The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1849-09-01
Superior Court.

AueUsr 3l-IMPoRrASr Decision -.antone Boufeiie
Ft,,is Owea-An order was obtained TO show
why the judgment entered by confession in this suit
ana all subsequent proceedings should not be set aside
1t appeared from afhdavts read the hearing tnat
plaintiff kept segar store in Carmue street. aud has
sigu in front, wooden figure Of Indian woman,
large MS life, holding segars an. that defendant who
grocery store directly opposite the 10th Of
August last, when excited by liquor commenced break
ing the wooden figure and mutiat-d one OF the arms
and bead-and that ut two o'clock on the following
day, while still under the influence OF liquor ne at
tackled the Of plaintiff breaking panel and other.
wire i0j urirg the outer door Owens Immediately
arrested these outrages and taken to the station
house In the vicinity when paintin agreed to settle
the matter Tor 800 and note was drawn and signed
by defendant for that amount payable In six mouths
he Police Justice however, before whom the defend
ant brought, required pain'in to give the note
to him. and then Immediately destroyed it, saying that
the plaintiff not in fit condition to do business.
he plaintiff then commenced a civil action against
the deie ndant in the Court Of Common Pleas OBJ
tanned order from Judge Ulshoeifer to arrest and
hold him 10 bail in the Of $500 Under this order
the was arrested and taken to the Office Of
the plain tins attorney and while in the custody OF
the sheriff on the same morning gave . confession
of judgment in this court for sl1o, in the man
prescribed in the 3S2d and 363d sections Of the
code authoiisipg confessions Of judgments without
ton Afhdavits filed in support OF the positions
part the defendant IL contended that the judy
void, and ought to be set ssdu uncondtion-
ally, IL confessed while the defensant under
and In actual custody OF the sheriff without tbs
presence advice OF any counsel attending on his
exercise Of its eouabe jurisdiction allow the DEFEND
ant to come In and defend upon the merits. The
plaintiff counsel contended on the other side that
tn plaintiff proceedings we're entirely regular under
tie sections OF the code before referred and that the
old practice to confessions Of judgment out o. court,
does not apply to those confessions under the code
Mason. JustceIt has long been rule Of the English
courts that warrent @! attorney eSecuteS oy any
person in custody Of any sheriff other officer for the
coufessifg Of any judgment, shall be valid or Of any
force unless there be present attorney behalf
Of such person in custody to be named by him and at
tending at his request to inform him Of the nature and
eject Of such warrant Of attorney before the
.xecuted and the attorney required to subscribe his
name TO the due execution thereof This rule Was
adopted in this form in the fourth year Of George H.
and appears to have been An amendment OF, aud en-
grated upon prior rule, adopted IN the time Of
land fro that time to the present In the case of Hut
son "a Huson, r. r. the court held that defendant
the pressure a arrest ought to be considered
Of waving benefit Of the rule and that In
all he should be protected by the advice o attor
ney expressly attend ng for him and the Of Walk
or vs. Gardsner a md others decided In Is32(l Ad,
371) the Court Of kings Bench set asde Judgment,
and ordered the warrant OF attorney to be cancelled be-
cause the attorney Who attended behalf OF defendant
and witnessed the execution II the papers not his
attorney, but attorney named aud procured by the
Supreme Court OF this State but the practice Of the
appears to have always beeu In accordance With
the cou In 1904, will be by the Of the
Manhattan Company Brewer. reported In LIST Cane,
oil and the Gaze Of Evans ard bayiy. wend, 2tsJ
decided in 1929 eonclusivey shows that the practice
still continued the same In the recent csse OF Wilder
Bonstock Howard, special r. r., 81, AIR Justice
Welles applied the ru. to Gaze where q defendant
confessed judi while In custody criminal pro-
and aside the judgment because he had no at
torney attending hts behalf IL this judgment then,
haa been confessed under the old eystem IL would be
the duty Of the court 10 set IL aside and do not see
that the adoption ~ makes difference; the
code indeed 10 silent the subject, but II does not
provide, purport to provide for every There
was no statute or rule " this subject under
the old practice yet the prOpriety Of thus protecting
the defendant sgninst oppressisn while under arrest
20 manif.st that the court always acted on the
principle Of the English rule change in the form Of
proceeding has not made any change In the principle.
The Ct tbs rule still remaining the same def-n
dants arrest need the advice assistance aud
protection wh.t Their the pspers drawn up according
TO the forms formerly according To- the code.
IN h. 20, sr his c.sa oa I'M, y. hss
strictly complied with its requirements An examine
ton, however Of the sections relied on concosvey
shows that he IL entirely mistaken and that those
tioDs have application to case like the present.
The chapter In winch the sections foundis entitled,
"copfstion Of judgment without action Now In this
there osIy In the court OF Ccmmon
Piess but the defendant In custody by virtu. OF
arrest in the action AVID the confession vss
Bee 3s2 w hich ~ the first section u the chapter. do
zines the In Witch such jodgmest without nc.
ticp may be entered via either fof money due or to
become due any person against contingent
liability behalf Of the defendant or both that H.
Of bis creditor vhssher the debt hes become due
and psy sbls not and also by way OF securely to Q
yvrsob Who has become surety for him, although the
liability Of the party may net have become nxsd-as.
foe instance modstscn endorssr. before the
note "a. .sn que nr.s are .ns osy csss. .or .o,en
which the confessions In euch to be
made Nov here, there DO debt aud surety hip
but q trespsss the nsbiIity contingent but
absolute ssd IL not liability Of the plaintiff
third p.rson, behalf Of the defendant but Of tbs
defendant TO plaintiff for damages occasioned By .
trspsss The copfessiop IL Judgment, then, in this
wholly Unauthorized by this chapter Of the
is not necessary to decide the present
ton whetbsr, since the code judgment may be
fe,s.d out Of court In q cs~s like this present ri
sufficient TO tsy that this Judgment cssnes be sus-
tanned as one suthorised by sny provision Of
the code ana h a Judgment By confession cut OF
corrt can be given In uch ease independent OF tbs
c.ds, the Judgment In this IL void by OF s
having been confessed BY the defendant while IN the
custody 81 the sheriff under srd~r cf arrest at the
SUIT q The plaintiff An this sctisn, wseacnt the presence
VI counsel aud advice cf attorney nsmed by him,
sno ss nd,ps 1T his request Inform him 81 the ma
tune efsect Of the confession before he r9wcd n
This ~ the renders IL unnecessary to di~cuss
the Other point rsi I'd the argument Judsmsat
and execution set sside, With xl1 costs.
Ie,ss THx,ehon Lloyd Hsnecck.-Tbe defen-
dsnt In this cause brought up to answer concern
ing he property after the return ~ execution
tsi bed the 2s1d section VI the ended code
Dei ndant dfsclos IA ali amount 81 property witch
the plaintiff vished ~ have applied TN. Judge @~ns
and sskto tor the appointment VI q receiver His
"A, nor. I'm arksd that ATTENDING