and the attestation was held insufficient. In Poole v. Hobbs, 8 Dowl. P. C. 113 Witness G. E., *defendant's attorney, named by

him, and attending at his request," was held not to satisfy the [*793

second requisition. The authorities upon the subject were reviewed in Lewis v. Lord Kensington, 2 Com. B. 463 (E. C. L. R. vol. 52), and the general rule of strictness not questioned, though an attestation was there held sufficient which did not in terms comply with the statute: there was, however, substantially a clear fulfilment of the directions. So in Holt v. Kershaw, 5 Dowl. & L. 419, an attestation was held sufficient in which the party did not literally declare himself to be, or to subscribe as, attorney for the person executing; but the material allegations were in substance distinctly made. [ERLE, J.-I should have thought that, if the whole skill of Westminster Hall had been united to frame a perfect attestation, it would have been like that in Lewis v. Lord Kensington. Yet it passed with great difficulty.] The attestation here is much farther from the terms of the statute. In Hibbert v. Barton, 10 M. & W. 678,† the cognovit purported to be "witnessed by me, W. P., as the attorney of the said W. Barton, attending at the execution hereof at his request, and expressly named by him;" and this was held not sufficient. [ERLE, J.-I was counsel in that case, and never could understand the reason of the decision to this hour.] Consistently with the attestation, the attorney might not have acted for the party executing until the very moment of execution. He might not have read over or explained the document, or had the opportunity of doing so, as attorney for that party. [ERLE, J.-Parke, B., says there: "I agree that no precise form of words is rendered necessary for this purpose by the Act; but still those which are used must be *such as will enable the Courts to collect both the facts which I [*794 have stated, namely, that the attesting attorney was present for the purpose of advising the defendant as to the nature and effect of the instrument, and that he attested it as such attorney." He admits, therefore, that, if those two things could have been collected from the document, the attestation would have been valid.] The two facts must be collected by construction of the document itself; not by inference. [Lord CAMPBELL, C. J.-Or only by necessary inference.] Here, anything that was done by the attesting solicitor until the very act of attestation might have been done before he became attorney for Pickering, and even in the capacity of attorney for Pocock. Whether this was so or not, the rule is that an attestation of this kind shall be beyond the reach of quibble. [COLERIDGE, J.-And that things which might appear on the instrument should not be left as matter of proof.] In Gay v. Hall, 5 Dowl. & L. 422, an attestation not stating that the attorney was expressly named by the defendant, and attended to inform him as to the nature of the instrument, was held good, but on the ground that the words of sect. 9, beginning "which attorney shall subscribe,"

&c., were expressly followed. The objection now taken is not barred by lapse of years; an application of this kind may be made at any time; 2 Chitt. Archb. 858, 8th ed. (a) (The plaintiff's counsel did not dispute this.)

B. C. Robinson and Lush, contrà, were desired to argue the second point only. [Lord CAMPBELL, C. J.-The question on that is, whether it be a necessary *inference from the words used that the requi*795] sitions of the statute have been complied with.] As to declaring that the party who attests is attorney for the party executing, that is done by the subscription; the words of sect. 9 being "shall subscribe his name as a witness," "and thereby declare himself to be attorney," &c. [COLERIDGE, J.-Can that be by the mere subscription? Lord CAMPBELL, C. J.-It is impossible.] Parke, B., in Elkington v. Holland, 9 M. & W. 659,† was inclined to think that the declaring might be by simply subscribing. [ERLE, J.-That was before Hibbert v. Barton, 10 M. & W. 678.t] Lewis v. Lord Kensington, 2 Com. B. 463 (E. C. L. R. vol. 52), and other cases show that, to fulfil the requisitions of sect. 9, a specific form of words is not necessary: it is enough if all the expressions used lead to the conclusion that the subscribing party attends as attorney for the party executing, and subscribes as such. The words here are equivalent to those in Gay v. Hall, 5 Dowl. & L. 422. The attestation plainly intimates that, when the warrant of attorney was executed, Clarke was present throughout. [Lord CAMPBELL, C. J.-He ought to have been so present in the character of attorney for Pickering.] It is not consistent with the words that an attorney for Pickering should have been present at first, but should have walked out, and then another attorney, Clarke, should have come in and attested. Clarke states that he read over and explained the document. [Lord CAMPBELL, C. J.-That may have been otherwise than as attorney for Pickering.] The same might be said if he had actually declared that he subscribed as Pickering's attorney. He states here that, at the request, &c., of Brooks, Coghlan, and Pickering, *he subscribes, &c., as "the" attorney on their behalf, which excludes the supposition of another being employed.

