
    Henry Keep vs. Robert Leckie.
    A judgment may be confessed though no suit be, in fact, pending.
    A confession is valid though the judgment is not'to he entered up except upon the happening of a contingency.
    The judgment was confessed during vacation. After the next term the contingency happened upon which plaintiff was to have the right to enter it up. Shortly after the happening of the contingency the defendant died, and then the plaintiff entered up the judgment: — Held, that the proceedings were regular and the judgment valid, notwithstanding the 10th Rule of Court, and the death of the defendant.
    BEFORE WARDLAW, J., AT CHARLESTON, SPRING TERM, 1854.
    This was an application, by a creditor of defendant, to set aside the judgment entered in this case on the 31st August, 1852, upon a cognovit, signed the 29th November, 1851. October Term, 1851, had passed when the cognovit was signed; and March Term, 1852, passed without further proceeding.
    The motion was heard upon-the following case stated:
    “ Robert Leckie, the defendant, confessed judgment in this case upon the back of a declaration, upon a note for five thousand five hundred dollars, dated 28th November, 1851, payable on demand, 'in these words : “ I appear in proper person, waive all errors and confess judgment for five thousand and five hundred dollars, this 29th day of November, A. D., 1851.” (Signed) “ Robert Leckie.” At the same time there was endorsed upon the sheet of paper in which this judgment ivas enclosed, the following memorandum :
    “ ‘The written confession-of judgment has been given by Mr. Robert Leckie, the defendant therein, for the purpose of securing the payment of his four promissory notes, drawn in favour of Henry Keep, assignee of Charles King, each note bearing the same date as this memorandum of agreement, and each being for the sum of thirteen hundred and seventy-five dollars. The first becoming due six months from ‘'date ; the second, ten months from date; the third, fourteen months from date ; and the fourth, eighteen months from date; it being mutually understood and agreed, that this judgment is not to be entered up except on default of payment of either of the above notes, and is now placed in the hands of Mr. E. W. Bancroft, (to be retained by him,) as the mutual depository of both parties, until the happening .of the above contingency; or in the event of all the. above notes being fully paid and liquidated as they respectively become due, these papers to be delivered to Mr. Robert Leckie. Witness our hands this 29th day of November, A. D., 1851.’
    “ The confession of judgment with this endorsement, was then delivered to E. W. Bancroft, who gave a receipt therefor, endorsed upon a copy of the said memorandum, as follows: ‘ Received, Charleston, So. Ca., the 29th day of November, A. D., 1851, of Messrs. Northrop and Allemong, and .of Mr. Robert Leckie, a confession of judgment made by Mr. Robert Leckie to Mr. Henry Keep, assignee of Charles King, which I engage to hold, on the terms of the within copy memorandum of agreement, the original of which is endorsed on the sheet of paper in which the original judgment is enclosed; and I hereby promise to deliver the same to Messrs. Northrop and Allemong, on being notified by them, that either of the notes within referred to is due and unpaid; or in case I receive no such notice, I will deliver the same to Mr. Robert Leckie, on being assured by Messrs. Northrop and Allemong, that the said notes have been paid. (Signed) E. W. Bancroft.’
    “ The confession, with this endorsement, was folded within a paper or envelope, upon which was endorsed in Mr. Aliemong’s handwriting, as follows: ‘ Neep vs. Leclde; Mr. Robert .Leckie hereby agrees to renew the within judgment whenever thereunto requested by Messrs. Northrop and Allemong, attorneys of Mr. Keep. (Signed) Robert Leclde.’
    “ Then follows this endorsement: ‘ This envelope, with proceedings in Keep vs. Hobert Leclcie enclosed, was delivered by Mr. E. W. Bancroft to Mr. A. Allemong, 31st August, 1852, and by me opened, and the envelope handed to D. Horlbeck, Esq., 0. C. P., same day by Wm. Jervey. (Signed) C. B. Northrop. 31st August, 1852.’
    
