
    Pickett v. Claiborne.
    [October, 1787.]
    Judgment by Confession — Want of Declaration — Effect. —After a judgment confessed, the want of a declaration is not error.
    Same — Same—Second Action for Same Cause — What Must Show. — If there be judgment upon a general count in assumpsit; or by confession without a declaration; the plaintiff, in a second action for the same cause, must shew two subsisting debts, or he cannot sustain his action, if the former recovery is pleaded.
    Same — Damages Laid in Tobacco. — If in an action on the case, the plaintiff lays his damages in tobacco; and the defendant confesses judgment, the judgment is not erroneous.
    Same — Power of Attorney — Proof of. — A power of attorney to confess a judgment, directed to five, with a subscribing witness, was proved by one of the five, without calling the attesting witness: But this was probably, through oversight, as the point was not mentioned in the argument.
    Pickett brought case in the county court of Henrico, against Herbert Claiborné and William Claiborne, and laid his damages at “one hundred thousand pounds of inspected crop tobacco of the value of one thousand pounds.” The defendants appeared, but no declaration was filed; and the cause was continued, by consent, until the next term, when judgment was rendered for the plaintiff in the following words, “and now at this day, to wit, on Tuesday the 6th *day of May, 1783, came the parties aforesaid, by their attornies aforesaid, and thereupon the defendants, by their note in writing, here produced to the court, which was proved by the oath of John Beckley, gent., acknowledged the plaintiff’s action for sixty-five thousand four hundred and forty pounds of inspected crop tobacco at the upper warehouses on James river, with interest thereon to be computed after the rate of five per cen-tum per annum from this day ’till paid. Therefore, by consent of the parties, it is considered by the court that the plaintiff recover, against the defendants, the said sixty-five thousand four hundred and forty pounds of tobacco, with interest thereon as aforesaid, and his costs by him in this behalf expended, and the said defendants in mercy, &c. and the plaintiff agrees to stay the execution of this judgment until the twenty fifth day of June next.”
    The note for confessing thé judgment was in the following words:
    “Richmond, 1st March, 1783.
    Gentlemen,
    You or any of you are hereby authorized and empowered to" enter and confess judgment against us, in the county court of Henrico, for sixty-five thousand four hundred and forty pounds of inspected crop tobacco at the upper warehouses on James river, to Mr. George Pickett, with interest of five per cent, of like tobacco from the date of such judgment, he the said Pickett staying execution thereupon until the twenty-fifth day of June next.
    Herbt. & W. Claiborne.
    To
    Mr. Andrew Ronald, John Beckley, Bart. Williams, Will. Duval, Will. Dan-dridge, Nath. Pope, junr. or any other attorney practising in- Henrico county court. .
    The above is to be entered at the next April court.
    Herbt. & W. Claiborne.
    Witness,
    John Hopkins.”
    *The general court granted a writ of supersedeas to the judgment; and, being of opinion that it was erroneous, reversed it in these words, “It is considered that the said judgment be reversed and annulled, and that the said Herbert & William Claiborne recover against the said George Pickett their costs by them expended in the prosecution of their writ aforesaid here; and the said George Pickett having failed to file his declaration in the action aforesaid in the said county court, It is ordered that he be nonsuited, and pay to the said Herbert Claiborne & William Claiborne five shillings for their damages by the court now here adjudged according to the form of the act of assembly in such case made and provided, and also their costs, by them about their defence in the said county court, expended.”
    Pickett obtained a writ of error from the court of appeals to the judgment of the general court; and assigned for error, That the general court ought not to have reversed the judgment of the county court for want of a declaration, as the confession had cured the defect, and barred the defendants from taking advantage of it.
    The defendants pleaded “In nullo est erratum,” and assigned the following reasons in support of the judgment of the general court:
    1. That the damages in the writ were laid in tobacco. 2. That no declaration was filed. 3. That, if the warrant of attorney had contained an express release, the release would have been void; because it was made prior to the judgment, and therefore had nothing to operate on. 4. That before the statute of jeofails, 4 Ann. cap. 16, a judgment by confession might be reversed for defects which the prior statutes had cured, after verdict; and that, since that statute, judgments by confession stand upon the same ground as those upon verdicts: which cures informalities, but not substance; and consequently that the want of a declaration was still fatal: especially, as the declaration is the foundation of the judgment, and the act of assembly prohibits any proceedings without one ; for, when a statute prescribes a ^'particular mode for conducting any business, no other can be pursued: and consent can never be implied to control the operation of a positive law.
    Marshall for the plaintiff in error.
