Crosby v. Washburn

The opinion of the court was delivered by Garrison, J. The reasons assigned for setting aside this judgment fall into two groups. The first, second and third reasons raise a question of procedure; the fourth and fifth reasons go to the merits. The procedure was correct; it was [496] that pointed out by the act of 1881. Gen. Stat., p. 2112. § 47. Suit on the bond accompanying a mortgage after the foreclosure of the mortgage is authorized by that statute. The fact that a note had also been given for the same debt does not take away the right of suit upon the bond given by this act. The practice upon such suits of empowering an attorney to appear and confess judgment is part of the common law. 3 Bl. Com. 397. A married woman may make such a warrant of attorney. Heywood v. Shreve, 15 Vroom 94. The right to have a suit commenced by process is a personal privilege that may be waived by the debtor. . The statute of 1881 does not alter the common law in this respect. That act was passed for the better protection of the debtor’s property and not to secure any object of public policy. Hellyer v. Baldwin, 24 Vroom 141. The judgment will not be set aside as improvidentlv entered. The fourth reason alleges a fact that, if true, avoids not only the warrant of attorney, but the bond as well, viz., that the contract is one of suretyship by a married woman. The testimony shows that there is ground for such a contention. To afford the judgment debtor an opportunity to apply for a feigned issue that shall raise the question of fact upon which her liability rests the judgment will be opened. The question of usury may at the same time be litigated. The costs will abide the result. The application for a feigned issue must be made at or before the next term, or the defendant will take nothing by her rule.