Waln v. Waln

• Decision Date: 27 May 1891
• Citation: 53 N.J.L. 429,22 A. 203
• Parties: WALN v. WALN.
• Court: New Jersey Supreme Court

22 A. 203

53 N.J.L. 429

WALN

v. WALN.

Court of Errors and Appeals of New Jersey

May 27, 1891.

(Syllabus by the Court.)

Error to circuit court, Camden county; GARRISON, Justice.

Gilbert & Atkinson and George M. Robeson, for plaintiff in error.

E. W. Ariowsmith and Frank P. McDermott, for defendant in error.

BEASLEY, C. J. This was a suit on. a promissory note made by the defendant, George Wain, payable to one Sarah W. Hendrickson, who, many years after its maturity, had assigned it to the plaintiff. The sole defense interposed was that the payee of the note, Mrs. Hendrickson, while she held it, had released the debt by a formal instrument under her hand and seal. The reply on the side of the plaintiff to this attempted bar was that the so-ceded release was not the deed of Mrs. Hendrickson; and that lady, as a witness, testified that the signature to the instrument, as she believed, had not been made by her or by her authority, and that if it were in her handwriting it had been obtained from her by some fraudulent contrivance. It will be therefore noted that the issue was whether the writing in question was genuine. In support of his contention, the defendant himself was a witness, and, having testified to the due execution of the release, was asked on cross-examination whether he had paid the money which the instrument purported to have been paid. The counsel of the defendant thereupon objected to the inquiry on the ground that the consideration of the instrument could not be inquired into, and the judicial reply was, as stated on the record: "The court rules that the paper writing which has been proved by the subscribing witness is a release under seal. Hence the question as to the consideration is overruled." To this decision exception was taken, and its correctness in point of law is to be considered and decided by this court.

We think this ruling of the trial judge was erroneous on two grounds. It will be observed that its basis was that the paper in question was a release under seal. The record states that the "said instrument or release had a scroll, and not a seal of wax or wafer." Such an instrument, of course, was not a sealed one, according to the principle of the common law; and it is obvious that the conclusion of the judge that the release was under seal was by reason of the construction put by him upon the act entitled "An act concerning sealed instruments," (Revision, p. 387, pi. 52.) These are the words of the enactment: "That in every action upon a sealed instrument, or where a set-off is founded upon a sealed instrument, the seal thereof shall be only presumptive evidence of a sufficient consideration, which may be refuted as if such instrument was not sealed; and that all instruments executed with a scroll, or other device byway of a scroll, shall be deemed a sealed instrument. "The supreme court in Braden v. Ward, 42 N. J. Law, 518, in construing this statute, concluded that its first clause did not embrace a release, so that such an instrument still subsists as it did at common law. The provision is a transcript of a section in a New York statute, and the courts of that state have expounded it in the same sense. Nor do we think that the subject is open to serious debate. The statuary language is perfectly plain, explicit, and unambiguous. It declares with the utmost perspicuity, in two cases which it specifies, that when the action or the set-off is founded on the sealed instrument its consideration may be rebutted. How, then, is it possible for a court to extend the operation of the act beyond the limits thus unmistakably demarked. To do so would not be an act of judicature, but of legislation. In the brief of counsel this construction of the statute in the case just cited is challenged, and it is insisted that the consideration of a release is disputable; the argument being, in the language of counsel, that it is quite anomalous for legislation "to submit to inquiry the consideration of a sealed instrument on which an action was brought, and to exclude from inquiry, under like conditions, the consideration of the sealed instrument which was presented to extinguish it. "Even if...