an oath exacted, not by the constitution, but by article 81, § 36, of the Code. Dr. Davidson refused to surrender the office to Mr. Brice, and based that refusal upon two grounds, viz.: First, that the appointment made by the county commissioners was for the unexpired portion of Dr. Cheston's term of four years, wherefore there had been no vacancy to be filled by an election, and would be none until 1901; and, secondly, that the failure of Mr. Brice to take the oath prescribed for collectors of taxes was a "default to * qualify within thirty days," and rendered him ineligible, even though he had taken and subscribed the constitutional oath. Application was thereupon made by Brice for a writ of mandamus requiring Davidson to surrender the office. The circuit court for Anne Arundel county held that Brice was legally entitled to the office, and ordered the writ to issue, and from that order Davidson entered this appeal.

*

The case is, in our opinion, entirely free from difficulty. The first of the two grounds upon which Davidson's refusal to vacate the office rests is completely and effectually swept away by the very statute which fixed the term of office and provided for the election of a county treasurer. The term is by that statute declared to be for four years from the first Monday of May succeeding the treasurer's election, "or until his successor is duly elected and qualified." An incumbent duly elected and qualified, if he lives, or is not removed, or does not cease to reside in the county, or does not resign, is entitled to hold the office for four years from the first Monday of May ensuing his election, or longer, if his successor is not duly elected and does not qualify. But it is obvious that any of the contingencies just named might happen, and if one of them should occur the incumbent's tenure would terminate prior to the expiration of the four years; and accordingly the legislature provided that in the event of the death of the treasurer the county commissioners should declare the office vacant, and should fill the vacancy, not for the residue of the original term, but until a successor should be elected at the next general election and should qualify. The appointee's tenure cannot, under the express words of the statute, reach beyond the general election next ensuing his appointment, and the point of time thereafter when his successor chosen at that election shall qualify.

The election of 1899 was a general election, and it was the next general election which occurred after the appointment of Dr. Davidson had been made. It was therefore the election at which, according to the mandate of the statute, a county treasurer was required to be chosen by the people. This being so, and Mr. Brice having at that election received a majority of the votes cast, he is entitled to the office, if he gave bond and properly qualified. Now, did he properly qualify? The only oath which he took was

the one prescribed by section 6, art. 1, of the constitution. That oath reads as follows: "I, —, do swear * * * that I will support the constitution of the United States; and that I will be faithful and bear true allegiance to the state of Maryland, and support the constitution and laws thereof; and that I will to the best of my skill and judgment, diligently and faithfully without partiality or prejudice, execute the office of according to the constitution and laws of this state. * The oath provided by the Code to be taken by collectors of taxes is in these words: "I, - collector of -, do swear that I will well and truly execute the duties imposed upon me by law, and that I will justly and impartially value all property which I shall be authorized to value, according to the best of my skill and judgment; and that I will not, either directly or indirectly, make any profit of the money collected by me, by the use thereof in any manner whatever." Does his failure to take this latter oath disqualify him? Varying this question somewhat, so as to present the controlling inquiry more sharply we may ask, has the legislature the authority to prescribe, as a qualification for the office of county treasurer, any other oath than the one which section 6, art. 1, of the constitution imposes? If it has, then Mr. Brice did not legally qualify. If it has not, then he did legally qualify.

Section 6, art. 1, of the constitution is a mandatory provision. It emphatically requires that "every person elected or appointed to any office of profit or trust, under this constitution or under the laws made pursuant thereto, shall, before he enters upon the duties of such office, take and subscribe the following oath or affirmation"; and then comes the oath which has been transcribed above. But this is not all. Not content with prescribing the precise oath to be taken, the declaration of rights, in article 37, prohibits any other oath from being exacted, for it declares "that no religious test ought ever to be required as a qualification for any office of profit or trust in this state, other than a declaration of belief in the existence of God; nor shall the legislature prescribe any oath of office than the oath prescribed by this constitution." Here, then, is an explicit limitation on the power of the legislature. In the face of this positive and plain inhibition, how can it be insisted that the legislature may impose as a qualification for a public office some other and additional oath "than the oath prescribed by the constitution"? If it may require the county treasurer to take the oath prescribed by the Code for tax collectors, it may with equal propriety superadd some other and widely-different oath, and completely nullify the restrictive clause of article 37 of the declaration of rights. It was the obvious purpose of the people who adopted the constitution of 1867 to deprive the legislature of any power to formulate or impose an oath of office, except as respects

pretended that the legislature could prescribe a religious test for a statutory office, but it has just as much power to prescribe one as it has to disregard the equally broad and emphatic prohibition against exacting any other official oath than the constitutional oath. Without discussing the cases relied on by the appellant's counsel, it is only necessary to say that they all arose on statutes passed prior to the adoption of the constitution of 1867, and therefore passed when the legislature had the authority to prescribe an additional official oath. Cases from beyond this state can have no influence on the interpretation of our own organic law.

