Having had occasion to pass upon quite a number of motions similar to this one, I am forced to the conclusion, that treating the decisions as going the length of the order in this case, and of those in some other reported cases in this court, makes the law commit greater actualfrauds than *91those that the provisions of the Code as to judgments by confession intended to prevent. I have never heard such a motion, where it was not perfectly apparent, and, indeed, generally, it has been conceded by the moving party, that the judgment to be avoided by the motion was perfectly fair and honest; and its avoidance would deprive a bona fide creditor of his whole debt.
The motion in the case before us is no exception to this remark. There is no pretence whatever that the first judgment is not, to the last fraction, for a debt honestly due, and setting it aside would be a very serious injury to the plaintiff. To be sure, if the law really means that, to make a good confession of judgment, there must be a bill of items, with the ciphering of interest entered on the records of the court, it must be done. I hope, however, that it will not be so held. And I should be glad to sustain this judgment. To do so, I should hold the words, “ that amount of money being had by the defendants of the plaintiff,” to mean “ being then had;” and so fairly equivalent to a statement that the note was for money lent upon it. And this, I take it, would be good without saying whether the loan consisted of gold or silver, or bank notes,, or was paid by a check on bank. The case of Chappell agt. Chappell (2 Kern. 215) is certainly not an authority against such a holding. I should reverse the order appealed from.
Wright, J.I think the statement sufficient under the statute. It is substantially stated that the indebtedness was for money borrowed by the defendants of the plaintiff. It is true that it is not stated when it was borrowed, nor is that particularly required. To sustain the judgment (rather than it should be avoided by construction), we should construe the phrase “ money being had,” as “ money being had by the defendants,” at the date of the promissory note before recited. In my judgment, there has been too much of a disposition in the courts to fritter away this beneficial statute by refined construction.
Decision of special term reversed.