Majority
p. 282Germon vs. Swartwout and others.
Headnote
The specified temsfor which a judgment is der the sixth and seventh sections of the “actto extend of°Íustíces'1<of the peace,” as 7dtl mustie in writing.howeverfsued for neglecting execiitiorUssul _ed on ^ such judgment^an^, cannot avail themselves of an omission to compljre^with ments of the theseteparticm lars.
This was an action of covenant, tried at the Rensselaer cir-c™t= in November, 1826, before the Hon. William A. Du-EE) 0ne of the circuit judges.
The action was against a constable and his sureties on a bond given for the faithful performance of the duties of the .... constable, who had neglected to return two executions delivered t0 h™’ issued on judgments obtained by the plaintiff, one against Enos for $4,26, and the other against one Chapman i"or $58,20. The judgment against Chapman was on confession before a justice, but was not in writing nor was an7 specification of the items of the plaintiff’s demand filed. The defendant made oath that the plaintiff’s demand against him was a true and just demand, but he did not state that the confession was a bona fide, and not made for the purpose of deyraU(q£ng cre¿jtors. The presiding judge ruled that the statute had not been complied with in reference to the confession, 1 Ihe plain tin excepted. lhe jury rendered a verdict for the plaintiff for $2,63, the balance due on the execution against Enos. A motion was made by the plaintiff to set aside the verdict, and for a new trial,
J. L. Viele, for plaintiff.
J. Pierson, for defendant.
By the Court,
The specification rof the items for which a judgment is confessed, under the sixth and seventh sections of the act of 1818, (Statutes, vol. 4, 80 c,) as well as the oath, should be in writing. The fifteenth section expressly requires the confession to be in writing, and to be signed by the party. The object of the act could not be accomplished if it were -.held that a parol specification was sufficient. The intention of the legislature was to prevent fraudulent confessions of judgment, by compelling the party to declare upon oath what the judgment was for, so that creditors might have it in their power to ascertain whether it was for a
p. 283
real demand; and if not, to punish the party guilty of the fraud and perjury. This could not be effectually accomplished, unless a specification in writing was required. The judge, therefore, ruled Correctly that the statute had not been complied with in the judgment confessed by Chapman to Germon. But in Griffin v. Mitchell, (2 Cowen, 548,) it was decided that the omission to take the oath and make the specifications required by this act, in judgments by confession, rendered the judgment void as to creditors only, but left it valid and binding as against the defendant. It necessarily follows, that neither the constable to whom an execution upon such a judgment is issued, nor his sureties, can avail them-, selves of this omission or defect in the judgment. If it was not absolutely void# the constable was bound to enforce the execution in the ordinary manner. On this ground, the plaintiff was entitled to recover the amount of the first judgment, as well as the balance on the second ; and a new trial must therefore be granted.