
    L. Galpin vs. L. S. Fishburne.
    
      Every application to the court for leave to enter up-judgment nunc pro Ivyic* after the year and day, is an application to the discretion of the court, and the Court will be satisfied,
    1st. That there was some good reason for the delay,
    2nd. That the rights of others shall not be affected; before they will grant the leave, 
    
    And where a judgment was confessed on a writ, there being no declaration or particular cause of action stated, and fifteen months elapsed before the death of the defendant, and two years and some months after his death, the court refused to permit the plaintiff, after such negligence, to enter up his judgment nunc pro tunc.
    
    Tried in Colleton District, November term, 1824, before his honor Judge Richardson.
    Charles Fishburne in his life time confessed a judgment to the plaintiff, to wit: on the 30th .May, 1821, on a writ, without any declaration.
    
      Judgment was never signed, nor entered up, nor any proceedings bad subsequent to the confession.
    Atthe last November term for Colleton district theplain-tiff obtained a rule against the defendant as administrator of Charles Fishburne, who had died in. 1822, to shew cause why judgment should not be sighed nunc pro tunc.
    
    The defendant shewed for cause that Charles Fishburne had been dead two years and upwards; that in marshalling the assets of his estate, he had no notice of this judgment, and that, therefore, to suffer the plaintiff to enter up judgment nunc pro tunc would give an undue preference to that judgment, or make him liable to a devastavit, or both.
    The rule was made absolute by the presiding judge from whose decision the defendant appealed and moved the court of appeals to set aside the same:
    1st. Because after a year and a day, the plaintiff has no right to proceed, but by leave of the court.
    2nd. Admitting that in ordinary cases the court have the power to grant ;snck a motion, that power ought not in this instance to have been exercised.
    
      -Argued 17 th February, 1825.
    
      Martin, for the motion
    -cited TiddS45-7. It is a matter of discretion to give leave to enter up' -a judgment nunc pro tunc, and it will be refused when the rights of defendant ma be compromitted. The part, should have applied by sci. fa-cias, [Arch-bald. 76. 78,) to which payment might be replied; but not on motion.
    The writ on which the judgment is confessed was not entered in the sheriffs office nor filed io'the clerks; it is there-» .fore no record of the court and the confession is no more than a promise.
    
      ClarJc, contra.
    
    (1st. Tidd. 5Q4.J A cognovit actionem is final, and plaintiff may enter up judgment mstanter. (Í Dunlap’s Prac. 357. 1 Cains’, 49.8. 6 Johnson 325. 2 Tidd 846.6 Term, R 6. 2 hard Ray. 766. 849.) Judgment confessed by a warrant of attorney, after defendants death, is -good, (Executors lynch ys, Executors Bay. 1 Bay 444.)
    
      
      Martin in reply
    By act of 1785, (1 Brev. Dig. 436 Public Laws, 38,) all warrants of attorney t,o confess judg rnents before action brought are void,
    
      
       See Loyd vs. Howell, I Term. R. 637.
    
   Colcook J,

Every application to the court for leave to enter up judgment nunc'jpro tunc, after the year and day, is an application to the discretion oí the court} and the court will be satisfied,,

1st. That there was some good reason for the delay; and,

2nd. That the rights of others shall not be affected, before they grant the leave.

In the case before us, no satisfactory reason is shewn why the plaintiff did not proceed.

The defendant lived fifteen months after the confession; whiph embraced two terms; arid twb years and some months after his death were suffered to elapse before any application is made.

The court will lend its aid to advance the purposes of justice, where the party applying has used due diligence; but but it is never disposed to assist one out of a difficulty which is the result of their negligence.

But this is not all; the plaintiff not only asks the court to secure to him those rights which he may have lost by his own negligence, butto give him a preference over others who may have been diligent in the pursuit of their rights, which they would not do under any circumstances.

The counsel for the plaintiff laid down the position that a confession, of judgment was-final and does notábate; and referred to some authorities which support the position; but it is only in such cases and those-provided for by the statute of Charles 2d; that such, an application as the present one cán be made. The general rule of law is that the death of a

The general rule of law is that the death of a sole plaintiff &r defendant, before final judgment, abates the suit (2 Tidd, 840-6.)

Again: I think in a case like therpresent the court would not suffer a judgment to be entered up after the death of the defendant. The proceeding is uncertain and wholly irregular. It is not like the case of a cognovit actionem regularly entered on the record. The defendant on the back of a writ confessed judgment for so much on the case. What case? Was it on a note or an account? and what note or account? How would the record be made up. It.is manifest that in such case the plaintiff might use any cause of action of that amount. What could there be which would prevent the plaintiff from making out an account for the sum for which judgment was confessed and then suing the executor or administrator on the note, on which it was intended to confess the judgment.

On the whole, there has been so much negligence and so much irregularity in the proceeding, that the court feel constrained to grant the motion, for the reversal of thejudgment below.

Elmore & Martin for the motion,

Clarice contra. 
      
       17 Car. 2, Ch. 8. (Tidd, Prac. 847.) which statute enacts, that where either party dies between verdict and judgment “that his death shad not be alleged for error, so as thejudguient be entered within two terms after the verdict.”'
     