Although the solicitor must be "expressly named" by the Chap. VIII. defendant, yet the appointment will not be invalid if the soli- (ii. ) citor was suggested by another person, or even introduced by the creditor himself, or even paid by the creditor (g), so long as the solicitor is bonâ fide appointed by the defendant (»).

When the solicitor has been really named by the defendant, he is then to inform him of the nature and effect of the instrument, if he requires it; the solicitor is not bound to read the instrument over to him, unless he desires him to do so (s). Nor can the debtor complain, in the absence of fraud, that he did not understand the nature and effect of the instrument in consequence of his own omission to request the solicitor to give him explanation (t).

The attestation need not state that the solicitor was expressly named by the debtor, or that he attended at his request (u).

warrants of

A cognovit or warrant of attorney, or copy thereof, must be Filing of filed in the Bills of Sale Department within twenty-one days attorney. after execution, otherwise it is fraudulent and void (a). But non-compliance with the statutory requirement as to filing the judge's order within twenty-one days only renders the order and judgment void as against creditors of the defendant, not as against the defendant himself (y).

The Acts apply to warrants of attorney, whether executed in this or in a foreign country (z); and it seems that, if judgment be signed on a warrant of attorney which is not made in compliance with the statutes, the defect cannot be waived (a); and the statutes do not apply where the defendant is himself an attorney (b).

warrants of

By another Act (c), an additional book or index is directed to Index of be provided, in which only the names, additions and descriptions attorney. of the respective defendants, or persons giving the warrants or

(a) Haigh v. Frost, 7 Dowl. 743; Hale v. Dale, 8 Dowl. 599; Pease v. Wells, 8 Dowl. 626; Barnes v. Pendrey, 7 Dowl. 747; Bligh v. Brewer, 3 Dowl. 266; Rice v. Linstead, 7 Dowl. 153; Taylor v. Nicholls, 6 M. & W. 91; Joel v. Dicker, 5 D. & L. 1.

(r) Walton v. Chandler, 1 C. B. 306; Levinson v. Syer, 21 L. J. Q. B. 16. (s) Taylor v. Nicholls, sup.

(t) See cases cited sup., note (g). (u) Oliver v. Woodroffe, 4, M. & W. 650; Gay v. Hall, 5 D. & L. 422.

(x) The Debtors Act, 1869 (32 & 33 Vict. c. 62), s. 26; Practice Masters' Rules, 25.

(y) Gowan v. Wright, 18 Q. B. D. 201, C. A. See Re Russell, Exp. Guest, W. N. (1888) 198, C. A.

(z) Davis v. Trevanion, 2 D. & L. 743.

(a) Gripper v. Bristow, 6 M. & W. 807.

(b) Downes v. Garbett, 2 Dowl. N. S. 939; Chipp v. Harris, 5 M. & W. 430. (c) 6 & 7 Vict. c. 66.

Chap. VIII. cognovits, are entered, and which may be searched on payment of the additional fee mentioned in the Act.

(ii.)

Ireland.

Signing of judgment.

Execution.

Memorandum

of satisfac

tion.

Warrant of attorney to

only.

Warrants of attorney to confess judgments in Ireland are subjected to nearly the same regulations (d).

A certificate having been obtained from the Bills of Sale Department of the filing of the warrant, judgment may be signed on this certificate being produced and filed in the Writ, Appearance and Judgment Department (e). But judgment cannot be signed after the expiration of twelve months from the date thereof without leave of a judge, unless it contains express provision to that effect.

Execution on warrants of attorney is the same as in ordinary cases (ƒ).

Power is given to any of the judges of the Court, in which the warrant of attorney or cognovit is given, to order a memorandum of satisfaction to be written upon such warrant, cognovit, or copy thereof, respectively as aforesaid, if it shall appear that the debt, for which the warrant or cognovit was given, has been satisfied or discharged (g).

Where a judgment was entered up on a warrant of attorney for 1,8007. to secure an annuity, and the judgment creditor received more than the 1,8007., the Court ordered satisfaction to be entered up as of the date on which a later judgment was entered up, and directed sums, received by the first judgment creditor since that time, to be paid to the second judgment creditor, but not any of the sums received prior to the signing of the second judgment ().

If a warrant of attorney to confess judgment is given by way secure interest of collateral security, defeasanced on payment of the interest, after the rate and at the time and in manner recited in a mortgage deed of even date, and the interest is paid up to the day fixed for payment in the mortgage deed, though the principal be still unpaid, the Court will order satisfaction to be entered on the judgment. But the application will be refused if, from the introduction of other words into the defeasance, there is

(d) 3 & 4 Vict. c. 105, ss. 12—18, inclusive.

(e) Chitty, Archb. 1316; Practice Masters' Rules, 25. As to costs, see P. M. R. 18.

(f) Archb. (14th ed.) 1323. See as

to bankruptcy, Young v. Billiter, 30 L. J. Q. B. 153.

(g) 3 Geo. IV. c. 39, s. 8.

(h) Cottle v. Warrington, 5 B. & Ad. 447.

the least doubt if the security of the judgment is to be so Chap. VIII. limited (i). (ii.) Application to set aside a warrant of attorney collateral to a Setting aside mortgage can only be made by the party himself, or by his warrant. attorney duly authorized by him for that purpose (k). But it may be made, though defendant has become bankrupt since his execution of the warrant (1).

The provision is for the benefit of the defendant only, and, therefore, a third party who may be prejudiced by a judgment against the debtor cannot raise an objection on the ground of want of proper attestation (m).