*796]

Cur. adv. vult.

In the ensuing vacation (June 18th), the three learned Judges who heard the argument, being divided in opinion, delivered judgment seriatim.

Lord CAMPBELL, C. J.-I am of opinion that this attestation is insufficient. The rule established by Hibbert v. Barton, 10 M. & W. 678,† and other cases cited seems to be that, if the form given by stat. 1 & 2 Vict. c. 110, is not exactly followed, the words used must by necessary implication show that all the three requisites of the statutable attestation have been complied with. Here the attorney sufficiently

(a) P. 894 in 9th ed., 1856.

subscribes his name as a witness to the due execution of the warrant of attorney, and states that he subscribes as such attorney; but does he "thereby declare himself to be attorney for the person executing the same?" that is to say, that he acted as the attorney of the party in this transaction, doing what is required of such attorney to give validity to the instrument. According to probable intendment from the words "having first read over and explained to them and each of them the nature and contents hereof," it may be inferred that he did so as their attorney and at their request: but this is not a necessary inference; for he may have read over the document and explained it, as the attestation states, without any request from them and before he was employed by them as their attorney. *It is painful to consider such sub[*797 tleties; but we are bound to give effect to them if we would follow former decisions upon this enactment of the Legislature for the protection of debtors.

COLERIDGE, J.-The question in this case is, whether the provisions of stat. 1 & 2 Vict. c. 110, s. 9, are satisfied by an attestation to the execution of a warrant of attorney by three persons named therein, which is in the following words. (His Lordship here read the attestation, for which see p. 790, antè.)

The section enacts that "no warrant of attorney to confess judgment in any personal action, or cognovit actionem, given by any person, shall be of any force unless there shall be present some attorney of one of the superior Courts on behalf of such person, expressly named by him and attending at his request, to inform him of the nature and effect of such warrant or cognovit, before the same is executed; which attorney shall subscribe his name as a witness to the due execution thereof, and thereby declare himself to be attorney for the person executing the same, and state that he subscribes as such attorney."

In construing an Act of parliament, our first business, I conceive, is to examine the words themselves which are used; and, if in these there be no ambiguity, it is seldom desirable to go further; and, although from the common uncertainty of language we may very frequently be driven to ascertain the intention by a consideration of the preamble where it recites the object, or of the previous common law where the statute clearly alters or supersedes it, in order to settle the meaning of the enactment itself, yet the object still is only to ascertain *the mind of the Legislature as expressed in words: and, when [*798 in either of these ways you have arrived at the meaning, I think nothing is more dangerous than to flinch from that conclusion because we think the enactment is less wise or efficacious than it might have been made, or even wholly fails of its object. Perhaps the most efficacious mode of procuring good laws, certainly the only one allowable to a court of justice, is to act fully up to the spirit and language of bad

ones, and to let their inconvenience be fully felt, by giving them their full effect.

The clause in question has obviously two parts. Certain things it requires to be done before execution: an attorney must be present on behalf of the person about to execute; he must have been expressly named by that person; he must attend at his request; and he must inform him of the nature and effect of the instrument he is about to execute. All this precedes execution, and, à fortiori, attestation: and whether all this has been complied with is left in case of dispute to be proved extrinsically by evidence: no particular of it need appear to have been done on the face of the instrument. Then comes the execution, and the provision as to the form of attestation. The same attorney spoken of before is now to become the witness; and in discharging this distinct duty he is to do three things: first, he is to subscribe his name as witness; secondly, he is in the attestation to declare himself the attorney for the person executing; thirdly, he is also in the attestation to state that he subscribes as such attorney.

