Hill v. Lambert & Bros. , 1 Minor 91 ( 1822 )

JUDGE Saffold

delivered the opinion of the Court.

In this case there are several assignments of Errors. The ■counsel for the defendant in Error contends that the judgment of the Court below was on confession. The counsel for the plaintiff, that it does not so appear from the Record, and cannot operate as such, inasmuch as the defendant in the Court below appeared by attorney and notin proper person.

The entry in the Record is as follows: “ This day came “ the parties by their attornies ; and the said defendant says “ that he cannot gainsay thé plaintiff’s right of action for the “ sum of $2400, with 10 per cent, interest thereon, from the “25th day of May, 1819, until paid, with costs. Therefore “it is considered by the Court, that the -plaintiff recover “ against the defendant the sum of $2400 debt; also the fur- “ ther sum of $86 and-cents damages, as aforesaid con“fessed, together with costs,” &c.

The form of a confession of judgment in the English books of precedents, as in Wentworth and in Tidd, reads, And “the said defendant, by his attorney, comes and defends the '“wrong and injury when, &c., and says he cannot deny “ the aforesaid action of the said plaintiff, nor but that 'he “ owes to him the sum of-r in manner and form as the said plaintiff has above declared against him; Therefore it is considered,” &c. In these forms, the entry is “ that he “-cannot deny the aforesaid action of the said plaintiff, nor but “ that he owes” a specified sum. The entry in this case is “ that he cannot gainsay the plaintiff’s right of action— words which convey the same idea, and were no doubt so intended by the party on whose behalf they were used. Neither in this nor in the English forms is the term confess used in the cognovit. In this case the judgment is for a sum stated as so much confessed; a fair and necessary conclusion from the words before used.

Can a valid confession be made by attorney ? and if so, must the authority of the attorney appear in the Record ?

The precedents referred to shew the practice in England. We conceive that a confession, either in proper person or by attorney, is valid.

The old practice of filing and entering of Record the warrant of attorney has been relaxed, for the convenience of parties, and without the aid of a Statute; and now, as was said in the case of Gaines and others against the Tombeckbu Bank, ante, p. 50,) if an attorney takes upon himself to appeal’, the Court looks no farther, proceeds as if he had authority, and leaves the party to his action against him should it be otherwise (1 Sellon, 95). We have not discovered that it is more necessary that the authority of the attorney should appear in the Record when he confesses a judgment, than when he. pleads, or takes other steps in the name of his ■client in the progress of an action. It is not the practice in our Courts to file and enter of Record the warrant of attorney. If he acts without authority he is responsible both to the person whom he represents and to the Court. We conceive that we are bound to presume that he has legal authority,until the contrary shall be expressly shewn. This then is a valid judgment by confession ; and, by virtue of our Statute, operates as a release of all' Errors.

By all the Court. — Lei the judgment.be affirmed.