    The want of a declaration was cured by the confession of judgment; for the rule is, that there should be a declaration; and not that a confession of judgment will be unavailing to supply the want of it. All pleading is founded in reason, and the object is to promote, not to prevent, the attainment of justice; but that principle will be subverted, if a solemn agreement like this, where the parties liquidate their disputes, and one grants time in consideration that the other will confess a judgment, is to be disregarded. The usual argument, of surprize, has no weight upon the present occasion; for the defendants stipulated the sum for which judgment should be entered against them; and, therefore, could be at no loss for information with regard to the nature of demand. If a release of errors had been entered, at the time of the judgment, it would have barred the writ of supersedeas from the general court: and there is no difference, in principle, whether the release be of record, or, in pais, only; for, in both cases, it is nothing more than an agreement, not to bring a writ of error. But a release in law is as effectual, in all cases, as a release in deed. Thus a feoffment by one joint-tenant to his companion will not pass the estate, but it may operate as a release. So a covenant not to sue upon a bond, does not extinguish the bond; but the agreement releases the remedy. Holt, 170. And so, in the present case, the warrant of attorney amounted to an undertaking to relinquish all errors in the rendition of the judgment; and barred the defendants from alleging the want of a declaration; for the meaning was, that there should be an effectual judgment, in order to settle the claim, finally, on both sides: and, with that in view, it would have been absurd, if the parties had intended, that either of them should have it in his power to elude the agreement, by taking advantage of an oversight to destroy the judgment, and set all to sea again.
    *Duval, contra.
    The warrant of attorney did not imply a release of errors; and the plaintiff has no cause to complain of the conduct of the defendants; for he had it in his power to make the record right before he took his judgment; and, if he neglected it, the fault is his. A judgment by default confesses the action, but it does not imply a release of errors; and yet the implication would be as justifiable in that case, as in this. A declaration is in all cases essential to the safety of the defendant; for otherwise he may be sued again for the same thing, without having it in his power to plead the former recovery in bar, as the identity of the claim will not appear of record; and it is upon that principle, that the act of assembly requires a declaration. Virg. Laws, 172. The English cases are express, that confession of judgment does not cure error, 2 Cro. 32: where a judgment confessed upon a bond was reversed for want of a profert; and in 2 Black. Rep. 780, it was held, that consent to confess judgment upon terms did not imply consent not to bring a writ of error. Which applies expressly to the case under discussion, and sustains the judgment of the general court.
    John Taylor, in reply. Upon reason and principle, consent takes away error; for volenti non fit injuria. The statutes of jeofails cure defects in substance, as well as form; and the spirit of them is, to support the proceedings, whenever the defendant has been fairly heard, passes over defects, or assents to the judgment. Pleading is nothing more than a representation of the case upon one side, and a denial, or confession of it on the other; and, if the plea confesses the action either in whole, or in part, the plaintiff is entitled to judgment, whatever defect may appear in the proceedings. 3 Black. Com. 304. An express release would certainly have cured the error; and the agreement amounts to the same thing; for an implied release is as effectual as an express one; thus if the lord disseises the tenant, and then enfeoffs him, it is a release of the seignory, without any *words for that purpose. Co. Litt. 262, b. Upon the same principle, the warrant of attorney, in the present case, was equivalent to a release of errors: for, by confession of judgment, the defendant consents to all those means, without which, the judgment cannot be effectual; and, in support of that idea, the law will supply whatever is requisite to sustain it, as the want of an original writ, 1 Wms. 411; or an express renunciation of errors, where the consent would otherwise become abortive, as where there was a consent to try the title to lands in a different county from that in which they lay, and it was held to take away the error. T. Raym. 372. The conduct of the appellees was fraudulent, as the plaintiff relying upon the agreement was at no pains to strengthen his judgment; and it is a rule, that errors, created by fraud, shall not be taken advantage of by the author of the fraud. 1 Dom. 237. The only object of a declaration is to prevent surprize; but none could exist where the claim was adjusted, and judgment consented to, with a full knowledge of the circumstances. The supposed difficulty of identifying the claim, should another suit be brought for it, is imaginary ; for it lies in averment; and the objection would apply to all general counts in assumpsit. A faulty declaration would have been cured by the confession ; and the case is stronger as it is: for, if a faulty declaration had been filed, it might have been supposed, with some plausibility, to have applied to the matter set forth in it; and, if that were insufficient, that the defendant was not chargeable. But here was no declaration at all; and therefore the agreement must be understood, as extending to every thing necessary to sustain the judgment.
    
