deed from Haggin. The plaintiff filed a replication to the new matter, of which the material part is as follows: "And the said plaintiff is informed and believes, and upon information and belief, denies that the said Barton Lee was ever served with process in said supposed action of Henley and Hastings against said Barton Lee. And he denies that the said Barton Lee ever made any appearance therein; and he also denies that the said court had any jurisdiction to render said supposed judgment and decree, or either of them; and avers that the same and each of them is void; and that said supposed process and decree, on which supposed judgment said property is pretended to have been sold, was the said supposed judgment, and not upon any legal process issued out of this court." On the trial, the process upon which the sheriff sold, under the judgment against Lee, was not offered in evidence, but the sheriff's deed under the sale was introduced in evidence. The court below directed the plaintiff to convey all his interest to the defendant, and the plaintiff appealed. Other facts are stated in the opinion.

Robinson, Ramage, and Dunlap, for the appellant.

George Cadwalader, for the respondent.

By Court, SAWYER, C. J. Appellant's first point seems to be in the nature of a demurrer to the answer, on the ground that the facts stated are insufficient to constitute a defense. No demurrer appears to have been filed, and the point seems to be made here for the first time. There is not an entire absence of allegations of fraud in the transfer from Barton Lee to Ogden. There is an attempt to allege a transfer for the purpose of defrauding creditors of Lee, and if there is any objection to the pleadings, it is that the allegation is defective. The point was fully litigated on the trial, and in such case the judgment will not be reversed upon the point taken here for the first time: Practice Act, sec. 71; King v. Davis, 34 Cal. 100. But we think the answer sufficient. It avers that the conveyance to Ogden was without consideration, and this is sufficient to avoid it as to creditors of Lee, whether Ogden was aware of the fraudulent purpose of Lee and actively aided it or not. He was not a purchaser in good faith.

The judgment by confession in the case of Henley and Hastings v. Barton Lee, rendered in 1851, is not a nullity on its face, in consequence of the defects in the statement. The court had jurisdiction of the subject-matter and the par

AM. DEC. VOL. XCIX-18

ties, however irregular or erroneous it may be, and it cannot be called in question in a collateral proceeding. It was entered in open court and regularly signed by the judge, as was the practice under the code of 1850: Cloud v. El Dorado Co., 12 Cal. 133 [73 Am. Dec. 526]; Arrington v. Sherry, 5 Id. 513. The judgment is good as between Henley and Hastings and Barton Lee, and was only subject to be attacked for fraud by creditors of Lee, who were defrauded thereby, and that in some direct proceeding before a sale of the property under it to innocent parties: Miller v. Earle, 24 N. Y. 111. In this case the parties seeking to attack the judgment collaterally are not creditors of Lee, and they seek to avoid a sale under it of property which has long since passed into the hands of innocent purchasers. The cases of Richards v. McMillan, 6 Cal. 419 [65 Am. Dec. 521], Cordier v. Schloss, 12 Id. 143, S. C., 18 Id. 576, and Wilcoxson v. Burton, 27 Id. 229 [87 Am. Dec. 66], were all direct proceedings by creditors to vacate the judgments themselves on the ground of fraud; and the question was, not whether the several judgments were absolute nullities upon their face, but what was their value as evidence on the issue of fraud raised in the proceedings to impeach them. Or, what was the prima facie presumption arising on the face of the record from a failure to state fully the facts required by the statute with respect to the issue of fraud raised by the creditors, who claimed that they had been defrauded? The court held it to afford prima facie evidence of fraud, but that it was admissible to support this judgment by evidence showing that the transaction was bona fide, and the judgment rendered upon an indebtedness really due. This necessarily assumes that the judgment is valid till vacated upon a direct proceeding for the purpose. The case of Chapin v. Thompson, 20 Cal. 681, cited by appellant, affords him no aid. It will be found that the case in no respect touches the question.

We think the averments of the issuing of process and sale thereunder, under the Hastings and Henley judgment against Lee, are not sufficiently denied to require the execution to be put in evidence. The denial is rather of the effect of the facts averred than the facts themselves. The whole theory of the defense on this point is that the judgment is void upon its face, and the denials are shaped according to this theory.

