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have originally made to the action, except the statute of limitations.
a. See Person v. Valentine, 13 Sme. & M., 551. 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. McFarland y. Irwin, 8 Johns. R., 78.
$ 380. [333.] (Amended 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.] (Amended 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.
SECTION 382. Judgment may be confessed for debt due or contingent liability.
383. Statement in writing and form thereof.
$ 382. [335.] Judgment may be confessed for debt due, or contingent liability.
A judgment by confession may be entered, without action, either for
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.
b. *" 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 Abbott, 358. Mitchell, J.
See section 424.
a. 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. Bouteite v. Owen, 2 Code Rep., 40; 2 Sand. 625.
b. 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.
C. 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, 2 Selden, 147.
d. A judgment confessed by one partner in the name of himself and his co-partner, is void as to the co-partner. Morgan v. Richardson, 16 Mo. R., 409.
e. A judgment by confession without action can only be entered against the person who signs the consession. One of two persons or joint debtors cannot confess judgment for both. Stoughtenburg v. Vandenburg, 7 Pr. R., 229.
f. The party consessing such a judgment makes the debt his individual debt. Ib.
g. 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 Pr. R., 255.
h. The provision of the revised statutes, forbidding the setting aside a judgment for irregularity after one year (2 R. S., 282, s. 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 ; but see Park v. Church, 1 Code Rep., N. S., 47.
i. A judgment by confession in a county court for an amount exceeding the amount for which courts have jurisdiction is a nullity. Griswold v. Sheldon, 1 Code Rep., N. S., 261 ; Daniels v. Hinkston, 5 Pr. R., 322.
j. 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.
k. The judgment must be on the direction of a judge or report of referees, except where the clerk may enter the same, by section 384,
See section 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 contingent liability, it must state concisely the facts constituting the liability, and must show that the sum confessed therefor does not exceed the same.
2. Where the affidavit and statement were written on the same page and the signature of the defendant was to the affidavit only, it was held to be a substantial compliance with the requirements of the section. Purdy v. Upton, 10 Pr. R., 494 ; Posi v. Coleman, 9 ib., 64.
b. Where the statement expressed the amount to be $300, and that “it is justly due," and then set forth that the indebtedness arose upon the following facts: • For lumber and building materials furnished by the plaintiff to the defendant," Brown J. held it insufficient, and said, " It gives no time, no place, no quantity, no price or value of the property furnished ; and more than all that, it does not say upon what contract the lumber and materials were furnished—whether the defend. ant took it as purchaser or bailee. It may have been furnished upon a contract of sale, or upon a contract to transport and carry from one place to another, or, upon some contract, to be sold by the defendant as the factor or agent of the plaintiff, The time, the place, the quantity, the price, or fair value, may not be indispensable requisites to make the statements effectual to support the judgment; but surely the creditors of the defendant have a right to know whether he took the property on a contract of sale, and became liable by reason of that fact, or whether he took it upon some other contract and became liable upon soine other fact." Purdy v. Upton, supra.
c. Where the statement was " for goods and groceries, and for one horse and one cow, delivered to the said George Upton (the defendant), the payment of which, to the amount of $300, is now due to said Marshall (the plaintiff'], Brown J. held it insufficient because it did not state how much for the goods and groceries, how much for the horse, and how much for the cow, nor under what circumstances they were delivered to Upton, nor that the property was delivered by Marshall. Marshall v. Upton, 10 Pr. R., 497.
d. I do not mean to say that a judgment confessed to A. for a debt originally due to B. may not bind the parties and the creditors of the judgment deblor but I do say and insist that if the debt was originally due to B., and he holds by assignment, or as representative, if it be confessed to A. for the benefit of B. that fact should not be concealed from the other creditors; they have at least a right to know who was the original creditor;" Brown, J. Purdy v. Upton, 10 Pr. R., 497.
e. Where a confession of judgment commenced with the title of the cause, and then proceeded thus: “Judgment is hereby confessed in this cause, for the sum of $1,413, for the purpose of securing a balance of that amount, due on the purchase of a store of goods bought by the defendant of him.” An execution issued on the judgment. A motion was made to set aside the execution on several grounds; the motion was denied, and per Gridley, J. “ It is said that there was an irregularity in the confession of judgment. The particular irregularity relied on is that the confession does not contain any authority pursuant to the first subdivision of section 333. The confession of the judgment commences with the title of the cause, and then proceeds thus: Judgment is hereby consessed in this cause for the sum of $1,413,' &c. It is difficult to state the authority in a more direct manner than is done here, especially when we remember that the defendants both swear to this statement, and that in every other respect the confession is admitted to conform to the statute. Again, this part of the statute is directory merely; and the defendants cannot be heard to object to it, especially after the lapse of more than a year: one year bars all relief for irregularity (2 R. S., 282, s. 2, see also Griffin v. Mitchell, 2 Cow., 548.)” Park v. Church, 5 Pr. R., 381 ; 1 Code Rep. N. S. 47.
