Opinion
02-18-1863
INSURANCE COMPANY OF THE VALLEY OF VIRGINIA v. BARLEY'S Adm'r.
Byrd, for the appellant: The Attorney General, for the appellee:
1. As actions at law in the county courts are cognizable only at the quarterly terms, so motions to set aside any of the proceedings in the office in such actions are cognizable only at a quarterly term. And therefore the " " preceding vacation" referred to in the Code ch. 171, § 51, p. 715, means in its application to such cases, the interval between the quarterly terms of the court.
2. A power of attorney to confess a judgment may be executed before the action is brought.
3. A judgment may be confessed either in court or in the clerk's office, by an attorney in fact, though the attorney is not a lawyer.
4. When a statute changing the common law is repealed, the common law is restored to its former state.
On the 21st day of January 1857 the Insurance Company of the Valley of Virginia sued out from the clerk's office of the County court of Frederick, a summons in debt against John W. Barley and L. E. Swartzwelder, for $571.00, with interest, and $2.63 costs of protest. On the same day these defendants executed a power of attorney by which they authorized William L. Bent to confess a judgment for them in a suit pending in the clerk's office of the County court of Frederick, for the amount of the debt, interest and costs of protest. And still on the same day the attorney did confess the judgment, and filed the power with the papers in the office.
On the 13th of February Barley gave notice to the Insurance Company, that on the first day of the next March term of the County court of Frederick, he should move the court to set aside the judgment confessed in the office, for, among other reasons, the following: 1st. Because the power of attorney was executed before the suit was brought. 2d. Because William L. Bent was not an attorney at law, and an attorney in fact cannot confess judgment for his principal. 3d. Because if an attorney in fact could confess judgment in open court, only the defendant himself can confess a judgment in the clerk's office.
The Insurance Company appeared at the March term of the court, and made defence; and the motion was continued by consent to the next June term.
At the June term the Insurance Company filed a plea of estoppel to the first ground of objection stated by Barley; to the allowance of which he excepted. On the hearing of the motion, the plaintiff offered to introduce a witness to prove that the power of attorney under which the judgment was confessed, was executed before the suit was brought. But the court refused to permit the plaintiff to examine the witness for that purpose: and he again excepted.
It appeared, upon the hearing of the motion, that William L. Bent, at the time he made the confession of judgment, was not and never had been an attorney at law. That he produced the power of attorney to the clerk of the court, and confessed the judgment under it. That there was no proof before the clerk, of the execution of the power; but on the trial of the motion it was admitted that it was executed by Barley and Swartzwelder on the day of its date; and it was filed by the clerk with the papers.
The court refused to set aside the judgment; and the plaintiff again excepted; and applied to the Circuit court of Frederick county for a supersedeas, which was accorded. And at the June term of the court for 1859, the suit having been revived in the name of Barley's administrator, the Circuit court reversed the judgment of the County court, and set aside the original judgment. And thereupon the Insurance Company obtained from a judge of this court a supersedeas to the judgment of the Circuit court.
Byrd, for the appellant:
The county court of each county is in respect of all its terms, monthly and quarterly, a unit under the constitution and laws of Virginia, and at the former it has the same general jurisdiction, in respect to the trial and determination of motions, that it has at the latter; except as to that allowed by the 5th section of chapter 167, p. 640 of the Code of Virginia, which has no relation to or bearing upon this case. It is therefore respectfully submitted whether under the terms of the 51st section of chapter 171, p. 353, of said Code, pursuant to which it is professed to have been issued, the notice of the 13th of February was not too late to authorize on any ground whatever, the exercise of the authority conferred by that section upon the courts of this commonwealth.
Assuming for the purposes of the argument, contrary to whet we allege to have been the fact, viz: that the power of attorney was executed before the institution of their suit against John W. Barley and L. E. Swartzwelder in said County court, we have to remark:
That the right of parties to make and accept confessions of judgment, and thereby to terminate litigation between them, contra-distinguished from the legal means of making its exercise effectual, is not necessarily dependent upon the existence of any express legal provision authorizing or conferring it, but is one of a fundamental character, resting upon general principles, which inheres in the members of the social body, under our system of jurisprudence, as an inevitable incident to the acquisition and ownership of property, and the free power of managing, controlling and disposing thereof, subject only to such limitations or restrictions as may be at any time expressly imposed by law; and that it may be exercised in any form or mode, which, under existing legal principles or provisions, may be effectual, except so far as directly inhibited by legal enactment. In other words, that it is a right inherent in the members of society, as an inevitable incident to the proprietary system recognized and upheld by our laws, and is not one which depends for its existence upon any special legal enactment--just as does the right of any individual to admit and liquidate the amount of his indebtedness to another by the execution of his bond to that other, or otherwise. In either case the effectual and beneficial exercise of such right depends, more or less upon the means which the law may provide in aid thereof.
That, therefore, the effect of the passage of the 41st section of chapter 171, page 651 of Code of Virginia was not to confer a new right, but to provide an additional mode or means for the practical and effectual exercise of one pre-existent, by imposing in general and unqualified terms upon the several clerks of the various courts of original jurisdiction in the commonwealth, the duty of entering of record in vacation, such confessions of judgment as might be made and accepted by parties in their respective offices, to " be as final and valid as if entered in court on the day of such confession, except merely that the court shall have such control over" the same " as is given by the last section" --the 51st of said chapter 171.
