G. C. P., before the execution thereof by him." "Signed, J. H. S., attorney, Leeds, J. R." It was held, an insufficient attestation for want of a statement that J. H. S. subscribed as attorney for G. C. P. (Everard v. Poppleton, 5 Q. B. 181.) If an attesting witness to a cognovit described himself as an attorney expressly named for the defendant, and that he declares and subscribes himself as such," this is a sufficient attestation; and it is not necessary to state in the attestation that he has been appointed such attorney by the defendant. (Oliver v. Woodroffe, 3 Jur. 12.) It is not requisite that the attorney to the defendant, in the attestation of a cognovit, should state himself to be an attorney named by the defendant; it is sufficient if he declares himself to be an attorney for the defendant; nor need the attorney be originally named by the defendant; it is sufficient if the latter adopts the attorney named by the plaintiff. (Oliver v. Woodroffe, 7 Dowl. P. C. 166; 4 Mees. & W. 650; 3 Jur. 59.) And if the nature and effect of the instrument be explained to the defendant, it is immaterial that it has not been read over to him. (b.) An infant cannot bind himself by a cognovit. (Ib.) It has been held in recent cases, that the attestation need not follow the precise words of the statute, if the requisites of it are expressed plainly. (Pope v. Kershaw, 2 C. B. 198; Lewis v. Lord Kensington, 2 C. B. 463; 1 & 2 Vict. c. 110, s. 9. Application to set 3 Dowl. & L. 637; Law J. 1846, C. P. 100; Lindley v. Girdler, 1 Dowl. & L. 699; Law J. 1844, Q. B. 53; 8 Jur. 61; Lewis v. Tankerville, 2 C. B. 463; Gay v. Hall, 5 Dowl. & L. 522; 18 Law J., Q. B. 12; Phillips v. Gibbs, 16 Mees. & W. 209; 4 Dowl. & L. 275; Law J. 1847, Exch. 48.) The attestation to a warrant of attorney was in the following form:-" Signed, sealed and delivered by the said H. H. (the defendant), in my presence; and I declare myself to be attorney for the said H. H., and that I subscribe my name as such attorney. (Signed) G. O., solicitor." It was held, that this was a sufficient compliance with the terms of 1 & 2 Vict. c. 110, s. 9. It was held, also, that it need not appear on the face of the attestation, in express words, that the attorney attesting the defendant's signature attended at the defendant's request, and that he was named by him. (Gay v. Hall, 5 Dowl. & L. 422; 2 C. B. 322; 13 Law J. 124; 18 Law J., Q. B. 12.) The attestation to a warrant of attorney must contain words which show with certainty that the subscribing attorney is the attorney of the person executing it, and that he attests or subscribes the execution thereof as the attorney of such person. The following attestation was held to be insufficient:"Witnessed by me as the attorney of the said W. B., attending at the execution hereof at his request and expressly named by him." (Hibbert v. Burton, 10 Mees. & W. 678; 2 Dowl. N. S. 434.) The last case has been recently cited as establishing the rule, that if the act is not exactly followed, the words used must by necessary implication show that all the three requisites of the declaration required by the statute have been complied with. A warrant of attorney was attested as follows:-"Signed, sealed and delivered in the presence of me, H. C., who, at the request and in the presence of the parties executing the warrant of attorney, have set and subscribed my name as the attorney on their behalf, attesting the execution hereof, having first read over and explained to them, and each of them, the nature and contents thereof." It was held (with the dissent of Erle, J.), that the attestation was invalid, on the ground that the witness did not by necessary implication declare himself the attorney for the persons executing the warrant of attorney as required. (Pocock v. Pickering, 21 Law J., Q. B. 365; 18 Q. B. 789.) An application to set aside a warrant of attorney, on the ground of its not aside the warrant. having been duly attested in compliance with the statute, can only be made by the party himself, or by an attorney employed and authorized by him for that purpose. (Lewis v. Lord Tankerville, 11 Mees. & W. 109.) A judgment was entered up on a warrant of attorney, executed by principal and sureties. One surety being arrested, paid the debt, and recovered a proportional part from his co-surety, who afterwards discovered that the warrant had been attested by a person not qualified to act as an attorney, contrary to this section. It was held, that the co-surety, not being the party who had paid the debt, could not move the court that the warrant should be set aside for the defective attestation, and the amount of his contribution repaid him by the plaintiff; and a rule nisi, obtained by the co-surety for this purpose, was discharged without costs. Patteson, J., expressed an opinion, that, under 1 & 2 Vict. c. 110, s. 9, a party who had introduced an unqualified person as qualified, to attest the execution of a warrant of attorney, could not afterwards move to set it aside, because attested by such person. (Price v. Carter, 7 Q. B. 838.) A defendant may apply to set aside a warrant of attorney and judgment thereon, on the ground of a non-compliance with the statute, although he has become a bankrupt since the execution of the warrant. (Taylor v. Nicholls, 6 Mees. & W. 91; 4 Jur. 271.) Cases not within the act. A consent to a judge's order for judgment and execution was not within 1 & 2 Vict. c. 110, s. 9, and therefore the order was valid, though neither the defendant nor his attorney attended before the judge. (Bray v. Manson, 8 Mees. & W. 668; 9 Dowl. P. C. 748.) A writ of summons having been issued, but not served on the defendant, he signed a document entitled in the cause, and prepared by the plaintiff's attorney, whereby the defendant consented to a judge's order for the payment of the debt and costs, with liberty for the plaintiff's attorney to enter an appearance for him, and sign judgment and issue execution instanter. No attorney attended on |