Fisher v Papanicholas
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1833 |
| Date | 01 January 1833 |
| Court | Exchequer |
English Reports Citation: 149 E.R. 738
EXCH. OF PLEAS.
[215] fisher v. papankjholas. Exch. of Pleas. 1833.-By r. 72, H. T. 2 Will. 4, " No warrant of attorney to confess judgment, or cognovit actionem given by any person in custody of a sheriff or other officer, upon mestie process, shall be of any force, unless there he present some attorney on behalf of such person in custody expressly named by him, and attending at his request," &c.:- Held, that the rule must be strictly complied with ; and that the assent of the defendant that another attorney (who was requested to attend by the defendant's attorney's clerk) shall act for him, is not a sufficient compliance with the rule, but it ;is necessary that the attorney should attend at the defendant's request.- Semble, that the attorney subscribing his name as a witness to the execution of ac.aJK.ae. FISHER v. PAPANIOHOLAS 739 the cognovit, must in writing " declare himself to be attorney for the defendant, and that he subscribes as such attorney," according to the terms of the rule. [S. C. 4 Tyr. 44; 3 L. J. Ex. 13, and (nomine Fisher v. Nicholas) 2 Dovvl. P. C. 251. Referred to, Bligh v. Brewer, 1 Cr. M, & E. 653.] 4.rchhold obtained a rule to shew cause why the cognovit given by the defendant when in custody, should not be delivered up to be cancelled, on the ground that the 72nd rule of Hilary Term, 2 Will. 4, had not been complied with. It appeared from the affidavits that the defendant had consulted his attorney before the cognovit was signed; and that he had advised him to give a cognovit, and likewise perused the instrument; but as the attorney was not in the way at the time when it was required to be executed, Barratt, a clerk in his office, requested another attorney, named Mason, to attend instead of him. The defendant waa informed that his attorney could not attend, and that Mason was present in his place; to which he did not object. The cognovit was witnessed by Mason and Barratt; hut Mason, on subscribing his name, refused to describe himself as the defendant's attorney, saying that he did not consider himself as such. J. Williams shewed cause. The rule, that an attorney shall be present on behalf of a person in custody executing a cognovit, has in substance been complied with. The, defendant, having consented to the attendance of Mason as a substitute for his own attorney, and his own attorney, having previously advised with him on the subject of the cognovit, that...
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