Judgment and order affirmed, and remittitur ordered to issue forthwith.

JUDGMENT AY CONFESSION, WHEN VOID AND WHEN VALID.- It can seldom be said with correctness that a judgment by confession, without action, is absolutely void, in the strict sense of the term. Courts have not always employed the word "void," as applied to judgments, with absolute precision. Judgments have sometimes been denominated void when they were, in fact, void only as to a certain class of persons, but in other respects merely voidable. Thus in the cases of Edgar v. Greer, 7 Iowa, 136, Kennedy v. Lowe, 9 Id. 580, and Bernard v. Douglas, 10 Id. 370, language used by the court would seem to indicate that it regarded a confession of judgment made upon a defective statement of facts as void. But in the last of these cases the judgment was really declared void only so far as third parties were concerned. And in the subsequent case of Plummer v. Douglas, 14 Id. 69, S. C., 81 Am. Dec. 456, Baldwin, C. J., delivering the opinion of the court, said, in reference to the other two cases: "We do not think that the court, in the case of Edgar v. Greer, 7 Iowa, 136, or Kennedy v. Lowe, 9 Id. 580, decided that the judgments in those cases were entirely void. What the effect of such judg ments would have been, as between the parties, had they not been appealed from, was not passed upon."

In Davidson v. Alexander, 84 N. C. 621, it was held that a proper statement was necessary to give the court jurisdiction, and that a judgment by confession, entered upon an insufficient statement of the indebtedness for which it was confessed, was irregular and void. In Tucker v. Gill, 61 Ill. 236, a judgment was confessed in vacation before the clerk, and was entered by him for twenty-six thousand dollars, although the amount confessed was fifty thousand dollars. It was decided that the judgment so entered was void. As the clerk had no judicial power, but acted merely in a ministerial capacity, it was held that he must either enter judgment for the sum confessed, or not at all. In Carlin v. Taylor, 7 Lea, 666, it was decided that a judgment rendered in Ohio, upon a power of attorney to confess judgment executed in Pennsylvania, against a person resident in Tennessee, without personal or constructive service of process, was void, and that nul tiel record was a good plea to an action thereon in Tennessee. In Stein v. Good, 115 Ill. 93, a judgment by confession was entered by the clerk of the court in vacation, without there being filed at the time any proof of the execution of the power of attorney to confess judgment. The judgment was set aside on the motion of the defendant, and the execution issued thereon was quashed. In that case it was queried whether the judgment was not void.

But while there may be some cases in which the judgment is absolutely null and void, such cases are rare: Freeman on Judgments, sec. 557. A judgment by confession, rendered without any statement, or rendered upon a defective statement, has been held to be valid, as between the parties: In re Fuller, 1 Saw. 243; Chapin v. McLaren, 105 Ind. 563; Miller v. Earle, 24 N. Y. 110; Neusbaum v. Keim, 24 Id. 325; Harrison v. Gibbons, 71 Id. 58. The validity of a judgment is not impaired, as between the parties thereto, because of defects in the statement upon which it is rendered: Pond v. Davenport, 44 Cal. 481; Plummer v. Douglas, 14 Iowa, 69; S. C., 81 Am. Dec. 456; Bryan v. Miller, 28 Mo. 32; S. C., 75 Am. Dec. 107; How v. Dorscheimer, 31 Mo. 349; Miller v. Earle, 24 N. Y. 110; In re Fuller, 1 Saw. 243.

A judgment by confession rendered upon a statement which is defective is not, as a general rule, regarded as void. It is erroneous, and may be set aside in a direct proceeding for that purpose, but it is voidable only; and so long as it stands unvacated, and apparently in full force, it cannot be attacked collaterally: Richards v. McMillan, 6 Cal. 419; S. C., 65 Am. Dec. 521; Bur