f. Where the statement was, “ This confession is for a debt justly due to the plaintiff, arising upon the following facts : a promissory note payable to the plaintiff for the sum of $250, dated on or about the 14th of January, 1850, and payable one year after date, with interest.” The judgment entered on such confession was held to be fraudulent and void ; and per Mason J. “The plaintiff in this suit has not complied with the requirements of section 383. The object of this section was to prevent abuse and fraud in the confession of judgments. Such being the object and design of the statute, and it being for the protection of the creditors of the judgment debtor, its requirements must be complied with, or it will be deemed fraudulent as regards other judgment creditors, and as to them judgments will be set aside. The statement in this case is not a statement of the facts out of which the plaintiff's debt arose. It shows nothing of the consideration of this judgment, except that it was confessad upon a promissory note given by the defendant to the plaintiff. Now, unless this note was given for some valid consideration, the plaintiff's judgment is fraudulent as to creditors; and one of the most material facts to be stated, therefore, is the consideration of the note. The statute wouid subserve none of the useful purposes contemplated by its framers, if we allow such a statement to answer its requirements. This statute should receive a liberal construction, such an one as will give to it the effect designed by its framers. But the language of the statute is too plain to adinit of any reasonable doubt as to its construction. This provision of the statute is not inerely directory, as was said by Gridley, J., in regard to another subdivis. jon of the same section (Park v. Church, 5 Pr. R., 381, 1 Code Rep. N. S., 47). The omission to make the statement required by the statute must be held to invalidate the judgment. Plummer v. Plummer, 7 Pr. R., 62.
a. Where the statement of the facts out of which the indebtedness arose were as follows : “ This confession of judgment is for a debt justly due to the plaintiff, arising upon the following facts : for goods, wares, and merchandise, sold and delivered to me by Messrs. Schoolcraft, Raymond, & Co., Albany, of which firm the plaintiff is a member; the goods were purchased by me in the years 1851 and 1852; and this judgment is confessed to said plaintiff for ihe benefit of said firm of School. craft, Raymond, & Co.” On motion, the judgment entered on such confession and statement was set aside ; and per Strong, J.: “One important object of that subdivision (subd. 2 of section 382) was, that other persons than the parties to the judg. ment, having any interest, might by referring to the statement be informed of all The material facts in relation to the indebtedness, and thereby be better able to de. tect any fraud intended by the judgment. It was to protect third parties from fraud by furnishing them to some extent with the means of discovering and preventing it. This object would be principally, if not wholly, defeated, if a statement like that in the present case should be allowed. The statement is much too general. The kind of goods, wares, and merchandise, the quantities, the prices charged for them, the times, or near the times, in the years named, when the purchases were made,-none of these, or any other particulars, are stated; and no reason for the omission is given. I cannot think the legislature contemplated, by the requirement that the facts be concisely stated, a statement so destitute of particulars, or that the requirement can be 80 easily satisfied. Schoolcraft v. Thompson, 7 Pr. R., 447. This decision was reversed on appeal to the general term Johnson and Welles, JJ., concurring, Strong, J., dissenting. The judgment was pronounced by Johnson, J.; and he said, " The terms of the statute are, a concise statement of the facts out of wbich it (the debt! arose. This could never have been intended to require a detailed statement of the transactions or dealings between the parties, or a bill of particulars. Had the legislature intended to require a statement of the kinds of goods, wares, and merchandise, the qualities, the prices charged, the times, or near the times, in the year when the purchases were made, as supposed by the learned judge, they would scarcely have expressed their intention in terms so brief and general. We have here, (1) the amount of the debt confessed, (2) the allegation that it is a debt justly due, (3) that it was for goods, wares, and merchandise sold and delivered to the defendant by the plaintiff's firm in the years 1851 and 1852, (4) the verification of the statement by the oath of the defendant.” Schoolcraft v. Thompson, 9 Pr. R., 61.
