Smith v. Weaver
| Decision Date | 10 June 1907 |
| Parties | SMITH v. WEAVER. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Certiorari by Josephine T. Weaver against Ella Etta Smith. Rule to show cause why a judgment on bond and warrant of attorney should not be set aside. Rule discharged.
Argued February term, 1907, before GARRISON, SWAYZE, and TRENCHARD, JJ.
John J. Crandall, for prosecutor. Melosh & Morten, for defendant.
GARRISON, J. A judgment entered upon a bond by virtue of the warrant of attorney is attacked upon the ground that the affidavit upon which the judgment was entered does not state the true consideration of the bond as required by the statute, or, rather, that it does not state any consideration at all, because it does not show an enforceable debt. The affidavit is in these words: "Ella Etta Smith, being duly sworn, saith she is the plaintiff named below, and that the true consideration of the bond of which the preceding is a copy on which judgment is about to be confessed was and is the sum of two thousand four hundred and seventy-five dollars and forty-nine cents, being the amount of money due from the said Josephine T. Weaver to this deponent on account of money which came to her hands as the executrix of the will of Samuel W. Weaver, and interest due on the same, and that the debt for which judgment is confessed is justly and honestly due and owing to Ella Etta Smith, and that the judgment is not confessed to answer any fraudulent intent or purpose or to protect the property of the defendant from any other creditors."
The transaction thus succinctly stated is that, the sum named in the affidavit being in the hands of the obligor as executrix and due to be paid to the obligee by her in that capacity, she agreed in her personal capacity to pay to the obligee the sum so due. It is not contended that this is not a true statement of the actual transaction between the parties, and, this being so, it does not lie in the mouth of a stranger to the bond to say that the debt created by it is without consideration. The consideration stated by the affidavit is the retention by the obligor as executrix of the precise sum that she agrees to pay to the obligee, and the consideration detrimental to the obligee is her forbearance with respect to the sum so due to her from the obligor as executrix. "So due" in this context, it should be noted, means that which ought to be paid and not that which is legally actionable, and it should further be noted that the statute with respect to bonds and warrants of attorney treats the consideration of a bond and the debt for which judgment is confessed as two separate and distinct things. In the opinion adopted by the Court of Errors and Appeals in the case of Strong v. Gaskill, 53 N. J. Law, 665, 25 Atl. 19, it was...
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...19 (E. & A.1891); cf. Ely v. Parkhurst, 25 N.J.L. 188, 192 (Sup.Ct.1855), reversed 27 N.J.L. 555 (E. & A.1858); see Smith v. Weaver, 75 N.J.L. 31, 34, 66 A. 941 (Sup.Ct.1907), affirmed 76 N.J.L. 584, 70 A. 1101 (E. & A.1909). Contra, Modern Security Co. of Philadelphia v. Fleming, 142 A. 64......
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