Mann and Savage agt. Brooks, 7 How. Pr. 449

Cady, Justice. The principal affidavit on which the motion is made on hehalf of Messrs. Burditt and Streit is made by their attorney, who has not sworn to a single fact within his own knowledge tending to show any fraud in fact, except as to the proceedings on the part of his clients; he speaks of information and belief, and if a feigned issue was awarded, he could not be a witness to prove a fact in the case, except what he had done for his clients. In addition to the affidavit of the attorney, the affidavits of Archibald Bull, Messrs. Burditt and Streit and J. H. Sterne, have been read. Mr.

Bull swears that the defendant in July 1851, declared that he Owed no one any thing. J. H. Sterne proved the same thing. These witnesses could not be sworn on the trial of a feigned issue unless Brooks should be sworn on the part of the' plaintiffs, and then for the purpose of impeaching him in case he should deny having made the declaration; and Messrs. Burditt & Streit only swear that they trusted the defendant on the representations he made to J. H.

Sterne, and that no notic of a motion to amend the record has been served on them* They could not be witnesses on the trial of a feigned issue between them jnd the plaintiffs; and Mr. Burditt, although he has been at the plaintiffs’ store and was offered an inspection of the accounts between the plaintiffs and the defendant, he has not said a word impeaching the fairness of the plaintiffs’ judgment; and it is proved by the affidavit of George H. Olmstead, that in August last, Mr.

Burditt expressed himself to be perfectly satisfied with the justice and correctness of the plaintiffs’ claim against the defendant, and according to the affidavits which have been read, .there can not be a reasonable doubt as to the justice of the plaintiffs’ claim, and I apprehend that 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. It is claimed on the part of Messrs.

Burditt & Streit, that the judgment must be deemed fraudulent and void as to the creditors of the defendant, because the statement made by the-defendant, and verified by his oath, is not such as is required by

chapter 3, title 12 of the Code. There is some difficulty in ascertaining the meaning of all the enactments in that chapter.

Section 382 authorizes a judgment by confession “ in the manner prescribed by that chapter.” By

section 383, “ A statement in writing must be made, signed by the defendant and verified by his oath to the following effect:” 1. “ It [what? the statement in writing,} must state the amount for which the judgment may be entered and authorize the entry of judgment therefor.” “ 2. “ If it [the statement in writing] be for money due or to become due, it [the statement in writing] must state concisely the facts out of which it [the statement in writing] arose, and must show that the sum confessed therefor, is justly due, or to become due.” The word it is used three times in the second subdivision of

section 383, and it is difficult for me to say'with entire confidence, what is its meaning when last used. The counsel for the parties on whose behalf the motion is made, reads the words, “ out of which it arose” “ out of which the debt arose;” but where is the authority for substituting the words “ the debt,” instead of the word “ it ”? The word debt, is not used in the chapter. The second subdivision of

section 383 may be read as follows: If it [the confession] be for money due, or to become due, it [the confession] must state concisely the facts out of which it [the confession] [or the money] arose; but if the subdivision can be so read, the legislature has not declared what the consequence of the non compliance with the terms of the law shall be. 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 confession, be as required by

section 383, the judgment is to be deemed fraudulent as to the creditors of the party making the confession; but the legislature have not so enacted. As a general rule, when the legislature undertake to regulate the practice in an action, it is only the parties to the action who have a right to complain in case the requirements of the statute be not complied with. The Code prescribes how and when notice of trial or of a motion, shall be given, but it does not declare what the consequence shall be, if the notice be not given as required.

But according to the practice under that enactment, only the parties on whom the notice is served, can object to it; a creditor would not be allowed to impeach the judgment, because the defendant, his debtor, did not prevent a trial and judgment by objecting that legal notice of trial had not been given. The Court of Kings Bench, in the 4 Geo. 2, made a rule that a warrant of attorney to confess judgment made by a party in custody, should not be valid unless there was present “ some attorney on behalf of such person in custody, expressly named by him, and attending at his request ” (Hutson vs.

