Richards v. McMillan , 6 Cal. 419 ( 1856 )

Mr. Justice Heydenfeldt delivered the opinion of the Court.

Mr. Justice Terry concurred.

The complainant contends that the defendant’s judgment against Randall is void, because it was a judgment by confession, and the statute regulating such confessions of judgment was not strictly pursued. The answer to this is, that conceding the irregularity for the purpose of the argument, yet the statute affixes no such consequence to it as to make the judgment a nullity. The intention of the Legislature was to prevent fraudulent confessions, hut this cannot be attained by destroying virtuous judgments, although their preliminary proceedings may be affected by irregularity. This view is not at all destructive of the wholesome operation of the statute, for it is clear to our minds that when the statute is not strictly pursued it is prima facia evidence of fraud, and this because where a party fails to make all the disclosures required by the Act, the presumption is that he has something to conceal. But this presumptive evidence, like all presumptions, can he rebutted. It merely throws upon the plaintiff the burthen of proving that his judgment was fair, and not fraudulent.

In this ease, upon the proofs and stipulations, there is no pretence of actual fraud, and the fairness of the transaction is specifically conceded.

Judgment affirmed.