Mr. Chiee Justice McIver,
dissenting. This was a motion made by the Ware Furniture Company, a junior judgment creditor of the said J. B. Steadman, to have certain confessions of judgments, in favor of the several plaintiffs in the above named cases against the said J. B. Steadman, declared void upon the following grounds: 1st. Because the Court in which such judgments were entered had no jurisdiction, for the reason that neither the plaintiffs nor the defendant were residents of the county of Orangeburg, in which the judgments were entered. 2d. Because said confessions were made before the deputy clerk, W. G. Alber-goti, and not before the clerk of the court of common pleas for Orangeburg County. 3d. “Because the statements on *33which said confessions were founded were each for itself insufficient.” 4th. Because the statement on which the confession of judgment in favor of the Imperial Fertilizer Company was entered was not only insufficient, but also untrue. 5th. Because the affidavits in each of the cases purports to have been before J. D. Milhous, as a notary public of South Carolina, who was at the time a United States officer, and hence the affidavits were not sworn to as provided by law.
The motion was heard by his Honor, Judge Benet, upon the following agreed facts: 1st. That at the time of entering these judgments the said Steadman was a resident of Barnwell County, and the several plaintiffs were residents of the county of Charleston. 2d. That at said time G. L. Salley was clerk of the court of common pleas for the county of Orangeburg, and the said W. G. Albergo ti was his duly appointed deputy. 3d. “That each and every of the said judgments were afterwards, and on the same day,, duly entered and enrolled as judgments of the Court of Common Pleas in and for the counties of Aiken, Barnwell, and Dex-ington by filing transcripts thereof in each of the said counties.” 4th. That the defendant, J. E. Steadman, at the time of said confessions of judgments owned real estate in Orangeburg, Barnwell, Dexington, and Aiken Counties. 5th. “That on the 3d of March, 1894 (the day on which the affidavits purport to have been sworn to), J. D. Milhous was United States postmaster at Denmark, in the county of Barnwell, and at the same time was a duly appointed and qualified notary public under an appointment made previous to his appointment as postmaster.” At the hearing certain testimony given by Steadman in a previous case of Drake v. Steadman and others, which is set out in the “Case,” was also used, apparently by consent. The Circuit Judge having reached the conclusion that the jurisdictioual objection presented in the first ground for the motion was well taken, found it unnecessary to consider any of the other points raised, and granted the motion and rendered the decree, *34which will be incorporated in the report of this case, declaring the judgments null and void, vacating and setting aside the same, and directing the clerk to so mark them.
From this judgment the plaintiffs in the several judgments appeal upon the grounds set out in the record, which practically raise the single question of jurisdiction. The respondent also, in accordance with the proper practice, has given notice that this Court would be asked, upon the hearing of this appeal, to sustain the judgment appealed from, upon the other grounds set forth in the notice of the motion, as hereinabove stated.
The first question to be considered is the jurisdictional question upon which the Circuit Judge bases his decree. That question may be stated as follows: Does the fact that a confession of judgment, under _the provisions of chapter III., of title 12, of part II., of the Code of Procedure, sections 383-385, is entered and filed in the office of the clerk of the court of common pleas for a county other than that in which the defendant resides, render such judgment void for lack of jurisdiction? It is conceded that the Court of Common Pleas is a court of general jurisdiction, and if so, then it is clear that any one who asks to have such jurisdiction limited in any way, must be able to point out some constitutional or statutory provision establishing such limitation. It is not pretended that there is any constitutional provision prescribing any such limitation, as is here sought to be imposed upon the general jurisdiction of the Court of Common Pleas. But the contention is that such limitation is to be found in section 146 of the Code. That section constitutes a part of title IV., of part 2, of the Code of Procedure, the declared purpose of which is to treat “of the place of trial of civil actions;” and accordingly, after declaring where actions for certain purposes “must be tried,” declares, in section 146, as follows: “In all other cases the action shall be tried in the county in which the defendant resides at the time' of the commencement of the action.” The limitation thus imposed upon the jurisdiction of the Court of Common Pleas applies *35only to the trial of actions, as is clearly shown by the heading of the title — “Of the place of trial of civil actions1'1 — as well as by the express terms used in section 146, “the action shall be triedf &c.; and how such a limitation can be applied to anything else, it is very difficult, if not impossible, to conceive. That a confession of judgment, under the provisions of the Code, heretofore referred to, cannot, in any sense, be regarded as an action, is abundantly manifest from the express terms of the statute. The heading of the chapter in which these provisions are found, designed to indicate its purpose, is in these words: “Confession of judgment without action f and in section 383 the words are: “A judgment by confession may be entered without action f &c. Again, in section 148 of the Code, it is provided as follows: “Civil actions in the courts of record of this State shall be commenced by service of a summons;” and yet in the chapter providing for confessions of judgment, no summons is required to be issued, and