Hutson, 7 Term Rep. 7). This rule was for the protection -of the party giving the confession, and not his creditors, and to protect the party giving a warrant of attorney to confess judgment. The legislature as early as the 27th of February 1788, passed

an act prohibiting the entry of a judgment in virtue of any warrant contained in any bond, bill, covenant, or other contract (2 Greehleaf’s edit, of the Laws, 111. § 24). The counsel for the parties, on whose behalf the motion to set aside the judgment in this case is made, insists that the same construction is to be given to

section 382 of the Code, as was required to be given to

section 6 of

chapter 259 of the Laws of 1818. That

section made it necessary for the plaintiff or his attorney, in a judgment by confession, at the time of filing the record, to put on file, signed by him or his attorney, a particular statement and specification of the nature and consideration of the debt or demand on which such judgment was confessed; and in case such demand should arise on note, bond or other specialty, such statement and specification should particularly set forth the origin and consideration of the same; and if the fairness or validity of such judgment should afterwards be drawn in question, the parties making such specification should be bound and concluded thereby, and should not be allowed thereafter to set up or insist on any consideration for such judgment, not contained in such statement and specification, and if the plaintiff in such judgment should omit to file such statement or specification, such judgment should he taken, decreed and adjudged fraudulent, as respected any other bona fide judgment creditors, and any bona fide purchaser, for valuable consideration, of any lands bound or affected by such judgment.

It was obvious upon the face of this enactment, for whose benefit it was intended, and the consequences of a non compliance with the law, are distinctly stated, and the meaning of the legislature is expressed in that

section with such perspicuity that an attorney could readily understand what the statement or specifiation thereby required should contain. If that part of the

section which follows the word confessed, had been omitted, the residue of'the

section would have required a statement or specification as particular as is made necessary by

section 383 of the Code. The words of the 8th

section in the act of 1818, which immediately follow the word confessed, are, “ and in case such demand shall arise on a note bond or other specialty, such statement or specification shall particularly set forth the origin and consideration of the same.” These words show that if the statement or specification had set out a note, bond or other specialty, as the nature and consideration of the debt or demand, on which the judgment was confessed, that part of the

section before the word confessed would have been satisfied. A debt or demand arises jn a note or bond the moment it is made and delivered to the payee; and when a defendant in the statement in writing made necessary by

section 383 of the Code, states that he on a certain day made and delivered to the plaintiff a note or bond, for the payifient of a certain sum, he states concisely the facts out óf 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 given by a distinguished justice of this court in the case of Plummer agt. Plummer (7 How. 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 section^, That difference has already been noticed; in the case of Plummer agt. Plummer the record had not been amended before the motion was made; in this case, the re.cord was amended before notice of the motion was given. In this case then, the motion may be ‘ ¿vied, even should it be conceded that the case of Plummer agt. Plummer was correctly decided. The commissioners of the Code,- in their report referred to in the case of Plummer agt.

Plummer, when speaking of judgments by confession, say, “ without prohibiting this kind of security, it is deemed expedient in order to prevent the abuse of it, to require, in all cases, a statement of the grounds and consideration of the . judgment to be made, and sworn to, and to have this a part of the judgment, so that its purpose and intent can not be denied and concealed.” There is as much difficulty in understanding this part of the report, as there is in discovering the meaning of

section 383 of the Code. Had that .section, like the report, “ required a statement of the true grounds and consideration of the judgment,” would not that requirement have been literally complied with, by the statement in writing originally filed in this cause, and the affidavit of the defendant, that the sum for which the judgment was confessed, was justly due to the plaintiffs 1 According to the report of the commissioners, all they intended to require was that a statement of the true grounds and consideration of the judgment should be made, and sworn to.

It can not be denied that the note mentioned in the statement in this case, was the true ground and consideration of the judgment, and if the commissioners or the legislature, in 1848, had intended that if a judgment was confessed on a “ note, bond or other specialty,” the consideration of such nóte, bond or specialty should be stated, they would, as the legislature in 1818 did, have said, “ in case such demand shall arise on a note, bond or other specialty, such statement or specification shall particularly set forth the origin and consideration of the same.” I can not persuade myself that any sound rule of

interpretation will allow the same construction to be given t,o

section 383 of the Code, as was necessarily given to the 8th

section of the act of 1818, above mentioned; and that

section was repealed because experience showed it was productive of no good effect, and that more honest men than rogues suffered by it. A man who is knave enough, deliberately to confess a judgment with intent to defraud his creditors, can easily be tempted to make any affidavit to uphold the judgment. The commissioners in their report, already noticed, say: “ Not only are judgments by confession perverted to fraudulent ends, under the existing laws, but the form of confessing is an idle ceremony,” and then give a graphic description of the manner in which a judgment might be confessed to defraud creditors.

