
    
      Mary Dial and William Henderson vs. P. Farrow.
    
    1. A judgment confessed by an agent constituted by parol is valid after suit brought.
    2. The Act of 1785 declares all powers of attorney to confess judgment before suit brought, to be void; leaving, of course, confessions after suit brought, to the common law.
    3. Where the issue, as presented by the plaintiff, was, that a confession of judgment was not genuine, but a fraud and a forgery, so far as related to them, proof that the note, the predicate of the action and judgment, was forged, was hbld inadmissible, as altogether outside of the issue.
    
      Before Earle, J., at Laurens, Spring Term, 1842.
    This was an issue made up for the purpose of setting aside a judgment, held by the defendant, against the plaintiffs, together with G. C. Dial, signed upon what purported to be the confession of these persons. The allegation of the plaintiffs on this issue, was, that they never signed, nor authorised the confession to be signed. '
    There was a judgment against the same three persons, on a note originally for $3074, on which Mr. Farrow, on Dial’s giving his note for the amount, with the same persons for his securities, furnished him with the means of making a large payment, which reduced the note to $1300, for which balance judgment was got by D. Gray don and wife.
    G. C. Dial accordingly delivered to Mr. Farrow a note, purporting to be signed by the same parties, for $1953 79, dated 4th September, 1838, due on the 3d February ensuing. On the 28th March, 1840, Mr. Farrow issued his writ, which was presented personally to the defendants, and by each the legal service was acknowledged, under a signature admitted to be genuine. At Spring term, 1840, the return of the writ, no appearance was entered by either of the defendants. Declaration filed 6th November, 1840, and ordered for judgment by default. On the 9th of November, the first day of the term, G. C. Dial delivered to Mr. Farrow a confession of judgment, purporting to be signed by himself and the other defendants, for the ostensible purpose of giving Mr. Farrow a preference, by enabling him to sign judgment immediately on the confession, as there were many other suits against him, in which judgment would be obtained that term. Judgment was accordingly signed on the confession immediately. A few weeks after, G. C. Dial absconded, carrying with him his negroes and some other property. Mary Dial and Wm. Henderson then came forward and denied that they had confessed judgment, or given any power to have it done for them. And in the suggestion filed, they assert that the signature to the confession, purporting to be their’s, is a forgery.
    To the confession of judgment there is the name of a subscribing witness, Wm. C. Gary, who was sworn, and deposed that it was not his signature — that he never heard of the proceeding, and of course could not have put his name, nor authorized it. He, and another witness, Harrison Dial, professing to be familiar with the hand writing of Mary Dial and Wm. Henderson, both deposed that the signatures to the confession were not the hand writing of those persons. There was no evidence offered that the signatures were genuine. Mary Dial is the step-mother of G. C. Dial, and Wm. Henderson, a brother-in-law. They resided near him, were intimate of course, and were supposed to be acquainted with his movements and intentions. The defendant relied on these circumstances, and the general complexion of the case, to convince the jury that if these (your) plaintiffs did not sign the confession, they knew of it, and authorized it to be done for them.
    It was in evidence that Mrs. Dial expressed great alarm about her liability to Farrow.
    After the defendant had closed his evidence, the plaintiffs’s counsel proposed to offer evidence that the signatures to the note -were not genuine. The court did not consider it admissible, as it was not in reply, and overruled it.
    His honor instructed the jury that the judgment was good, and the confession binding upon these parties, although they did not sign their names, if it was done for them with their knowledge and approbation, by some one expressly authorised for that purpose beforehand. And that such authority need not be in writing. Verdict for the defendant in the issue.
    
