delivered the opinion of the court, April 5th, 1886.
The instrument upon which the judgment in this case was entered was a promissory note dated April 1st, 1871, payable two years after date, with a clause added containing a confession of judgment, release of errors, and waiver of appeal, inquisition and all exemption laws. It was not under seal. Without the authority for entering judgment, it, of course, was subject to the operation of the Statute of Limitations. Does the presence of that authority in the instrument deprive the maker absolutely of the right to plead the statute if the circumstances are such .as to afford him the opportunity ? That seems to be the very question in this case. The payee of the note held it until January 4th, 1882, nearly eleven years from its date, and nearly nine years after its maturity. Then he made the affidavit required by the rules of court, presented it to a judge, who granted leave to enter judgment upon it, and on the same day entered the judgment in the court below. Subsequently upon affidavit filed by the defendant touching the authenticity of the instrument, the judgment was opened generally and without terms. On the trial the defendant pleaded the Statute of Limitations, the learned court below held it was no bar, and this is the principal error assigned.
*201It is a very long time since this court ceased to regard the plea of the Statute of Limitations as an unconscionable plea. As long ago as in 1842, we said, Gibson, C. J., in Ekel v. Snevily, 3 W. & S., on p. 273, “It was said in Brown v. Sutter (1 Dall., 239), that a judgment will not be .opened to let in the Statute of Limitations; but as the plea of that statute has since been considered in Shock v. McChesney (4 Yates, 507), and The Bank v. Israel (6 S. & R., 294), to be no longer an unconscionable one, the rules of practice would scarce be held so now.” Many times since we have commended it as a meritorious defence, and have described it as a statute of repose tending to the peace of families and the quieting of titles. The courts both of England an.d this country, including this court, have carried it into the equity practice and followed the law in all analogous cases upon principles of the soundest public policy. The cases upon this subject are fully collected in the exhaustive opinion of our brother Paxson in York’s Appeal, 17 W. N. C., on p. 35.
In Herman v. Rinker, 10 Out., 121, a judgment by confession was opened by the court below for the very purpose of letting in the defence of the Statute of Limitations, and we sustained the court in so doing. It is true we said there was a propriety in opening the judgment in that case because it was entered without leave of the court upon a note which on its face was barred by the statute, but our decision was hot placed upon that ground only. We held it was a matter in the discretion of the court below in any event, and we could see no error in opening the judgment.
A very sufficient reason lies in the fact that the defendant has had no hearing. When judgment is entered by confession, and, if upon the face of the obligation containing the authority to enter judgment it appears that the statute was a bar to the debt when the judgment was entered, it follows that the defendant has had no opportunity to present a perfectly lawful and proper defence. Generally the practice is to prescribe the terms upon which judgments are opened at the time the order is made, and when that is done those terms control the subsequent pleadings and the trial. Ordinarily the defence is confined to the matters set out in the affidavit'. But if no terms are imposed and the judgment is opened generally and without restriction, the burden of proof is upon the plaintiff as in other cases: 1 Troub & Haley’s Pract., § 809. In such cases the plaintiff riiust on the trial prove his right of action just as if no judgment had been entered. Thus in Dennison v. Leech, 9 Barr, 164, which was a judgment by default and not by confession, the judgment was opened generally and the defendant was allowed to defend on a technical ground not covered by *202his pleas. Rogers, J., said: “The judgment was opened generally and the defendants let into a defence without restriction. Under such an order the judgment remains as a security for whatever may be found due ; but in all other respects the trial must be had as if no judgment had been entered. The court may open the judgment on terms, and perhaps they ought to have done so; but having thought proper to adopt a different course by opening a judgment without conditions, the-consequence is, the burden of proof on the pleadings is .on the plaintiffs and not the defendants.”-
In West v. Irwin, 24 P. F. S., 258, a judgment entered by warrant of attorney was opened without terms; on the trial there was a plea of non est factum, the plaintiff offered the record of the judgment as prima facie proof of the execution of the note and we held, reversing the court below, that it was inadmissible, because the entry of the judgment did not tend to show the execution of the-judgment note. We said, “ The entry and the opening of the judgment left the burden and the. mode of proof just as they would have been if the judgment had not been entered.” In Collins v. Freas, 27 P. F. S., on p.497, the present Chief Justice said: ‘‘The first assignment is to the admission in evidence of the record of the judgment previously taken in the case. The judgment had been opened generally. No conditions or restrictions had been imposed on the defendant therein. The pleas subsequently entered Struck at the root of the award on which the action was founded and denied the existence of any indebtedness; the trial was then to-be had as if no judgment had been entered. The same burden of proof was imposed on the plaintiff. It gave to the defendant the same defences that were opened to him at the commencement of the suit.”
These decisions and the reasonings upon which they are based establish that where a judgment entered upon a warrant of attorney, or even upon a default, is opened generally and without terms, the plaintiff is put to his proof of cause of action precisely as if no judgment had been entered. Consequently any defence which would have been available to the defendant if an action had been brought, instead of a judgment entered upon the instrument in suit, may be set up’on the trial; the burden of proof is upon the plaintiff, and he must make out his case subject to the defendant’s right to defeat him upon any ground that would have sufficed for that purpose if no judgment had been entered.
Judgment reversed and venire facias de novo awarded.