That said right, then, to confess a judgment, being one of a fundamental character, and said 41st section having thus, in general and unqualified terms, provided the means of its effectual exercise before the clerk in his office, the question results, whether, in respect of that mode of exercising said right upon the assumption that said power was executed before action brought, there was, on the said 21st of January, 1857, when the confession of judgment in question in this case was made and entered, any binding and existing provision of law, which, in consequence of its having been so executed, rendered it " void," or so impaired its validity that it was inoperative " to support or authorize a judgment to be confessed."
That to sustain the affirmation of the issue involved in this question, certain former acts to be found, respectively, in sections 106 of chapter 128, page 512, and in section 12 of chapter 76, page 270, of 1st vol. Rev. Code of 1819, are referred to and relied on by the appellee, notwithstanding they were not merely wholly pretermitted in the revisal of 1849, but also directly repealed thereby.
[See section 1 of chapter 216, p. 800 of Code of Va.]
But to obviate this it is insisted, that " the repeal of one statute which repealed a former statute does not revive the first statute; " and therefore it is argued by way of submission, that the mere failure to re-enact the law which has been in force from 1794, does not revive a law which was obsolete, and which was not re-enacted because it was thought unnecessary to prevent a mode of proceeding which had been out of use for more than one hundred years," & c.
To this we reply:
I. That it does not meet the question, because there was not only a failure to re-enact said former acts upon the adoption of the Code of 1850; but, in addition, they were directly repealed thereby.
[See sec. 1 of chap. 216.]
II. That the rule, that the repeal of a repealing statute, does not revive the original statute, was prescribed by statute, and it is submitted, has alwas been deemed to be confined in its operation to statutory laws.
III. That a simple but conclusive test, as to whether said old acts were not repealed by the adoption of said Code of 1850, may be found in the inquiry, whether a prosecution could now be maintained under that of them, to be found in 12th section of chapter 76, p. 270 1st Rev. Code of 1819.
IV. That the failure to re-enact said former acts, did not proceed from the causes, or either of them, suggested by appellee's counsel; and that to suppose it did, would necessarily stultify the revisors who prepared it, and the legislature which adopted said Code of 1849; but from the deliberate intention to abrogate and repeal them in accordance with a change in the policy of Virginia legislation in reference to the collection of debts, consequent upon the changed condition of affairs within the state.
V. Then more particularly as to what was and was not the effect of the passage of said old acts, so far as the present inquiry is involved:
1. It amounted to a legislative declaration that, under the general practice which had obtained in various modes or forms in the exercise of said right of individuals to make and accept confessions of judgment, that, amongst others which prevailed to some extent through the instrumentality of powers of attorney, " made before action brought," was valid.
2. To provide that thereafter such instruments should be void, and to inhibit, under a penalty, the making of confessions of judgment pursuant thereto.
3. And thereby to constitute that particular mode of exercising said general right, an exception to said general practice.
4. But that thereby, no general provision of the statute or principle of the common law was repealed; nor was said general right itself abrogated, nor yet its practical exercise impaired, save only to the extent of that exception.
VI. Then as to the effect of the adoption of the Code of 1849:
1. It is submitted, if the practical exercise in one of several modes of a general right, which, upon general principles, inheres in the individual members of society, is inhibited by statute, and in a Code subsequently adopted, professing to embody the entire statutory law of the State, that statute is either wholly pretermitted or directly repealed, or both, whether, in the absence of any legal provision to the contrary, such exercise thereafter of said right is not fully discharged from the restriction so imposed.
And if so, it is most clear:
2. That the effect of the adoption of said Code of 1849 was, wholly, to abrogate said exception so ordained, as above shown by the passage of said former acts, and consequently to restore, relieved therefrom the practical exercise of said general right, and to reinstate it in the same plight that it was anterior to the passage thereof.
VII. That in respect of the suggestion that the particular mode in question of exercising said general right was " obsolete, " and the argument sought therein to be deduced therefrom; it has no application in this case, however long that mode has been in disuse; because such disuse was not the result of the voluntary, general consent of society, but in consequence of a penal act prohibiting it.
VIII. That said exception having been thus abrogated, & c., even upon the concession, for the purposes of the argument, that said power of attorney was made before " action brought; " it follows necessarily, that, so far at least as said former acts are concerned, it was and is a valid instrument, and that the said judgment confessed pursuant thereto, and duly entered of record, on the 21st day of January, 1857, was equally so, and ought not to have been set aside.
As to the alleged grounds of error insisted on, viz:
" That an attorney in fact cannot confess a judgment."
As to this it is to be observed:
I. That the proposition asserted therein is so broadly stated, as to cover all cases of confession of judgment, whether made in open court, or in the clerk's office; and thus viewed, that its refutation is furnished by this court in its action in the case of Calwells v. Shields, & c. " 2. Rob. R. 305, in which the validity of an appearance in court, per an attorney in fact, for the purpose of confessing a judgment, and the confession therein of one per such attorney, is fully recognized and sanctioned.
II. It is submitted:
1. That the act of Parliament, Stat. of West. 2d (18th Edward I) chapter 10, did not restrict the appearance by attorney to attorneys at law. (See 1 Tidd's Pr. 62, 63 marginal paging.) But if it did, the argument sought to be deduced in behalf of said Barley, if it proves aught, proves too much, as we have no statute of similar import in Virginia, and, therefore, according to it, even at this day, an appearance in a pending suit therein, can be made only by the party in person.
