
    [Lancaster,
    June 6, 1825.]
    ZERGER against GONTER.
    IN ERROR.
    A judgment entered generally, is not to be considered as a judgment by confession, where the writ is in debt not exceeding five hundred dollars, special bail in that sum, and the defendant took an early opportunity to have the judgment opened.
    By the return of a writ of error to the Court of Common Pleas of York county, in this case, it appeared, that this suit was brought in that court to April Term, 1S21, by John Gonler, the defendant in error, against Michael Zerger, by capias, in debt by assumption, for work and labour, &c. not exceeding five hundred dollars, to which the sheriff returned cepi corpus, and bail bond. On the 18th of October, 1821, the plaintiff filed a statement, signed by his attorney, that his demand was founded on a verbal and implied assumption, made by the defendant to the plaintiff, to pay him five hundred dollars, for work and labour performed and done by the plaintiff, at the instance and special request of the defendant; the whole of which said five hundred dollars are, and remain justly due to the plaintiff. The plaintiff sued out the bail bond to January term, 1822, and special bail was entered on the 1st of January, 1822. The next entry on the record was as follows: “9th of January, 1822, judgment.” On the 4th of February, 1822, a rule was granted, to,show cause why the judgment should not be opened, and the defendant let into a defence, because the judgment was not entered on the day contemplated by the act of assembly, which the court afterwards discharged. Another rule, subsequently granted on motion, and affidavit filed, was also discharged by the court. An attorney’s name was marked opposite the defendant’s, on the record.
    The errors assigned were,
    1. The date of the promise, in the statement mentioned, is not set forth, or specified.
    2. There was error in entering judgment, as the defendant was not in default.
    
      Durkee, for the plaintiff in error, referred to the act of the 21st of March, 1806. Purd. Dig. 325, and contended, that this act required the date of the promise to be mentioned in the statement. Perhaps the promise was after the commencement of the action. On the other point, the plaintiff was not entitled to judgment by default, because he did not enter his statement in the time required by the act. Besides, five hundred dollars could not be the sum due, because special hail was taken only in that sum, and yet the judgment is for five hundred dollars.
    
      Gardner and Hopkins, contra»
    
      The rqeord shows the plaintiff’s eláitn to have been for exactly five hundred dollars, for work and .labour .done. The judgment was nofMaken by default. Whence defendant gave special bail, fie appslred by an attorney. Tfpjii reedr^fshows no default; nor could itnave been so, inasmuch as'the defendant appeared by attorney. Under these circumstances, the presumption is, the judgment was by confession. This presumption is strengthened, by the circumstance of a rule being laid, to show cause why the judgment should not be opened, and the court, after inquiry into that matterAdischarged the rule. Th^bmissSfei of the date of the promise ijgg'ured, by confession of ^^m^®K|They cited 1 Yeates, 154. Whart. Dig. 200. No. 87. 8 Serg. & Rawle, 336. 163.
    
      Durkee, in reply,
    insisted, that it certainly was not a judgment by conlession. There is no merifibn of codfession in the record. It is the universal practice, when -judgment is confessed, to enter it so. Every part of this record contradicts the idea of confession. Judgment was entered on the 9th of January, 1822, and on the 4th of February, following, the defendant made a motion to have the judgment opened, because it was not entered on the day directed by the act of assembly.
   The opinion of the court was delivered by

Duncan, J.

If this judgment can be maintained, it is because the record shows it to be a record by confession. It does not show that it is a judgment by the court, for what appeared to be due; and where there was an appearance by attorney, it is against all probability that the attorney confessed judgment, or that in fact five hundred dollars was the exact sum claimed by the plaintiff. The writ is in a plea of debt, not exceeding five hundred dollars, special bail in five hundred dollars, and the statement without date, on an implied promise for five hundred dollars, for work and labour. It was a round sum, not a debt ascertained by any alleged contract, of sufficient amount to cover any demand the plaintiff might recover. But, if five hundred dollars was the debt really due, the bail bond would neither cover the interest or costs. Debt not exceeding five hundred dollars, is any thing else than a precise demand of five hundred dollars. My own experience corresponds with the statement made by a very accurate gentleman of the York bar, that where the party confesses judgment in the office, it is a formal confession,. “I appear and confess judgment, &e.” and where it is done by an attorney, it is the practice to note it by consent. But it is incredible, that either the party or his attorney confessed judgment, for the exact sum of five hundred dollars, in this case. Indeed, the recent application to’open the judgment proves that this was not the case. We do not, by inquiring into the practice, go out of - the record, to reverse a judgment apparently regular; but, the inquiry here was made to support, if possible, a judgment irregular on its face — by a long continued practice, which might have influenced the Court of Common Pleas, in refusing an application to set aside the judgment. The danger apprehended, by the counsel for the defendant in error, of striking off many judgments entered in the courts of York, is quite visionary, for there has been no practice to disturb* The evil never can be realised; and, for my own part, if the defend» ant had long acquiesced, and the judgment had been for any thing like a certain sum, I would suppose an ascertainment of the damages had taken place between the parties, and the acquiescence would amount to a ratification of the irregular judgment, presumptive ' confession, particularly where execution had issued, and the money been raised. But no such thing exists here; there is no ascertainment of any debt; the writ and statement are merely nominal; and the defendant in this action took the first opportunity to protest against it. The judgment is, therefore, reversed.

Judgment reversed*  