chett v. Casaday, 18 Iowa, 342; Sheldon v. Stryker, 34 Barb. 116; S. C., 21 How. Pr. 329; Read v. French, 28 N. Y. 285; Hopkins v. Howard, 12 Tex. 7; Pirie v. Hughes, 43 Wis. 531. As to creditors, a judgment by confession on a statement which does not comply with the requirements of the statute is invalid, and may be set aside. While not absolutely void, it is, as to them, prima facie, fraudulent: Pond v. Davenport, 44 Cal. 481; Chapin v. McLaren, 105 Ind. 563; Kennedy v. Lowe, 9 Iowa, 580; Bernard v. Douglas, 10 Id. 370; Bryan v. Miller, 28 Mo. 32; S. C., 75 Am. Dec. 107; How v. Dorscheimer, 31 Mo. 349; James v. Morey, 2 Cow. 246; S. C., 14 Am. Dec. 475; Norris v. Denton, 30 Barb. 117; Winnebrenner v. Edgerton, 30 Id. 185; McDowell v. Daniels, 38 Id. 143; Bonnell v. Henry, 13 How. Pr. 142; Von Beck v. Shuman, 13 Id. 472; Ex parte Carroll, 17 S. C. 446. And if the statement of facts out of which the indebtedness arose is false, or so grossly inaccurate as to mislead inquirers, the confession will be held void as to the creditors of the judgment debtor: Kohn v. Meyer, 19 Id. 190. And a judgment confessed for the purpose of defrauding creditors will be set aside as to judgment and execution creditors, although it will not be relieved against, so far as the defendant himself is concerned: Shallcross v. Deats, 43 N. J. L. 177.

CONFESSION OF JUDGMENT WITHOUT CREDITOR'S KNOWLEDGE or request is invalid as against subsequent attaching creditors: Wilcoxson v. Burton, 27 Cal. 228; S. C., 87 Am. Dec. 66. And such judgment will be vacated on the motion of the creditor: Farmers' and Mechanics' Bank v. Mather, 30 Iowa, 283. But it may be ratified by the creditors. And knowledge and consent by the creditor's attorney are sufficient: Chapin v. McLaren, 105 Ind. 563.

VOID AS TO PART. — Where part of the amount for which a judgment is confessed is improperly included in the judgment, the judgment will be void only as to that part, and valid as to the rest, provided there was no fraud in the confession: Kern v. Chalfant, 7 Minn. 393; Wells v. Gieseke, 27 Id. 478; Davenport v. Wright, 51 Pa. St. 292; Freeman on Judgments, sec. 545.

AUTHORITY TO ENTER JUDGMENT BY CONFESSION SHOULD BE STRICTLY PURSUED: Chapin v. Thompson, 20 Cal. 681; Keith v. Kellogg, 97 Ill. 147; Grubbs v. Blum, 62 Tex. 426.

STATEMENT FOR JUDGMENT BY CONFESSION should concisely set out the facts out of which the indebtedness arose: Pond v. Davenport, 44 Cal. 481; Chappel v. Chappel, 12 N. Y. 215; S. C., 64 Am. Dec. 496, note 501, where this subject is considered; Freeman on Judgments, sec. 549.

JUDGMENT MAY BE CONFESSED FOR MONEY NOT YET DUE, and to secure future advances: Black v. Pattison, 61 Miss. 599; Mechanics' Bank v. Mayer, 6 S. W. Rep. 237 (Sup. Ct. Mo., Dec. 1887); Brinkerhoff v. Marvin, 5 Johns. Ch. 320; Truscott v. King, 6 N. Y. 147; Cook v. Whipple, 55 Id. 150; S. C., 14 Am. Rep. 202; Freeman on Judgments, sec. 546. In Baldwin v. Freydendall, 10 Ill. App. 106, however, it was held that, under the Illinois statute which authorizes the confession of judgment upon all debts due, a judgment by confession taken before the debt is due, is a nullity. See also Spier v. Corll, 33 Ohio St. 236. But where a power of attorney to confess judgment on a note authorizes a confession at any time after the date of the note, a judg ment confessed before the maturity of the note will be valid: Sherman v. Baddely, 11 Ill. 622; Adam v. Arnold, 86 Id. 185. And where a power of attorney to confess judgment "at any time hereafter" is given, a judgment entered on the same day is valid: Cummins v. Holmes, 11 Ill. App. 158; Thomas v. Mueller, 106 Ill. 36.