2. That, although a confession of judgment is certainly important in some respects, it is not so in any sense involving professional skill, & c. The sole function of the attorney per whom it may be made, being merely to pursue the authority clearly conferred on him by the instrument under which he acts, and if he should not substantially do so, his action is naught.
3. And again, that a simple but clear solution of the question raised by the objection, " that an attorney in fact cannot confess a judgment," may be found in the enquiry, whether a prosecution could have been maintained against the individual who, as an attorney in fact, confessed the judgment referred to in said case of Calwells v. Shields, & c., under the act 1 Rev. Code, 1819, p. 268, sec. 3, chap. 74, and sec 4, chap. 164, p. 635 of Code of Virginia, for the recovery of the penalty of $150, thereby inflicted upon any person who should presume to appear as counsel, & c., in any court of this commonwealth, without being duly licensed, & c., as such.
4. And that neither the practice nor the common law rule, confining the right to appear to parties in person, ever prevailed in Virginia, or if such was the case, has long since, in the correct sense of that term, become wholly obsolete.
As to the other grounds of error, viz.
" If an attorney in fact may confess a judgment in open court, he cannot do so in the clerk's office."
As to this, it is respectfully submitted:
I. That, as heretofore suggested, the right of parties to make and accept confessions of judgment, is one which has, upon general principles, ever inhered in them, to be exercised in any mode not expressly inhibited by law, wheresoever and whensoever the means existed of making its exercise legally effectual, and that it was not the effect of the passage of said 41st section of chapter 171 to confer the former, but only to provide the latter.
II. That it was clearly the policy of the law to furnish every safe facility for the exercise of said right, and thereby to enable parties, with the least costs and delay possible, to terminate needless litigation: hence said 41st section provided in broad and positive terms, that such confessions made, in vacation, in the clerk's office, " shall be entered of record by the clerk in the order or minute book, and be as final and valid as if entered in court on the day of such confession, except merely that the court shall have such control over it as is given by the last section of said chapter" 171--which policy would, to a great extent, be defeated under the construction contended for in behalf of said Barley.
III. That thus the effect of the enactment of said 41st section having been, to the means theretofore existing for the effectual exercise of said pre-existent right, so to superadd, in broad and positive terms, those thereby furnished; it followed eo instanti, as an inevitable legal consequence, in the absence of any provision to the contrary, that, in the use of the latter, any instrumentality might be employed that could be, or was applicable in that of the former. Therefore, if at the time of the passage of said 41st section, through the instrumentality of an attorney in fact, said right of confessing judgment could be effectually exercised in open court, (see said case of Calwells v. Shields, & c., ) after its passage, with like effect, it could also be exercised, in vacation, in the clerk's office. But even if it could be considered that the effect of the passage of said 41st section, was not thus merely to furnish the means of its effectual exercise in the clerk's office, in vacation, as contradistinguished from the said right itself, but also to confer the latter; still, under the broad and unqualified terms in which said act is couched, the practical result would be the same as that just indicated in regard to the former instrumentality, by or through which it could be exercised in the clerk's office.
IV. Then, it being a general, nay almost an universal canon of law, that however a man may lawfully, in respect of his own interest, exercise, in propria persona, a right pertaining to himself individually, he may do so per a duly authorized agent; it also follows therefrom, as an inevitable legal consequence, in the absence of any prohibitory provision of law, that, in any case in which a party could, in his own person, effectually resort to the means furnished by said 41st section for the exercise of said right, he could equally do so, per his duly constituted attorney in fact.
[See Paley's Law of Principal and Agent, 28 Law. Lib., pages 1, & c.; Story on Contracts, secs. 125 and 127, pages 135, '6, '7; and Story on Agency, sec. 6, chap. 11.]
V. That therefore, if said John W. Barley and L. E. Swartzwelder could, on said 21st day of January, 1857, in their own proper persons, have effectually exercised said right by the means furnished by said 41st section of chapter 171 of the Code of Virginia; and that they might have done so is alike unquestioned and unquestionable; equally and effectually was it then competent for them to have done so, per their duly constituted and authorized attorney in fact; and consequently, that said power of attorney, which is admitted to be a genuine instrument, was not void but valid, and said judgment confessed and duly entered pursuant thereto was " as final and valid, as if entered in court on the day of such confession, except merely that the court" was authorized by said sections 41 and 51 of said chapter 171, at its term then next ensuing " " to set" it " aside," " and make such order concerning the same as may be just. "
VI. Again, therefore, that, so far as appears from the record, there having been no " just ground in law or fact, for the exercise of the supervisory power given by said 41st and 51st sections " over all proceedings in the office during the preceding vacation," in whatever sense, as applicable to this case, the terms " preceding vacation " may be taken, there was no error in the judgment of said county court " refusing to set aside" that so entered in its office, on confession per William L. Bent, as attorney in fact, upon the 21st day of January, 1857.
VII. That the courts, no more than the clerks in their offices, have power to pronounce, or enter up judgments, except pursuant to law, and therefore the fact alone, that the latter can only enter up a judgment in his office pursuant to said 41st section, does not prove that his functions under that section are exclusively ministerial no more than that those of the former are so in like cases.
