Ex parte Hatch , 2 Aik. 28 ( 1827 )

Prentiss, J.

The prisoner must be discharged. It appears by the execution and the copy of the record of the judgment, that the proceedings were not had under the act of 1821, under which alone executions can issue running 120 days; and it appears that the commitment was after the first sixty days had expired. The judgment was confessed under the authority of the act of 1797, under which an execution can run but sixty days. But I think, in case of offsets, a justice may-render a judgment for more than $100. The statute directs judgment to.be rendered, in such case, for the balance, without limitation.

Hutchinson, J. I see no great weight in the objection that a justice should not render a judgment when he takes a confession, but only record the confession and issue execution. It is rather too refined for common justices, and the practice has been otherwise. I think when he records the confession, he may add a judgment for the sum, and then the execution may be in due form of law, and recite a judgment. And it should recite it as rendered by confession, though that is not always done. And I have no doubt but that a justice of the peace may, as mentioned by his honour judge Prentiss, render judgment for a sum over $100, in case of mutual offsetts. For instance, the plaintiff may bring his action upon a note for $90. The defendant may file an offset of twenty or thirty dollars. The plaintiff may then reply an offset of another note of ninety dollars. Then by the plain expressions of the statute, judgment must be rendered for the balance, which, in such case, must exceed $100. Then we may apply the principle, that when process issues from a court that has jurisdiction to issue such process in any case, the officer has a right to presume this to have issued in such a case. It therefore affords ample protection for him. But the party procuring the process, must look at the foundation and see at his peril that there is foundation for the process he uses. Now the foundation of this execution was a judgment .rendered by confession, under the act of 1797, and, as that did .not warrant the execution to run but sixty days, and the prisoner was committed upon it after it had run 119 days, I am clear it was irregular, and the prisoner ought to be discharged.

Royce, J. concurred. Skinner, Ch. J. absent.