
    
      The Union Bank of South Carolina vs. A. G. Magrath. Hiram Hutchinson vs. A. G. Magrath. Hiram Hutchinson vs. Ker Boyce and Christopher F. Stoney.
    
    1. A judgment confessed during the term, in a case which had been before placed on the issue docket for trial, and which was signed and entered up by the Clerk, is equal in effect to judgments on verdicts or decrees, and is not affected by the 11th Rule of Court.
    2. As to the effect, it is of no moment whether the confession of judgment be in vacation or term time, or entered on the docket of cases for trial, orbe- made before the Clerk, under the formula laid down by the Act of 1839.
    3. The 11th Rule of Court was adopted to prevent indecent haste, and preference of one recovery over others, when all were obtained at the same Court, and were entitled to the same lawful liens.
    
      Before Evans, J. at Charleston, Spring Term,, 1843.
    The first of the above stated cases was regularly on the issue docket, at the March Term of the Court of Common Pleas for Charleston district, and when called, was, at the instance of the defendant, marked “judgment confessed.” On the declaration is endorsed a confession of judgment in the usual form, signed by the defendant, without date, upon which judgment was signed and entered on the 8th of April, 1843.
    The second case was not on the docket. There is endorsed on the declaration a confession of judgment in the usual form, signed by the defendant, and dated 7th April, 1843, and also the following memorandum, in the hand writing of Mr. Brewster, one of the plaintiff’s attornies : “judgment to be confessed, and entered up on the rising of the court in January.”
    On motion of Messrs. Bailey and Brewster, his Honor made the following order, viz :
    "Union Bank vs. A. G. Magrath. ) Judgment by condession, the case
    Hiram Hutchinson vs. A. G. Magrath.)Judgment confessed 7th April, 1843, for $2,108 88.
    The judgment in the first mentioned of the above cases having been confessed during the present Term, the case being on the docket, and the Clerk having signed and entered up judgment, by confession, on 8th April, 1843, it is, on motion of Bailey and Brewster, the attornies of .the plaintiffs in the second of the above cases, ordered that the Clerk take the judgment in the said first mentioned case off the file, and that he do not enter the same until the rising of the court, conformably to the 11th Rule of Court.”
    The plaintiffs in the first case appealed, on the following ground, viz:
    That a judgment by confession' máy be entered at any time, and that such has been the immemorial practice of the courts of this State, following the practice of the English courts.
    In the third case stated, the plaintiff obtained a rule against the defendants, under the following state of facts.
    
      The plaintiff, Hiram Hutchinson, during the present Term, obtained judgment against A. G. Magrath, for $2,-108 88, which was confessed on the record of the 7th April, 1843 ; and he also obtained judgment against John Magrath, for $3,185, 78, by assessment, on reference to the Clerk, on the 25th March, 1843. The first of these cases was not on either of the dockets of the court, but was endorsed, “ judgment to be confessed, and entered up on the rising of the court in January.” The second case was on the writ of enquiry docket for this Term. The respondent, Ker Boyce, obtained judgment against A. G. Magrath, for $12,116 34, by confession before the Clerk, under the Act of 1839, which confession was made on the 13th April, 1843, and entered up as of that day; and the respondent, Christopher F. Stoney, obtained judgment against John Magrath, for $5,018, by confession, on the record of proceedings in an action, made on the 15th April, 1843, and entered up same day. But neither of these two last mentioned cases was on any of the dockets of the court for the present Term. The plaintiff, Hiram Hutchinson, obtained a rule on the respondents, Ker Boyce and Christopher F. Stoney, to show cause why the judgments severally entered up by them, as above mentioned, should not be taken off the file, or set aside, and the entry thereof suspended until the last day of the Term, conformably to the 11th Rule of Court; but on the return thereof, his Honor discharged the rule.
    As the cases were not on the docket, the presiding Judge did not consider them as coming within the rule of court.
    The plaintiff, Hiram Hutchinson, appealed, and moved that his Honor’s decision be reversed, and the rule made absolute, on the following grounds:
    1. That every judgment, whether it be on a confession or otherwise; and if by confession, whether it be in the common form, on the record of proceedings in an action, or in the special form of confession before the Clerk, prescribed by the Act of 1839 ; and if on proceedings in an action, whether the case be on the docket or not, operates only as the judgment of the Court, and is therefore subject to all the rules of the Court relative to its judgments, including the 11th Rule, which provides that “ no judgment obtained at any court shall be entered up previous to the day of the court’s rising.”
    2. That the whole term is, in legal contemplation, but one day, and every judgment, however obtained, and in whatever form entered, being the act of the court, all judgments entered during any Term are entitled to equal rank as liens; and the 11th Rule of the Courtis, in fact, intended merely to prevent the allowance of a priority, from the apparent date, to which a judgment entered before the last day of Term, is not, in law, entitled. Nor do judgments confessed under the Act of 1839, constitute an exception to the general rule, inasmuch as that Act expressly provides that judgments so confessed, “ shall have like force and effect as if such judgment was founded on any verdict or decree rendered in open court.”
    