VIII. But that it is immaterial whether the functions of a clerk, under said 41st section, are exclusively the one or the other, or compounded of both, because as necessarily incident thereto, he must be taken to be invested with all power and authority essential to the full discharge of the duty thereby imposed upon him in terms so general, positive and mandatory, as to superinduce the practical application of the general rule, that any means which a man may, in his own person, lawfully employ in the exercise of a right which pertains to him in his individual capacity, he may, with equal effect, employ per his duly constituted agent, as has, it is humbly conceived, been already demonstrated in a former part of this note.
IX. Yet, even if it should be considered a consequence of its not having been expressly conferred upon him by said 41st section, that the clerk is not authorized to receive proofs in his office of the execution of such a power of attorney as is involved in this case, & c., and that it was expedient for the full and accurate exercise of the functions thereby so imposed on him, that he should have been invested therewith; that the omission is but one of those instances of imperfect legislation, of occasional occurrence in Virginia as well as elsewhere, which, so far as that result can be avoided by reasonable construction, is never allowed to defeat, or restrict, in a material respect, the practical operation of a general statute--especially when, as in this instance, the act in question, itself, provides a summary and comprehensive remedy, by which any imposition practised upon the clerk by means of a spurious power of attorney, may be defeated and corrected, if resorted to in due time, and if not, by adopting another equally efficacious remedy, which, upon general principles, would be clearly applicable to such a case.
The Attorney General, for the appellee:
The act Code edition of 1860, ch. 171, § 51, p. 715, provides that the court shall have control over all proceedings in the office during the preceding vacation. Then whether this motion was made in time depends upon the construction to be given to this phrase " the preceding vacation." The jurisdiction of the monthly and quarterly terms are fixed by the act. Code ch. 157, § 17, p. 664. And Wynn v. Scott, 7 Leigh 63, shows the jurisdiction of the monthly terms. The jurisdiction of the court at its monthly term over this motion may be tested by the enquiry: If the court had set aside the judgment what would it have done with the case? Clearly the court at its monthly term would have had no jurisdiction over it.
For the appellee we shall insist:
1st. That a power of attorney, executed before suit is brought, to confess a judgment, is void, or at least will not support or authorize a judgment to be confessed.
2d. That an attorney in fact cannot confess a judgment.
3d. If he may do so in open court, he cannot do so in the clerk's office.
As to the 1st ground: Ever since 1744 up to 1st July, 1850, we had a law forbidding any confession of judgment under a power of attorney executed before suit brought, and imposing a penalty upon an attorney at law who should confess a judgment under such a power of attorney. [See 5 Hen. St. at Large, 240.] For more than a century such was the law of Virginia. We have no rules and regulations as in England, moulding and adapting them to the purposes of justice, and to prevent fraud or imposition. The rules of the English courts will be found in Bingham on Judgments, pp. 39, 40, § 41; 13 Law Libr. But it is insisted, that inasmuch as this law was not re-enacted in the Code of 1849, that a power of attorney, executed before suit brought, is valid. We do not assent to such a conclusion. The repeal of one statute which repealed a former statute, does not revive the first statute, and we submit that the mere failure to re-enact the law which has been in force from 1744 does not revive a law which was obsolete, and which was not re-enacted because it was thought unnecessary to prevent a mode of proceeding which has been out of use for more than 100 years. It is one of the instances of the questions that may arise from the great desire of the revisors to condense into one volume the entire statute law. Now there is no note of the revisors, and nothing in any of the other laws which goes to show that it was intended to restore the English rule on this subject.
2d. Can an attorney in fact confess a judgment? We submit that he cannot; by common law only the defendant in person, could appear in court. It would not permit him to do so by a third person. The law there authorised him to appear by an attorney at law--an officer of the court removable for misconduct and subject to the control of the court. In Virginia an attorney at law must be licensed--must have a previous certificate of good character--is amenable to the courts--and must pay a tax for license to practice; and in England, and, as ourstatute shows, in Virginia, these warrants of attorney to confess judgments are always directed to an attorney at law: Therefore, our statutes, which forbid a confession of judgment on a power of attorney executed before suit brought, impose a penalty on an attorney at law, who shall confess judgment under such a power. But, if an attorney in fact could do it, the law would be evaded, by giving the power of attorney in fact. Besides this, the confession of a judgment is one of the most important acts that can be done in a cause; and, if he may confess a judgment, why not resist a judgment? If under the general doctrine, that a man may do by an agent what he can do himself, he can confess a judgment; so he can defend a suit, or prosecute it: and thus, under a power of attorney, one who is not an attorney at law, can prosecute or defend suits. We are aware that a practice has prevailed of confessing judgment in open court, by an attorney in fact. Robinson, in the 1st volume of his practice, (old ed.) p. 268, states that it is the practice to confess judgment in court by an attorney in fact, on proof in court of the execution of the power of attorney. But the question does not seem to have been considered, and we submit that it violates well settled principles. The mode of proceeding in court is to be settled by the law and practice of the court, and the general principle, that a man may lawfully do by an agent what he may lawfully do himself, does not apply to the proceedings in court--which of necessity must be prescribed by the law, and does not depend on the contracts of parties out of court. The law or course of proceeding in court, cannot be changed by an agreement out of court--only so far as the courts in the absence of statute law may have authorized it. So that it brings us back to the question, whether any one but the defendant in person, or attorneys at law, can confess a judgment; and we submit, that the common law rule, that only a party in person can appear in court, will be entirely frustrated if a third person may act under a power of attorney. 1 Tidd's Pr. 64.
