Parker v. Poole

12 Tex. 86 | Tex. | 1854

Hemphill, Ch. J.

One of the grounds, taken here, to reverse the judgment, is, that an Attorney has not nor can he have any authority under the law to confess judgment for another before a Justice of the Peace; that the statute (Art. 1720) authorizes the party himself to appear without citation and confess judgment, but not to delegate authority to another to perform the act. An answer to this is found in the general maxim, that whatever a man sui juris may do of himself, he may do by another. There are exceptions to the rule. The act, sometimes, from its nature, must be performed by the party himself. But the confession of judgment for a person perfectly competent to do the act himself, is no such exception. It may be done as well by an attorney as by the party himself. There is an allegation that the parties, Sharp and Poole, are suspected to be fictitious persons. But there is no direct charge that such is the fact; and the charge, as made, formed no ground for the grant of the writ.

One of the grounds of the motion to dismiss the writ of certiorari, is, that the appellant, while seeking, has not offered to do equity, that while claiming the interposition of the Court against the judgment on account of usury in the transaction, he has not offered to pay the amount of the principal which he has acknowledged to be due. How, although, as a general rule, it be necessary only to allege grounds of error to obtain a writ of certiorari, yet in cases accompanied with circumstances of the like character with those marking these cases, it would seem to be necessary that the petitioner should go further, and should offer to perform the equity which he claims from the other party. He has, in effect, confessed the judgment below. In this state of the case, he cannot well claim the interposition of the Court against the judgment, on the score of usury in the original transaction, unless he should offer to pay what was really due.

Judgment affirmed.