1851.

FRANCIS CAZABON

21st June, THE Appellants in this case, on the 26th of May, 1846, filed a declaration in the Supreme Civil Court According to in the Island of Trinidad, against the Respondent, a the practice of the Supreme resident there, in an action of covenant.

Court at Tri

On the 20th nidad, since of June, in the same year, the Defendant appeared in the passing of theOrdinance, person, and by a cognovit under his hand confessed No. 5, of 1845, the action.

as regards cognovits,con

fession is

This cognovit was signed by the Defendant, in the signed by the presence of Henry Stone and James Etter, the attestDefendant in ing witnesses, and appended thereto was a declaration the presence signed by Henry Louis Jobity, the solicitor named by the Defendant, and attending at his request; by whom the cognovit or confession of judgment was expressed to

of his Solicitor, and at

tached to the proceedings in the cause, and on application to the

sitting Judge

:

* Present The Chief Justice of the Common Pleas (Sir John by the Plain- Jervis), the Right Hon. Dr. Lushington, the Right Hon. T. Pemtiff's Solicitor berton Leigh, and the Right Hon. Sir Edward Ryan. and produc

tion of the

confession, and on appearance and consent of the Defendant's Solicitor, final judgment is entered up by the Registrar.

A cognovit actionem, executed in 1846, was set aside by the Court at Trinidad, on the ground that the cognovit was not signed by the Defendant in the presence of the Escribano of the Court according to the Spanish laws of 1534 and 1560. Held on appeal, reversing the order setting aside the cognovit, that those laws did not apply to cognovits, and that the cognovit being executed according to the uniform practice of the Court since the introduction of the Ordinance of 1845, was a good and binding instrument.

have been read over and explained to the Defendant, previous to his execution thereof.

On the 22nd of June, 1846, final judgment was entered up in the action against the Defendant, by the Registrar of the Court, for the sum of £2718. 12s. sterling, and notice thereof in writing, under the hand of the Plaintiffs' solicitor, dated the 2nd of December, 1846, was personally served upon the Defendant's solicitor.

Default having been made by the Defendant in payment of the first instalment, payable according to a proviso in the cognovit, the Plaintiffs, on the 15th of April, 1848, issued a writ of extent against the lands, tenements, rents, and hereditaments of the Defendant, for levying the sum of £677. 1s. 8d., the further sum of £81. 5s., for two years' interest on that sum, from the 1st of March, 1846, to the 1st of March, 1848, and the further sum of £10. 5s. 4d. for costs taxed and allowed, together with interest on the two several sums of £677. 1s. 8d. and £10. 5s. 4d., which writ was on the same day delivered to the marshal, to whom the execution thereof belonged.

The marshal issued his warrant for execution, and on the 5th of October, 1848, he made his return to the writ, and thereby certified that he had, in execution and by virtue thereof, levied upon certain messuages and lands, which were in the return set forth; and on the 6th of October, 1848, an order of the Supreme Court was made on the application of the Plaintiffs' solicitor, appointing the 22nd of January then next, for the sale of the properties.

On the 22nd of January, 1849, a terceria and claim

VOL. VII.

2 G

1851.

THE COLONIAL
BANK

v.

CAZABON.

1851.

of preference was filed in the same Court, on behalf THE COLONIAL of the Registrar of the Court, in respect of a prior

BANK

v.

CAZABON.

mortgage or charge on a portion of the property in his favour. And on the same day a part of the property levied upon, was duly put up to sale by the Registrar of the Court, and one parcel thereof was sold to Robert Johnstone.

Various proceedings were subsequently taken in the matter of the sale, and ultimately, on the 28th of April, 1849, the report of the Registrar was made in the cause, whereby Johnstone was allowed to be the purchaser of the lot so sold to him, and all the matters and things therein contained were ratified and confirmed by the Court.

On the 3rd of July, 1849, counsel for the Defendant applied for a summons to show cause why the cognovit of the 20th of June, 1846, and all subsequent proceedings, should not be set aside for irregularity, upon the grounds, that the cognovit should have been interpreted to the Defendant in the French language, he being a foreigner by birth, and that being the only language which he understood, and that the cognovit was not so interpreted by such interpreter; that the cognovit was irregular and void, not having been attested according to the form of the Ordinance in such case made and provided, inasmuch as the cognovit was not witnessed by any solicitor or advocate attending at the request of the Defendant, but was witnessed by two persons named Stone and Etter, who were not the solicitors of the Defendant, and, because no solicitor or advocate attending on the part of the Defendant had subscribed his name as a witness to the due execution thereof, and thereby declared himself

1851.

BANK

V.

CAZABON.

to be the solicitor or advocate of the Defendant, and stated that he subscribed as such solicitor or advo- THE COLONIAL cate, according to the form required by the Ordinance; and further to show cause, why the several sums of money received by the Plaintiffs should not be refunded to the Defendant. This application was supported by two affidavits of the Defendant, in one of which he deposed, that the confession was irregular, inasmuch as the same was not executed in the pre-sence of the Escribano or Registrar of the Court; and in the other of which he set forth, that certain dealings and transactions had taken place between the Colonial Bank and one Scippion de Barreo and himself; that the Bank, threatening to enforce payment of certain notes when due, he, the Defendant, was prevailed upon and induced to execute the deed of covenant, on which the action was founded; that the Bank, having commenced the present action at law upon the deed, he was further prevailed upon and induced by the importunities of the Bank and Scippion de Barreo, to execute the cognovit; that the cognovit was not properly explained to him, or if properly explained to him, that he did not understand the import of it; that he was of the age of seventy-eight years, and an ignorant man, and unacquainted with mercantile dealings, and that he understood the English language very imperfectly, and not sufficiently to transact any business in it; that he was a foreigner by birth, being a native of the Island of Martinique; that the cognovit was not attested by an interpreter of the French language, and that it was irregular and void, not having been attested according to the Ordinance in such case provided.

2 G 2

1851.

This application was heard on the 3rd of July, 1849, THE COLONIAL before Mr. Justice Bowen, and on the 5th of July was refused by him.

BANK

V.

CAZABON.

On the 23rd of July, the Defendant renewed the application by moving the Court for a rule to show cause why the cognovit and all the subsequent proceedings should not be set aside for irregularity, both on the grounds urged in the former application, and because the Defendant had not executed the cognovit in the presence of the Escribano or Registrar of the Supreme Court, and attested by him, and because the Defendant had appeared in person, without first delivering to the Registrar a statement in writing of his domicile. This application was supported by the affidavits used on the former occasion.

A rule to show cause was granted substantially in the terms of the application.

On the 17th of August, Jobity filed an affidavit on the part of the Plaintiffs, in which he stated, amongst other things, that he was a solicitor and sworn interpreter of the English and French languages; that he met the Defendant at the chambers of Charles William Warner, barrister-at-law, on the 20th of June, 1846; that the cognovit was handed to the Defendant, and that the Defendant accepted him as his solicitor in that cause; that he read and interpreted, in the French language, the cognovit to the Defendant; that he explained the nature of the cognovit to the Defendant, and inquired of him if he understood it, to which the Defendant replied that he did; that the Defendant then signed the cognovit in the presence of himself and James Etter, then a clerk of Warner; that he the deponent immediately afterwards, and in the