Motion to amend. Order of court neces extend to all A motion for leave to amend, is in general a non-enumerated motion, founded on regular notice, and granted only on payment of costs.22 But the court frequently grants leave to amend, although there has been no regular notice of an application for the purpose:23 thus where a motion was made in arrest of judgment, the court allowed the plaintiff to amend the error in his declaration on which the motion was founded, without notice for that purpose ;24 and the amendment is sometimes allowed without costs.25 It is provided in the ninth section of the title before cited, sary. that "no process, pleading, or record, shall be amended or impaired, by the clerk or other officer of the court, or by any other person, without the order of the court, or some other Provisions court of competent authority."26 And by the last section, the actions. provisions of the title are extended" to all actions in courts of law; and to all suits for the recovery of any debt due to the people of this state, or for any debt, duty, or revenue belonging to them; and also to all actions for penalties and forfeitures; to all writs of mandamus and prohibition; to all informations in the nature of quo warranto; to writs of scire facias and to the proceedings thereto."27 22 See post, Vol. 2. 23 16 Johns. Rep. 151. 1 Cowen. Rep. 202-3. 24 1 Caines' Rep. 584. 25 1 Johns. Cas. 220. 26 R. St. P. 3. Ch. 7. T. 5. s. 9. Vol. 2. p. 425. 27 Ib. s. 10. p. 425-6. CHAPTER XI. OF JUDGMENT BY CONFESSION. Hitherto, for the purpose of rendering the subject more clear and simple to the student, we have carried on the proceedings to trial by jury and verdict, without noticing any of those intermediate steps, by which the progress of the suit may be stayed, and judgment against either party obtained. Thus the defendant, if he have no defence, may stop all further proceedings by acknowledging the plaintiff's claim to be well founded, by giving either a warrant of attorney, upon which judgment by confession may be entered, or a cognovit, if the plaintiff has declared; or he may incur judgment by default in not pleading, rejoining, &c., in the time required by the rules of the court. So the plaintiff, on the other hand, may voluntarily withdraw his action, by entering a discontinuance nolle prosequi, stet processus, &c.; or the defendant may obtain judgment of nonpros against him for default in not declaring, replying, &c., or judgment as in case of nonsuit, for neglecting to proceed to trial. These subjects, in the order here enumerated, it is now proposed to consider, commencing with "judgment by confession." SECTION I.. and purport. OF WARRANTS OF ATTORNEY, AND ENTERING JUDGMENT THEREON. A warrant of attorney is usually given, either as a security When given for a debt, where no suit is pending, or before declaration if an action has been commenced and it is a written authority to the attorney or attornies to whom it is directed, to appear for the defendant, receive a declaration for him in an action at the suit of a person therein mentioned, and thereupon to confess the same, or to suffer judgment to pass by default; and it usually contains a clause authorising the attorney to execute a release of all errors.1 Where a party gives a warrant of attorney as security, for a debt on which no suit is pending, it is usual at the same time to execute a bond conditioned for the payment of the debt with interest, either immediately or in a short time after the date. To this bond the warrant refers, and authorizes a confession of judgment for the penalty. Bond. Statutory provisions. In relation to proceedings of this nature, it is provided by statute, that, "judgments may be entered in the supreme court, or in any court of common pleas, in vacation or in term, upon a plea of confession, signed by an attorney of such court, although there be no suit then pending between the parties, if the following provisions be complied with, and not otherwise: 1. The authority for confessing such judgment shall be in some proper instrument, distinct from that containing the bond, contract, or other evidence of the demand for which such judgment is confessed: 12 Archb. Pract. 19. 2. Such authority shall be produced to the officer signing such judgment, and shall be filed with the clerk of the court in which the judgment shall be entered, at the time of the filing and docketing such judgment."2 If the plaintiff stipulated for delay of execution, or other indulgence, to be granted the defendant, it should be noted on the warrant. tion. Form and requisites of warrant.] The warrant of attor- Subscription. ney must be subscribed by the defendant, and it is usually by deed, with an attesting witness; but this is not necessary.3 Every warrant of attorney must be founded on a good consi- Consideraderation; therefore, if it has been obtained by fraud, or has been given for a gaming debt,5 or for a corrupt and usurious or immoral consideration,' as to induce the plaintiff to live in prostitution with the defendant, the court will order it to be delivered up, and set aside the judgment and proceedings, if any, which have been held under it. So if it be given by an insolvent to a creditor, to induce him to withdraw his opposition, or be founded on a note given for such a purpose." 8 The court of king's bench will set aside a judgment founded on an usurious security, without compelling the defendant to repay the principal and interest.10 A promise to pay the 2 R. St. P. 3. Ch. 6. T. 4. s. 10. Vol. 2. p. 360. 35 Taunt. 264. et vide 4 East. 431. 1 Chit. Rep. 707. 4 Doug. 196. 3 Taunt. 478. et vide 4 Barn. & Ald. 92. 56 Johns. Rep. 331. G Cowp. 727. 1 Bos. & Pul. 270. 4 Barn. & Ald. 92. 1 Taunt. 414. 3 Johns. Rep. 250. 2 Cowen. Rep. 465. 8 James vs. Hoskins K. B. cited Tidd. Pract. 593. 92 Bingh. 441. Tidd. Pract. 593. note. 10 4 Barn. & Ald. 92. But in the common pleas where securities had been acted upon and the money partly paid by the borrower, the court would not set aside a judgment and execution on the ground of usury, but upon 7 Doug. 196. 1 Bos. & Pul. the terms of the defendant's pay 270. ing the principal, and legal in- Gaming debt. Parties. Infant. debt actually due, made after a judgment entered on the usurious security has been set aside, will support an action of assumpsit; but the plaintiff will be required to bring into court, and to cancel the bond and warrant of attorney, or usurious securities.11 Where a bill has been given for a gaming debt, and is negotiated, and afterwards renewed by the drawer with the holder, and the drawer, when the second bill becomes due, confesses judgment upon it to the holder, he will not be relieved, unless he can implicate the plaintiff in a privity to the gaming transaction.12 The parties, by and to whom the warrant is executed, must possess legal capacity. Therefore, if made by an infant,1s it is absolutely void, and the judgment entered upon it will be set aside, notwithstanding circumstances of fraud on the part of the infant:14 and a joint warrant of attorney to confess judgment, by an infant and another, may be vacated against the Feme covert. infant only.15 So a warrant of attorney, given to or by a feme covert, is void;16 though if a feme covert, living by herself and acting as a feme sole, give a warrant of attorney, she will not be relieved upon motion, but must bring a writ of error."7 Executor. Partners. Where one executor gave a warrant of attorney to confess judgment against all of them, and judgment was entered accordingly, de bonis testatoris; the court, on motion, ordered that the judgment should be set aside.18 And so, where a person had given a bond, with a warrant of attorney, and afterwards obtained his discharge under the insolvent act.19 If one of two partners, without any authority from the other, execute a joint bond and warrant of attorney, in the names of 11 19 Johns. Rep. 147. 14 1 H. Black. Rep. 75. 15 W. Black. Rep. 1133. Bingh. on Judgments 42. 1 Dallas. 122. 16 Bingh. on Judgments 42. 17 Salk. 400. pl. 5. 3 Bos. & Pull. 128. 220. 18 Str. 20. 16 Johns. Rep. 277. 19 1 Johns. Cas. 105. |