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 main-. tained 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 $1,500 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 1863. January Term. Ins. Co. Valley of Virginia V. Barley's adm'r. 1863. January Term. Ins. Co Valley of Virginia V. Barley's adm'r. 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 empowered 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 first ground set out in the notice, to-wit, "because the power of attorney was executed before suit brought "; the 2d 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 3d was to the refusal of the court to set aside the said judg ment confessed in the clerk's office. The 3d 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 judg ment 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 and 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 1863. January Term. Ins. Co. Valley of Virginia V. Barley's adm'r. 1863. January Term. Ins. Co. Valley of V. Barley's adm'r. 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 Virginia 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 exist ing 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 inevi table 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 contra-distinguished 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 66 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 1863. January Term. Ins. Co. Valley of Virginia V. Barley's adm'r. |