Mortgages or conveyances of real or personal estate, can be made with as much facility to defraud creditors, as judgments can be confessed, and is it certain that since the Code became the law of the land, judgments to defraud creditors may not be entered up with as much facility as they could before'? Although

chapter 3, title 12 of the Code, may have been intended by the commissioners to close the door against fraudulent judgments; yet

chapter 4 of the same title, seems to have opened the door as wide as it was immediately preceding the Code.

Chapter 3 authorizes the confession of judgments without action; but

chapter 4 authorizes the confession of judgment in an action founded on contract, and how many more seconds of time will it require to obtain a judgment under

chapter 4 than under

chapter 31 Under

chapter 4, a summons and complaint must be served, and the defendant may instantly serve upon the plaintiff an offer (not a confession) in writing, to allow judgment to be taken against him for the same, as to the effect herein specified. The plaintiff may instantly accept the offer, file the summons, complaint and offer, with an affidavit of notice of acceptance, and the clerk shall thereupon enter judgment accordingly. To obtain a judgment under

chapter 4, there must be a summons, complaint, and affidavit of service, the defendant’s offer to allow judgment to be taken against him, notice of acceptance and an affidavit of notice of acceptance, and on filing these papers, the clerk enters judgment. It is true, that to obtain a judgment under

chapter 4, i\ quires one more affidavit and a number of other papers not necessary under

chapter 3; but an attorney with printed forms, couid perfect a judgment under

chapter 4, almost as soon as the statement required by

chapter 3, could be made. The important difference between the two chapters seems to be, that by

chapter 3, there must be. a statement in writing, showing the consideration of the judgment, and an affidavit of the defendant showing that the sum for which the confession is given, is justly due, or to become due to the plaintiff. Under which

chapter would a rogue who wished to defraud his creditors, but was not quite ready to commit perjury, confess a judgment? The answer must be, under

chapter 4, and I can not discover any benefit that will be secured to creditors by giving to

chapter 3 the construction asked for by the parties who make this motion. The case of Lawless vs. Hackett (16 J. R. 149), was decided under a statute, as I have attempted to show, different in its provisions from

section 383 of the Code, and can not govern this case. But suppose I am in error as to the construction of

section 383, was not the record in this case rightfully and sufficiently amended? The record in this case was filed in the city of Albany, in the third judicial district. The Supreme Court at a special term in that district, ordered the record to be amended, as of the day the record was filed. That court had full power to order the amendment, under

section 173 of the Code. But, it is said, that amendment was made without notice to Messrs. Burditt & Streit; there is no evidence that the plaintiffs knew that Messrs. Burditt & Streit had a judgment against the defendant in this suit. The plaintiffs were under no greater obligation to give Messrs. Burditt & Streit notice of their motion to amend the record, than Messrs. Burditt & Streit were to give the plaintiffs notice that they had a judgment against the defendant. The question whether the record should be amended or not, was a question between the plaintiffs and defendant. If Messrs.

Burditt & Streit were entitled to notice of the plaintiffs’ motion to amend, this, instead of a motion to set aside the judgment, should have been a motion to set aside the order to amend, on the ground that the plaintiffs were «not served with notice of the motion to amend. I must upon this motion take it for granted that the motion to amend, was regularly made, and the order rightfully granted. It is asked on the part of Messrs. Burditt & Streit, that if the motion to set aside the judgment be not granted, that a feigned issue be directed to try the question of fraud.

The notice of motion contains no notice that a feigned issue would be asked for, but the notice does state that “ they will ask for such further or other relief as the court may grant.” Relief has sometimes been granted on a notice as general as this, but I am inclined to believe that it would tend to prevent surprise, if the court would not listen to a prayer, until the petitioner has discovered, and is able to give notice of what he wants. But what evidence has Messrs. Burditt & Streit furnished in this case, which would justify the court .in awarding a feigned issue? Messrs.

Burditt & Streit have, as has already been stated, both made an affidavit, which has been read, and in which they have not expressed even a belief that the plaintiffs’ judgment was fraudulent, or without a good and sufficient consideration; nor have they read the affidavit of any person, who has testified to a fact which would be evidence against the plaintiffs, that their judgment is without consideration. I am of opinion that it would be an improper exercise of the discretion of the court, to grant a feigned issue.

I therefore deny the motion to set aside the judgment or grant a feigned issue, with ten dollars costs, to be paid,by Messrs. Burditt & Streit, to thp plaintiffs.