THE defendant in this fuit being in cuftody on mefne procefs, executed a warrant of attorney to confefs judgment for the amount of the debt, but it was not witnefled by any perfon as his attorney, afling 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 fome affidavits ihewing that the defendant at the time of executing the inftrument, was perfectly well apprifed of its nature, which had been explained *512t0 by an attorney, though not a finally his attorney, or the attorney of the plaintiffs, and that the whole tranfañion was bona fide, and without furprife.
The inclination of the court appearing to be againft the ' application, the proceedings having been within the fpirit of the rule relied on ; and, it being fuggefted at the bar, that -it was doubtful, whether the Engliih rules of E. 15. Car. 2. and E. 4. G. 2, had ever been made a rule of this court, though the practice was acknowledged to have been in conformity to its regulation,
Hoffman contented to withdraw his motion, and let the judgment ft and as a fecurity for the debt, the plaintiff's ■delivering a declaration, and agreeing to go to trial on the merits.*
In Hutson v. Hutson 7 D. & E. 3, court of King’s Bench, held that the benefit of the Engliih rules referred to, could not be waved by a prifoncr, and that the prefence of the plaintiff’s attorney was infufficient, tho ’ adting for the prifoner at hisrequeit, and entreaty, and though prefied to fend for another attorney, to witnefs the inítrument, with the nature of which the defendant was perfectly acquainted