2 Or. 179 | Or. | 1866
Under our Code, page 201, section 249, where an action has been commenced, and is pending against one pr more defendants jointly liable on contract, a judgment may be given on the confession of one of the defendants, against all the defendants thus jointly liable, to be enforced against their joint property, and against the joint and separate property of the defendant making the confession. It will be seen that this provision does not apply to a voluntary confession of judgment without action pending. (Code, page 202, section 252.)
Then as there was no action pending in this case, H. Martin had no authority under the law, to confess a judgment binding upon his co-partner and the partnership property. (Crane v. French, 1 Wend., 311; 9 Wend., 439; 7 How. Pr. R., 220.)
Again, the sworn statement, upon which this judgment was confessed, is insufficient under the statute last referred to.
Again, it does not show that the sum for which judgment is confessed is justly due Fuller & Co., but that that sum is due and owing them on these promissory notes. The courts say “the object of the law in requiring this statement is to put creditors upon the track of inquiry, and to enable them to discover perjury by requiring a definite and particular
We think the circuit judge erred in refusing to set aside the judgment confessed in that court.
Judgment reversed.