The policy of the law seems to exclude all but attorneys at law from the management of a suit. Story in his work on Agency, § 25, states the distinction. An attorney at law is an agent to act for his principal in the busincss of courts; an attorney in fact is an agent to act in pais; and he seems to consider that an attorney in fact is excluded from acting in matters of record or which are to be entered of record. 1 Bac. Abr. Attorney, letter D; Bingham on Judgments, p. 38, 39, 13 Law. Libr.; Smith v. Berlton, 1 East. R. 241. In all the forms of powers of attorney given by Tidd in his practice, not a word is said of a confession of judgment by an attorney in fact. See what he says under the head of warrants of attorneys, p. 591 to the end of the chapter; under the head of judgment by confession and default, p. 606, & c. See Tidd's Forms, p. 181, 185.
3d. If a defendant may confess a judgment in open court, and do so by an attorney in fact, he cannot do so in the clerk's office. We have no statute laws regulating confessions of judgment in court. They are regulated by the common law and the rules of proceeding under it. Until the revisal of 1819, a defendant could not confess a judgment even in person in the clerk's office. Such confession in the office is the mere creature of the statute, and the clerk acts only in a ministerial capacity, and can only take a confession of judgment, where the statute authorizes him, and in the manner prescribed by the statute. The first law authorizing a confession in the office, is in 2 Rev. Code, 585, which provides that " any person in custody in any civil action," & c. The next law is in Sess. Acts, 13th March, 1840, p. 46, " authorizing the defendant in any suit at law or in equity to confess a judgment or decree, & c., for the whole amount of the plaintiff's demand, or such part thereof as the plaintiff in person, or by attorney, may be willing to take judgment for." The next law is, Ses. Acts, 20th March, 1843, p. 50, repealing the former law, and providing that " it shall be lawful for the defendant in any suit at law in actual custody, & c., to confess a judgment for the amount of the plaintiff's demand, or such part thereof as the plaintiff, or his attorney may consent to." The Code of Va., p. 651, § 2: " In any suit, a defendant may confess a judgment or decree in the clerk's office, for so much principal and interest as the plaintiff may be willing to accept a judgment or decree for." We submit then, that only the " defendant" can confess a judgment in the clerk's office. What authority has the clerk in the office to take proof of the execution of a power of attorney? What law authorizes him to decide upon the validity of a power of attorney, its construction and the proof of its execution, & c.? Certainly the law does not give it to him in terms, and it would be a forced inference to invest him with judicial powers: and it is not necessary to carry into effect the intention of the statute. Neither the letter nor the spirit of the law authorizes the clerk to take a confession of judgment from any one but the " defendant; " and, in this case, there was no proof of the execution of the power of attorney--doubtless, because the clerk felt that he had no authority to take it. Suppose that a witness had undertaken to swear to the execution of the power of attorney, and had sworn to what was not true, how would he be prosecuted for forgery? See Robinson's Forms, (new ed.,) p. 5, form of confession in office under act of 1840, showing that it is to be by the defendant in person; p. 22, by an attorney under a power of attorney in open court; 97, by party or attorney in open court.
MONCURE J.
This is a supersedeas to a judgment of the Circuit court of Frederick county, reversing a judgment of the county court of said county overruling a motion to set aside a judgment confessed in the clerk's office of said county, by an attorney in fact of the defendants, in an action of debt brought in the said county court. The summons in the action, and the power of attorney to confess the judgment bear date on the same day, to-wit: the 21st, day of January 1857, on which day also it appears that the judgment was confessed. The power of attorney recites that the suit in which the judgment was authorized to be confessed was then pending in the said county court. The notice of the motion to set aside the judgment bears date on the 13th of February 1857, and stated that the motion would be made on the 1st day of the March term next, which was the first quarterly term of the said county court after the said confession of judgment was entered. The grounds for setting aside the judgment as specified in the notice were; 1st, because the power of attorney was executed before suit was brought; 2dly, because Wm. L. Bent, (who was impowered to confess the judgment and did confess it), was not an attorney at law, and an attorney in fact cannot confess a judgment for his principal; and 3dly, because if an attorney in fact could confess in open court, only the defendant himself can confess a judgment in the clerk's office. There was a 4th ground, which need not be stated, as it was afterwards abandoned. At the March term of the county court, the notice was proved and docketed, and by agreement of counsel the motion was continued until the June term of said court, when it was heard and overruled. Three exceptions were taken by the plaintiff in the motion to opinions of the court given on the hearing. The 1st was, to the refusal of the court to reject a plea of estoppel filed by the defendant in the motion to the 1st ground set out in the notice, to wit: " because the power of attorney was executed before suit brought; " the 2nd was to the refusal of the court to permit the plaintiff to examine a witness for the purpose of proving that the power of attorney was executed before the suit was brought; and the 3rd was to the refusal of the court to set aside the said judgment confessed in the clerk's office. The 3rd bill of exceptions sets out all the evidence, which consisted of the judgment confessed in the office, the summons issued in the action, the power of attorney, and the following proofs and admissions, viz: It was admitted that at the time said Wm. L. Bent, made the confession of judgment he was not an attorney at law and never had been. It was also proved by the clerk of the court, that the confession was made by Wm. L. Bent under said power of attorney, which he produced, though there was no proof before the clerk of the execution of the power. But on the trial of the motion it was admitted that the said power was executed by the defendants in the action, Barley & Swartzwelder, on the day of its date, and that the clerk then filed the power of attorney with the papers. The county court having overruled the motion, the Circuit court awarded a supersedeas to the judgment of the county court; and afterwards reversed it and set aside the judgment confessed in the clerk's office. A supersedeas to the judgment of the Circuit court has brought up the case to this court for revision.
