Hardenbrook's Case.

H. A. Cram, for the petitioner.

A. R. Dyett, opposed.

SUTHERLAND, J.-The appearance of Wm. A. Hardenbrook before the referee, on the 21st of January, 1859, as a witness in the action of Orr a. Hardenbrook, was entirely voluntary.

He had been duly subpoenaed to attend as a witness in that action, on the 16th of December, 1858. He appeared on the 16th of December, 1858, and his examination was commenced on that day, but not closed; the case was adjourned to the 21st of December, 1858, when his examination was continued, and he was dismissed from the stand, as the referee certifies.

The case was then adjourned to the 5th of January, 1859, on which day, the referee not appearing, the 21st of January, 1859, was appointed by the referee, or agreed upon by the parties, for the next meeting. On the 21st of January, 1859, Wm. A. Hardenbrook appeared, at the request of Mr. Cram, the counsel for the defendant, and was further examined. He was arrested at the office of Mr. Cram, about an hour previous to his appearance before the referee on the 21st of January.

Without examining or expressing an opinion upon any other point raised on the argument of this matter, I am of the opinion that Wm. A. Hardenbrook could not claim the exemption from arrest given, by 2d Revised Statutes, § 51, to a witness, duly and in good faith subpoenaed.

This exemption from arrest is the mere personal privilege of the witness, which he can waive. (15 Barb., 28.)

I think the statute only extends to the witness the exemption when he is attending under the compulsion of a subpœna; and as in this case Mr. Hardenbrook's attendance as a witness before the referee, on the 21st of January, was entirely voluntary, he could not claim the exoneration from arrest given by the statute His attendance on the 21st of January could not have been enforced by attachment.

Even before the Revised Statutes, it would appear that the exemption of voluntary witnesses from arrest was confined to voluntary foreign witnesses. (Norris a. Beach, 2 Johns., 294; Sanford a. Chase, 3 Cow., 381; Hopkins a. Coburn, 1 Wend., 292.)

VOL VIII.-27

Walsh a. Kursheedt,

In Massachusetts it has been held that it is only when the witness is compelled, by due process of law, to attend, that he is entitled to protection from arrest. (Ex parte Daniel McNeil, 6 Mass., 264.)

The prisoner must be remanded to the custody of the sheriff of the city and county of New York.

WALSH a. KURSHEEDT.

New York Common Pleas; Special Term, January, 1859.

DEMAND OF COPY OF COMPLAINT.

A notice of appearance which requires all papers" in the action to be served on the defendant's attorney, and specifying a place for the service, is a sufficient demand of service of a copy of the complaint.

Motion to set aside judgment.

The facts are stated in the opinion.

BRADY, J.-The copy of the complaint need not be served with the summons; but if the defendant appears within the twenty days allowed by the Code, and demands in writing a copy of the complaint, specifying a place within the State where it may be served, a copy must be served within twenty days. (Code, § 130.) The defendant caused a notice of appearance to be served by his attorney in this case, and superadded to such notice were the words: "And I require all papers therein to be served on me, at my office, No. 140 Broadway, city of New York." The plaintiffs, treating this notice and requirements as a notice of appearance only, omitted to serve a copy of the complaint, and proceeded to enter judgment. The statute does not require the demand of a copy of the complaint to be made by any particular form of expression; and if, therefore, it be made without reference to the language employed, the defendant secures all the rights consequent thereupon. To demand is to claim, to ask for with authority; and to require is to demand,

Winnebrenner a Edgerton.

to ask a thing as of right. The words are synonymous. When the defendant requires all papers to be served upon him, it is demanding that all papers should be so served. A complaint is a paper in a cause which is necessary to the plaintiff's success, and one which should be served upon the defendant, if he either demand or require it. This is both within the spirit and letter of the statute. The plaintiff's proceedings are, therefore, irregular, and must be set aside. Leave, however, will be given to the plaintiff to serve a complaint within ten days, without costs to the defendant, and without costs of this motion to either party.

WINNEBRENNER a. EDGERTON.

Supreme Court, First District; General Term, April, 1859. NOTICE OF MOTION.-STATEMENT FOR JUDGMENT BY CONFESSION.

A motion by a creditor to vacate a judgment by confession entered against his debtor, founded on the ground that the statement is insufficient to authorize a judgment to be entered, is not a motion for irregularity within the rule requiring the notice or order to show cause to specify the irregularity complained of.

A statement for judgment upon confession to secure a contingent liability must show the facts out of which the indebtedness arises, as fully as if it were to secure an absolute indebtedness.

