Manhattan Company against Brower

Manhattan Company against Brower. 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, Hoffman consented to withdraw his motion, and let the judgment stand as a security for the debt, the plaintiffs delivering a declaration, and agreeing to go to trial on the merits. In all cases not provided for by the rule-i of the supreme court, the practice of the K. B. is said to be adopted. Dubois v. Philips, 5 Johns. Rep. 235. а) In Hutson v. Hutson, 7 D. & E. 8, court of K. B. held, that the benefit of the English rule referred to, could not be waived by a prisoner, and that the presence of the plaintiff's attorney was insufficient, though acting for the prisoner at his request and entreaty, and though pressed to send for another attorney, to witness the instrument, with the nature of which the defendant was perfectly acquainted. [MAJORITY] Motion withdrawn.