tiff, and one for the Defendant, and that 127. 16s. rent was due to him. The arbitrator had not directed any verdict or judgment to be entered; and the costs of the cause were taxed at 19l. on the rule of Court, which had been obtained, recording the submission. Lens Serjt. had on a former day obtained a rule nisi, that the Defendant in replevin might be at liberty to sign and enter up final judgment against the Plaintiff for 127. 16s., and also for the 191. costs pursuant to this award, and to the prothonotary's allocatin Onslow Serjt. now shewed cause. The case was re ferred before trial, or verdict, and the arbitrator has not directed any verdict to be entered. Per Curiam. It cannot by any possibility be done. Rule discharged with costs. 1817. GRUNDY v. WILSON. WEBB and Another v. ASPINALL. June 25. process sued The rule BEST EST Serjt. had on a former day obtained a rule A cognovit nisi to set aside a judgment, and a cognovit, (for given after the debt and costs of the arrest,) on which it had been out, and beentered up, on two grounds; first, that the cognovit fore declaration is good. being given immediately after the arrest, and before declaration, was void; for, at the time when the De- requiring the fendant acknowledged the Plaintiff's cause of action, presence of an attorney for the Plaintiff had not stated on record any cause of the Defendant action; secondly, that the Defendant had given this cognovit while he was in the custody of the officer, and that no attorney for the Defendant was present when a Defendant he signed the instrument; for that the rule of (a), Court in custody, upon the giving of a warrant of attorney by extends to cognovits. 1817.' WEBB ข. ASPINALL requiring an attorney for the Defendant to be present, when he, being in custody, executes a warrant of attorney to confess judgment, by equity of construction also extends to the case of a cognovit given by a prisoner, although the rule makes no express mention of cognovits. Vaughan Serjt. on this day shewed cause, upon affidavits that when the Defendant signed the cognovit, he came to the Plaintiff's house, unattended by any officer, and that he did not state, nor did the Plaintiff know, that he was in custody in this or any other action. Vaughan contended, that in point of law the Defendant certainly was not then in custody; for the sheriff, in permitting him to come alone to the Plaintiff, had been guilty of permitting an escape; and, therefore, the case was not within the rule. GIBBS C. J. I very well know, that an opinion has prevailed that a cognovit cannot be taken until after declaration but I learn from the officers of this Court, that it has been the constant practice to take cognovits before declaration; and that judgments have been entered upon these cognovits; and, therefore, though I know that a contrary opinion has been cherished by certain persons, I am of opinion that the judgment is regular. The next question is, whether the cognovit is void, within the rule which requires that every warrant of attorney is to be executed in the presence of an attorney for the Defendant, if he be in custody, and that for default of this observance it shall be void. Here it is sworn by the Defendant, that he was ar rested, and went to the Plaintiff, and Webb, the Plaintiff's attorney, to whom he gave a cognovit for a sum, which included 157. debt, and the costs of the writ. The plaintiff answers this, by saying, that when the the Defendant came tothe Plaintiff, he, the Defendant was alone, and did not state to the Plaintiff, that he was in custody in this, or any other cause; and that he, the Plaintiff, did not know or believe that the Defendant was in custody in this or any other cause. It is very remarkable how the Plaintiff, Webb, swears this: he does not state how, or under what circumstances, the application was made to the Defendant for this cognovit; but this I know, he had sued out bailable process against the Defendant, and had directed his attorney to arrest him, and had made him give a security for the costs of the arrest. Did he then believe that the Defendant had not been arrested when he received the costs of the arrest? Whatever his idea of the meaning of the word knowledge may be, I think he could not but be assured how the facts were. This, therefore, we think, comes within the rule that a cognovit, given by a Defendant in custody, must be executed in presence of his attorney; and that it therefore is void, and the rule for setting aside this judgment with costs must be made (a) (a) ARNOLD v. Lowe. BEST Serjt. shewed cause against a rule which had been obtained by Vaughan Serjt. for setting aside a cognovit, on the ground that it was given by a Defendant in custody, and that no attorney for the Defendant was present at the execution. In support of the rule was cited Absolute. the case of Paul v. Cleaver (a), (a) Ante, II. 360. Rule absolute. 1817. WEBB V. ASPINALL. 1817. June 2 END OF TRINITY TERM. AN INDEX OF THE PRINCIPAL MATTERS CONTAINED IN THIS VOLUME. A ACTION. WHERE a turnpike act directed that if any person had cause of action against the trustees, he Cooch. venanted, from time to time, and at Page 1 ACTION ON THE CASE. 1. An action upon the case in the 392 |