§ 375. Statement in writing, and form thereof. A statement in writing shall be made, signed by the defendant, and verified by his oath to the following effect: 1st. It shall authorize the entry of judgment for a specified sum; 2d. If it be for money due, or to become due, it shall state concisely the facts out of which it arose, and shall show that the sum confessed therefor is justly due, or to become due; 3d. If it be for the purpose of securing the plaintiff against a contingent liability, it shall state concisely the facts constituting the liability, and shall show that the sum confessed therefor does not exceed the same. N. Y. Code, § 383. 1. Generally.-Where a judgment was rendered by confession in open Court upon an allegation of indebtedness and appearance of the parties, whatever errors intervened, they cannot at the instance of one not a party to the judgment be invoked to set aside, or show the judgment was a nullity. Cloud v. El Dorado County, 12 Cal. 133. 2. The Legislature did not intend any more definiteness or particularity, in cases of confession of judgment, than in complaints upon the same cause of action in the ordinary course of procedure.-BALDWIN, J. Cordier v. Schloss, 12 Cal. 143. 3. Where a judgment by confession is attacked by a creditor as fraudulent against him, on the ground that the object of the debtor and the judgment creditor was to assist the debtor in forcing a compromise with his other creditors rather than to enforce the judgment, the complaint must plead this ground of objection to the judgment. A general averment that the intent was to hinder, delay and defraud, is insufficient. 4. Such general averment of fraud will not put the adverse party on his defense. 5. An insolvent debtor, wishing to prefer a particular creditor, may give him a confession of judgment, with the agreement between them that judgment shall not be entered on the confession if the debtor succeeds in obtaining from his other creditors an extension-the creditor himself, in that event, also to give time; but that if the other creditors refuse such extension and attempt to attach, then that the judgment may be entered on the confession and execution issued. Such confession, not used nor intended to be used to influence the negotiations with the other creditors, but simply designed to secure the preferred creditor, and at the same time to extend as much leniency to the debtor as is consistent with the creditor's own security, is valid. Meeker v. Harris, 19 Cal. 278. 6. After showing an indebtedness to have arisen, it is not necessary to aver that the debt has not been paid or discharged. Lanning v. Carpenter, 20 N. Y. (6 Smith) 447, 458. 7. It is not necessary that a confession of judgment should state in terms that the amount for which judgment is entered "is due or to become due." The facts from which the law draws such a conclusion need alone be stated. Id. 8. Sufficient statements.-The statement for a judgment by a confession was as follows: "The above indebtedness arose on a promissory note made by the defendants to the plaintiff, dated June 21st, 1854, in the sum of seven hundred dollars, with interest; that amount of money being had by the defendants of the plaintiff, and upon which there is this day due the sum of seven hundred and eighty-two dollars and seven cents, together with eighty dollars and forty-one cents now due the plaintiff from the defendants as costs, in an action brought against the defendants by the plaintiff, upon said promissory note, in the Supreme Court, which suit is now discontinued by the plaintiff upon this confession of judg ment to him by the defendants:" Held, sufficient, there being no pretense that the money secured was not justly due. Freleigh v. Brink, 18 How. Pr. 89, reversing S. C. 16 Id. 272. 9. A statement is sufficient to authorize a judgment by confession, under section three hundred and eighty-three of the Code, which states that the indebtedness arose upon a promissory note, the date of which is given, made by the defendant to the plaintiff, in the sum of seven hundred dollars, with interest, that amount of money being had by the defendants of the plaintiff, and upon which there is this day due the sum of seven hundred and eighty-two dollars and forty-seven cents, with the addition : And we hereby state that the sum hereby by us confessed is justly due to the said plaintiff, without any fraud whatever." Freleigh v. Brink, 22 N. Y. (8 Smith) 418. 10. A statement of judgment by confession to secure the plaintiff's contingent liability as indorser for the accommodation of the defendant is sufficient if it describes the notes, naming the respective parties, the dates, amounts, and times, and places of payment. The consideration need not be stated, nor the fact that the notes had been discounted, this fact being inferable. Marks v. Reynolds, 12 Abbott, 403. 11. The statement must show that the sum confessed does not exceed the debt. It is not enough that it state that the confession is for a debt justly due and owing, for money lent, etc., or for goods sold, etc., without stating the amount of the loan, or the total price. Clements v. Gerow, 30 Barb. 325. 12. Insufficient statements.-A statement for confession of judgment, to the effect that the indebtedness is upon a note, etc., is insufficient. So where the statement is, that the indebtedness is for goods sold and delivered, and money had and received, it is insufficient in this: that it does not show the kind, or quantity, or price of the goods, or time of sale, or when the money was received, or under what circumstances, or how much of the indebtedness is for money, and how much for goods; and the judgment confessed is prima facie fraudulent. Cordier v. Schloss, 18 Cal. 576. 