Germon v. Swartwout

By the Court, Sutherland, J. 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 [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.