The question to be decided by this court is, whether the judgment confessed in the clerk's office is invalid on both or either of these grounds, viz: 1st, because it was confessed under a power of attorney executed as alleged before the action was brought; or, 2dly because it was confessed by an attorney in fact?
But before I consider these grounds of objection to the said judgment, I will notice an objection taken by the plaintiff in error to the jurisdiction of the county court to hear the motion at the term at which it was made, to-wit: the next quarterly term after the judgment was confessed. He insists that it ought to have been made at the next monthly term thereafter. The question depends upon the true construction of the Code ch. 171, § 51, which declares that " the court shall have control over all proceedings in the office during the preceding vacation. It may re-instate any cause discontinued during such vacation, set aside any of the said proceedings or correct any mistake therein and make such order concerning the same as may be just." I think that, as actions at law brought in the county court are cognizable only at a quarterly term thereof, Code ch. 157, § 17, so motions to set aside or correct any of the proceedings in the office in such actions, are cognizable only at a quarterly term. The " preceding vacation" referred to in the Code ch. 171, § 51, means, in its application to this case, the interval between the quarterly terms next after and next before the judgment was confessed. The motion was therefore properly made at the next quarterly, and not the next monthly term thereafter. I will now consider the grounds of objection to the judgment, and
First, Is it invalid because it was confessed under a power which was executed, as alleged, before the action was brought?
At common law a power, or warrant, of attorney to confess judgment in an action to be brought after the making of the power, was valid, and was a very common security. See 1 Tidd's Prac. 9th London edition chap. 21 pp. 545-556; Tidd's Forms chap. 21 pp. 181 183. The common law on this subject was the law of Virginia, modified no doubt by the peculiar practice of our courts, until September 1744, when an act was passed by the colonial legislature reciting that " whereas a practice has of late been introduced of taking bonds, commonly called judgment bonds, with condition for the payment of money, and a general power to any attorney to appear and suffer judgment to pass against the obligor in any court of record in this colony, in such manner as the attorney thinks proper, thereby ratifying the same, and releasing all errors either in the proceedings or record of the judgment; which practice must be attended with ill consequences, debtors having no previous notice of the time and place of rendering such judgments, whereby they are deprived of an opportunity of making discounts appear against the bond, and are first put to unnecessary law charges, and then obliged to enter into expensive chancery suits for relief:" For remedy whereof it was enacted, " that from henceforth all powers of attorney for confessing or suffering judgment to pass by default or otherwise, and general releases of error to be made or given, by any person or persons whatsoever in this colony, before action brought, shall be and they are hereby declared to be absolutely null and void; and if any attorney shall presume to appear for a defendant under such power, he shall for every offence forfeit and pay the sum of five hundred pounds to such defendant." 5 Hen. St. at Large p. 240, §§ 4 and 5. This law continued in force, without any very material charge, until the Code of 1849 took effect. It was embodied in the Code of 1819 in the following form ch. 128 § 106: " A judgment, or confession, shall be equal to a release of errors; but all powers of attorney for confessing or suffering judgment to pass by default or otherwise, and all general releases of error made or to be made, by any person or persons whatsoever within this commonwealth, before action brought, shall be and are hereby declared to be absolutely null and void." Ch. 76, § 12; " If any attorney, or other person practising as an attorney, shall presume to appear under any power of attorney, made before action brought, for confessing or suffering judgment to pass by default or otherwise, for any defendant in any court of record in this commonwealth, such attorney shall for every such offence forfeit and pay fifteen hundred dollars to such defendant," & c. These provisions of the Code of 1819 were omitted in the Code of 1849, not by inadvertence but by design; the revisors having appended to their report, p. 826, ch. 164, § 12, this note: " Section 12, 1 R. C. p. 270, is omitted as of no value. We do not perceive any good reason why a power of attorney to confess judgment should not be lawful before a writ is sued out as well as after. It is contemplated to omit also the provision on the same subject in 1 R. C. p. 512, § 106." The omission of these provisions in the Code of 1849, and the general repealing clause contained in chap. 216, § 1, operated as a repeal of the said provisions and a restoration of the common law. The provision in the Code, chap. 16, § 19, that " when a law which may have repealed another shall itself be repealed, the previous law shall not be revived without express words to that effect, unless the law repealing it be passed the same session," does not apply to the case, but only to a case in which one statute repealing another is itself repealed. When a statute changing the common law is repealed, the common law is restored to its former state. I am therefore of opinion the judgment is not invalid on the ground first mentioned.
Secondly, Is it invalid because it was confessed by an attorney in fact?
That a judgment may be confessed in court by an attorney in fact, is a proposition which cannot now be successfully denied. Such has been the uniform practice in this country from the earliest period down to the present time. It is referred to in the following terms in 1 Rob. Pr. old ed. p. 268: " It frequently happens that the defendant confesses judgment without being present in court, and without having any attorney at law to make the confession for him. This is effected by a power of attorney under the hand and seal of the defendant, whereby he constitutes some particular person his attorney to make the confession. This power of attorney states the style of the suit, the name of the court in which it is pending and the amount for which judgment is to be confessed. Upon the power of attorney being produced in court and proved by an attesting witness, the confession is entered accordingly." In Robinson's Forms, p. 71, No. 49, a form is given of such a confession, which has no doubt been generally used since it was published. In Calwells v. Shields, & c., 2 Rob. R. 305, a judgment confessed by an attorney in fact was the subject of controversy, but the validity of the judgment was not questioned in the argument of counsel, which was very elaborate, nor in the opinion of the court. On the contrary both seemed to proceed on the assumption that the judgment was valid. That the legislature, with a full knowlege of the universality of this practice, has never prohibited or changed it, amounts almost to a statutory confirmation.
