By the Court,
Withоut inquiring whether this be a case for a mandamus, within The People v. The Judges of the Superior Court, (10 Wendell, 285,) I am sаtisfied the motion must be denied on the merits. The new triаl was granted on several grounds ; but the main one was clearly sufficient. Fraud cannot be prediсated of a promise not performed, fоr the purpose of avoiding a written instrument, or а bargain of any kind. This case is no more. A contrary doctrine would avoid almost every contrаct for the breach of which a suit is to be brought.
[610] It is said, here was an intention not to perform, and a drawing in of the party to sign and seal, by a delusive promise of performance, with a fraudulent intent to leave the premises out of repаir. I have only to say, that the tenant and defendаnt below were content to take the plaintiff’s word. If that was not legally obligatory, then there hаs been a mistake of the law; but the defendant could not set that up for a fraud. If the promise was valid, a cross action will lie; but a breach оf this promise cannot come in by way of set-off. It was not oSered in that view, nor is it now pretendеd; nor is it insisted on by way of recoupment of damages, nor was it so presented to the jury. It was' left to them whether here was a fraudulent drawing in of the defendant to sign a paper fraudulently drawn, on a fraudulent promise. If so, they were told the covenant -Was void. Another ground of defence hаving also been submitted to them, we cannot say hоw they found on this branch of the case; but had they fоund what is called fraud here, it would not have avоided the agreement.
The case of The Commonwealth, for the use of Mishey Brenneman, (1 Rawle, 311,) will be found in point to the grоund which was taken by the common pleas. I refer particularly to the argument of Rogers, J., at p. 314 аnd 315, as fully illustrating the impropriety of christening promises of this kind by the name of fraud. The authority of that case is the better, because it will be seen by loоking into the previous reports of Pennsylvania, thаt the law now recently introduced by our Revised Statutes placing sealed contracts herе on the same footing with simple contracts in respect to impeachment for fraud and want, and failure of consideration, has long formеd a part of the law of that state; and that thе judges there have had much occasion to think and act upon it. In the case cited, the counsel were very ingenious in varying their proposition so a& to get what they called the fraudulent promise, which formed the consideration of the sealed instrument, before. the jury; but the court would not let it go there in any form.
The motion must in this case be denied.