none provided for or contemplated. This shows that the law-making power did not intend that a confession of judgment should, in any sense, or for any purpose, be regarded as an action. How, then, a statutory provision intended, as is shown by its express terms, to limit the power of a court of general jurisdiction in one respect, to wit: as to the place of trial of civil actions, can be so construed as to apply to something totally different — a confession of judgment — in which there is not and could not be any trials and which is expressly declared to be not an action, it is very difficult, if not impossible, to comprehend. To maintain such a position, it would be necessary to argue that, because the legislature has seen fit to limit the powers of a court of general jurisdiction in one particular instance, the same limitation must be applied to every other instance in which the court is called upon to exercise its jurisdiction. Such a mode of reasoning does not commend itself either to the logician or to the expounder of law. The Circuit Judge rests his conclusion, largely, upon a passage quoted from Freeman on Judgments, section 547, 3d edition, where it is *36said: “Judgments by confession are in no wise exempt from the rale applicable to other judgments, that to be valid they must be entered in the Court having jurisdiction over the subject matter of the action. Though no adjudication is, in fact, required in entering a judgment of confession without action, yet it has all the qualities, incidents, and attributes of other judgments; and cannot be valid unless entered in a court, which might have legally pronounced the same judgment in a contested action.” While the high authority of this learned writer is freely acknowledged, yet at the same time this Court is not bound to accept his dicta as conclusive, especially when this Court is undertaking to construe the legal effect of one of our own statutes. But, waiving this, the authority does not support the conclusion which it is cited to support. When a judgment is assailed for lack of jurisdiction in the Court by which it is rendered, two distinct and separate inquiries, involving totally different principles, are presented. 1st. Did the Court have jurisdiction of the sitbject matter? 2d. Had the Court acquired jurisdiction of the person against whom the judgment was rendered? If the Court has jurisdiction of'the subject matter, and has failed to acquire jurisdiction of the person, the judgment is void. So, on the other hand, if the Court has no jurisdiction of the subject matter, the judgment is void, even though full jurisdiction of the person may have been acquired. Now it is manifest from the terms used in the passage above quoted that the learned author was speaking of jurisdiction over the subject matter, and not of jurisdiction over the person, for he says the judgment “must be entered in the Court having jurisdiction over the subject matter;” and in the next sentence, where he says that the judgment “cannot be valid unless entered in a Court which might have legally pronounced the same judgment in a contested action,” he manifestly means that the Court must have jurisdiction over the subject matter in order to render the judgment valid. If there could be any doubt about this construction of the passage quoted, such doubt *37would be dispelled by an examination of the only case cited to sustain the proposition laid down in such passage. The argument drawn from the use of the definite article “the” in section 385 loses all of its force when it is seen that the language there used is permissive merely, and not imperative — “may,” not must or shall, “be filed,” &c., especially when it is seen that the language used in the preceding section is imperative: “A statement in writing must be made,” &c. Besides, such an argument would scarcely be sufficient to warrant this Court in extending, by inference merely, a limitation upon the powers of a Court invested with general jurisdiction. It must be concluded, therefore, that the Circuit Judge erred in holding these judgments were void for lack of jurisdiction, and in granting the order appealed from upon that ground.
3 The next inquiry is whether these judgments should be set aside upon any of the other grounds mentioned in the notice of the motion, and renewed here by proper notice. The first of these grounds, based upon the fact that the confessions were made before the deputy clerk instead of the clerk himself, is effectually disposed of by the provisions of section 778 of the Revised Statutes, in which it is declared that the deputy clerk may “do and perform any and all of the duties appertaining to the office of his principal.”
4 The second ground is open to the objection that it is entirely too general to be considered, inasmuch as it fails to indicate a single particular in which the statements were insufficient. Besides, an examination of the case of Wienges v. Cash, 15 S. C., 44, in which this matter was fully considered, will show that the statements were fully sufficient. The case of Kohn v. Meyer, 19 S. C., 190, relied on by respondent’s counsel, is manifestly not in conflict with Wienges v. Cash, supra, for that case is cited and relied upon by the Court in Kohn v. Meyer. Moreover, even a glance at the Kohn case shows that the main ground upon which the “statement” was held to be insufficient was, *38that the testimony of both of the Myers, plaintiff and defendant, in the confession of judgment, showed that the “statement” was false; or, to say the least of it, so grossly inaccurate, as to mislead those who might desire to inquire into the consideration of the debt upon which the confession was founded. So, also, in the case of Ex parte Carroll, 17 S. C., 446, the rule laid down in Wienges v. Cash, supra, is explicitly recognized. It is clear, therefore, that, even if the second ground relied on by respondent had been stated in such a form as would entitle it to be considered, it could not be sustained.
