Hyperlawhypertext legal database Burkham v. Van Saun 14 Abb. Pr. 163

← Cases

Burkham v. Van Saun

14 Abb. Pr. 163 Court Supreme Court, First District; English

Delivered by Fancher, J.

Contents

Majority

p. 163
BURKHAM against VAN SAUN.
Supreme Court, First District;
Special Term, May , 1873.

Headnote

Confession of Judgment..
Section 383 of the Code of Procedure, which allows judgment to be confessed “for money due or to become due,” does not authorize the confession of a judgment for a tort.
Motion by the plaintiff for leave to issue execution
p. 164
on a judgment after five years from the rendition thereof.
Birdseye & Crosby, for the motion, read affidavit setting forth that on November 23, 1866, the defendants signed a confession of a judgment, which judgment was for certain moneys belonging to the plaintiff, being proceeds of certain silver coin belonging to these plaintiffs, sold by the defendants, which moneys the defendants had converted to their own use, and that five years had elapsed since rendition of said judgment. They also cited decisions from Bump on Bankruptcy, to show that this being a confession of a judgment for money converted by defendants, which they held in a fiduciary capacity, was excepted from the operation of a discharge in bankruptcy, which the defendants had obtained.
Amos G. Hull, for the defendant.
The motion cannot prevail.
Section 382 of the Code is in these words, and allows no confession of a judgment for a tort:
“ 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 in behalf of the defendant, or both, in the manner prescribed by this chapter” (Boutel v. Owens, 2 Sandf., 655 ; 23 How. Pr., 507 ; 2 Wend., 243 ; 1 Caines, 511 ; Malory v. Leach, 7 T. R., 7).
At common law no judgment could be entered on a bond and warrant of attorney for a tort. The only way a defendant could confess judgment for a tort, was by cognovit after action was commenced.
The system provided by the Code for a confession of a judgment without action, is a substitute for the old system of bond and warrant of attorney; and the mode of obtaining judgment by offer, is but another name
p. 165
of obtaining judgment by cognovit (2 Burrill Pr., 240 ; Appendix to Burrill Pr., 20 ; 4 Barn. & A. ; 2 Strange, 1247).

The position taken by the defendant’s counsel appears to be the proper one, and the motion is therefore denied.