A party who introduces an unqualified person, as qualified to attest, cannot afterwards move to set the warrant of attorney aside on that account (n). But such warrant may be set aside if the person unqualified is introduced by the opposite party, and acquiesced in by the debtor (o).

Nor can a surety recover from the creditor what he has been obliged to pay by way of contribution to his co-surety, who has paid the full sum secured by the warrant, if the warrant be good against the latter (p).

The Courts will, under their general jurisdiction, set aside a warrant of attorney to enter up judgment, and the proceedings under it, wherever they appear to have been obtained by fraud or for an illegal consideration (2). And this relief will be given, even on behalf of persons not parties to the warrant, if the execution under it operates as a fraud upon them (~).

(i) Atkinson v. Jones, 2 A. & E. 439. And see King v. Greenhill, 6 Man. & Gr. 59.

(k) Lewis v. Lord Tankerville, 11 M. & W. 109.

(1) Taylor v. Nicholls, 6 M. & W. 91; Davis v. Trevanion, 2 D. & L. 743; Cocks v. Edwards, 2 Dowl. N. S. 55.

(m) Chipp v. Harris, 5 M. & W. 430.

(n) Cox v. Cannon, 4 Bing. N. C. 453; Jeyes v. Booth, 1 Bos. & P. 97; Price v. Carter, 7 Q. B. 838.

(0) Walker v. Gardner, 4 B. & Ad.

371.

(p) Price v. Carter, sup.

(a) Ward v. Lloyd, 6 Man. & Gr. 787; see Archb. (14th ed.) 1311, and cases therein enumerated.

(r) Martin v. Martin, 3 B. & Ad. 934.

CHAPTER IX.

OF SURETYSHIP.

As to requiring sureties to join in mortgage securities.

Proviso that surety shall be liable to

mortgagee as principal.

SECTION I.

Of the Nature of Contract of SureTYSHIP.

i.—Of Sureties in Mortgage Transactions generally.—Where property is mortgaged which is not immediately realizable by the mortgagee in case of default, or which does not of itself yield an immediate income to meet the payment of interest (as, for instance, in the cases of mortgages of policies of life assurance and of reversionary interests), third persons are frequently made parties to the mortgage deed for the purpose of guaranteeing the payment of principal and interest, or of interest alone, and the performance of covenants on the part of the mortgagor necessary for the maintenance of the security.

In order to obviate the risk which the mortgagee runs in such cases of losing his remedies against the surety by reason of subsequent transactions between himself and the mortgagor, who is the principal debtor, it is the usual practice that the surety should enter, jointly and severally with the mortgagor, into all the covenants and stipulations, the performance and observance of which the surety is intended. to guarantee, and that a proviso should be inserted in the mortgage deed that, although, as between the mortgagor and the surety, the latter is only a surety, yet that, as between himself and the mortgagee, he shall be deemed a principal debtor, and shall not be released by any subsequent transaction between the mortgagor and mortgagee which would otherwise have that effect (a). The effect of such a proviso is

(a) See Dav. Conv. (4th ed.), vol. ii. pt. ii. p. 603; Key & Elph. Conv. (7th ed.), vol. ii. pp. 39, 40, 117.

materially to vary, and, indeed, to a great extent, to exclude, the operation of the rules of law which, in the absence of express contract, regulate the relations of principal and surety, as between them and the creditor.

A proviso to the above effect is inserted in all well-drawn mortgages to which sureties are parties; but cases not unfrequently occur in practice where it appears from the terms of the instrument, or from the circumstances of the case, that one or more of the parties to a mortgage, to a mortgage deed or equitable charge, are merely sureties for the payment of the debt by the principal debtor or debtors. A full and general consideration of the law of principal and surety would be foreign to the scope of the present treatise, but it is proposed in the following pages to consider this subject so far as relates to the liabilities, rights and remedies of sureties in mortgage transactions.

Chap. IX.

§ 1 (i).

dence as to

Before the Common Law Procedure Act, 1854 (b), if it Parol eviappeared by the instrument itself that a person was thereby suretyship. jointly and severally bound with the principal debtor for payment of the debt, parol evidence was inadmissible to prove that he was only a surety (c). But in equity, in such a case, the fact was always provable by parol evidence (d). So, where in a suit to redeem, the mortgagors alleged that they were sureties only, the mortgagees were compelled to discover their dealings with the alleged principals (e).

may become

subsequent

Where two persons are originally co-debtors, they may, by Co-debtors subsequent arrangement between themselves, without the con- principal and currence or consent of the creditor, make one of them primarily surety by liable for the debt and the other a surety only; and if notice arrangement. of such arrangement is given to the creditor he will be bound thereby so as to render him liable to the risk of losing his remedies against the surety by subsequent dealings with the person who has become the sole principal debtor, as by giving time to him (ƒ).

(b) 17 & 18 Vict. c. 125.

(c) Lewis v. Jones, 4 B. & C. 506. (d) Craythorne v. Swinburne, 14 Ves. 160, 170; Clarke v. Henty, 3 Y. & C. (Ex.) 187. See Macdonald v. Whitfield, 8 App. Ca. 733. See now the Jud. Act, 1873 (36 & 37 Vict. c. 66), 8. 25 (11).

(e) Bridgwater v. De Winton, 33 L. J. Ch. 238.

(f) Rouse v. Bradford Banking Co., (1894) 2 Ch. 32, C. A.; affirmed in D. P. on other grounds, (1894) A. C. 586. See Oakeley v. Pasheller, 4 Cl. & F. 207; Overend, Gurney & Co. v. Oriental Financial Corp., L. R. 7 H. L. at p. 360.