
    SILVERS AND BRITTIN adsm. REYNOLDS.
    Motion to set aside judgment &c.
    1. A ‘judgment entered up, by confession, on a warrant of attorney, and an affidavit that the defendants are jointly indebted to the plaintiff, may be set aside, in whole or in part as to one of the defendants, and remain in force against the others. 2 Harr. It. 275.
    2. The control which the court exercises over such judgments, upon motion and in a summary manner, is only of a discretionary and equitable character • and not as a court of Errors; and therefore,
    3. Such order, though in terms, it sets aside the judgment, as to one defendant, does not alter or affect the record: its technical meaning and legal influence is only,to restrain the plaintiff from executing the judgment on the defendant, .as to whom it was set aside.
    4. If the affidavit is regular and conformable to the statute, so as to warrant a judge’s fiat for judgment, the whole judgment does not fall to the ground, because the court upon motion, is of opinion that the judgment was wrong, or for too much, as against one of the defendants.
    Judgment was entered up against the defendants, Silvers and Brittin, on the 16th December, 1836, by confession on a warrant of attorney. In the term of November, 1839, upon a rule to show cause, previously taken by each of the defendants, why that judgment should not be set aside; this court being satisfied, after argument, that it had been improperly entered, as against Brittin, upon the ground that he owed the plaintiff nothing at the time of entering the judgment, set aside the judgment as against him; but directed the judgment and execution, as against Silvers, to stand as security for so much as might be found due from him to the plaintiff, upon an issue, if the plaintiff thought proper to take one in the manner then indicated by the court. See 2 Harr. B. 275.
    
      Mr. Broom, for Silvers, now moves to set aside .the judgment, absolutely, as against him also, on the ground, that the affidavit made by the plaintiff, was of a joint debt due from Silvers and Brittin to the plaintiff, and the court having set aside the judgment as against Brittin, there is now no affidavit to justify and support a separate judgment against Silvers.
    
      Mr. Armstrong contra.
   Opinion of the Court delivered by

Hornrlower, C. J.

The argument of the counsel for Silvers, proceeds upon a false basis. It assumes, that this court, in setting aside the judgment as against Brittin, went upon the ground, that the affidavit was false and fraudulent in such a sense as to pronounce it a pexjury, and render it a nullity. This is not so. Our control over this judgment, is entirely of a discretionary and equitable character. We do not upon- these applications, act as a Court of Errors, but only give such relief, as the justice and equity of the case, upon facts proved before us, by affidavits, seem to demand. This judgment upon the face of it, is entirely regular. The proceedings and affidavit, were such as fully to authorize a Judge’s fiat. JSlor can we, sitting here, and upon motion, in a summary way, pronounce the affidavit to be corruptly false. We may bo satisfied, as we were upon the former argument, that one of the defendants had by operation of law, or by express contract with the plaintiff, been discharged from his liability on the note, in whole or in part; and being so satisfied, we may in the exercise of that equitable control we have oyer these confessed judgments, relieve him pro tanto. It does not follow, from such decision, that the plaintiff has been guilty of wilful and corrupt perjury. He may have sworn to what he believed to be actually or constructively true: and the affidavit must be taken to bo true, so far as to justify the fiat for judgment, until it has been found otherwise, upon an issue. Our decision, on the former application, has not altered or affected the record. It was not a reversal of the judgment in whole or in part; and though our language was, that the judgment beset aside, as to Brittin, the technical meaning and legal effect of that is only to prohibit the plaintiff from proceeding by execution against him. The judgment remains, in form against both, and the record is perfect. The court however, will see that the plaintiff makes no improper use of it. He may issue execution, or if one has already been issued upon it, he must not after the decision of this court, attempt to execute it upon the person or property of Brittin. If he does, he will be subject to the discipline of this court, as a contemner of its decisions. The directions given by the court, on the former argument, afforded the defendant Silvers, a fair opportunity of investigating the whole matter, and showing how much, if any thing remained due to the plaintiff. If he does not choose to avail himself of it, the plaintiff ought to be at liberty to proceed on his execution against him. In my opinion the motion must be denied with costs.

Motion denied.  