      “ That the first note became due on the first day of June, 1852, but before that day, to wit., on the 25th May, 1852, the said Robert Leckie called upon Messrs. Northrop and Allemong and paid, on account of the said note, the sum of nine hundred dollars, and engaged to pay the balance of the said note on the fourteenth day of June, 1852, but on that day the said Robert Leckie died suddenly without paying the said balance.”
    His Plonor ordered the judgment set aside; and the plaintiff appealed.
    
      Memminger, for appellant.
    
      MeQrady, Petigru, contra.
   The opinion of the Court was delivered by

Whitner, J.

The facts will be readily collected from the report of the Judge and the accompanying statement of counsel. It is a proceeding familiarly known as a confession of judgment before an attorney, and the appeal leads to an inquiry, whether the order on circuit setting aside the judgment entered was authorized.

Various objections have been suggested and earnestly pressed in the argument, presenting questions I concede not free from difficulty, yet unless fully sustained on just legal views, the-subsisting judgment should not be disturbed. This judgment encounters, (1) a denial that there was any cognovit actionem ; (2) that a term having intervened between the signing the alleged cognovit and entering the judgment, it was void under the tenth Rule of Court: (3) that the death of the defendant, especially when taken in connection with the foregoing, interposed an insuperable bar to the subsequent proceeding; (4) that the annexed condition and attendant circumstances, made it equivalent to a confession under warrant of attorney.

In the examination of a case involving some of the principles now under discussion, Lord Kenyon, more than half a century ago, declared, that if they were then to consider for the first time, whether legal relations and legal fictions should he adopted, they would inquire into ail and sift most minutely the foundations on which they could be supported, but that then sitting as a Court of Law at the close of the eighteenth century, it was too late to consider whether that, which had always been considered as law, should continue to be so then.

In following the course of argument I have attempted, though I confess with little profit, to trace the distinctions and analogies in the ancient proceedings to judgment, whether on a cognovit or a warrant of attorney. The rules which obtained in the different Courts of K. B., Common Pleas and Exchequer, with various modifications introduced from time to time by statutory provisions, involve the subject in much complexity. As sources whence to deduce principles applicable to our forms and practice, they may not be regarded as invariably reliable.

A cognovit actionem is a written confession of the cause of action subscribed by the defendant, as is said (Chit. Geni. Prac. 664,) when a “writ has been already issued,” or (Lush’s Law Prac. 713,) “ must be founded on a pending suit.” In this case it is insisted there was no suit fending or writ already issued. In English practice, as contradistinguished, a warrant of attorney was an authority under seal to a certain attorney, to confess the action or suffer a judgment by nil dicit or otherwise, more frequently given independently of any action, and very generally as a prospective security, even though at the time executed' nothing is due from the party. Chit. Gen. Prac. 670. Again, the cognovit authorized the plaintiff to sign judgment, and issue execution for a named sum, and was a usual mode to save expenses of further proceedings in action, though, when no writ has been issued, the more usual security having the same effect is a warrant of attorney. But by our A. A. 1786, (2 Stat. 232,) all powers of attorney for confessing judgment before action brought, are utterly null and void. Hence the distinction has not been preserved, if in fact it ever obtained here. The objection not only reaches a large class of cases, but would unsettle a practice which has taken deep root, and is now inveterate. But the reason of any just rule on the subject, is so fully met by the daily practice, as to obviate all objection. The root of the action from which all subsequent proceedings spring, is the writ. It is designed to summon or bring the party into court, to hear and answer the plaintiff’s claim. It is simply on the principle, that no man should be condemned unheard. Certain forms are to be observed ordinarily, before the party can be called to answer, but assuredly it does not hence follow, that they are each indispensable, if the party for whose benefit they are designed chooses to waive them.

The action is as well commenced by the written acknowledgment of service, as though the writ had been served by the sheriff. Irregularities are cured by the act of the party,— sometimes expressed — often by implication. In this case there was a writ tested before the confession, a sufficient undertaking to appear, an actual appearance in person and in terms, and although it is said to have been the constant practice in the Common Pleas to take cognovit before declaration and judgment have been entered thereon, (1 Tidd. Prac. 559,) in this case plaintiff’s cause of action was fully set oat in the form of a declaration, and a confession of the cause of action duly signed. Treated and understood as a suit commenced, and in contemplation of law a suit pending, witb a distinct waiver of objections to all matters of form; the objection, to be fatal to the judgment, must be one of substance. Lush’s Prac. 328-333.

