Hinds v. Hopkins

Walker, J. These cases involve the same question, and will be considered and determined in one opinion. The judgments were confessed on warrants of attorney more than a year and a day after the warrants were given. The record fails to show that there was filed any affidavit in either case, that the makers of the notes were living, or that the debts, or some portion of them, were still due and unpaid. By the well recognized practice in Great Britain, after the expiration of a year and a day from the execution of a power of attorney to confess a judgment, such an affidavit must be produced, and a rule of court, or an order of a judge in vacation, must be obtained, granting leave to enter judgment before it can be confessed. Lushington v. Waller, 1 H. Blk. 94; Anon., 6 Mod. 212; Oades v. Woodward, 7 Mod. 93; Tidd’s Pract. 492, 552-3, 599. The same practice obtains in New York. 5 Hill, 497. The English practice having been adopted as the basis oi ours, and being recognized by our courts, unless altered by legislative enactment, it is regarded as binding on our courts, with such modifications as our different circumstances and usage has rendered necessary. The reasons which induced the British courts to adopt such a rule of practice would seem to apply with equal force in our courts. After a year has elapsed, the court should be informed that the debtor is still living, and that the debt, or at least some portion of it, is still unpaid. This is necessary to prevent great and almost irreparable frauds in many eases. The judgment is rendered without notice, or opportunity to be heard in presenting any defense which may have occurred after the warrant of attorney has been executed. Mor can he know what attorney will be called upon to confess the judgment, when the power is general, and if he have a perfect defense, he may be deprived of the opportunity of making it, or even giving notice to the attorney, of its existence. Thus meritorious defenses may be cut off, and great injustice perpetrated. The practice requiring proof that at least some portion of the debt remains unpaid, is well calculated to promote justice, and should obtain in our courts, unless the confession is made within the year and a day. It is, however, urged that the twenty-seventh section of the practice act, prevents any appeal or writ of error from being prosecuted on a judgment confessed. That section allows such a judgment to be confessed, “ for a debt Iona fide due.” If it fails to appear that the debt is due, then the court is not warranted in permitting the confession to be made. Hall v. Jones, ante, p. 54. If a power of attorney has been executed within the year, and its execution has been proved, then the mere confession of the attorney proves that the debt is due, and authorizes the entering of the judgment. But if the warrant of attorney has been executed more than a year, it does not appear, by the confession of the attorney, that the sum is unpaid. That must be established by evidence, embodied in an affidavit, filed and preserved as a part of the record. This is essential to the regularity of -such a judgment. Nor does this section prevent a review of the case on error, when it fails to appear that the debt is due. The judgment would be no more binding than if the warrant of attorney was insufficient, and may be reviewed on error. The right to maintain error is only cut off when the authority to confess judgment is sufficient, and the record, by proof or by legal presumption, shows the debt to be due. Any other construction would be highly calculated to work great injustice,. as there could be no remedy in case a judgment was fraudulently entered except by bill in equity. This, we think, was not the design of the General Assembly. The judgments of the court below are therefore reversed, and the causes remanded. Judgments reversed.