Gayle v. Foster , 1 Minor 125 ( 1823 )

Judge Saffold

delivered the opinion of the Court.

The 'first assignment cannot ■ prevail after judgment by ■confession. (See Caller against Denson, ante, p. 19.) As to the second assignment—The Act of 1807, (Laws Ala. 455,) authorizing the Court on judgments on demurrer, confession, &c. in actions of Debt for a sum certain, to issue executions for the sums of such judgments, with such interest by way of damages as may be legally due, &c. — can only apply to cases in which the confession does not specify the sum, as if it be for the Debt in the declaration mentioned — the amount of the specialty or Note, &c., or for a certain sum and interest from a given day. Judgment by confession for a sum certain defines the amount of recovery with no less precision than a verdict. The plaintiff is not compelled to accept a confession for less than he claims, and may proceed in the recovery of so much as is not confessed: but if he accepts and proceeds to final judgment on the cognovit, it is conclusive; and it is to be inferred that the residue has been adjusted by payment or by agreement of the parties. A confession of judgment amounts by the Statute to a release of Errors : but this can apply only to Errors existing at the time of the confession, and could not have been intended, where the confession was for a specific sum, to authorize the rendition of judgment for a different and larger sum.

On the second assignment the judgment must be reversed and rendered here for the sum confessed.