6. Where the statement was, that the indebtedness arose on a promissory note payable to the plaintiffs, and dated the 15th July, 1852, and the confession was verified by the defendant's affidavit. On a subsequent day, November 5th, 1852, the defendant made an affidavit that the said note was given for a balance of an account for goods purchased by the defendant of the plaintiffs, and for money borrowed of them, and that the whole sum mentioned in the vote was justly due from him to them when the note was given, and vo part of the note had been paid. On that affidavit, an order was made amending the judgment recorded by filing the said affi. davit nunc pro tunc, as of the date of the filing the said judgment record. A motion to set aside the said judgment was denied; and per Cady, J., “The only question is, whether there are such defects upon the face of the record as to make it the duty
of the court to set aside the judgment and execution. * * * The chapter does not contain an intimation for whose protection the confession or statement in writing must • state concisely the facts out of which it arose.' It has been assumed, that unless the statement in writing, or copfession, be as required by section 383, the judgment is to be deemed fraudulent as to the creditors of tbe party making the confession ; but the legislature have not so enacted. A debt or demand arises on a note or bond the moment it is made and delivered to the payee; and when a defendant, in the statement made necessary by section 383, states that he on a certain day made and deliv. ered to the plaintiff a note or bond for the payment of a certain sum, he states concisely the facts out of which the debt or demand arose ; ' and if he verifies that statement by his oath, he does all that section 383 requires of him. I am aware of the opinion in the case of Plummer v. Plummer (7 Pr. R., 62), in which a construction is given to the second subdivision of section 383 as comprehensive as was given to section 8, chapter 259, of the laws of 1818; but, to my mind, there is an important difference between the two sections. In this case, then, the motion may be denied, even should it be conceded that the case of Plummer v. Plummer was correctly decided. Mann v. Brooks, 7 Pr. R. 49. This case was unanimously affirmed at the May, 1853, general term of the third district, held at Albany, by Justices Watson, Parker, and Wright, 8 Pr. R., 40.
a. Where an administrator of a deceased party who in his lifetime has confessed a judgment under this section, moved to have the judgment set aside on affidavits showing that the estate of the intestate, the defendant in the judgment, was insuffi. cient for the payment of his debts if said judgment was paid in full,- Allen, J., denied the motion, and said, “The judgment purports to have been confessed for money actually due the plaintiff; and the objection is that the statement in writing required by section 383 of the code, does not sufficiently state the facts out of which it arose,' it merely sets out a copy of a promissory note as the foundation or origin of the debt. As a mere irregularity, the party inoving cannot avail himself of the alleged defect in the statement of the consideration of the judgment; more than one year having elapsed since the judgment was rendered (2 R. S., 4 ed. 606, s. 2; Code, s. 174; Park v. Church, 5 Pr. R., 381; 1 Code Rep. N. S., 47).
b. “It is claimed that the omission to set out the consideration of the note and the facts out of which the debt arose,' renders the judgment fraudulent and void as against the creditors of the defendant; and Plummer v. Plummer (7 Pr. R., 62), is relied upon to sustain this position. If the judgment is in fact fraudulent and void, as against creditors, by reason of the omission, then the administrator of the defendant representing creditors (the estate being insolvent), may insist upon the objection, and is entitled to the relief he asks (Babcock v. Booth, 2 Hill, 181; McKnight v. Morgan, 2 Barb, 171). The defect in the specification does not affect the jurisdiction of the court or the validity of the judgment as between the parties (Griffin v. Mitchell, 2 Cow., 548). There is no fraud alleged in the affidavits, and the moving party relies entirely upon the legal implication of fraud arising from the want of a iechnical compliance with all the statutory requirements. The statute does not in terms attach any such penalty to the omission, and the omission does not appear to be of a matter which was of the essence of the act done. This statute, like every other part of the code, is modal, intended to regulate the forms of proceedings in courts of justice ; and a non-compliance with the prescribed formula renders the proceedings irregular; but, in the absence of an enactment to that effect, should not reoder the proceedings fraudulent and entirely void. If simply irregular, they may be amended ; is fraudulent, they are absolutely void. Whitney v. Kenyon, 7 Pr. R., 459.
c. Whether a confession of judgment stating the amount and that it is for a debt justly due to the plaintiff on a promissory note given by the defendant to said plaintiff,” stating date and amount, is sufficient under section 383 of code,-quere ? Murray v. Sands, Court of Appeals, October, 1853.
d. Where the statement was “that on the third day of November, instant, the defendant gave the plaintiffs a promissory note for the sum of $143 39, payable one day after date, the same note was given for a quantity of coal purchased of the plaintiffs for the use of the Brainard House, that the defendant had been and then