ney must subscribe his name to the cognovit as a witness to the due execution thereof, and must thereby declare himself to be the attorney for the person executing the same, and state that he subscribes as such attorney (1 & 2 Vict. c. 110, s. 9) ; and if the cognovit is not executed in this manner, it will not be rendered valid by proof that the person executing it did in fact understand, or was fully informed of its nature and effect (sec. 10). These enactments apply to cognovits in all cases, and not merely to cases where the defendant or person executing is a prisoner (a). They also apply, as will afterwards be seen, to all warrants of attorney.

The attestation in such a case may be in the following form: "Signed by the said A. B. in my presence, and I declare myself to be attorney for the said A. B., and that I subscribe as such attorney. E. F., Attorney-at-Law." (Residence.)

If the defendant in the action in which it is proposed to take the cognovit have been arrested, and the plaintiff be not willing to give up the security of bail, the cognovit should not be accepted until good bail to the action have been put in, in the Court above, and even then, if the cognovit give time to the defendant, that is, if the plaintiff be not at liberty to sign judgment and issue execution immediately the cognovit is signed, it should not be accepted unless both the bail sign an agreement on the back of it that their liability shall continue, for in the absence of such an agreement the acceptance of such a cognovit would discharge the bail. The agreement of the bail may be in the following words: "In consideration of the within-named plaintiff giving time. for payment to the within-named defendant, we consent and agree that our liability as his bail shall continue, as if such time had not been given."

When a cognovit is accepted, the plaintiff's at

(a) As to what is a sufficient naming of an attorney, &c. see post, Part II. chap. 14.

torney should take care that it, or a copy of it, be filed, in pursuance of the statute 3 Geo. IV. c. 39, s. 3, with an affidavit of the time of the signature, within twenty-one days after its execution. If the action be in the Queen's Bench, the original cognovit must be annexed to the affidavit and filed; but if the action be in the Common Pleas or Exchequer, a copy must be annexed to the affidavit and filed, and in that case the original is to be kept by the plaintiff's attorney till it be wanted to sign judgment upon (6). í

When the affidavit is sworn, it must be sent to the agent, that he may file it within the twenty-one days. An attorney should not neglect this, for if the defendant should become bankrupt or insolvent, and the plaintiff should lose his debt in consequence of the cognovit or a copy not being filed, the attorney would probably be liable to his client in an action for negligence.

If the amount of the costs be not ascertained and mentioned in the cognovit, but they are, as is generally the case, to be taxed, the plaintiff's attorney should take care before signing judgment on the cognovit, to get the costs taxed by the Master, and give notice to the defendant of the amount; for if judgment be signed without this having been done, the defendant may have it set aside with costs. The reason for this appears to be, that until the costs are taxed, the defendant cannot know what he is bound to pay.

1

Instead of a cognovit a judge's order, having almost the same effect, has now become very usual; as to this the reader is referred to chap. 8, post.

If the defendant do not offer a cognovit, or if it be not accepted, and when the plaintiff has declared in the action the defendant do not plead in due time, the plaintiff's agent will sign judgment by default. If the action be in debt, this will be a final judgment, and in that case the agent must be furnished with the baod art

(b) See Form of Affidavits, where original cognovit is annexed, and where copy is annexed, in Appendix, sect. 7.

country costs, and he will then get the costs of

the action taxed and send any execution he may non ne me be directed.

But if it be any other of the actions before mentioned, the judgment is only interlocutory; and where the action is brought on a bill of exchange or promissory note, and the principal and interest on the bill for note forms the whole of the demand in the action; or where the action is in covenant, and is brought on a covenant for payment of a sum certain with interest, the amount of damages may be ascertained by a reference to the Master. In other cases. the amount of damages must be ascertained by executing a writ of inquiry. If the damages are to be ascertained by a reference to the Master, the original bill, note, or deed, must be sent to the agent, with directions to take that course, and with a statement of what is due for principal and interest; and then if the defendant have appeared, nothing more is necessary to be done by the country attorney till final judgment is obtained, when he must send the: country charges, and tell his agent what execution he wishes. But if the defendant have not appeared, the agent will send down the summons or rule nisi to compute, a copy of which must be served on the defendant, and the original, together with an affidavit of service, returned to the agent, who will afterwards send down the rule absolute, with the Master's appointment on it, a copy of which rule and appointment must in like manner be served on the defendant, and the original returned to the agent, but no affidavit of this service is necessary.

"

But if a writ of inquiry is to be executed, the agent must be instructed at what place, on what day, and at what hour, the inquiry is to take place, if an attorney have appeared for the defendant, as in that case the agent gives notice of inquiry to the defendant's agent in London: but if no attorney have appeared for the defendant, the plaintiff's attorney gets the notice served at the defendant's house; eight

days' notice of inquiry is necessary, whether it be given by the attorney in the country, or by the agent in London. The agent will, when requested, send the writ of inquiry; but to enable him to make it returnable properly, he ought, in any case, to be instructed on what day it is to be executed (c).

If it be intended by the plaintiff to employ counsel on the inquiry, notice to that effect must be given to the defendant a reasonable time before the inquiry takes place. This notice is usually contained in or served with the notice of inquiry; if it be not given, the expense of counsel will not be allowed in costs: but it must be recollected that an attorney is not justified in employing counsel in trifling or simple cases, and in such cases counsel will not be allowed for in costs, though notice may have been given.

If the action be in debt on a bond conditioned for the performance of any covenant or agreement contained either in the condition itself or in any other deed or writing, breaches of the covenant or agreement must be assigned on the roll, and a writ of inquiry of the damages sustained by such breaches must be executed: this is an exception to the general rule that a writ of inquiry need not be executed in an action of debt, and it is under the statute 8 & 9 Will. III. c. 11, s. 8. There are one or two other exceptions to the rule, but of such rare occurrence as not to be worth mentioning.

If the attendance of witnesses be required on the inquiry, they may be subpoenaed; but witnesses who attend without being subpoenaed, either on an inquiry or at the assizes, will be allowed for if sworn to be material. Many country attornies think that witnesses are not allowed for, unless they have been subpoenaed, but this is a mistake.

The writ must be lodged with the under-sheriff the number of days he requires before the execution

(c) See Form of Notice of Inquiry, in Appendix, sect. 8.

of the inquiry, and at the time appointed the attorney attends with his witnesses, and the inquiry takes place; the writ and inquisition are afterwards obtained from the under-sheriff, and sent, together with an affidavit of increase, and the country costs, to the agent, who will get the costs taxed, and final judgment signed. A Form of an Affidavit of Increase is given in Appendix, sect. 9.