A cognovit is an admission of the debt. The testimony shows that a consideration was given that an execution should not issue for one year after. No execution was issued for one year after.
The cognovit is a mere acknowledgmentof the amount therein set forth as the judgment proper. Court can allow defendant to answer that the cognovit was the fruit of surprise or misunderstanding, but, upon proof, the cognovit, if divested of this, must stand as a judgment upon its own merit.
The interest is a just claim, From 1851, since the cognovit was given, the sum therein mentioned became due and settled. Certainly, interest covers the amount since.
One defendant was never served. Franklin alone was served. We cannot conceive how any judgment can affect Dyer, who never had notice of the suit, or appeared to have knowledge of it.
JUDGES: Mr. Justice Heydenfeldt delivered the opinion of the Court. Mr. Chief Justice Murray and Mr. Justice Terry concurred.
OPINION
HEYDENFELDT, Judge
1. The cognovit was good as an admission in pais after answer filed. It might be different if the cognovit was set aside by the Court, upon good cause shown, but such was not the fact here. For aught that we can tell from the record, the cognovit may have been given after answer filed.
2. If judgment had been entered on the cognovit, and by its authority, then the amount acknowledged would have been the sum of the judgment. But where upon declaration and answer denying the facts alleged, the acknowledgment is used as evidence, interest may be given by way of damages.
3. It does not appear that the defendant, Dyer, was served with process, or was ever in Court. For the purpose of sustaining the judgment, it must be intended that he was not. This would authorize a single judgment against the other defendant.
Judgment affirmed.