#### James Parker *against*Wm. M. Griggs.

ON CERTIORARI.

Confession of judgment, without affidavit. *(a)*

THE suit was. entered below, without process, and the defendant, on the 4th of *October*1817, confessed a judgment to the plaintiff for 75 dollars, on a note of hand for that sum, dated the 30th of *September*1817, payable ninety days after date. Execution was issued on the same day that judgment was entered, and on the 6th, the constable returned the gaoler’s receipt for the body of the defendant. The certiorari was brought to reverse the judgment and. avoid the effects of the execution.

Mr. *Scott*of counsel with the plaintiff in certiorari, relied upon two reasons for reversal.

1. That the plaintiff had not made and filed with the justice an affidavit of' the justness of the debt, or cause of action, and he cited the law, passed *January*29th, 1817, “To prevent the fraudulent confession of judgments.”

2. That nothing was due at the time of rendering the judgment, the note not being payable for many weeks subsequent thereto.

Mr. *Wood*in reply, contended.

That the statute relied *183upon, *was designed for the benefit of creditors only, and not of the party to the fraud, the debtor himself; that it was a mere continuance or enlargement of the law against fraudulent judgments, which operated only in favour of creditors : that it made a judgment entered in this way, without affidavit, *ipso jado*fraudulent; and that having thus determined the character of the judgment, it left it to the same construction and operation as every other of the same character. That the design of the statute was proved by the affidavit being required ; that although there was evidently error in this proceeding, and error of which creditors might avail themselves, yet that the defendant below, could ,not avail himself of his own wrong; and that his sureties in the bond for the prison limits, who were prosecuting this certiorari, stood in no better situation than he did. Upon the second reason, he insisted, that the defendant below might waive the delay of payment according to the tenor of the note, and confess judgment if he pleased; and that this furnished no objection to the judgment.

Mr. *Scott*in reply.

Bail can bring writ of error or *certiorari;*these bondsmen can therefore do it; they are creditors for this purpose. The language of this statute, is altogether different from those which are relied upon-Instruments are void or good altogether, except under the statute of frauds, and that arises from the very words of the statute. In this case, the failure springs not from the defendant; he confessed the debt, but the plaintiff did not do that which was necessary to authorize the justice to enter a judgment upon the confession. The proceeding, therefore, is altogether void.

(a)

*Cliver vs. Applegate, 2 South. 479. Sheppard vs. Sheppard, 5 Hal. 250. English vs. Sharpe, 3 Gr. 457. Wright vs. Wood, Spen. 308. Clapp vs. Ely, 3 Dutch. 555. Den. Vanderveere vs. Gaston, 4 Zab. 818. Dean vs. Thatcher, 3 Vr. 470. Ferguson vs. Earl, & Gr. 124. Den. Flomerfelt vs. Zellers, 2 Hal. 153. Hoyt vs. Hoyt, 1 Har. 138. Scudder vs. Coryell, 5 Hal. 340.*

Kirkpatrick C. J.

In this case the justice has returned, that on the 4th of *October*1817, the defendant entered his appearance to an amicable suit in his docket, and confessed judgment for the plaintiff’s demand, which was 75 dollars; that he thereupon entered judgment for the plaintiff, for the said 75 dollars of debt, and 10 cents of costs; that execution was immediately issued, and in *184two days after returned with the gaoler’s receipt for the ■ execution and the body of the defendant.

The justice further certifies that the judgment was given on a note of hand, dated *September*30, 1817, and payable in 90 days.

The reasons assigned for the reversal of the judgment, are

*1. That there was no affidavit of the cause of action, &c. as is in that case required by the statute. And

2. That the note on which the judgment was entered, was not due. *(a)*

The proceeding certainly bears upon the face of it, strong marks of fraud; and the case comes within the express words of the statute, to prevent fraudulent confessions of judgment, passed *January*29, 1817. That statute says, in substance, that when parties agree to enter an action, without process, before a justice of the peace, *no judgment by confession shall be entered therein*against the defendant, unless upon affidavit that the debt is bona fide due and owing to the plaintiff, and that the judgment is not confessed to answer any fraudulent purpose, or to protect property, &c.

The only question which presented itself, upon this case, being moved at the bar, was, whether the party himself confessing the judgment could assign the want of the affidavit for error. But upon a little reflexion, there can be no doubt on that head. The words of the statute are peremptory, the justice had no authority; the judgment is fraudulent.

Let it be reversed.

Rossell J. was of the same opinion.

Southard J.

The words of the statute are extremely plain and explicit. “ No judgment by confession shall be entered against the defendant, unless an affidavit” &c. But one construction can be put upon it. The affidavit is absolutely necessary, to give the justice the power to enter a judgment. His proceeding without it, is a perfect nullity; it is altogether void. It is not merely void *185against creditors &c., as is the case under the statutes referred to in the argument. Under them, there is a right in the court to enter judgment, and for certain purposes that judgment is valid. Here, there is no right to enter a judgment; and if entered, it is valid against no one. Tiie one, permitting the judgment to be entered, directs its operation afterwards; the other forbids it to be entered at all.

If a proceeding thus void, be presented to this court, it must be set aside. But can the defendant himself, who has confessed the judgment, object to it ? I see no reason why he may not; he is excluded by no provision of the statute ; and the very condition on which he assented to the entry of the judgment, has not been complied with. He agreed only, that a legal judgment should he entered ; he has surely a right to complain against one illegally given.

Judgment reversed.

(a)

*Scudder vs. Coryell, 5 Hal. 340. Hoyt vs. Hoyt, 1 Har. 139.*