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JUDGMENT BY CONFESSION AGAINST MARRIED WOMAN. This subject is fully discussed in the note to Caldwell v. Waters, 55 Am. Dec. 603 et seq.

PARTNER HAS NOT AUTHORITY TO CONFESS JUDGMENT AGAINST HIS FIRM, by virtue of his general power to act as agent for the partnership. A judg ment confessed by one partner in the name of the firm is not valid as against the members of the firm who did not sign the confession: Freeman on Judg. ments, sec. 545; Elliott v. Holbrook, 33 Ala. 659; Christy v. Sherman, 10 Iowa, 535; North v. Mudge, 13 Id. 496; Soper v. Fry, 37 Mich. 236; Stoutenburgh v. Vandenburgh, 7 How. Pr. 229; Richardson v. Fuller, 2 Or. 179; Morgan v. Scott, 12 Am. Dec. 35, note 37.

Nor is a judgment by confession of one of the partners, after the dissolution of the firm, binding upon the firm: Canada Lead Mine Co. v. Steiven, 11 L. C. 433; Conery v. Rotchford, 30 La. Ann., pt. 1, 692. A judgment by confession of one of two defendants is void as to the defendant who did not confess judgment, and a sale of his property thereunder conveys no title to the purchaser: Koechlept v. Hook's Lessee, 10 Md. 173; S. C., 69 Am. Dec. 133. But a judgment by confession of one partner, though void as to his copartners, is valid as against the partner who confessed it: Freeman on Judgments, sec. 557; North v. Mudge, 13 Iowa, 496; Green v. Beals, 2 Caines, 254; Crane v. French, 1 Wend. 311; York Bank's Appeal, 36 Pa. St. 458. But it was held in Chapin v. Thompson, 20 Cal. 681, that where two persons sign a confession of judgment against themselves and two others, the judgment entered thereon is void as to those not signing, and equally so as to those who sign.

PUBLIC OFFICER MAY CONFESS JUDGMENT for the amount due, when he is liable to be sued for services rendered for the public at his request: Gere v. Supervisors of Cayuga Co., 7 How. Pr. 257.

TRUSTEE CANNOT CONFESS JUDGMENT so as to bind the trust estate: Huntt v. Townsend, 31 Md. 336; Mallory v. Clark, 20 How. Pr. 418.

AFFIDAVIT OF PARTY TO STATEMENT that "he believes the above statement of confession is true," is not sufficient, and a judgment entered upon such confession will be set aside: Ingram v. Robbins, 33 N. Y. 409. But the omission of a schedule referred to in the statement as being annexed will not render the judgment entered thereon invalid: Clements v. Gerow, 1 Abb. App. 570. Nor will the omission of the notary's seal to the statement invalidate the judginent as between the immediate parties: Thorp v. Platt, 34 Iowa, 314. Nor will the omission by mistake of the notary's christian name in the jurat invalidate the judgment when assailed in a collateral action: Grattan v. Matteson, 54 Id. 229. In Texas, if the defendant appear under process and confess judgment, the judgment will be valid, whether there be any affidavit to the justness of the debt or not: Flanagan v. Bruner, 10 Tex. 257; Gerald v. Burthee, 29 Id. 202.

JUDGMENT BY CONFESSION FOR TORT is not authorized by the New York code: Bontel v. Owens, 2 Sand. 654; Burkham v. Van Saum, 14 Abb. Pr., N. S., 163. A judgment by confession must be for a certain and specified sum: Nichols v. Hewit, 4 Johns. 423.

COURT MUST HAVE JURISDICTION of the subject-matter in order to render a valid judgment by confession: Lanning v. Carpenter, 23 Barb. 402. And where the law requires judgments to be signed by the judge, a judgment by confession, if not so signed, is void: Chapin v. Thompson, 20 Cal. 681.

JUDGMENT BY CONFESSION MUST BE ENTERED in fact, and an execution issued in advance of such entry is void: Ling v. King, 91 Ill. 571; King v. French, 2 Saw. 441. But where the clerk copied the statement and affidavit into the judgment book, and added the words: "Judgment entered April