It is reasonable and expedient when a party defendant has no merits, to save expense by a confession. The law permits immediate adjustment by a debtor, or as has been quaintly said, to “meet his adversary by the way.”

The tenth Rule of Court provides, that parties are at liberty to enter judgment obtained at one term or court on or before the last day of the court or term next succeeding, without the payment of additional fees, and that no judgment shall be entered up after such second term, without giving a term’s notice to the adverse party or his attorney, of the intention to enter up the same. Mil. Comp. 3é. The objection then is, that the judgment in question should have been entered on or before the last day of the term next succeeding the signing the cognovit. To this there is a short and conclusive answer, arising out of the inquiry, when was the proper time for entering this judgment.. If no terms are imposed, the party may immediately sign final judgment and take out execution thereon. But when a judgment is confessed upon terms, the Court is bound to take notice of it and see the terms performed. Tidd’s Prac. 560.

Cotemporaneously with the cognovit, and as part of it substantially, were stipulations postponing the day at which the judgment was to be entered. Terms are not unusual, certainly not fatal: such as, stay of execution, stay of lodgment of fi. fa., or entering of judgment.

Until default there was no right in plaintiff to enter his judgment. The day when this contingency could happen was subsequent to the term next succeeding. Hence the rule is no bar, for by no fiction could this be .regarded as a judgment of the October Term, 1851. Whether the rule applies to cog novit actionem bas riot been held by our courts. — but the reason of the rule certainly does not apply to the case made, as there was no default until after March Term, 1852, and a judgment entered before would have been set aside.

Books of Practice have it that the form is to enter judgment when default is made, not when acknowledgment is made. The cognovit therefore, must be- held to take date when the default is made.

I am thus led to inquire whether the death of the defendant between the judgment Term and the actual entering the. judgment, vitiates the record. By our A. A. 1785, (7 Stat. 281, Sect. 41,) in cases of death of party pending suit after an interlocutory and before final judgment obtained therein, provision is made against abatement, and directs a sci. fa., whereupon the action may proceed, and in all actions in any of the Courts of this State, if either party shall die between the verdict and judgment, there shall be no abatement of such actions, but the same shall proceed as if both parties were living. It has been held that judgment signed upon assessment by the clerk at preceding term, was regular; Miller and Leclcie vs. Jones, 2 Speer, 315; and that there was no abatement or occasion for sci. fa. where decree had been rendered under like circumstances. Dibble vs. Taylor, 2 Speer, 308. The views presented in these cases will be found illustrative of principles now acted upon.

All judgments are entered as of some term of the Court, and hence judgments confessed in vacation are entered as of the term precedent. Thus too, it has been held, that a judgment signed in any part of the subsequent vacation, relates to the first day of the term, notwithstanding the death of the defendant before judgment actually signed.

I confess on this point of the case I have felt more embarrassment than my brethren, though I have yielded to what I believe the weight of authority, and perhaps the just application of analogous principles long settled, not a little fortified bj concessions, at least by one of the learned counsel in the argument. The occasion will not permit an extended notice of each casé and the point ruled. The authorities directly pertinent will be found, 1 Salk. 87; 2 Str. 881; 2 Taunt. 68; 2 Ld. Ray. 766, 850 ; 6 T. R. 868; 7 T. R. 20; 15 Eng. C. L. R. 843.

Much of the perplexity, vanishes by considering the case of an ordinary confession in vacation disembarrassed of all other objections.

