McConnell v. White , 1 Minor 112 ( 1823 )

THE Chief Justice

delivered the opinion of the Court.

This was an action of Debt by the defendant against the Error. The declaration sets out, that apromisso-ry Note made by certain persons to White, was afterwards indorsed by Me Connell with his promise to pay the amount; and avers that by reason of- said indorsement, and of the money remaining unpaid after the day by the Note appointed for payment, said McConnell became liable, &c. ■ At a subsequent term McConnell withdrew his plea, and confessed the plaintiff's right of action for a stated amount of Debt tod interest; on which confession judgment was rendered.

McConnell now assigns as Error—

. 1. That no liability, or cause of action against him is shewn in thé declaration. - ' ' .

2. That no demand of the ' makers, or notice to ther in-dorser, is averred. - ,

3. The action is- Debt by payee against the indorser of a promissory Note!

All the assignments are on proceedings had' in the cause before the rendition of judgment, and which in legal presumption were known to the plaintiff in Error before- and at his confession of judgment. Our Statute provides that “ Judgment on confession shall amount to a release of Er- “ rors.” In the case of Caller against Denson (ante, p. 19,) the plaintiff in Error came into the Court below without Writ or declaration, and confessed a judgment ; and this Court decided that, by the operation of this Statute, Errors were released, and affirmed the judgment.

In this case the counsel for the plaintiff in Error contends, that if the judgment should not reversed,, the judgment here should be, that the plaintiff be barred of his writ of Error; and - not that the judgment of the Court below be affirmed. We cannot perceive the reason of the princi-. pie which would place a party who had released all Errors, in a better situation than one who has supposed, or seemed to suppose, that there was Error in the judgment against him. On the affirmance in cases of this latter description the law subjects the plaintiff' in Error to damages. It would seem because he knew or ought to have known that there was no Error in the judgment which he has superseded, and thereby injured the other party. How much more properly may we say that a party superseding a judgment in which he has in effect acknowledged that there is no Error, or, if any, chat he releases all benefit of it, shall be subject to damages under the Statute.

White and Gordon for plaintiff. H. G. Perry for defendant in Erroi,

Let the judgment be affirmed.