CHAPTER II.*

Proceedings against Joint Debtors, Heirs, Devisees, Legatees, and Tenants holding under a judgment debtor.

SECTION. 375. Parties not summoned in action on joint contract, may be summoned after judgment.

376. If judgment debtor die, his representatives may be sum

moned.

377. Form of summons.

378. Summons to be accompanied by affidavit of amount due.

379. Party summoned may answer and defend.

380. Subsequent pleadings and proceedings the same as in an action.

381.

Answer and reply to be verified as in an action.

§ 375. [328.] (Am'd 1849.) Parties not summoned in action on joint contract, may be summoned after judgment.

When a judgment shall be recovered against one or more, of several persons jointly indebted upon a contract, by proceeding as provided in section 136, those who were not originally summoned to answer the complaint, may be summoned to show cause why they should not be bound by the judgment, in the same manner as if they had been originally summoned.

a. In a proceeding under this section does the cause of action or right to proceed arise upon judgment or the original demand? (Oakley v. Aspinwall, 4 Coms. 513; Johnson v. Smith, 14 Abb. 423).

b. Where the plaintiff recovers judgment on contract against three out of four joint debtors, the action being against all four, but the summons having been served only on the three against whom the recovery was had, he may proceed under this section against the defendant not served (Harper v. Bangs, 18 How. 457).

c. Does this section apply to a judgment in a justice's court of which a transcript has been filed with the county clerk (see Johnson v. Smith, 14 Abb. 423).

* As to costs of proceedings under this chapter, see section 307, sub. 7. d. The proceedings provided by this chapter, bear a strong similarity to the action of scire facias to obtain execution upon final judgment, after the death of the judgment debtor, and was, no doubt, intended as a substitute therefor (Alden v. Clark, 11 How. 213; post, § 428; and as to suits against heirs, see Laws 1859, ch. 110).

a. A proceeding under this section is not a new action, and the party served cannot have the action removed into a federal court (Fairchild v. Durand, 8. Abb. 305).

§ 376. [329.] (Am'd 1849.] If judgment debtor die, his representatives may be summoned.

In case of the death of a judgment debtor after judgment, the heirs, devisees, or legatees, of the judgment debtor, or the tenants of real property owned by him and affected by the judgment, may, after the expiration of three years from the time of granting letters testamentary, or of administration upon the estate of the testator or intestate, be summoned to show cause why the judgment should not be enforced against the estate of the judgment debtor in their hands respectively; and the personal representatives of a deceased judgment debtor may be so summoned, at any time within one year after their appointment.

b. The provisions of this and the following sections to section 381 inclusive, do not authorize proceedings against executors personally (Mills v. Thursby, 11 How. 131; 12 id. 385; 2 Abb. 432).

c. The heirs, &c., must be proceeded against jointly and not separately, but that does not make them jointly liable as joint debtors (Kellogg v. Olmsted, 6 How. 487).

d. No suit can be brought against heirs to charge them with the debt of their ancestor within three years from the granting letters testamentary or of administration upon the estate of their ancestor (Roe v. Swezey, 10 Barb. 247).

e. In proceedings by Scire facias to revive a judgment, remainder men must be parties or they are not bound (Campbell v. Rawdon, 18 N. Y. 412).

$377. [330.] Forms of summons.

The summons provided in the last two sections shall be subscribed by the judgment creditor, his representatives, or attorney; shall describe the judgment, and require the person summoned to show cause within twenty days after the service of the summons; and shall be served in like manner as the original summons.

f. The defendant against whom judgment has already been obtained need not be named as a defendant in the summons issued pursuant to this section (Johnson v. Smith, 14 Abb. 421).

g. The summons need not specify any time or place to show cause, but specifying a time and place would not vitiate the summons (Townsend v. Newell, 14 Abb. 340).

§ 378. [331.] To be accompanied by affidavit of amount

due.

The summons shall be accompanied by an affidavit of the person subscribing it, that the judgment has not been satisfied, to his knowledge or information and belief, and shall specify the amount due thereon.

-*

379. [332.] (Am'd 1849.) Party summoned may answer and defend.

Upon such summons, the party summoned may answer within the time specified therein, denying the judgment, or setting up any defence which may have arisen subsequently; and in addition thereto, if he be proceeded against according to section 375 he may make the same defence which he might have originally made to the action, except the statute of limitations.

a. In proceedings under section 375, the defendant cannot set up any defence which he might have interposed to the original action, or which existed before the judgment; and this rule applies whether the judgment was obtained by confession or default, or upon plea (Mc Farland v. Irwin, 8 Johns. 78).

380. [333.] (Am'd 1849.) Subsequent pleadings and proceedings same as in action.

The party issuing the summons may demur or reply to the answer, and the party summoned may demur to the reply; and the issues may be tried, and judgment may be given in the same manner as in an action, and enforced by execution, or the application of the property charged to the payment of the judgment may be compelled by attachment, if necessary.

§ 381. [334.] (Am'd 1849.) Answer and reply to be verified as in an action.

The answer and reply shall be verified in the like cases and manner, and be subject to the same rules, as the answer and reply in an action.

46

* Amended-See Appendix.

CHAPTER III.*

Confession of judgment without action.

Judgment may be confessed for debt due or for contingent liability.

SECTION 382.

383.

Statement in writing, and form thereof.

384.

Judgment and execution.

§ 382. [335.] Judgment may be confessed for debt due, or contingent liability.

