1863 January Term. Ins. Co. Valley of Barley's adm'r. "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 Virginia to take judgment for." The next law is Sess. 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. 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 judgment 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 Virginia V. Barley's adm'r. court to hear the motion at the term at which it was made, to-wit, the next quarterly term after the judg ment 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, com 1863. January Term Ins. Co. Valley of Virginia V. Barley's adm'r. monly called judgment bonds, with condition for the pay- Jary ment 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 change, 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 judg |