A judgment confessed to secure a contingent liability on a guarantee, should be set aside on motion of a subsequent judgment creditor, if the statement on which it is entered does not show the particulars of the contract on which the liability rests-e. g., in case of a promissory note, who are the parties to it— and the facts which impose a liability thereon on the plaintiff, and in behalf of the defendant, and such a liability as the defendant is bound to protect.

Appeal from an order denying a motion by a subsequent judgment creditor, to vacate a judgment entered upon confession.

The facts appear in the opinion.

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Winnebrenner a. Edgerton.

BY THE COURT.-DAVIES, J.-Jones, a subsequent judgment creditor to the plaintiff in this case, moved to set aside this judgment, upon the ground that the statement upon which it was entered was not in conformity with section 383 of the Code. It is a mistake in the counsel for the plaintiff to suppose that this motion is founded on any irregularity in entering up the judgment. If it had been, then it would certainly be necessary for the moving party to specify in his moving papers the grounds of his motion. The defects complained of are not mere irreg ularities. They are matters of substance, and if established, render the judgment void. (Von Beck a. Shuman, 13 How. Pr. R., 472; Dunham a. Waterman, 6 Abbotts' Pr. R., 357; S. C., 3 E. P. Smith's (17 N. Y.) R., 9.) In the latter case, the Court of Appeals held that when the object of the party was only to set aside the previous judgment, the proper method of attaining it was by motion, and the court also held that the judgment, having been confessed without a compliance with the provisions of the Code, was to be deemed fraudulent and void as to the other judgment creditors of the defendant.

The justice at special term held that the first, third, and fourth statements of causes of indebtedness were sufficient, and denied the motion to vacate the judgment, so far as it covered them. From that denial an appeal had been taken to this

court.

The first cause of indebtedness is stated in these words: "Amount due from the defendant to the plaintiff, for plaintiff's liability and guarantee, now past due, to Richard S. Williams, as president of the Market Bank, city of New York, $8005.43.

"Third. Amount of one promissory note indorsed by the plaintiff for defendant, due July 10, 1858, and held by C. Dord & Co., $2220.85.

"Fourth. Amount of two promissory notes, indorsed by plaintiff for defendant, one due April 27, 1858, and the other due on the 27th day of June, 1858, both held by the Importers' and Traders' Bank of the city of New York, for the sum of $5508.86."

Subdivision 2 of section 383 of the Code declares that if the judgment be confessed for money due, or to become due, the statement in writing required must state concisely the facts out of which it (the money due or to become due) arose, and must

Winnebrenner a. Edgerton.

show that the sum confessed therefor is justly due, or to become due.

And the third subdivision of this section declares, that if it (the judgment) be for the purpose of securing, the plaintiff against a contingent liability, it (the statement) must state concisely the facts constituting the liability, and must show that the sum confessed therefor does not exceed the same.

The Court of Appeals, in Chappell a. Chappell (2 Kern., 215), in considering a judgment confessed under the second subdivision of this section, hold that the creditors are entitled to the facts out of which the indebtedness arose; that the statute looks not to the evidence of the demand, but to the facts in which it originated; in other words, to the consideration which sustains the promise. The rule laid down in this case, has been followed in Purdy a. Upton (10 How. Pr. R., 494); Boyden a. Johnson (11 Ib., 503); Von Beck a. Shuman (13 Ib., 372); Kendall a. Hodgins (7 Abbotts' Pr. R., 309); Dunham a. Waterman (6 lb., 357; S. C., 3 E. P. Smith's (17 N. Y.) R., 9). All these cases, except in (11 How.), are confessions of judgments under subdivision 2, of section 383 of the Code.

But the Code required that if the judgment be given to secure the plaintiff against a contingent liability, the statement required must state concisely the facts constituting the liability, using precisely the same language as in subdivision 2, of the same section. Now it cannot be contended that these statements show the facts constituting the liability of the plaintiff to pay the several sums mentioned therein. In statement first, no particulars of the defendant's indebtedness are stated to show whether, in truth, he owed the plaintiff any thing, or of the liability or guarantee therein referred to. It is not stated for whom the liability was given, or upon what considerations. No particulars of the guarantee are given; no statement showing how or why the plaintiff is bound to pay any thing on such liability or guarantee.

So in regard to the promissory notes in statements three and four. The facts in regard to them are not only not concisely stated, but are not stated at all. It does not appear whose notes they are, or that the liability of the plaintiff on them is a liability incurred on behalf of the defendant, and one which he is under any legal obligation to protect. No consideration for