5 The third ground is likewise open to. the objection of being too general for consideration by this Court, inasmuch as there is nothing stated which in any way indicates in what respect the “statement” therein referred to is either insufficient or untrue. But even were it otherwise, this ground could not be sustained. What has been already said is sufficient to dispose of the objection to the sufficiency of the “statement,” and it only remains to inquire whether it has been shown that such statement is untrue. As may be gathered from the argument of counsel for respondent, the only point upon which it is claimed that the “statement” upon which the confession of judgment to the Imperial Fertilizer Company is untrue, is that in such statement the debt is claimed to have arisen from the purchase of “fertilizer materials,” while Steadman, in his testimony in the Drake case, says he never bought “'any materials for making fertilizer from the. company;” and again he says: “I had not bought any material for manipulation; I bought manufactured goods.” While again he says: “I bought kainit, acid, and ammoniated fertilizer.” In answer to the direct inquity: “Had you bought fertilizer material from them?” his answer is: “Yes, sir; in the early part of the year.” “What did you buy?” “Two and a half per cent, ammoniated goods, acid, possibly kainit, fertilizer usually used in this section of the country.” It is manifest, therefore, that the charge of untruthfulness in the “state*39ment” is based solely upon a fine-spun distinction attempted to be drawn between materials for the manufacture of fertilizers, and fertilizers manufactured; “a distinction without a difference,” so far as this matter is concerned. The witness distinctly says that he bought from the Imperial Fertilizer Company “kainit, acid, and ammoniated fertilizer;” and if they are not “fertilizer materials,” it is difficult to say what would be. It will be observed that in the “statement” the debt is not alleged to have been incurred for the purchase of material to be used in manufacturing fertilizers, but for the purchase of “fertilizer materials,” and the testimony of the witness shows that the debt was incurred for the purchase of fertilizer materials — kainit, acid, and am-moniated fertilizers. It is difficult to conceive how it can be seriously contended that the testimony shows the “statement” to be untrue.
6 The only remaining inquiry is that presented by the fourth and fifth grounds upon which respondents ask this Court to sustain the judgment below. These two grounds really make the single question — whether the fact that J. D. Milhous, before whom the affidavits were sworn to, held the office of United States postmaster at the time, disqualified him from performing the duties of a notary public, under an appointment made previous to his appointment as postmaster. No question is made as to the fact that Milhous was a duly appointed and qualified notary public, as that fact is distinctly admitted. But the point made is, that by accepting the office of postmaster, he thereby — -ipso facto — became disqualified to act as notary public. No authority has been cited to sustain such a position, and it would be very difficult, if not impossible, to find any. The rule, at common law, was that the same person might hold two offices at the same time, unless they were incompatible. And the rule as to the test of incompatibility is thus laid down in 3 Bacon Abridg. Title Offices, K. Upon the authority of Lord Coke, “offices are said to be incompatible and inconsistent, so as to be *40executed by the same person, when, from the multiplicity of business in them, they cannot be executed with care and ability; or when their being subordinate or interfering with each other, it induces a presumption they cannot be executed with impartiality and honesty.” And in 1 Dillon on Mun. Corp., in a note to section 166, it is said: “Incompatibility in offices exists where the nature and duties of the two offices are such as to render it improper, from considerations of public policy, for one incumbent to retain both.” The inquiry, then, is, whether there is any incompatibility in the two offices of notary public and postmaster. None has been suggested, and it is not easy to conceive of any. "Indeed, in a small community it would seem to be a convenience to the public that a postmaster should be a notary public, for he has a well known public place of business, where he is required to attend constantly, and is, therefore, easily accessible to those who might desire to make affidavits, &c. Besides, it is not unworthy of mention, that in sec. 2, of art. II., of the present Constitution, while there is a special provision forbidding a person from holding “two offices of honor or profit at the same time,” special exception is made of the office of notary public. Now while, of course, the present Constitution does not apply to this case, inasmuch as the affidavits here in question were made before the present Constitution was adopted, yet this provision does show (and it is only cited for that purpose), that in the opinion of the highest authority in this State — the sovereign people — as expressed by their delegates in convention assembled, the office of notary public is not incompatible with any other office. The onfy remaining inquiry, therefore, is, whether there is any constitutional or statutory provision forbidding a person from holding the office of notary public and postmaster at the same time. No such provision has been cited and none has been found. On the contrary, while the Constitution of 1868, which was in force when these affidavits were taken, does forbid certain officers, viz: the governor, the members of the general as*41sembly, and the judges, from holding any other offices at the same time, it contains no such prohibition as to the office of notary public, and, therefore, leaves that office to be governed by the common law rule, which, as has been shown, does not forbid a notary public from holding the office of postmaster.
It must be concluded, therefore, that, in no view of the case, can the judgment and order appealed from, be sustained, and, hence, the same should be reversed.
Justice Jones concurs in dissenting opinion of Chief Justice.