Then may not a judgment be confessed in the clerk's office by an attorney in fact? That it may, is not shown by long practice as in the case of a judgment confessed in court, because confessions in the office are of comparatively recent origin. Until 1819 a judgment could only be confessed in court, and a debtor in custody was often subject to long confinement before he could confess judgment and take the benefit of the insolvent laws. To remedy that evil, an act was then passed, providing that any person in custody, in any civil action, on any original or mesne process, and desirous to avail himself of the privileges thereby given to insolvent debtors, may confess judgment in the clerk's office, at any time during vacation, for the whole amount of the plaintiff's demand in his writ or declaration set forth and costs, or such part thereof as the plaintiff may be willing to accept a judgment for. Such judgment so confessed shall be entered of record by the clerk, shall be final, shall have the same validity as if entered in open court; and the defendant may thereupon discharge himself from confinement in the same manner as if the judgment had been rendered in court. 2 R. C. p. 585. Under this act the judgment would of course be confessed by the defendant in person; as, being in custody, he would of necessity be present; and therefore the question never arose whether the confession could be by an attorney in fact. In 1840, however, an act was passed making it lawful for a defendant in any suit, either at law or in equity, to confess a judgment or decree in the clerk's office of the court in which the same may have been instituted, for the whole amount of the plaintiff's demand with costs, or for such part thereof as the plaintiff in person or by attorney may be willing to take judgment or decree for, & c. Acts of 1839-40, p. 46. But this act remained in force a very short time, having been repealed by the act of March 20, 1843. Sess. acts p. 50, § 4. There was no law for confessing a judgment in the clerk's office except the 1st section of the last mentioned act which confined the right to a defendant in actual custody under original or mesne process, as under the act of 1819 before mentioned. And such continued to be the law until the Code of 1849 took effect; in which there is this provision--" In any suit a defendant may confess a judgment or decree in the clerk's office for so much principal and interest as the plaintiff may be willing to accept a judgment or decree for. The same shall be entered of record by the clerk in the order or minute book, and be as final and as valid as if entered in court on the day of such confession, except merely that the court shall have such control over it as is given by the last section of this chapter; " being the section giving the court control over all proceedings in the office during the preceding vacation, as before stated. This provision has ever since been in force, and the question I am now considering arises under it.
Why may not a judgment as well be confessed in the clerk's office under this provision, as in court under the common law, by an attorney in fact? There is at least as much reason in the former as in the latter case; and if the long acquiescence of the legislature in the uniform practice which has prevailed in the latter case amounts to a legislative sanction of it, then it seems to follow that the legislature intended, by the provisions made on the subject in the Code, to authorize a confession to be made in the office by a defendant not only in person but by an attorney in fact. There is certainly nothing in the terms of the provision itself which excludes such an inference. It does not expressly say that the defendant may confess " in person or by attorney in fact" ; nor was that at all necessary. It was sufficient only to say, as it does, that " in any suit a defendant may confess," & c.; and it was more natural that the idea should have been expressed in this brief way, seeing that to avoid the use of surplus words, was an object much aimed at by the revisors if not by the legislature. The maxim qui facit per alium facit per se applies to the case, unless the act be of such a nature that it cannot be done by an attorney in fact. It is a general rule of the common law that whatever a person sui juris may do of himself he may do by another. Story on Agency, §§ 2, 6, 11. There are exceptions to the rule, but this case does not seem to be one of them. It does not seem that the act of confessing a judgment is of such a nature that it cannot be done by an attorney in fact. A man may do the most important acts, requiring the exercise of the greatest discretion by an attorney in fact. Why may he not do by the same agency, this single simple act of confessing a judgment? It is a mere ministerial act requiring the exercise of no discretion, and no professional or other skill for its performance. Why may it not be as well performed by an attorney in fact as a deed may be executed by an attorney in fact, and acknowledged by him in court, or in the clerk's office, or before a justice, & c.? It may be supposed to have been one of the objects of the legislature, in making this provision, to save unnecessary expense to the parties; and to authorize a debtor to give, and a creditor to receive, a confession of judgment in the office, without the intervention of an attorney at law. It says the judgment may be confessed " for so much principal and interest as the plaintiff may be willing to accept a judgment for." May not the plaintiff signify his acceptance by an attorney in fact? and if so, why may not a defendant confess the judgment by such an attorney? Convenience requires that he should have such power, as much as it requires that a man should have power to make and acknowledge a deed by an attorney in fact. He may not be able to go to the office and confess judgment in person. He may live in a distant county. A judgment is a security, as much as a mortgage or deed of trust, and is often given for that purpose, especially when it is confessed in the office; and it is required to be registered like a deed. Why may not all these securities be given in the same way?
