
    Wm. Hall vs. James A. Moreman.
    The court will not readily lend an ear to a charge of incapacity, arising from intemperance, in order to invalidate a solemn act of an individual.
    If people will voluntarily incapacitate themselves from doing their ordinary business they must take the consequences of their own imprudence; unless a fraud is committed upon them when in a -tale of intoxication their acts are binding.
    Upon a confession of judgment on animimul computassent, the fact of a bond's forming an item in the account will not vitiate the proceedings.
    But if there be an irregularity in the bill of particulars, the defendant may waive it, by a confession ofjndgment; and the clerk has no right to refuse to record the judgment, on that account.
    A question of fraud in obtaining a judgment, ora question as to the regularity of the declaration, in conforming to the bill of particulars, after a confession ofjudgment, cannot be tried by ruleor motion.
    Motion to reverse an order made by judge Richardson at Union, aud for an order to the clerk to enter up judgment against defendant nunc pro tunc
    
    The defendant being indebted to the plaintiff, and being also indebted to others in a large amount, for which judgments were about to be obtained, consented to confess judgment to tbe plaintiff for a portion of tbe debt due him. The agent of tbe plaintiff not being in possession of the evidences of the debt, stated an account, which was acknowledged by defendant to be correct and just, and a confession taken accordingly. The confession w.as made at dark on the evening of the 13th March last, and the next morning application was made to the clerk, at the distance of twenty miles to enter up judgment, which he declined doing, having received notice to that effect. Application was then made to the court for an order on the clerk to enter up judgment; which was resisted on the ground <hat defendant at the time of making the confession was non compos, and that a confession could not be taken on an insimul computassent, when it appeared in the evidence adduced by defendant that the debt was on specialities.
    In support of the first ground several witnesses- were sworn, who stated that in their opinion the defendant was insane when he gave the confession. Several others were sworn on the part of the plaintiff, who stated that he was neither insane or drunk, but of sound mind; and the plaintiff insisted that this question should go before the jury, which his honour refused. In the declaration, and filed with it, was a stated account of the balance for which the parties agreed the confession should be taken. The court made the following order.
    “ Upon application to docket this case and record the confession, and it appearing to be a declaration on an insimul computassent, no bill of particulars being filed, and no evidence of debt appearing on the declaration, and it appearing that there was no open account between the parties, and upon bearing the affidavits, it is ordered, that the application be rejected.”
    At the same court, judgments were obtained against the defendant to the full amount of his property.
    The plaintiff now moved this court to set aside the order of the circuit judge, and to make an order upon the clerk, to record the judgment.
    Because under the circumstances, thejudgment should have been recorded.
   Nott, J.

The grounds on which leave to enter up the judgment in this case was refused, appear to be:

1. Because the defendant was from intemperance incapable of doing business, at the time the confession was taken,

2. Because the confession was obtained by fraud.

3. Because the plaintiff’s demand arc e upon a bond and the confession of judgment was on a declaration on an insimul computassent.

The first is a ground to which the court will not lend a very ready ear. If people will voluntarily incapacitate themselves from doing their ordinary business they must take the consequences of their own imprudence.

They have no right to call upon this court to protect them from all the consequences of intemperance and folly.

If to be sure one man takes the advantage of another when in a state of intoxication to commit a fraud upon him, he will be entitled to relief from such fraud. But there is no direct charge of fraud in this case; and the affidavits to that point as well as those to the intoxication are so completely rebutted by the counter affidavits, as at least to neutralize that charge. The question then resolves itself into the simple ground of the declaration.

But the irregularity does not appear to me to be of such a nature as to vitiate the proceedings. These parties may probably have had exterior dealings. I observe among the papers accompanying the declaration a memorandum of a'balance for which the judgment is confessed, arising from various accounts and transactions. And although the demand of the defendant may have been on a bond, yet there may have been various payments and accounts, which when they came to account together, left that balance which the defendant promised topay, and for which he lias confessed a judgment. (2 Chitty 343, 2 Term. Rep. 479, Foster vs. Allanson.

But certainly the defendant had a right to waive the irregularity if there was one, and he has done so by confessing* judgment.

Cien damn and Preston for the motion.

O'Mal contra.

It is not pretended that the claim is unfounded, or that the defendant has confessed judgment for more than is actually due. But besides, this is not the way to try the giver questions which are now submitted to the court. It does not appeal- at whose instance the application is made. If at the instance of the creditors, they have also a more ample remedy, if there is any fraud in the transaction.

The order of the court below is therefore reversed, and the clerk of the court is directed to record the judgment as of the date of the confession. 
      
      
        .) J Sec the case of Ashbrooke vs. Snape, Cro Eliz. 240.
     