
    [Pittsburg,
    September, 12, 1825.]
    M'CALMONT, Administrator of PETERS, against PETERS.
    IN ERROR.
    Judgment may be entered up by the prothonofary upon a written order, sent t® him' by the defendant, confessing judgment in an action of debt and directing him to enter judgment against him.
    The assent of the plaintiff to such judgment may be presumed.
    A judgment was entered in the Court of Common Pleas of Venango county, at the suit of Richard Peters, jun., defendant in érror, against Thomas R. Peters, attorney at law, deceased, for the sum of ten thousand dollars, upon a writing transmitted by Thomas R. Peters, in his lifetime to the prothonotary of Venango county, by-letter from Chambersburg. The writing was as follows:
    
      Richard Peters, jun. v. Thomas R. Peters.
    
    > )
    Common Pleas of Venango county, of the term of February, 1822. Debt ten thousand dollars.
    I do hereby confess judgment in favour of the plaintiff above named, for the sum of ten thousand dollars, and authorize the protbonotary of the said court to enter the same as of February term, ' 1822.
    
      Thomas R. Peters, defendant, Jlpril, 24th, 1822.
    To Jl. M‘Calmont, Esq. Prothonotary.
    
      Bredin and Baldwin, for the plaintiff in error,
    now contended that the prothonotary was not authorized to enter judgment by the writing filed. It was entered by order of the defendant without the plaintiff’s interference. It is not in conformity with the provisions of any act of assembly. The act of the 24th of February, 1806, sec. 28, Purd. Dig. 324, applies only to cases where there is a holder of a note, bond or other instrument of writing, ill which judgment is confessed or containing a warrant of attorney. And the act of the 21st of March, 1806, sec. S, refers to amicable suits and confessions in writing, executed in the presence of two or more witnesses. It is true in Cook v. Gilbert, 8 Serg. & Rawle, 567, it was held, that judgment may be entered by the prothonotary in consequence of an agreement of parties, to enter an amicable action, and confess judgment independently of the act of the 21st of March, 1806. That there the paper was carried to the prothonotary by the plaintiff. That case is different from the present. Amicable actions are not entered without consent of both parties, expressed either personally or in wiriting. In Cook v. Gilbert, the cause of action was specified: but this paper specifies no cause of action. This writ of error is prosecuted by the creditors of Thomas R. Peters, who think themselves injured.
    
      Farrelly, and Galbraith, contra.
    Neither Thomas R. Peters, if living, nor his administrators since his death, could dispute this judgment. .If he could constitute an attorney to confess judgment, surely he might do it personally, without an attorney. This court knows nothing of his creditors. We do not say, that this judgment is entered under the act of 1806, but under long practice. The case of Cook v. Gilbert, is conclusive. They cited also Helvate v. Rapp, 7 Serg. & Rawle, 306.
   The opinion of the court was delivered by

Tilghman, C. J.

Thomas R. Peters, deceased, attorney at ■law, gave a written order to Alexander MlCalmont, prothonotary of the Court of. Common Pleas of Venango county, to enter judgment against him, in an action of debt, for the sum of ten thousand dollars in favour of his brother, Richard Peters, jun.; the defendant in error. In pursuance of this order, an amicable action of debt, Richard Peters, jun. v. Thomas R. Peters, was entered on the docket, and judgment confessed for4en thousand dollars.

Against this judgment it is objected, that it is not conformable to the act of the 21st of February, 1806; by which the prothonotary is authorized to enter judgment on a confession in writing by the defendant, attested by two witnesses. If the judgment was founded on this act of assembly the objection would be good. But it was decided by this court, in the case of Cook v. Gilbert, (8 Serg. & Rawle, 567,) that the act was affirmative, and did not mean to prohibit the entry of judgments according to a practice existing prior to its date. And we are of opinion that the judgment entered in. the present ease was warranted by that practice. It was objected also, that the judgment ought not to have been entered, because it did not appear that the plaintiff assented to it. But the assent of the plaintiff may be presumed, because the judgment was for his benefit, and because his positive assent was subsequently given. If there was any thing unfair in this transaction, the creditors of Thomas R. Peters may contest it. They may commence actions against the administrators, and if this judgment is set up against them, they may aver that it was confessed by-fraud, and put the plaintiff to the proof of a good consideration. But the only question at present is, whether any error appears on the face of the record. It is the opinion of the court that there is no error, and therefore the judgment should be affirmed.

Judgment affirmed'.  