
    Hannah Enston vs. Daniel Mixer.
    
      Confession of Judgment — Practice.
    Confession of judgment made 5tli of January, 1861, and judgment entered 8th of June of same year. Defendant had died on 27th of May, before the entry was made, and two terms of the Court had been held between tbe date of the confession and the death of defendant. A term’s notice had not been given as-directed by rule of Court; Meld, that the entry was irregular, and judgment set aside.
    BEFORE MUNRO, J., AT CHARLESTON, APRIL TERM, 1867.
    Tbe report of his Honor, tbe presiding Judge, is as follows :
    “This was a rule in behalf of Mrs.-r- Mixer, ad-ministratrix of tbe estate of the late Daniel Mixer, upon the plaintiff) to show cause why satisfaction should not be entered on the judgment in the above stated case, which had been confessed by her intestate in his lifetime, to the plaintiff, in the sum of $5,000, as collateral security for the payment of the rent of the Charleston Hotel, of which he was the lessee.
    “The judgment appeared to have been confessed on the 5th day of January, 1861, but was not entered up until the 8th day of June, following.
    “ The main facts of the case as disclosed by the affidavits, are these: The plaintiff being owner of a moiety of the Charleston Hotel, by an instrument executed on the 21st day of December, 1860, leased the same to the said Daniel Mixer, for a term of five years, at an annual rent of |5.000, in quarterly payments, the lease to commence on the 20th day of April, 1861; and for the better securing the payment thereof, Mixer confessed the above mentioned judgment. In the month of May, 1861, Mixer died intestate, and his widow, the actor in the present motion, administered upon bis estate; and continued to occupy the premises, carrying on the business of the hotel, and in all respects complying with the terms of the lease, until the bombardment of the city by the Federal forces in the fall of 1863 rendered a longer occupation of the premises utterly impracticable.
    “It appears that the Federal batteries opened their fire upon the oiLy some time in the month of August of that year. The hotel being completely within the range of the enemy’s guns, the consequence was, that in a short time afterwards it was entirely abandoned by all its inmates, except a Mr.White, who alone remained (and that, too, at the peril of his life) in order to protect the premises. The relator’s furniture was subsequently removed to a place of security, and the rent of the premises paid up by her to the 1st (or 15th) of January, 1864. This was the last payment of rent that she made under the lease.
    
      “ It further appeared, that some time in the year 1863, Theodore I). Wagner became the proprietor of the other moiety of the hotel, which he subsequently leased to Mr. White, the person who remained in charge of the hotel; and in the early part of the year 1864, the relator also transferred to Mr. White all her interest in the balance of her lease, and submitted a proposition to the respondent, to accept of White as her tenant, to which the respondent yielded a conditional assent, but as White refused to give the required security, the proposition failed of success.
    “ In the month of August, 1864, a demand was made by the respondent’s agent for the arrears of rent and possession of the premises. This was replied to by Mr. O’Connor, the relator’s counsel, who, while he disclaimed his client’s liability for rent, directed the agent to take, possession of the premises.
    
      “ Things appeared to have remained in this condition until the surrender of the city to the Federal forces in February, 1865. Whether the respondent took possession of the premises immediately after the surrender did not appear; certain it is, however, that on the 15th of March, 1865, she executed a lease of the hotel to one Stetson, without a formal surrender of the premises by the relator.
    “ The grounds relied on by the relator in support of her motion, were:
    “ 1st. That her expulsion from the premises by an irresistible hostile force, was sufficient to exempt her from the obligation imposed by her intestate’s covenant to pay rent, so long as such force continued.
    
      “ 2d. That as an entire term had intervened between the confession of said judgment and the time it purports to have been entered up, during which time her intestate had departed this life, the plaintiff had no authority to enter up her judgment, without first complying with the terms prescribed by the rule of Court in such case made and provided.
    
      “ While on the other hand it was insisted, in behalf of the respondent:
    “ 1st, That where premises are rendered uninhabitable by casualty or vis major, there is but one of two things that will relieve the lessee from the binding force of his contract to pay rent, namely, either an express covenant in the lease to that effect, or a surrender and acceptance of the premises by the lessor.
    “2d, That the rule of Court referred to has no application whatever to confessions of judgment, but only applies to such judgments as are rendered in Court.
    “It would be difficult to conceive of a stronger case of vis major, and one better calculated to test the principle than the one under consideration.
    “Against an entire or partial destruction of the premises, either by fire or the act of God, the lessee is protected by a covenant in the lease; but as against external, or hostile force, there is no provision whatever; so that in the absence of any express covenant to that effect, the single question that presents itself is, Whether the lessee is excused under the general law from the payment of rent ?
    “Whether in a case like the present, where the lessee is driven from the premises by external violence, and there is an express covenant in the lease for the payment of rent, the loss of the rent should be visited upon the lessor or the lessee, is a question about which the authorities, to say 'the least of them, are anything but consistent. For while - many of the English cases, and the same may be said of the American, maintain the doctrine that the loss should be' visited upon the lessee, a contrary doctrine is maintained by the civil law, and by the law of those countries, as for instance France and Scotland, where the system has been adopted, and Puffendorff (B. 5, ch. 6, sec. 2) considers the rule of the civil law to be just aud equitable. — See note (a) vol. 3, Kent, p. 602, where these authorities will be found collected. And it must have been upon some such ground, although it is not so stated with respect to the case, that our own case of Bailey vs. Lawrence, (1 Bay, 499,) was decided.
    “ The report of the case is exceedingly brief, and is thus stated:
    ‘“Defendant driven off by the casualties of war, and deprived of the enjoyment—
    “‘Resolved, per curiam, The defendant ought to pay for the time he peaceably enjoyed the premises, but not for the time he was prevented by the casualties of war.’
    “However briefly this case may have been reported I felt bound to treat it as an authority, quite as obligatory upon me as if it had occupied as many pages as it has lines, and accordingly sustained the relator’s motion.
    “I expressed no decided opinion on the second ground, deeming it sufficient to rest my judgment on the one already indicated.”
    
