proooodtod to the of the clerk of the co~n~t~, withon.~ e~y action on the part of the @ocirt itcelf~ of the clerk of the co~n~t~ withon.~ e~y action on the part of the @ocirt itcelf~
The statute being In derogation of the common law, should be strict-
*230ly pursued.: in entering the judgment the clerk acts ministerially under its- authority, and all the provisions of the act must be substantially cómplied with, or the judgment is a nullity.
The defendant is required to make a statetnent which he must sign and verify by his oath; this must authorize the entry of the judgment for a specified sum, and “ if it ” (the judgment) “ be for money due, etc. it ” (the statement) “ must concisely state the facts out of which it ” (the money due) “ arose, and show that the sum confessed therefor is justly due.” Practice Act § 374, 375.
The statement in question sets forth the facts of indebtedness as follows : “ The plaintiffs are the owners of a promissory note made by defendants,” which is copied at length—“ that the said note was given by the defendants to the said plaintiffs for goods sold and delivered to the defendants by the firm of Schloss & Heilbroner, the plaintiffs aforesaid, and money had and received by defendants: that the consideration of said promissory note was said money and goods sold by plaintiffs to, and received by them, the defendants aforesaid: that the sum above, by us confessed, is justly due to the said plaintiffs on the foregoing note,” etc.
Neither the amount, value, or date of sale of the goods sold and deEvered, nor the amount or date of the money had and received, nor whether received from Schloss & Heilbroner or some other person, are stated. It cannot be gathered or determined how the sum mentioned in the note, is made up, and although it is so declared in words, yet the statement itself does not,'by stating concisely, ike facts constituting Ike liability, in the language of the. act and according to the common acceptation, of the word, “ show” that the sum is justly due.
As a statement in a complaint, of facts constituting a cause of action for goods sold and deEvered, or money had and received, it would hardly be contended that this in question, would be sufficient, and yet the provisions of the act in regard to the statement of facts in a pleading, are substantially the same as that in case of judgment by confession, practice act §§ 39, 475.
In my opinion, the statement of facts in the confession of judgment is not in conformity with the statute, and is insufficient.
Besides those noted, there are other objections to the statement, some of which might perhaps be weU taken, to wit:
*2311st. The authority is not given, as required by the law, to enter the judgment for a specified sum. The statement was made February 18,1857, and authorized a judgment for $2400 and interest thereon at the rate of one per cent, a month from the 15th of May, 1856. Thus the sum, instead of being specified, was a matter of calculation.
2d. Judgment is authorized to be entered by the clerk, in Jits office. The statute intends it to be of a court, § 376—and, although the statement is filed with the clerk, and he enters it in the judgment book, it would be safer practice to specify the court where the judgment is intended to be confessed and entered of record.
3d. There are material interlineations which are not noted, an$ the affidavit annexed, instead of the statement itself, is signed by the defendants therein.
Having arrived at the above conclusion, it is unnecessary to pass upon the other questions, raised upon the trial and argument.
The judgment by confession, so far as i$ effects the lien and judgment of the plaintiff in this action, should be set aside.
Decree ordered accordingly.