Manhattan Co. v. Brower — 1 Cai. 511

Majority

p. 645

Manhattan Company against Brower.

Headnote

If a person in custody on mesne process sign a warrant of attorney, the nature of whieli is explained to him by an attorney, who does not witness it as Iris attorney, the court will not ut semi, set it aside.

The defendant in this suit being in custody on mesne process, executed a warrant of attorney to confess judgment for the amount of the debt, but it' was not witnessed by any person as his attorney, acting in that capacity for him.

Hoffman,

on this ground, moved to have the warrant of attorney delivered up to be cancelled, and to vacate the judgment entered.

Hamilton, contra,

read some affidavits, showing that the defendant, at the time of executing the instrument, was perfectly well apprised of its nature, which had been explained *to him by an attorney, though not [*512] actually Ms attorney, or the attorney of the plaintiffs, and that the whole transaction was Iona fide, and without surprise.

The inclination of the court appearing to be against the application, the proceedings having been within the spirit of the rule relied on; and it being suggested at the bar, that it was doubtful whether the English rules of E. 15 Car. II. and E. 4 Geo. II. had ever been made rules of this court, though the practice was acknowledged to have been in conformity to their regulations,^[2]

Hoffman

consented to withdraw his motion, and let the

p. 646

judgment stand as a security for the debt, the plaintiffs delivering a declaration, and agreeing to go to trial on the merits.^[2]

Motion withdrawn.