It results from what we have said that the legislature was without authority in 1894 to exact the additional oath required of the county treasurer; and, as the exaction of it was unwarranted, the failure of Brice to take it cannot defeat his right to the office. For the reasons assigned, we think the order appealed from was right, and it must be affirmed, with costs. Order affirmed, with costs above and below.

(92 Md. 176)

TYRRELL v. HILTON et al. (Court of Appeals of Maryland. Dec. 13, 1900.)

BY

JUDGMENT BY CONFESSION ENTRY CLERK SPECIFIC AUTHORITY NECESSITY -VACATION-ORDER TO STRIKE OUT-CONDITIONS APPEAL REVIEW - NECESSITY OF BILL OF EXCEPTIONS.

1. A motion to strike out a judgment by confession was heard on "an agreement as to facts and testimony" which provided that testimony of certain named witnesses in an equity suit, attacking the judgment, together with papers in that case, "should be used and considered as evidence at the hearing of the motion"; and, on an appeal from an order striking out the judgment, every paper specified in the agreement, and the full testimony in the equity case of the witnesses named in the agreement, were set out at length, and duly certified by the clerk, immediately under the agreement. Held, that the clerk, in connection therewith, properly certified that the record transmitted was a full and complete transcript of the proceedings as agreed on between counsel, and that a bill of exceptions was unnecessary to review the action below.

2. If a judgment is entered by confession, without jurisdiction, and is void, a motion to strike it out should be sustained only on terms preserving the cause of action and the lien of the judgment so as to secure plaintiff from loss should he thereafter recover at a trial on the merits.

3. Code, art. 26, § 6, declares that the clerk of any court of the state may, during the recess of the court, enter a judgment by confession, with the assent of the parties or attorneys in writing, which shall be filed with the papers in the case in which the judgment is entered. Held, that the assent to the confession being given, and the other necessary papers being filed therewith, the clerk's authority to enter the confession was derived solely from the statute, and specific authority directed to him, as clerk, to make the entry, was not required.

4. Where there is jurisdiction to enter a judgment by confession, defendant, to have it vacated, must show that he has a meritorious de

fense, of which he was deprived under circumstances making it inequitable for plaintiff to enforce it.

Appeal from circuit court, Harford county. "To be officially reported."

Judgment by confession was entered in favor of William H. Tyrrell against Charles S. and Anna M. Hilton, and from an order striking it out the former appeals. Reversed.

Argued before McSHERRY, C. J., and FOWLER, BRISCOE, PAGE, BOYD, PEARCE, and SCHMUCKER, JJ.

Stevenson A. Williams, for appellant. Fred R. Williams and Jas. A. Lyle, for appellees.

PEARCE, J. This is an appeal from an order of the circuit court for Harford county striking out a judgment entered by confes sion during the recess of court. The cause of action is a sealed obligation from the ap pellees to the appellant for $1,850, dated April 15, 1895, and payable two months after date, containing the following authority for the confession of judgment thereon: "And we do hereby confess judgment for the above sum, with interest and cost of suit." Judgment was entered thereon July 24, 1895, upon filing with the clerk of the circuit court a titling of the case, the sealed obligation constituting the cause of action, and an agreement for the entry of a judgment for $1,735.39 and costs, signed by S. A. Williams, attorney for plaintiff, and by Fred R. Williams and James A. Lyle, attorneys for defendants, together with an order from plaintiff's attorney to docket suit as entitled, file the papers mentioned, and enter judgment accordingly, and execution was issued the same day. On August 5, 1895, the appellees filed a bill in equity against the appellant and the sheriff, alleging that a partnership previously existing between Charles S. Hilton and Tyrrell was dissolved April 5, 1895, and that the obligation given by the appellees to Tyrrell was for the purchase by Hilton of Tyr rell's interest in the partnership, and that Tyrrell, by means of false and fraudulent statements as to the assets and liabilities of the firm, caused Hilton to believe that onehalf of the net assets over and above all liabilities amounted to the sum of $1,850, and thereby induced him to execute and deliver the obligation in question, whereas the onehalf of said net assets, as he had recently discovered, was very much less than $1,850, and that, after crediting certain payments on the obligation admitted by Tyrrell, there was but $392.72 due thereon, which had been tendered to the sheriff and had been refused, and which they now tendered themselves ready to pay or bring into court; and they also charged that the judgment was confessed without authority from them, and without their assent, and that they had no knowledge of its entry until notified of the execution by the making of the levy. The bill prayed for surrender of the note and satis