The two parts seem to me entirely distinct, and framed with different objects: both must be complied with, or the instrument will be of no force. If the attorney has *failed in any one of the requisites *799] in fact which the former part requires, it will be in vain to rely on an attestation faultless on the face of it: if the attestation be deficient, or informal in any particulars on its face, that cannot be cured by its stating, or its being proved, that in fact he fulfilled all the requirements of the former part.

. In the attestation in question, H. C. Clarke has subscribed his name as a witness he has stated that he has so done as the attorney of the parties executing: but he has not beyond this and in express terms declared himself to be their attorney.

There is not, then, a literal compliance with the statute. Is there, then, a virtual one? It appears to me not: and I wish to observe that this is not the same question as whether the attestation shows that the parties had substantially all the protection and information which they could reasonably desire, or the statute intended. The protection and information which they could reasonably require, and which the statute intends, must be given before execution, and before attestation; and we are now upon a question as to the sufficiency of the attestation; it is not enough that Mr. Clarke should have been de facto such an attorney, so named, so requested, and so discharging his duty, as the section requires, before execution: he must, beyond this, declare in his attestation on the face of it that he is the attorney of the parties.

Now there can be only two ways in which this attestation can be said to show a virtual compliance with this requirement: the first, that to state that he subscribed his name as the attorney is the same as to declare himself to be the attorney. But, if that be so, I remark

[*800

*first that you may then strike the words out of the statute: you give them no distinct meaning at all. And, secondly, that in common sense the two parts of the sentence have not the same mean. ing, are not tautologous: a man may very well subscribe his name as attorney, and state truly that he does so, without being the attorney in the transaction: if he come in at the last moment before the execution, he might do the former and yet not be in a condition to make the declaration as to the latter.

The second mode in which it may be argued that this attestation shows a virtual compliance with the statute is in its asserting that H. C. Clarke has subscribed his name at the request of the parties and in their presence, and that he had first read over and explained to them and each of them the nature and contents of the instrument; in other words, the argument is that to declare he has performed the duties of an attorney to the parties in the transaction is the same as to declare that he is their attorney. Now here again it is obvious to remark, first, that this particular enumeration does not include all the particulars expressly required by the statute; it does not include the being "expressly named by" the parties; secondly, that, if the statute only intended the attestation to show on its face a compliance with the particulars required before execution, its language is most inappropriate for any such purpose; and, thirdly, that to perform the duties of attorney to a person in this matter, and to be his attorney in it, may be in fact, according to this statute as expounded in many decisions, very different things. If the plaintiff's attorney, "at" the "request" of the parties, had read over and explained to them and each of them the *nature" of the instru[*801 ment and its contents before execution and attestation, and had "set and subscribed" his "name as the attorney on their behalf attesting the execution" thereof, he yet would not have been their attorney, nor could he truly have declared himself to have been so. In other words, the present attestation may be true in every particular, and yet the requisites of the statute not complied with.

But, lastly, it is obvious on reading the statute that the precisely worded provisions as to the attestation are intended as an additional security, certainly to the debtor, probably to both parties, beyond what is afforded by those which guard the execution. Whether such additional security is thereby gained, or whether it was on the whole wise to seek for it, is immaterial to us, whose only business it is to see that the provisions, such as they are, are complied with.

I conclude, then, that this attestation neither literally nor in substance satisfies the requisites of the statute; and I feel neither regret nor satisfaction in arriving at any such conclusion in this, or in any similar case. In deciding them we ought not to have our minds distracted by looking to the right or left at the particular circumstances, which we very often know but imperfectly after all, and which, if we