13. A statement, under the three hundred and seventy-fifth section of the Practice Act, for confession of judgment, to the effect that plaintiffs are owners of a note, that the note was given for goods sold and delivered by plaintiffs to defendants, and money had and received by defendants, is insufficient, and the judgment rendered thereon prima facie fraudulent against creditors. Id. 14. Whether each of the defects above named would be fatal to the judgment, not decided; but the failure to state the amounts due, severally, for goods and for money, would be fatal, just as such an averment is insufficient in an ordinary com plaint. Id. 15. In a confession of judgment, the statement of the facts was as follows: "A promissory note, (for a specific date and amount) which note was given to L. W. & Co., for goods, wares and merchandise theretofore purchased of L. W. & Co. by the defendant, which note was indorsed by the debtor, and came into the hands of the plaintiffs for a valuable consideration:" Held, insufficient. Claflin v. Sanger, 11 Abb. 214, note. 16. Plaintiff was a grocer, and defendant resided with his family in his vicinity. Defendant's confession of judgment stated that a part of the indebtedness arose on his promissory note, dated May 1st, 1856, given by defendant to plaintiff for "groceries, goods and merchandise furnished to me before that time by the plaintiff, and from his store," and specified the amount of interest due: Held, insufficient, as not showing within what period the goods were furnished, nor the facts on which interest could be claimed. McKee v. Tyson, 10 Abb. 392. 17. Under the provision of section three hundred and eighty-two of the Codethat judgment by confession may be entered for money due, or to become due, or to secure any person against contingent liability—the person who may be secured is the plaintiff in the judgment. A confession of judgment to A to secure him, and as trustee for B to secure a contingent liability assumed by B, is, as against subsequent creditors, illegal, even though made in good faith in respect to the latter liability. Marks v. Reynolds, 12 Abb. 403. 18. A statement for judgment by confession "that the plaintiff, at various times in the years 1854 and 1855, sold and delivered to me large quantities of meat, and upon such sale there is now justly due to the plaintiff a balance in the said sum of $2,000," is insufficient. The total amount of the debt and the amount of the payments should be stated. Neusbaum v. Keim, 7 Abb. 23. 19. A statement for judgment by confession, referring to a schedule annexed: Held insufficient, for not showing the necessary facts. Haman v. Keinhart, 11 Abb. 132. 20. A judgment confession to secure a contingent liability on a guaranty, should be set aside on motion of a subsequent judgment creditor, if the statement in which it is entered does not show the particulars of the contract on which the liability rests -e. g. in case of a promissory note, who are the parties to it, and the facts which impose a liability thereon on the plaintiff, and in behalf of the defendant, and such a liability as the defendant is bound to protect. Winnebreuner v. Edgerton, 8 Abb. 419. 21. Judgment was entered upon a statement in the following form: "The above indebtedness arose on a promissory note made by the defendants to the plaintiff, dated, etc., in the sum of seven hundred dollars, with interest, that amount of money being had by the defendants of the plaintiff, and upon which there is this due the sum of seven hundred and eighty-two dollars and seven cents, together with eighty dollars and forty-one cents, now due the plaintiff from the defendants as costs in an action brought against the defendants by the plaintiff, on said promissory note, in the Supreme Court, which suit is now discontinued by the plaintiff upon this confession of judgment to him by the defendants:" Held, on motion of other judgment creditors, insufficient. Chappell v. Chappell, 2 Kern. 215; Dmham v. Waterman, 6 Abb. 357. 22. To say, "that amount of money being had by the defendants of the plaintiff," without saying when and in what sums had, or under what circumstances, and for what objects or purposes; whether as a gift, or a loan, or for money collected and misapplied, or in payment of property not delivered, or upon any other contract which the defendants failed to execute, is to withhold and conceal from the other creditors of the defendants the most material facts out of which the debt arose. Freleigh v. Brink, 16 How. 272. 23. A statement on confession of judgment, which describes a promissory note of the defendant, and alleges that it was given for money had and received by me of the said plaintiff, at my request," is insufficient to sustain the judgment. Dolg v. Matthews, 12 Abb. 403, note. 24. Void judgments.-A judgment confessed for the purpose of hindering, delaying, or defrauding creditors, is void as to such creditors. Ryan v. Daly, 26 Cal. 38. 25. A confession of judgment to a bona fide creditor, and the issuance of execution and making levy under the same by the judgment debtor, without the know!edge of the judgment creditor, done with the knowledge that another creditor is about to attach, and for the purpose of defeating his attachment, is void as to the attaching creditor. Id. 26. Judgment by confession for over two hundred dollars, in a Justice's Court, is void for want of jurisdiction. Feillett v. Engler, 8 Cal. 77. 27. Where judgment is confessed on a note, a portion of the consideration being advanced from time to time after the date of the note, which drew interest on the whole amount from date, a portion of the interest is fraudulent, and the entire note is void as against creditors. Scales v. Scott, 13 Cal. 76. 28. Judgments, prima facie void.--In a confession of judgment, the omission to fully comply with the statute to set forth explicitly the facts and circumstances upon which the debt was incurred, does not ipso facto make the judg ment void; it merely throws the burden of proof on the judgment creditor, if his judgment is contested by other creditors, of proving that his judgment was fair and not fraudulent. Richards v. McMillan, 6 Cal. 419. 