both, it is void as against the party who did not sign; but the court will not in such case set aside the judgment and execution; though on application of the partner who did not sign, they will order that no execution issue against his body or goods.20 Another requisite to the validity of a warrant of attorney to Must be voconfess judgment, is, that it should be given voluntarily ; and if luntary. obtained by duress, it is void.21 It is a rule in the English courts, that where a defendant, in the custody of a sheriff or other officer, executes a warrant of attorney to confess judgment, there must be an attorney present on his part to explain the nature of the instrument, and subscribe his name as a witness to the execution.22 And this practice appears to have been adopted by this court, at least so far as to require the presence of some attorney, other than the attorney for the plaintiffs.25 warrant to jailer. But it seems that the court will not vacate a warrant of attorney, where the defendant, at the time of executing it, was perfectly well apprized of its nature, which had been explained to him by an attorney, though not actually his attorney, yet not the attorney for the plaintiff, and when the whole transaction was bona fide and without surprise.24 Where a jailer dis- Bond and charged a defendant in execution, on his executing to him a bond, with a warrant of attorney, for the amount of the debt, together with ten dollars for additional charges, the court set aside the judgment entered thereon, and left the party to seek his remedy by an action on the bond, so that the defendant might avail himself of any defence at law.25 Where a warrant To sheriff. was given to confess judgment on a bond given by a prisoner and another, to the sheriff for the liberties of the prison, the 20 O2 Caines' Rep. 254. et vide 6 Johns. Rep. 523. 1 Dallas. 119. 21 Tidd. Pract. 593. 22 Tidd. Pract. 592. 593. Str. 902. Cowp. 281. Bingh. on Judg. ments, 40. 23 2 Wendell. Rep. 243. 1 Caines' Rep. 511. 24 1 Caines' Rep. 511. 25 7 Johns. Rep. 319. court held the warrant void, and set aside the judgment and xecution which had been entered thereon.26 Revocation of warrant.] A warrant of attorney cannot be expressly revoked; and if the defendant does that which purports to be a revocation of it, the plaintiff may enter up judgDeath of ei- ment notwithstanding.27 There are, however, some cases of ther party. implied revocation :28 thus the death of either party is, generally speaking, a revocation of the warrant ;29 yet if the warrant be to enter up judgment at the suit of A, his executors or administrators, it seems that on the death of A, the courts will give his executors or administrators leave to enter up judgment thereon.30 And if either party die in vacation, within a year after granting the warrant of attorney, judgment may be entered up of course, at any time after in that vacation, as of the preceding term, and it will be valid by the common law; though it will not by statute affect any lands, tenements, real estate, or chattel real, or have any preference as against other judgment creditors, purchasers or mortgagees, until the record is filed and docketed.32 Judgment entered in relate to pre 31 But judgment cannot be entered up in term, so as to relate term cannot to the preceding term: therefore, where the defendant died in vious term. vacation, and the plaintiff waited until the next term, and entered up judgment, as of the preceding term, the court set aside the proceedings. 33 26 I Johns. Cas. 129. 27 2 Ld. Raym. 766. 850. 1 Salk. 87. pl. 6. 7 Mod. 93. S. C. 2 Esp. Rep. 565. 28 2 Archb. Pract. 21. 29 Co. Litt. 52. b. 1 Vent. 310. Bingh. on Judgments, 43. Str. 718. 1081. 8 Term Rep. 257. Barnes. 270. 30 Barnes. 44. 45. 8 Term Rep. 31 Ld. Raym. 766. 850. 1 Salk. 87. pl. 6. 2 Str. 882. 1081. 3 P. Wms. 399. 6 Durn. & East. 368. 7 Durn. & East. 20. Willes. 427. Barnes. 267.268. 270. 32 R. St. P. 3. Ch. 6. T. 4. s. 12. Vol. 2. p. 360. and see Ld. Raym. 850. Str. 882. 3 P. Wms. 399. Barnes. 270. Willes. 428. n. a. 33 3 Cowen. Rep. 68. Where a warrant of attorney is given to enter up judgment at the suit of two persons, judgment may be entered up thereon, after the death of one of them, in the name of the survivor.$4 And in the common pleas, where a warrant of attorney was given by two persons, to enter up judgment against me not us, the court, after the death of one of them, gave leave to enter up judgment against the other.35 But in neither the king's bench nor common pleas, where a joint warrant of attorney is given to enter up judgment against us, upon a joint and several bond, will the court permit judgment to be entered up against the survivor only.3 $7 36 Where a warrant of attorney is given to a feme sole, who Marriage. marries before judgment, the authority is not to be deemed countermanded or revoked, because it is for the husband's advantage; and, therefore, notwithstanding the marriage, judgment may be entered up in the name of the husband and wife. But, in order to warrant this proceeding, there should be a previous application to the court, founded on an affidavit to court. of the marriage; and it seems that the affidavit should further set forth and verify the due execution of the warrant of attorney by the defendant, and the fact of the debt being still unpaid.39 Where a warrant is given by a feme sole, it seems that judgment may in like manner be entered up against the husband and wife ;40 though it has been held otherwise.11 Application 34 Barnes. 