voluntary appearance was entered for all the defendants, the attorney being duly authorized by two, and not knowing there was a third defendant. The judgment was stricken out as to that one, and in remanding the cause it was suggested to the circuit court that if, upon the remand, it should appear that subsequent liens had been obtained against the defendant, he should be required, as a condition to relief, to pay into court a sum sufficient to secure the judgment in event of the establishment of a right to its amount, saying, "This will be doing but simple justice to the plaintiffs, who, by no fault on their part, have been deprived of an earlier trial of the real question in dispute, and of their chance of thus obtaining a prior lien." In the case we are considering, a subsequent mortgage for $3,000 was taken by Robert Archer, with knowledge of this judgment, and in reliance upon its supposed invalidity, and, if this judgment is stricken out without any conditions, gross injustice might be done the plaintiff, who would thus be delayed in obtaining his lien more than five years after it was supposed to have been obtained. requirement to pay into court so large a sum of money would be a far more onerous condition than the retention of the lien, which we think more just and equitable. The case of Heaps v. Hoopes was approved in Coulbourn v. Fleming, supra, where a judgment by default against a nonresident was stricken out for want of service, but upon condition only that he would enter an appearance that the case might proceed to trial in the regular way. Should the present judgment be stricken out without the imposition of any terms, it is possible the claim might be defeated by limitations. If, therefore, we should strike out this judgment as void, we should do so only upon terms which would preserve the cause of action as well as the lien of the plaintiff. In the absence of authority, it might seem an anomaly to speak of preserving a lien acquired by a judgment declared to be a nullity, but the authorities we have cited are clear that in just such cases that course has been pronounced the proper course.

The

We do not, however, regard this judgment as void, for reasons which we will proceed to state. It was entered during the recess of court under the provisions of section 6, art. 26, of the Code, which is as follows: "The clerk of any court in this state may, during the recess of said court, enter a judgment by confession, with the assent of the parties or attorneys, in writing, which shall be filed with the titling, nar., cause of action and other papers, in the case in which said judgment was entered; and a judgment so entered shall, from the date of the entry of the same by the clerk, have the same effect as if entered during the session of the court." This is a very plain and simple act, the outgrowth and development of the constant tendency of law to simplify procedure both in pleading and practice. The ancient common law re

quired the parties to be present and prosecute or defend in person. Special authority from the crown was originally necessary to enable parties to appear by attorney, though subsequent statutes recognized a right so to appear; but this right was a mere privilege, for the convenience of suitors, and did not exclude the right to sue or defend in person. At common law attorneys were either orally appointed in court, or by warrant out of court, and the practice required the warrant to be filed in court, but in this state the practice has never required a warrant of attorney to authorize the appearance of a defendant by attorney, and the rules of practice in England in relation to that subject are not applicable to the proceedings of the courts of this state. Henck v. Todhunter, 7 Har. & J. 277. Section 6 of article 26 of the Code of 1888 provided that any judge, in the recess of his court, may order his clerk to enter a judgment by confession, with the assent of the parties or their attorneys in writing, which shall be filed with the order of the judge. The act of 1890 (chapter 411) repealed this section, and re-enacted it as it appears in Poe's Supplement, as herein before set forth. Under this act the order as well as the presence of the judge is dispensed with, and full authority is given the clerk to enter judg ment upon compliance by the parties with the requirements of the act. These requirements are that the assent of the parties or attorneys in writing be filed with the titling, narr., cause of action, and any other papers in the case.

A proper titling, narr., and cause of action have been filed, but it is contended by the appellees that no assent of the appellees or their attorneys has been filed: First, because the attorneys who assumed to appear for them were without authority to do so; and, second, because there is no proper and legal assent, signed by the appellees themselves. Considering first the second reason, it is contended by the appellees that the assent required by the statute is not to the confessing of judgment, but to the act of the clerk in entering the confession of judgment, and that, to authorize the clerk to make such entry, there must be specific authority directed to him as clerk. In order to test this position, let us suppose that the papers upon which this judgment was entered had been submitted, prior to the act of 1890, to the judge of the court, and that the judge had ordered his clerk to enter it, and that after such entry it was moved to strike the judgment out on the grounds here taken. Let us further suppose that the judge was satisfied by the proof that the appellees' attorneys were not authorized to appear, and that such unauthorized appearance was not binding on the appellees, and did not require them to look to the attorneys for their remedy. The judgment, we think, would still be valid. The assent of the plaintiff is evidenced by his attorney's signature, whose authority is unquestioned;