A judgment is the conclusion of law upon facts found or admitted. The entry is merely the formal registry of what was adjudged, having relation, as all agree, to the Term when the conclusion is supposed to have been entered. Why or how can the death interpose to arrest the mere formula of entering it up. If the party lives there is no judicial action requisite. No order by the Court in point of fact. There' is nothing interlocutory or inchoate. No verdict necessary, the facts are admitted. No assessment required, the sum is ascertained, and by consent is considered as adjudged. The whole proceeding by our practice is begun, prosecuted and perfected in vacation, and the whole fiction is exploded if the entry does not follow as a legal corollary. The defendant is excluded, and the plaintiff cannot be postponed by the mere withdrawal of his assent, however bitter the penitence of the defendant. ■Continued assent is not of the essence of the right to sign judgment.

I have but little to add on the remaining point,, as many of the considerations entering into this have already been presented. It is true, that should not be permitted by indirection which may not be done directly.

The terms of the statute rendering void all powers of attorney for confessing judgment before action brought, have been already referred to. Neither in letter nor in spirit is it perceived that this ease falls within the purview of the evils provided against. . A cognovit has been given with a condition that judgment should not be entered unless default should be made in the payment on a day fixed. Nothing remained uncertain. Nothing to be adjudged. The mere deposit of the proceeding in the custody of a mutual friend until the contingency, when 'the judgment was to be signed, cannot change it. There was no discretion to be exercised., No control reserved to the parties. Authorities heretofore cited, prove incontestibly that such terms are competent. The rights of creditors are in no way impugned. An immediate judgment with a stay of levy of execution would have been clearly competent. To them the terms obtained on the part of the debtor were more favorable.

The motion to set aside the order on circuit is granted.

O’Neall, WITHERS, Glover and MüNRO, JJ,, concurred.

Wardlaw, J.,

dissenting. The result which has been attained in this case, seems to me to be dangerous. By fiction of law a judgment is established against the estate of a deceased person, with all the precedence and immediate enforcibility that pertain to judgments which subsisted against him at his death, Avhen in fact, at his death, there was; not to be found in the records of the Court, a trace of even a suit commenced against him: and this is done by force of a cognovit signed before the beginning of a term which preceded his death. I cannot deny that a judgment entered in vacation has relation to the term next preceding its entry, being but the formal registration in vacation of what was adjudged by the Court. Nor can I deny that a cognovit is a present acknowledgment of a previous act of the Court conformable to it; and so, although no suit may be actually pending, authorizes the fiction of a suit pending, and waives all objections to the entry of defendant’s formal appearance, and to everything else which is necessary to give the record the form of an action confessed, just as if the cognovit bad been signed in a suit actually at issue. If a cognovit be without date, I will not say that the plaintiff’s attorney may not, at any time afterwards during the life of the defendant, enter judgment upon it, entitling the judgment as of the term next preceding the entry. But when a cognovit is dated of a day in vacation, it is a confession of what was adjudged in a suit supposed to have been pending at the term next preceding the date,"and the entry of judgment must regularly have relation to that term.

I think that the tenth Rule of Court applies to judgments confessed not less than to those actually given by the Court. Every judgment is the act of the Court and must be obtained in Court. The fiction founded on defendant’s implied waiver of objection, which, where no suit was actually pending at a preceding term, makes a judgment entered in vacation on a cognovit, a judgment of the preceding term, considers the cognovit as equal to a judgment by default actually rendered at the preceding term, but it makes it no better, and there is no reason in justice or expediency why the fiction should be better than the truth, or a judgment supposed to have been obtained more effective than one actually obtained.

This cognovit was dated “ this 29th day of November, A. D., 1851,” and on its face shows no terms nor conditions. If nothing more appeared, I would then be of opinion that judgment on it could not be entered after the end of the term next following the vacation in which it was signed, that is, after March Term, 1852.

But the cognovit was written upon the back of a blank sheet of paper, folded like a declaration, and that sheet was enclosed within another sheet that was sealed, and on the outside of that other was written the agreement. This agreement shows that the cognovit was intended to secure the payment of four notes, that judgment was not to be entered until default in the payment of either of those notes had been made, and that Mr. Bancroft, as the mutual depositary of the parties was to hold the cognovit until the default, or until all the notes had been paid, and then was to deliver it to the one or the other party according to the event.

