Trombly v. Parsons

Mahtin Ch. J.: The statute (Comp. L. §4441) permits judgment by confession when the authority to confess such judgment [273] shall be conferred by some proper instrument distinct from that containing the evidence of the debt or obligation for which the judgment is confessed, and capable of being produced and filed with the clerk of the court in which the judgment is entered. The Legislature did not intend to restrict, by this provision, the right of the debtor to make such contract as he might find necessary, or most advantageous to himself, but to establish a rule of practice under which judgments by confession might he entered in vacation, as well as in term. • In other words, it was an extension of the common law practice to the entry of judgments in vacation. All that is requisite, therefore, is that a demand exists, and that the authority to confess judgment be conferred by a separate instrument from that containing the promise or obligation. This is technically denominated a warrant of attorney. The time of the execution of such warrant is immaterial; as the statute has imposed no restriction in this respect, and none was imposed by the common law in cases where judgment was authorized to be confessed in term. By both the statute and the common law, the power must be in a separate instrument from that containing the promise or obligation, although it may be a part of the contract that such power should be given. The fact that these provisions of the statute accord with the common law practice, prove that they are practice regulations only, and were not designed to restrict the rights of contracting parties to make their own bargains, if otherwise lawful. In the case before us, the warrant of attorney was dated some six days after the day of payment fixed in the note, and some three days after it actually became due; namely, on July 16th, 1861. It authorizes judgment to be confessed at any time after the third day of September thereafter, and, although it does not describe the note upon which the confession might be made, it refers to it as thereto attached. ;If the note had been particularly set out or [274] described in tbe warrant of attorney, it is not questioned but that a judgment confessed under tbe warrant would be good: and I cannot see upon any sound reasoning- or principle wby tbe reference in tbis .case, wbicb is merely for description, should invalidate tbe warrant. Tbe instruments are as distinct as if drawn on separate pieces of paper. For ought that appears tbe note and warrant were executed upon tbe days of their respective dates, and such we must presume to be tbe fact. If so, except upon-the most technical grounds, tbe warrant would be good, while if it were otherwise, and they were executed simultaneously, they are still separate instruments, within tbe letter and spirit of tbe statute. Tbe judgment is affirmed, with costs. Tbe other Justices concurred.