By the revised laws of 1801, (a) it is enacted “ that when any parties shall agree to enter an action before any Justice without any process, the Justice shall proceed to trial in the same manner as if a summons or warrant had issued.” Under this act, Justices adopted a practice of entering judgments by confession of the- defendant, and this Court sanctioned the practice.(b) By the revised laws of 1813,(c) it is enac.ted, “ that whenever any parties agree to join an issue without process, .the Justice .shall proceed to try the same as if process had issued.” The same practice .continued under the latter act, and
The cases cited were previous, to 1818. By the act of that year,(e) Justices are expressly authorized to enter judgments by confession of the defendant, for a sum not exceeding 100 dollars. It is required(f) that the defendant set forth in writing the items of the plaintiff’s demand, and make oath that he is honestly indebted to the plaintiff, and that judgment is not confessed to defraud any creditor; and if these requisites are not complied with, the judgment is declared void.
It is admitted by the demurrer to the replication, that judgment in this case was entered on the confession of the defendant, and that no statement of the items of the plaintiff’s demand, nor any oath, was previously made by the defendant as required by the statute; but it is insisted by the defendant, that for aught which appears by the pleadings, the judgment was rendered under the 25 dollar act. This is contradicted by the execution, which is set forth as returnable in 90 days, and therefore not authorized by any other than the 50 dollar act.
From the phraseology of the statute, it has been doubted whether its provisions are not applicable to all judgments by confession of the defendant, whatever the amount may be ;(g)
But even if it were admitted that the present case comes within the provision of the 7th section, it by no means follows that the judgment is to be avoided by the defendant in that judgment, and in this manner.
I have already remarked, that this Court, in Butler v. Potter considered the case of Prigg v. Adams good law. That case was, in some respects, similar to the present. False imprisonment was brought for imprisoning the defendant in a judgment entered in the Common Pleas for 5 shillings, for a cause of action arising in Bristol, when an act of parliament had declared that no judgment should be entered in any of the Courts at Westminster, upon such a cause of action, if less than 40 shillings, and if such judgment be entered it shall be void. Upon demurrer, the question was, as it is here, whether the judgment was so far void that the party could take advantage of it in this collateral action; and the Court held that it was not, but that it was only voidable, by plea or error. In this case, however, neither error nor a cer
Judgment for the defendant.(1)
(a).
1 K. & R. 493.
(b).
Martin & Chamberlin v. Moss and another, 6 John. 126. Nicholls v Hewitt, 4 id. 423.
(c).
1 R. L. 388.
(d).
Bromaghin v Thorp, 15 John. 476 Butler v. Potter, 17 John 145.
(e).
Sees. 41 ch. 94, s. 6.
(f).
Id. s. 7
(g).
Cowen's Treatise, 632.
(1).
Since twe above decision, by statute (sess. 47, et. 238, s. 12 and 13,) a Justice may render judgments by confession for a sum not exceeding 250 dollars; and whenever it exceeds twenty-five dollars, (exclusive of costs) the defendant shall make such confession in writing, and file the same with ' the Justice; and shall also set forth the items of the demand as far forth as he may be able so to do, and make oath that he is honestly and justly indebted to the plaintiff in the sum to be named in the said judgment, over and above all just demands which the defendant may have against him, and that the confession of judgment as aforesaid is not made for the purpose of defrauding any creditor; and any judgment entered by confession as aforesaid, where the defendant shall not comply with these provisions, shall be void; provided that a non-compliance with such provisions shall not affect the right or title of any bona fide purchaser of any goods or chattels, lands or tenements, under any such judgment.