Definition
A warrant to sue and defend was a formal written authority granted by a party to an attorney, empowering that attorney either to commence a lawsuit on the party's behalf or to appear and defend a suit brought against the party. In its earliest form, the instrument derived from a special warrant issuing from the crown itself, which authorized the appointment of an attorney for purposes of litigation. Over time, the term came to describe any such formal grant of authority — whether crown-issued or party-issued — that stood on the record as the procedural predicate for an attorney's appearance in court.
The warrant served two distinct but related functions: (1) authorizing offensive action, i.e., the initiation of a suit; and (2) authorizing defensive action, i.e., the entry of an appearance to contest a suit. These two functions are reflected in the term's paired structure — to sue and to defend.
The instrument is now entirely obsolete in practice. Though formal entries of warrants to sue and defend were retained on court records long after the underlying practice had become nominal, the warrants themselves had ceased to carry independent procedural significance well before modern rules of civil procedure replaced the common law forms of action.
---
Common Confusion
A warrant to sue and defend should not be confused with a modern power of attorney, a retainer agreement, or a notice of appearance — all of which serve analogous functions today. The historical warrant was a formality of record, not a private contract between client and counsel. Its presence (or its formal entry on the record) was a procedural requirement of the old common law system, not merely evidence of an attorney-client relationship. Researchers encountering the term in historical sources should also distinguish it from a warrant of attorney, which is a related but distinct instrument: a warrant of attorney authorized confession of judgment and carried specific procedural consequences beyond a simple grant of authority to appear.
---
Why It Matters in Research
This term is a historical artifact that appears almost exclusively in pre-nineteenth-century common law records, treatises, and pleading manuals. Researchers working in early American or English legal history — particularly materials predating the procedural reforms of the mid-1800s — will encounter formal recitations of warrants to sue and defend in case records and pleading books where their presence is ceremonial rather than substantive.
The principal research trap is treating the formal entry of a warrant on the record as meaningful evidence of something contested or disputed between the parties. By the time most surviving American court records were created, the entry of a warrant to sue and defend was a rote formality. Its presence tells a researcher that counsel appeared; it tells nothing about the scope or terms of the representation.
The connection to the warrant of attorney is the most important cross-reference. Researchers who need to understand the broader system of attorney authority in common law practice should follow that thread carefully, because the two instruments overlapped in function but diverged sharply in consequence — particularly around confession of judgment and cognovit practice, which carried real procedural teeth.
Burrill's Practice (cited in both source dictionaries as "1 Burr. Pr. 39") is the primary primary-source reference for the procedural mechanics of these warrants in American practice. Blackstone's Commentaries (3 Bl. Comm. 25) provides the English foundation. Both sources agree that the instruments were already disused by the time their treatises were written, which helps date the effective obsolescence of the practice.
---
Historical Dictionary Support
Black's and Burrill's entries are nearly identical in substance and language, both tracing the warrant to its crown origins and both citing the same authority (3 Bl. Comm. 25 and 1 Burrill's Practice 39). The agreement across these sources reflects that the term had already been fixed as a historical entry by the time both dictionaries were compiled — neither treats it as live doctrine requiring analysis, only as a term a practitioner might encounter in older records.
Both sources make the same critical editorial observation: "These warrants are now disused, though formal entries of them upon the record were long retained in practice." This sentence is more analytically useful than it first appears. It draws a distinction between the substance of a practice and its formal shadow — a distinction that recurs throughout procedural history and that researchers should recognize as a pattern. A form can outlive its function by generations.
Neither dictionary addresses the precise moment of obsolescence or the jurisdictional variation in how long formal entries persisted. That gap is worth flagging: researchers in American jurisdictions may find that some states retained the formal entry longer than others, and the presence of such an entry in a nineteenth-century record should prompt inquiry rather than assumption.
---
Encyclopedia Cross-Reference
See Law Mind Encyclopedia: History of Civil Procedure; Warrant of Attorney; Forms of Action
---