A judgment by confession may be entered, without action, either for money due or to become due, or to secure any person against contingent liability on behalf of the defendant, or both, in the manner prescribed by this chapter.

a. Confession out of court.-It has been held that a confession of judgment out of court in an action of tort is not within or authorized by the code (Boutette v. Owen, 2 Code Rep. 40; 2 Sand. 625). A confession of judgment by a defendant in custody at the suit of the person in whose favor the judgment is confessed, made without the presence of counsel or the advice of some attorney named by the defendant, and attending at his request, to inform him of the nature and effect of the confession before he signs it, is void, and will be set aside on motion. (Ib.) And see Merrill v. Baker, 11 How. 456).

b. Future Advances.-A judgment may be confessed as security for future advances, and will be an effectual security for such advances against subsequent incumbrancers having notice of the judgment (Truscott v. King, 6 Barb. 346; 2 Selden, 147; Marks v. Reynolds, 12 Abb. 403; Averill v. Loucks, 6 Barb. 19).

c. Joint debtors.-A judgment by confession without action can only be entered against the person who signs the confession. One of two persons, or joint debtors, cannot confess judgment for both (Stoughtenburg v. Vandenburg, 7 How. 229). The party confessing such a judgment makes the debt his individual debt. (Ib.) Where the confession was to bind the defendant "as one of the firm," held, that it meant not only to bind the defendant individually, but the partnership property, and that on such a confession, judgment was properly entered against both partners (Von Keller v. Muller, 3 Abb. 375 note; see Graser v. Stellwagen, 25 N. Y..315).

d. "This chapter, with section 424, abrogates in effect the old declaration in debt for a penalty, and the judgment for the penalty, and the power of an attorney to appear on an old bond and warrant of attorney to confess suit or judgment (Allen. v. Smillie, 1 Abb. 358; 12 How. 156).

e. A. confession of judgment under this chapter, is analogous to the confession by bond and warrant of attorney under the former practice (Ross v. Bridge, 15 Abb. 150).

f. The court may set aside a judgment entered on an offer pursuant to section 385; when made to avoid the provisions of this chapter. (Id.)

d. Public officer.-A public officer who is liable to be sued for services rendered for the public at his request, may confess a judgment in his individual capacity for the amount (Gere v. Supervisors of Cayuga, 7 How. 255).

e. Irregularity. The provision of the revised statutes, forbidding the setting aside a judgment for irregularity after one year (2 R. S., 282, § 2,) does not prevent the setting aside a judgment by confession after that period, for the want of a sufficient statement (Manufac. B'k. v. St. John, 5 Hill, 497; Manufac. B'k. v. Boyd, 3 Denio, 257; Bonnell v. Henry, 13 How. 142; but see Park v. Church, 1 Code Rep. N. S. 47).

f. Married women.-Prior to the law of 1860, a confession of judgment by husband and wife for the debt of the husband, and the judgment entered thereon in personam was void as to the wife (Watkyns v. Abrahams, 14 How. 121; 24 N. Y. 72; but the court was not bound to set aside such a judgment; see Knickerbacker v. Smith, 16 Abb. 241).

g. Trustee. A trustee cannot confess a judgment without action so as to bind the trust estate (Mallory v. Clark, 20 How. 418; 9 Abb. 358; and see Marks v. Reynolds, 12 Abb. 403; rev'g S. C. 20 How. 538).

g. Partners.-Confession by partners (Averill v. Loucks, 6 Barb. 19; Leahey v. Kingon, 22 How. 209; 13 Abb. 192; Lambert v. Converse, 22 How. 265).

h. Confession by persons of unsound mind.—A bond and warrant of attorney [confession of judgment] executed by a person who is subsequently found by inquisition to have been at the time of unsound mind, so that he was incapable of governing himself or managing his affairs, &c., and a judgment entered thereon by confession are not absolutely void, and will not be set aside unconditionally where it appears from the evidence that the alleged lunatic was, for several years prior to the execution of the bond and warrant, permitted by his friends to exchange lands, to buy and sell real and personal property, and to give notes, bonds and mortgages, and there is no notice, fraud, or want of good faith alleged in the pleadings. But such judgment, and all subsequent proceedings, may be set aside on terms in the discretion of the court (Person v. Warren, 14 Barb. 488).

i. To what cases this chapter is applicable.-There is nothing in this chapter limiting it to cases of disputed or unsettled demand, or indicating an intention that it should be thus restricted in its operation. It applies to all cases to which its language is applicable, and this mode of obtaining judgment may be pursued in all cases where the parties choose to resort to it (Hill v. Northrup, 9 How. 526).

j. Not a disposing of property.-A mere confession of judgment is not a violation of an injunction restraining the defendant from disposing of or in any manner interfering with his property; but a confession of judgment may be a violation of such an injunction, if accompanied by acts of the defendant showing an intent to dispose of his property (Ross v. Clussman, 1 Code Rep. N. S. 91; see Ireland v. Smith, 1 Barb. 419).

See sec. 53, sub. 8.

§ 383. [336.] Statement in writing, and form thereof.

A statement in writing must be made, signed by the defendant and verified by his oath, to the following effect:

1. It must state the amount for which judgment may be entered, and authorize the entry of judgment therefor;

2. If it be for money due or to become due, it must state concisely the facts out of which it arose, and must show that the sum confessed therefor is justly due, or to become due;

3. If it be for the purpose of securing the plaintiff against a