      The respondent appealed on the grounds:
    1. That the confession of judgment was given as a collateral security to the plaintiff for the payment of the rent ,of the Charleston hotel: and as there was rent due and unpaid under the lease until March, 1865, when the lessor took possession, the order to satisfy the judgment, it is respectfully submitted, was erroneous. 4 Bacon’s Ab. Pent L.; Morehead vs. Barrel, Chev. 100; 4 Bacon’s Ab. Pent L.; 3 Kent, 371, 372, 373; Taylor’s Ld. & Ten., sec. 372, 379, 278, 282.
    2. That under the lease nothing save the act of God, fire or proceedings for partition could exempt the lessee from liability for rent until the lease was rescinded by the lessor’s consent, or the expiration of the term for which it was leased. Pollard vs. Shaffer, 1 Dal, 210; Hallett vs. Wylie, 3 Johns. Pep. 44; Pym vs. Blackburn, 3 Yes. 34; Holtzapfel vs. Baker, 18 Yes. 115.
    3. That the lessee was bound to surrender and deliver up the leased premises; and until the premises were surrendered and delivered up, the lessor was entitled to rent up to the period when she took possession.
    4. That the lessee’s solicitor’s written suggestion that the lessor could take possession of her moiety of the hotel, was not a performance of the covenant to surrender and deliver up possession of the leased premises.
    5. That tire order to enter satisfaction on the judgment was in other respects illegal.
    Phillips,for motion.
    
      O'Connor and MeCvady, contra.
   The opinion of the Court was delivered by

Wardlaw, A. J.

The question to which, in the argument of this case, attention was principally directed, concerns the obligation of the tenant under his covenant to pay rent, during his expulsion from the demised premises by an irresistible hostile force, without default on his part. But this question has not been considered, because the case does not present it neatly, inasmuch as the case depends upon the present efficiency of a judgment which, if valid, cannot be satisfied, if any small sum, under any of the views urged by the plaintiff, remains unpaid; and because there being another ground on which the case must be disposed of in favor of the defendant, a decision of the question which we have mentioned in his favor would not be authoritative. The Court therefore has confined its inquiry to what the Circuit Judge reports as the second ground which the relator relied upon before him, upon which ground, presented in the first of the grounds of appeal, both parties have been heard here.

The material facts and dates are these, all of the year 1861: — The confession was signed January o, and was an ordinary confession, written upon a declaration in indebit-atus assumpsit, no terms nor arrangements being contained therein, or in any way shown to have been connected therewith. The January term of the Court for Charleston commenced the second Monday of January; the April term commenced April 22, and ended by adjournment May 13; I). Mixer died May 27; the judgment was entered June 8, and the June term commenced June 17.

Judgment was then entered in the vacation which followed the second term after the confession, during which vacation, and before the entry, the defendant died. So that if the confession was, as it must be supposed to have been, an acknowledgment of what took place in a pending suit at the term preceding its date, (October, I860,) the entry was in the vacation which followed the third term, that, at which took place the transaction, which was entered, being reckoned the first.

The case of Keep vs. Leckie, (8 Rich. 154,) which in many respects is similar to this, differs in this important particular: that there by express agreement of the parties, carefully written, and connected, with the confession,-special terms were stipulated, and a contingency was provided, before the happening of which there was no default, and could be no entry of judgment. The dispute was whether the implied waiver of notice contained in the agreement was not withdrawn by the defendant’s death. But here there was nothing to hinder the entry of judgment immediately after the confession. It was intended as a collateral security, but it was entrusted to the plaintiff’s attorney, to be used at his discretion, according to his views of -expediency, in reference to the plaintiff’s interests. If delay until two terms had passed was permissible, what prevented delay for seven years or more? To make the judgment relate to a term during the defendant’s lifetime, it was necessary to enter it before the term next after his death ; but if a confession dated in January could by fiction be made to sustain an entry as of the April term, which next preceded the death, why could not, with no more inconsistency of dates, a confession of 1861 have sustained an entry as of October, 1867, if Mixer had lived until January, 1868. There is no limit, unless we apply the 10th Rule of Court. That ford ids the entry of a judgment, without a term’s notice, after the second term subsequent to that at which it was obtained; the term at which it was obtained being reckoned the first. It is an indulgence granted to a confession in vacation, when it is considered, and allowed to be entered, as a judgment obtained at the term next preceding; but if as good asa verdict or a final order of Court, a confession is no better, and can claim no exemption from a rule, which may often serve to prevent great abuses.

It appears then to the Court that the entry of judgment was irregular and void, and the judgment is accordingly set aside.

Motion dismissed.

ÜUNKIN, C. J., and Lstglis, A. J., concurred.

Motion dismissed.  