Supreme Court of New Jersey, 1824

Alderman v. Diament

Supreme Court of New Jersey · Decided May 15, 1824 · Kirkpatrick, Rossell

7 N.J.L. 197

Cases that cite this one

13 later published cases cite this decision.

USA Jet Airlines, Inc v. Schick (Mich. Ct. App. 2001)
Isbell v. County of Sonoma (Cal. 1978)
Ehnes v. King (N.J. Super. Ct. App. Div. 1958)
Tara Enterprises, Inc. v. Daribar Management Corp. (N.J. Super. Ct. App. Div. 2004)
FIRST NAT. STATE BANK v. Gray (N.J. Super. Ct. App. Div. 1989)
A.J. Spagnol Lumber Co. v. Trauger (Fla. Dist. Ct. App. 1982)
First Mutual Corp. v. Grammercy & Maine, Inc. (N.J. Super. Ct. App. Div. 1980)
Architectural Cabinets, Inc. v. Gaster (Superior Court of Delaware 1971)
Lebanon Valley National Bank v. Henning (Pa. 1970)
Ehnes v. King (N.J. Super. Ct. App. Div. 1956)
Friendly Consumer Discount Co. v. Foell (N.J. Super. Ct. App. Div. 1956)
Hickory Grill, Inc. v. Admiral Trading Corp. (N.J. Super. Ct. App. Div. 1951)
Rhoads v. Mitchell (Superior Court of Delaware 1946)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

Kirkpatrick, O. J.

The practice of this court has been, in cases of this kind, to open the judgment and let the party go to trial upon the merits, and to plead any plea he thought proper, except a mere dilatory plea. I think, therefore, the defendants would be at liberty to plead non est factum, and, indeed, I think that these judgments entered upon bonds and warrants of attorney should, upon proper application, be very readily and widely opened, for the method in which they are entered is the loosest way of binding a man’s property that ever was devised in any civilized country.

Ford, J., thought that after the defendants had given a warrant of attorney to confess the bond that they could not plead non est factum.

*Rossell, J.

thought that by the present applies.-' tion and affidavit the defendant acknowledged the existence of the bond, and therefore ought not to be permitted to plead non est factum.

The court granted the following rule : “ It is ordered that the judgment in this case be opened, and the defendants allowed to plead and make defence on the merits; nevertheless the defendants are not at liberty to plead non est factum, and the j udgment and execution to stand as a security for the plaintiff.”*

Note — If fraud is suggested, or usury alleged in regard to a judgment entered upon a bond and warrant of attorney, the usual and proper way is, to let the judgment stand, and to award a feigned issue to try the fact. Machir v. Delaval, *241Barn. notes. 277; Wardell v. Eden, 2 John. Ca. 258. As to other judgments, not entered on bonds and warrants of attorney, the court also, in some cases, upon an affidavit of merits, will set -them aside, though regular, if the plaintiff does not thereby lose a trial. 1 Coxe 201, Den ex dem. Lee v. Evans; Den. v. Ferin, 1 Halst. Rep. 431; 2 Ibid. 161; 2 Salk. 518; 1 Ibid. 402. And in the case of Abrams and Rolf v. Wood (1 South. 39,) the judgment was opened although the plaintiff had lost a trial. As it is wholly discretionary with the court to set aside a regular judgment or not, they will not do it in order to give the defendant an advantage of any nicety of pleading, (2 Str. 1242,) or to let him plead the statute of limitations, (1 W. Bl. 35,) or a special plea of questionable matter designed to draw the plaintiff to demur (2 Salk. 518,) or an irregular judgment after the defendant has given a cognovit (7 Term. Rep. 206,) but that defendant may plead his bankruptcy. See 1 Bos. df Ful. 52. When the court set aside a regular judgment, it is usually upon the terms of the defendant’s paying costs (1 Salic. 402,) pleading issuably instanter (1 Bur. 586,) taking short notice of trial (Barnes 242,) and in some cases they will order the defendant to bring the money into court. Barnes 243; 2 Arch. Frac. 11; Tidd’s Brae. 508. And the court will set aside a judgment in ejectment as well as in other actions. 1 Coxe 201; 1 Falst. 431; 2 Ibid. 161; 2 Str. 975; 4 Bur. 1996.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.