      
      Judgment by Confession. — See the principal case cited in Thornton v. Smith, 1 Wash. 83; Dinwiddie v. Chesterfleld, 5 Call 561; Leftwitch v. Stovall, 1 Wash. 306. See generally, monographic note on “Judgments by Confession” appended to Richardson v. Jones, 12 Gratt. 53.
    
   PENDLETON, President,

delivered the resolution of the court:

The practice of the general - court has been to consider the want of a declaration fatal- in every case, whether the judgment was adversary, or confessed; and that practice was applied to the present cause. But the judges of that court *have retracted their opinion, and concur, with the rest of us, in the judgment now to be delivered.

The time was when there were no forms, or pleadings; but the parties were heard viva voce, and judgment rendered in á summary way, upon the oral declarations of the plaintiff and defendant. This however was found inconvenient; and therefore written forms' were introduced, that, the case being described with precision on both sides, surprize and inadvertence might be prevented. But this, like other things liable to perversion, was soon abused; and special pleading with all its train of sub-tilties and new inventions succeeded, to the infinite delay of justice. This evil called forth the statutes of jeofail; which equally extend to judgments by confession and default; and, in both cases, were intended to prevent captious exceptions, where the defendant acknowledged, that justice had been done, or left it to be presumed, from his silence. Accordingly they provide, in' substance, that such judgments shall not be reversed for any defect, or omission, which does not go to the right of the cause. A principle which seems to embrace the case before the court, as the objection is to the form, and not to the right.

The use of a declaration, in an adversary suit, is, to inform the defendant of the nature of the charge: and, with that view, the act of assembly prescribes a nonsuit, where the declaration is. not filed, at the first calling. But this is a privilege, which, like others of a similar nature, the defendant may waive, as it concerns himself, and not the public. Thus, if the declaration is not filed, and the defendant consents to a continuance, he is presumed to waive his right to a nonsuit, and the cause remains in court. So, if the defendant wishing to save the expense of pleading and to gain time, agrees to confess a judgment, he ought to be understood, as consenting to relinquish all exceptions to the want of a declaration, or to any other matter of form.

In the present case, not only was the expense of the declaration and consequent pleadings saved, but the defendants were allowed to appear without bail, and obtained further *time to pay the debt. All, but particularly the last two, considerable advantages gained by confessing the judgment: which ought therefore to bind them.

It was objected however, that a declaration was necessary, in order to bar a future suit for the same thing, as the identity of the claim could not be made to appear without one. But that objection would apply, as was observed by the counsel, with equal force to all general counts in assumpsit; which are scarcely more explicit. Besides, if to such new suit, the recovery, in this, were to be pleaded, the plaintiff would be bound to shew two subsisting debts at the time of the former judgment, or he would not be able to sustain his action.

Upon the whole, the court are unanimously of opinion that, as a declaration in this case would have served no other purpose than to swell fees and papers, the judgment of the general court ought to be reversed, and that of the county court affirmed.  