The Colonial Bank-Appellants; Francis Cazabob, - Respondent
| Jurisdiction | UK Non-devolved |
| Judgment Date | 21 June 1851 |
| Date | 21 June 1851 |
| Court | Privy Council |
English Reports Citation: 13 E.R. 939
ON APPEAL FROM THE SUPREME COURT AT TRINIDAD.
[412] ON APPEAL FROM THE SUPREME COURT AT TRINIDAD. THE COLONIAL BANK,-Appellants; FRANCIS CAZABON,-Respondent * [June 21, 1851]. According to the practice of the Supreme Court at Trinidad, since the passing of the Ordinance, No. 5, of 1845, as regards cognovits, confession is signed by the Defendant in the presence of his Solicitor, and attached to the proceedings in the cause, and on application to the sitting Judge by the Plaintiff's Solicitor and production of the confession, and on appearance and consent of the Defendant's Solicitor, final judgment is entered up by the Registrar. A cognovit actionem, executed in 1846, was set aside by the Court at Trinidad, on the ground that the cognovit was not signed by the Defendant in the presence of the Escribano of the Court according to the Spanish laws of 1534 and 1560. Held on appeal, reversing the order setting aside the cognovit, that those laws did not apply to cognovits, and that the cognovit being executed according to the uniform practice of the Court since the introduction of the Ordinance of 1845, was a good and binding instrument. The Appellants in this case, on the 26th of May, 1846, filed a declaration in the Supreme Civil Court in the Island of Trinidad, against the Respondent, a resident there, in an action of covenant. On the 20th of June, in the same year, the Defendant appeared in person, and by a cognovit under his hand confessed the action. This cognovit was signed by the Defendant, in the presence of Henry Stone and James Etter, the attesting witnesses, and appended thereto was a declaration signed by Henry Louis Jobity, the solicitor named by the Defendant, and attending at his request; by whom the cognovit or confession of judgment was expressed to [413] have been read over and explained to the Defendant, previous to his execution thereof. On the 22nd of June, 1846, final judgment was entered up in the action against the Defendant, by the Registrar of the Court, for the sum of 2718 12s. sterling, and notice thereof in writing, under the hand of the Plaintiff's solicitor, dated the 2nd of December, 1846, was personally served upon the Defendant's solicitor. Default having been made by the Defendant in payment of the first instalment, payable according to a proviso in the cognovit, the Plaintiffs, on the 15th of April, 1848, issued a writ of extent against the lands, tenements, rents, and hereditaments of the Defendant, for levying the sum of 677 Is. 8d., the further sum of 81 5s., for two years' interest on that sum, from the 1st of March, 1846, to the 1st of March, 1848, and the further sum of 10 5s. 4d. for costs taxed and allowed, together with interest on the two several sums of 677 Is. 8d. and 10 5s. 4d., which writ was on the same day delivered to the marshal, to whom the execution thereof belonged. The marshal issued his warrant for execution, and on the 5th of October, 1848, * Present: The Chief Justice of the Commpn Pleas (Sir John Jervis), the Right Hon. Dr. Lushington, the Right Hon. T. Pemberton Leigh, and the Right Hon. Sir Edward Ryan. 939 VII MOORE, 414 COLONIAL BANK V. CAZABON [1851.] he made his return to the writ, and thereby certified that he had, in execution and by virtue thereof, levied upon certain messuages and lands, which were in the return set forth; and on the 6th of October, 1848, an order of the Supreme Court was made on the application of the Plaintiffs' solicitor, appointing the 22nd of January then next, for the sale of the properties. On the 22nd of January, 1849, a terceria and claim [414] of preference was filed in the same Court, on behalf of the Registrar of the Court, in respect of a prior mortgage or charge on a portion of the property in his favour. And on the same day a part of the property levied upon, was duly put up to sale by the Registrar of the Court, and one parcel thereof was sold to Robert Johnstone. Various proceedings were subsequently taken in the matter of the sale, and ultimately, on the 28th of April, 1849, the report of the Registrar was made in the cause, whereby Johnstone was allowed to be the purchaser of the lot so sold to him, and all the matters and things therein contained were ratified and confirmed by the Court. On the 3rd of July, 1849, counsel for the Defendant applied for a summons to show cause why the cognovit of the 20th of June, 1846, and all subsequent proceedings, should not be set aside for irregularity, upon the grounds, that the cognovit should have been interpreted to the Defendant in the French language, he being a foreigner by birth, and that being the only language which he understood, and that the cognovit was not so interpreted by such interpreter; that the cognovit-was irregular and void, not having been attested according to the form of the Ordinance in such case made and provided, inasmuch as the cognovit was not witnessed by any solicitor or advocate attending at the request of the Defendant, but was witnessed by two persons named Stone and Etter, who were not the solicitors of the Defendant, and, because no solicitor or advocate attending on the part of the Defendant had subscribed his name as a witness to the due execution thereof, and thereby declared himself [415] to be the solicitor or advocate of the Defendant, and stated that he subscribed as such solicitor or advocate, according to the form required by the Ordinance; and further to show cause, why the several sums of money received by the Plaintiffs should not be refunded to the Defendant. This application was supported by two affidavits of the Defendant, in one of which he deposed, that the confession was irregular, inasmuch as the same was not executed in the presence of the Escribano or Registrar of the Court; and in the other of which he set forth, that certain dealings and transactions had taken place between the...
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