      Perenneau, Mazyck Óf Findley, for the appellants, in the first stated case.
    Judgments by confession may be entered at any time. Cited 1 Tidd, 503 ; 3 Blackst. Com. 397.
    The practice has been uniform to enter up judgments by confession, as soon as made. This has been done in term time and out of it, and there is no distinction between cases on and not on the docket. Cited 1 Speer’s Rep. 114.
    
      Bailey, Attorney General, contra.
    
      Bailey Sf Brewster, for the motion in the third case, as stated.
    
      Hurlbut, contra.
   Cu/ria, per

Richardson, J.

There appears to be no doubt that the practice in England is to enter up judgment without delay, upon a cognovit actionem, or confession of debt or damages. “ If it be of the whole,” <fec., says Tidd, 1 vol. 560, “ the plaintiff’s attorney may immediately sign final judgment, and take out execution thereon.”

Tomlins, title “ Judgment,” lays down the same rule, 2 vol. 294, adding, “ thus a debtor may give one creditor a preference to another, who has obtained judgment after a long litigation.” See, also, note to 3 Black, p. 396, and Crompton, 316, referring to 3 T. R. 235, for the authority for entering up the judgment on the day of-'the confession.

In the State of South Carolina, as far as we can discover, our own general practice has been the same, at least in vacation. In term time it has been various, since the adoption of the 11th rule of Court in 1800, that judgments shall not be entered up before the last day of the term, or rising of the court. But that rule was adopted, evidently, to prevent indecent haste, and preference of one recovery over others, when all were obtained at the same court, and were entitled to the same lawful liens.

For such objects, the whole term is as one ^day or moment, in reference to successive adjudications, orders, and the like. 1 Sellon’s P. p. 3. But ought such a rule to interfere with the personal right of a debtor to prefer one creditor to another! Such a preference could scarcely be prevented by any rules; for the debtor would only have to confess judgment in some other district, where it is not term time, or before some other court; or else make an assignment or mortgage, which could not be prevented by rules of court. Confessions of judgment constitute but another way of giving such preference, and may be just as right and proper as those.

I apprehend the legal principle to be this; that courts of justice are always open for the commencement of suits at law, and for maturing them. Peace, order and justice, require such a principle; and where the suit or action is confessed by the defendant, the same principle applies; and there then being no contestation, no question for a judge to pass upon, the law awards the judgment and execution instantly, as a necessary consequence of the suit, and confession of indebtedness, for so much money to the plaintiff. ’ So, also, the 11th rule of court is not to enable the Judge to decide whether judgments shall be entered' up on the verdicts and decrees of the term. Such judgments follow of right. The end of the ruléis to equalize the liens.

If such reasoning be just, it is of no moment whether the confession of judgment be in vacation or term time, or entered on the docket of cases for trial, or be made before the Clerk, under the formula laid down by the Act of 1839. That Act introduces or re-enacts from the Act of 1821, no more than a simple and unexpensive mode of entering up or recording judgments'by confession, upon application to the Clerk alone; which confession, by the terms of the Act, (p. 113) “ shall create a lien upon the lands and tenements of such debtor, and as against subsequent purchasers and judgment creditors, shall bear date from the signing,” (fee., (fee.; “and an execution thereupon,” (fee., (fee. “ shall be issued,” (fee., (fee., “ which shall have the like form and effect as if such judgment was founded on any verdict or decree rendered in open court.”

There can be no question upon this enactment. The lien is from the signing of the confession, which is the judgment, and constitutes the entering up the judgment, by virtue of the confession alone. The effect is then declared as equal to those of judgments on verdicts or decrees. There is no postea, or “therefore it is considered by the court.”

But this Act does illustrate the general practice, and the ^riqpiple just before noticed, that when a suit at law is (commenced, and a confession of judgment made, there is ®no judicial question left open in the case. The judgment "ris entered up for conformity, and ministerial officers only - ,^M;e- called upon to act, and not the court. The Act of ' 1839, then, plainly disposes of the rule against Boyce; and . legal principles, and the practice, dispose of that against Stoney. But how can it make any difference if the j udgment confessed has been in a case that had been before placed on the docket for trial during the particular term % The right to confess the judgment, and the consequent entering it up eo instanti, remain as before it was placed upon the docket.

It follows that, in the case of Union Bank of South Carolina against A. G. Magrath, the order of the circuit court, to take the judgment of the 8th of April, 1843, “off the file,” and not to enter it up till the rising of the court, be set aside. But that the order made, discharging the rule of Hiram Hutchinson against Ker Boyce and Christopher F. Stoney, be affirmed.

The judgments were all lawfully entered up.

The Judges all concurred.  