40. 48. 1 Wils. 312. Say. Rep. 5. 2 Black. Rep. 1301. 2 Maule & Selw. 76. 7 Taunt. 453. S. C. 1 Moore. 145. sed vide Barnes. 45. contra. 35 Barnes. 53. 1 Chit. Rep. 315. note. 1 Tidd. Pract. 598. sed vide 7 Taunt. 453. S. C. 1 Moore. 145. 36 15 East. 592. 7 Taunt. 453. S. C. 1 Moore. 145. 1 Chit. Rep. 322. a. sed vide Barnes. 53. 37 12 Mod. 383. 7 Mod. 53. Salk. 117. pl. 9. Burr. Rep. 1471. Barnes, 45. 38 Burr. Rep. 1471. 39 6 Dowl. & Ryl. 46. 12 Mod. 383. 40 2 Chit. Rep. 117. 1 Tidd. Pract. 598. 41 Salk. 117. pl. 7. 399. pl. 2. 1 Shower. 91. and see 3 Burr. Rep. 1470 1471. note. 12 Mod. 383. Warrant more than Entering up judgment on warrant.] Within a year and a day next after the date of the warrant, judgment may be entered of course, without applying to the court 101 but after the expiration of that time, it cannot be entered without leave.102 The practice of the king's bench is, where the warrant is ten years old. more than ten years old, to make the application to the court; but if it be less than ten years old, leave to enter up judgment may be granted by a judge in vacation. The application must be founded on an affidavit of the due execution of the warrant of attorney, that the debt, or part of it, is still due, and Where legal that the parties are living.12 But if such a length of time has presumption has attached. of payment elapsed, that legal presumption of payment has attached upon the bond, the usual affidavit is not sufficient; but the obligee must show a demand of payment, and an acknowledgment of the debt, within that time, to rebut such presumption.* 43 Attesting witness. Proof that defendant is afive. The affidavit should regularly be made, by the attesting witness;44 or, if he cannot be met with,45 or reside out of the jurisdiction of the court,46 an affidavit verifying his handwriting will be deemed sufficient. But the court must be informed, by affidavit, of the endeavours which have been made to find him, before they will admit secondary evidence ;47 and in the king's bench, the acknowledgment of the warrant of attorney, by the defendant, is no waiver of the objection; but in the common pleas, if A agree to acknowledge an old warrant of attorney, given by him, so as to enable B to enter up judgment thereon, judgment may be entered up, under a judge's order, without an affidavit of the attesting witness.48 It seems that it must be positively sworn, that the defendant was alive, either on the first or upon some subsequent day in 101 6 Mod. 212. 7 Mod. 94. 437 Johns. Rep. 556. et vide 4 44 1 Tidd. Pract. 600. 45 1 Dowl. & Ryl. 558. 47 Ib. 4 Taunt, 132. 48 1 Tidd. Pract. 600. 601. I Chit. Rep. 743. 744. 2 Bos. & Pull. 85. full term; and that information and belief are not sufficient.49 But where the defendant resides abroad, proof that he was alive at a more distant period, is allowed, according to circumstances.50 The affidavit is properly entitled in the suit in which judgment is to be entered.51 tering judg The manner of entering up judgment on a warrant of Mode of enattorney is as follows: a declaration is made out in debt on ment. bond, (if, as is usual, a bond has been given with the warrant ; otherwise it is usually made out on a mutuatus,)52 to which oyer of the bond is annexed. A cognovit is then signed, by some other attorney as attorney for the defendant, by virtue of the power contained in the warrant; and a bill of costs is made out, which must be taxed as usual; but no notice of taxation is necessary. The declaration, cognovit, &c. are entered on a judgment roll, in the same form as in other cases; and upon entering a rule for judgment which is final in the first instance, the plaintiff may forthwith have his judgment signed. The declaration, common bail piece, warrant of attorney, cognovit and judgment roll, must be filed with the clerk: it is not necessary that any time should intervene between the different parts of the transaction, but the whole may be performed at once.54 By a release of errors, the omission of a rule for judgment is cured. It is not necessary that any rule should be entered to authorise the filing of common bail; as this is supposed to be the act of the defendant's attorney.55 By the terms of the statute,56 judgment may be entered on Judgment the warrant in vacation as well as in term; and if in vacation, vacation. entered in |