I conceive that this agreement contains the consent of the defendant to waive the rule of Court, or, in other words, his consent to be considered at any time afterwards when judgment might be entered according to the ágreement, as having-received the notice required by the rule. I think that on the first day of June, 1852, when default occurred, Mr. Bancroft might have delivered the cognovit to the plaintiff’s attorney, and the attorney might nunc pro tunc have entered judgment entitled of October Term, 1851. But the defendant died before Mr. Bancroft yielded possession of the cognovit, and of course before judgment was entered. The continuing consent which the agreement contained during the life of the defendant, I think was arrested by his death. Thereupon, the case, when presented to the clerk for entry of judgment nunc pro tune, by consent, was in the same condition it would have been in, if, after notice and before an order, the defendant had died; that is just as if the judgment had been by default, had been rendered at October Term, 1851, had not been entered before or during the next term, and' notice of intention to enter it had been given June 1,1852, but before the order which would have been requisite could be obtained at October Term, 1852, the defendant had died. Possibly when this judgment was entered, good cause existed why it should not be entered; possibly no default then existed, as the defendant, if alive, could have shown to the satisfaction of the mutual depositary; the clerk after the death of the defendant had no right to assume that there was no cause, as in his lifetime may have been assumed for his failure to object; and the depositary could not then, by this act, make the acknowledgment of default, which he was authorized to make for the defendant whilst he lived.

In the case of Calvert vs. Tomlin, (5 Bing. 1; 15 Eng. C. L. R. 343,) the cognovit was signed in Hilary Term; the condition was, that no judgment should be entered up, or execution issue, unless default were made in payment the 1st April next,” the death of the defendant on 16th Eebruary, and the default on the 1st April, both occurred before the beginning of the next term, and so also did the entry of judgment on 10th of April. Under the fiction which makes a judgment entered in vacation have relation to the first day of the preceding term, the entry of judgment, notwithstanding the death of the defendant was held regular. G-aselee, J., remarks, that the plaintiff does not want the authority of the Court to enter up judgment, which follows, as of course, upon the cognovit,” and Buerough, J., saying, that “ the intent of the parties was, that at all events, judgment should be entered up, although time was to be allowed for the payment of the debt.” In the case before us, however, it appears that, under our rule of court, the authority of the court, or the equivalent assent of the defendant, was wanted by the plaintiff; and the intent of the parties plainly was, not that a judgment should be entered at all events, but was, that it should be entered only after an act to be done by Mr. Bancroft, ‘when a contingency had occurred. If this cognovit had been left in the hands of the plaintiff’s attorney, and the default had occurred whilst, under the rule of court, judgment might have been entered, of course, without notice, I admit that the previous death of the defendant would not have affected the regularity of the judgment.

But the judgment not entered until August, 1852, has been entitled of March Term, 1852. This is an inconsistency-in form. The record says, that the defendant came and confessed at March Term, whereupon the Court adjudged against him, whereas the date of the cognovit coupled with the fiction of relation, shows that the Court gave judgment against him at October Term, 1851. If the entry as of March Term is correct, then the cognovit was not a present acknowledgment of a matter past in a pending suit, but was a prospective arrangement for a future suit, in other words, it was a warrant of attorney to confess, and not a cognovit. What difference is there between giving to Mr. Bancroft a warrant to confess, and giving to him a paper signed by tbe defendant, which, according to future events, might or might not become a confession of the same effect as if it had been signed at some future day. The long approved legislation of 1785, (7 Stat. 232, § 42,) has to very little effect annulled all powers of attorney for confessing judgment before action brought, if the purpose of such a power may be answered by a trifling change of form.

In England, the courts will not give leave to enter judgment on a warrant of attorney, after the defendant’s death,'-even though it were so stipulated in the warrant; (2 Ad. & El. 365,) to the entry of a judgment on cognovit, affidavits preventive of frauds are there required; and by statute such judgment cannot be signed after the death of a sole defendant. Good policy, which dictated both these regulations and our Act of 1785, should, I think, in this case prevent our rule of court from being dispensed with by the presumed assent of a deceased defendant.

Motion granted.  