But it is argued that the confession of a judgment, except by the defendant in proper person, is an act which belongs to the practice of the law, and as the law imposes a penalty on any person who shall practice law in any court of this State without being licensed, or without taking the oaths required to be taken by attorneys at law, it necessarily prohibits the confession of judgment by an attorney in fact. The same argument would apply at least as strongly to a confession in court as to a confession in the office. But is the confession of a judgment except by a defendant in person, necessarily and exclusively in the province of an attorney at law? It is an act often done by an attorney at law; and so is a deed often drawn and a debt often collected by an attorney at law. Are these acts therefore exclusively within his province, and may not any other person draw a deed and collect a debt, and receive compensation for his services too, without incurring the penalty above mentioned? Why for the same reason, may not any other person confess a judgment under a power of attorney, especially when he does that without receiving any compensation for his services? The office of an attorney at law is to prosecute and defend suits, or, as it is expressed, " ad prosequendum, or defendendum, in any court." 1 Com. Dig. Attorney B 1. To confess a judgment, especially in the office, is neither to prosecute nor defend a suit, but to carry into effect an agreement of parties which can as well be carried into effect by laymen as by lawyers.
It is further argued that no English case can be found which recognizes the power to confess judgment by an attorney in fact, and that all the forms of warrants of attorney to confess judgments, contained in the English form books, refer to attorneys at law and not attorneys in fact. On the other hand it may be said that no English case has been found which denies the existence of such a power. It seems to be the general, if not universal practice in England, for attorneys at law and not attorneys in fact, to act under warrants of attorney to confess judgment; and therefore the forms of such warrants are so prepared in the English form books. They are generally addressed to certain attorneys, by name, of one of the courts, jointly and severally, or to any other attorney of the same court; and authorize them or any of them to appear for the defendant, as of the present or any subsequent term of the court, receive a declaration for him in the action (describing it), and thereupon to confess the same action, or else to suffer a judgment by nil dicit or otherwise to pass against him in the action; and after the judgment is entered they further authorize a release of errors to be executed: and a memorandum is endorsed on the warrant, in the nature of a defeazance, setting out any terms or conditions on which the warrant may be given. Tidd's Forms 181, ch. 21. The propriety of addressing such a paper to an attorney at law, instead of an attorney in fact, is manifest from its terms. It contemplates the performance of acts which appropriately belong to the province of an attorney at law. But a mere confession of judgment which a defendant may and often does give in proper person, is a very different and a very simple thing, and may as well be done by an attorney in fact. The form of such a confession is given in Tidd's Forms p. 185, ch. 22; and in Bingham on Judgments p. 35, 13 Law Library. At common law, as a general though not universal rule, a party could prosecute or defend his suit, only in proper person. By the statute of Westm. 2 (13 Edw. 1) ch. 10, a general liberty was given to the parties of appearing by attorney. 1 Tidd's Prac. 92, ch. 4. But a party may still prosecute or defend his suit in proper person, if he chooses to do so; which however he rarely does, as it is an act requiring professional skill. The mere confession of a judgment however, being an act which requires no professional skill, is generally done by the party in proper person; and not being within the peculiar province of an attorney at law, may be done by an attorney in fact, according to the general principle that what a man does by another he does himself. This I think has always been the law, and of course was so even before the stat. of West. 2, ch. 10.
It is further argued that the law as it was before the Code of 1849 was adopted, imposed a penalty on attorneys at law only, for confessing judgment under a power made before action brought, which showed the intention of the legislature that such attorneys only, and not attorneys in fact should confess judgments, otherwise the object of the law would be frustrated by the confession of judgment by attorneys in fact under a power made before action brought. The answer to this argument is, that the evil intended to be remedied by the act of 1744, 5 Hen. St. p. 239, before referred to, which was the origin of that law, was the practice which had previously prevailed of taking what were called judgment bonds with a general power to any attorney to appear and suffer judgment to pass against the obligor in any court of record in the colony; and therefore the law properly imposed a penalty on any attorney who should act under such a power. But the law also declared the power null and void, so that it could not be frustrated by the appointment of an attorney in fact, who could no more execute a void power than an attorney at law.
Again it is argued that the legislature could not have intended to give the clerk the power to decide upon the sufficiency and proof of the power of attorney, and therefore the law makes no provision in regard to the manner in which such a power is to be proved. The power to take a confession of judgment is not greater than many powers which a clerk unquestionably has. There is rarely if ever any difficulty in receiving a confession of judgment, as the power is generally plainly drawn, leaving no room for construction, and the clerk if he does not know the parties can easily satisfy himself as to their identity. And if he should make any mistake, or be imposed on in any way, his act is subject to the control of the court, which may set it aside or correct any mistake therein, and make such order concerning the same as may be just. It is said that at least the power of attorney ought to have been proved by an attesting witness, whereas, in this case, there was no attesting witness and no proof at all before the clerk of the execution of the power, which was simply received and filed by him. The law does not require that there should be an attesting witness, nor prescribe the mode of proof. 1 Tidd's Pr. 546. The defendant in the action who moved to set aside the judgment, admitted, on the trial of the motion, that the power of attorney was executed by himself and his co-defendant on the day of its date, and did not pretend that it was executed under any mistake or misrepresentation, or that the debt was not justly due; but based his claim for relief solely on the ground of mere technicalities. I think they do not sustain it, and that the law as well as the justice of the case is against him.
I am therefore of opinion to reverse the judgment of the Circuit court and affirm that of the County court.
The other judges concurred in the opinion of MONCURE J.
JUDGMENT REVERSED.