      The plaintiffs in this issue appeal for a new trial, on the grounds:
    1. That the evidence of William C. Gary, the subscribing witness to the confession, with other witnesses, was clear, explicit, and unimpeached, and established the fact, that the confession was fraudulent and a forgery.
    2. That the finding of the jury was contrary to the direct and uncontradicted evidence of the case, and the charge of the presiding Judge.
    3. Because the evidence offered by the plaintiffs in reply, to prove that the note on which the judgment purported to be confessed, was a forgery, was competent in reply, and should have been received.
    4. Because his Honor charged the jury, that a judgment confessed by an agent, constituted by parol, would be valid.
    Irby, for the motion,
    contended that a new trial must be granted, because the evidence was all on one side, and cited 2 Baily, 396.
    It is not pretended that the defendants signed the confession. The party offered to prove the note to be a forgery, in reply to the proof that Mrs. Dial admitted the debt. There was no law to sustain the charge of the court, as stated in the fourth ground of appeal.
    Cited the Act of 1785, which declares all powers of attorney to confess judgment before suit brought, to be void.
    Sullivan, contra.
    The facts are concluded by the verdict. The only issue was the bonajida of the judgment. Any act to be done may be authorized at common law by parol. 2 Kent Com. 612-13.
    The Act of 1785 has no application to this case. The confession is not the judgment. A parol authority to confess, is the same as the confession. The authority to attornies at law, is by parol. 2 Chitty’s General Practice, 19. An attorney’s confession is good, even without authority. 6 J. R. 296 and 299. A parol authority to confess judgment is good. 2 Keble,
    Burt, in reply.
    The proof contradicts the signature. The acceptance of the service might have been explained, by proof of the forgery of the note. According to the English practice, the warrant to confess must be under seal. But this does not apply here. An attorney at law may, by parol, confess; but a mere agent has no such power. 9 Wendell, 437; 1 lb. 311. One partner cannot acceptor confess for the other. 2 Caines, 254.
    Young, against the motion.
    Proof to shew that the note was a forgery, is outside of the issue. Any act to be done by parol, must be authorized by parol. 6 J. R. 296; 2 Kent. Com. 612-13. Confessions are by parol.
    An authority to bind by writing, not under seal, may be created verbally. Story on Agency, 48 ; Paley, 44. Mrs. Dial admitted G. C. Dial had made a payment of $1500.
   Curia, per

O’Neall, J.

In Kent’s Commentaries, 2d vol. 613, it is said that “the authority of the agent may be created by deed, or writing, or verbally, without writing; and for the ordinary purposes of business and commerce, the latter is sufficient.” This authority fully justifies the instruction of the Judge below, to the jury. For there is no law which directs that an attorney confessing a judgment after suit brought, should be authorized so to do .by writing. The Act of 1785 declares all powers of attorney, to confess judgment before suit brought, to be void, leaving of course, confessions after suit brought, to the common law.

In this case, there were many facts which might have authorised the conclusion (if the plaintiffs in this issue did not sign the confession,) that they authorized it to be done. They had accepted the service of the writ; they had entered no appearance; the case stood on the inquiry docket under a judgment by default; the confession was for their benefit, as it gave them the means of obtaining an earlier lien on their co-defendant, Dial’s, property; and the case, when called on the inquiry docket was, in term time, marked “judgment confessed.”

After these facts are grouped together, there can be, I think, no doubt that the confession was the act of the plaintiffs and Dial, or his act alone, authorized by them. On comparing, however, the signatures to the confession with the admitted signatures of these plaintiffs, I think that there is little doubt that' they signed the confession. It is true that William C. Gary, the supposed witness to the confession, said he did not sign any such paper ; that may be true; for the name of the witness to the confession does not seem to me to be William C. Gary, but to be Mr. C. Garey. But be that as it may, if the jury believed, on examination, the signature of these plaintiffs to be genuine, or that they authorized Garlington C. Dial to confess in their names, then the verdict is right; and we think the evidence was abundant to support either of these conclusions. But it is urged, even if the verdict be right, on the evidence before the court, yet, inasmuch as the judge rejected evidence, offered to shew that the note, the predicate of the action and judgment, was a forgery, that a new trial should be granted.' We agree with the Judge below, that the evidence was inadmissible. The issue, as presented by these plaintiffs, was, that the confession of judgment was not genuine, but a fraud and a forgery, so far as relates to them. This is nothing more than a simple allegation by them, that their signatures to the judgment were forged. Proof that the note was forged, was altogether outside of this issue. The motion for a new trial is dismissed.

Evans, Earle, Butler and Wardlaw, JJ., concurred.  