Smith v. . Smith
Supreme Court of North Carolina
This was a civil action beard at Fall Term, 1895, of Davidson Superior Court, by Hon. W. L. Norwood, Judge Presiding, brought to set aside a judgment confessed by Alexander Smith, intestate of plaintiff A. W. Smith, in favor of defendants.
Read the full summary
This was a civil action beard at Fall Term, 1895, of Davidson Superior Court, by Hon. W. L. Norwood, Judge Presiding, brought to set aside a judgment confessed by Alexander Smith, intestate of plaintiff A. W. Smith, in favor of defendants. When the case was called for trial and before a jury was impanelled plaintiff’s counsel exhibited said confession of judgment and moved to set aside the same' for irregularities appearing on the face thereof, in this, “1. That the confession does not state sufficiently the consideration of the note. 2. That the confession does not state said debt was justly…
1Opinion of the Court
Clark, J. :
In an adversary proceeding to recover on a bond the seal imports a consideration, and the production •of the bond by the plaintiff uncancelled raises a presumption that it has not been paid. This is not the case as to “confessions of judgment” under the Code, Sec. 571. That proceeding is in derogation of common right and, to prevent the perpetration of fraud in such cases, that section requires that the consideration be stated and that it appear that the amount for which the judgment is confessed is justly due. If the statutory requirements are not complied with the judgment is…
2Cases cited5 opinions
- Merchants National Bank of Richmond v. Newton Cotton MillsSupreme Court of North Carolina · 1894
- Davidson v. . AlexanderSupreme Court of North Carolina · 1881
- Sharp v. Danville, Mocksville & Southwestern RailroadSupreme Court of North Carolina · 1890
- George F. Uzzle & Co. v. VinsonSupreme Court of North Carolina · 1892
- Davenport Morris v. . LearySupreme Court of North Carolina · 1886
3Cited by7 opinions
- Pulley v. PulleySupreme Court of North Carolina · 1961
- Farmers Bank of Clayton v. McCullersSupreme Court of North Carolina · 1931
- Gibbs v. G. H. Weston & Co.Supreme Court of North Carolina · 1942
- Cline v. . ClineSupreme Court of North Carolina · 1936
- Cline v. ClineSupreme Court of North Carolina · 1936
2 more not listed; retrieve them via the Exa API.