29. But such a failure to make all the disclosures required by the statute is prima facie evidence of fraud. Id. 30. Richards v. McMillan (6 Cal. 419) holding that the omission, in a confession of judgment, to state the facts out of which the indebtedness arose, etc., is strictly in accordance with the statute, does not render the judgment a nullity, but is sinuply prima facie evidence of fraud, affirmed. Cordier v. Schloss, 18 Cal. 576. 31. Judgments; how, when and by whom may be set aside. -An application by a judgment creditor to set aside his confession of judgment should show that the claim was not just, and that the judgment ought not to have been confessed. Arrington v. Sherry, 5 Cal. 514. 32. A junior judgment creditor has no right to join with the defendant in an application to set aside such confessed judgment. He must resort to a Court of Chancery if he is dissatisfied. Id. 33. A junior judgment creditor must resort to a Court of Equity if he is dissatisfied with the bona fides of the confession of judgment. Id. 34. In a suit to set aside a judgment confessed by a party to defraud his creditors, it is not necessary that plaintiff should be either a judgment or execution creditor. A lien acquired by attachment suffices. A slight mistake in the computation of interest, the date being given, is no evidence of fraud. Scales v. Scott, 13 Cal. 76. 35. A statement, made for the purpose of entering a judgment under sections two hundred and eighty-two and three hundred and eighty-three of the Code, which states, as the facts out of which the debt arose, "that heretofore, at the city of New York, I (Hodgins) made my certain promissory note for the sum of $2,000, payable on demand; and that I have not paid said note; and that I am justly indebted to the plaintiff (Kendall) thereupon, in the said sum of $2,000," is wholly insufficient to authorize a judgment to be entered upon it. Kendall v. Hodgins, 7 Abbott, 309. 36. A judgment entered on such a statement, and an execution issued on such a judgment, may be set aside on motion of a bona fide purchaser of lands on which the judgment is an apparent lien, as to such purchaser and the lands so purchased, and such lands be declared to be freed and discharged of and from the apparent lien of such judgment, and of and from any and every proceeding whatsoever, under and by virtue of, or founded on such judgment. Id. 37. Although a judgment entered by confession may be set aside on motion, when the statement is insufficient, yet such relief may also be obtained as part of the judgment in a creditor's action. Jessup v. Hulse, 29 Barb. 539. 38. A judgment by confession, though entered on a defective statement, will not be set aside on motion of a creditor whose judgment is also entered on a defective statement. Rae v. Lawser, Id. 380, note. 39. The right to set aside a judgment by confession, which is void for insufficiency of the statement on which it is entered, is not limited to judgment creditors, but extends to any creditors whose rights are affected. A grantee or mortgagee of premises upon which the judgment is a lien may attack and resist in defense of any action to which they are parties, any such judgment, where the same is sought to be enforced by suit upon the judgment by the plaintiff, as well as they might move to vacate the judgment, or bring an action for the same purpose. Norris v. Denton, 30 Barb. 117. 40. Amendment.-If a judgment taken by confession upon a defective statement can be amended, it can only be as to the rights of the parties to the judg ment, and without prejudice to those of other judgment creditors. Jessup v. Halse, 29 Barb. 539. 41. Where a judgment on confession is filed and docketed, the omission of the Clerk to make the indorsement on the statement required by section three hundred and eighty-four of the Code cannot affect the substantial rights of any party, and it may be made nunc pro tune by an order of the Court. Daly v. Matthews, 12 Abb. 403, note. 42. The Court has no power to allow an amendment of an insufficient statement and confession of judgment, so as to render the judgment entered upon it valid as against intervening bona fide purchasers or incumbrancers. Hammond v. Bush, 8 Abbott, 152. 43. Whether the Court has power, in any case, to compel one who has confessed judgment upon an insufficient statement to sign and verify an amended statement. -Query? Id. § 376. Filing statement and entering judgment. The statement shall be filed with the Clerk of the county in which the judgment is to be entered, who shall indorse upon it, and enter in the judgment book, a judgment of such Court for the amount confessed, with ten dollars costs. The statement and affidavit, with the judgment indorsed, shall thereupon become the judgment roll. CHAPTER III.—Submitting a controversy without action. SEC. 377. Controversy, how submitted without action. 378. Judgment on, as in other cases, but without costs prior to notice of trial. 379. Judgment may be enforced or appealed from as in an action. § 377. Controversy, how submitted without action. Parties to a question in difference, which might be the subject of a civil action, may, without action, agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to any Court which should have jurisdiction, if an action had been brought. But it must appear, by affidavit, that the controversy is real, and the proceedings in good faith, to determine the rights of the parties. The Court shall thereupon hear and determine the case, and render judgment thereon, as if an action were depending. N. Y. Code, § 372. § 378. Judgment on, as in other cases, but without costs, prior to notice of trial. Judgment shall be entered in the judgment book as in other cases, but without costs for any proceeding prior to the trial. The case, the submission, and a copy of the judgment, shall constitute the judgment roll. N. Y. Code, § 373. $379. Judgment may be enforced or appealed from, as in an action. The judgment may be enforced in the same manner as if it had been rendered in an action, and shall be in the same manner subject to appeal. |