23 N.H. 535 | Superior Court of New Hampshire | 1851
The second replication follows the form given in 2 Ch. Pl., 603, (Day’s Ed.,) and 3 Ch. Pl., 563, (Phil. Ed.,) otherwise cited as 3 Ch. Pl., 1158 and 1238, which are referred to, 2 Saund. Pl. & Ev., 758, and given in Arch. N. P., 318, and see 2 Ch. Pl., 464.
In 1 Ch. Pl., 553, the law is stated tobe, that “to a plea of
Tresham’s case was an action against an administratrix, in which she pleaded certain outstanding bonds of the deceased, and no assets further : Replication, as to certain of these, that deceased paid them in his lifetime, and that thej per fraudem et covinam of the administratrix, and to the intent to defraud the plaintiffs of their debt, were kept undischarged and uncancelled. It was resolved that the general allegation of fraud in the case at bar, was sufficient, as it was resolved in Tailbois ease, that general averment of covin was good, because covin is so secret, whereof by intendment another man can’t have knowledge. And if the special matter of covin, which, as it is there held, ex vi termini ought to be betwixt two by intendment of law, a stranger can’t have knowledge, a fortiori in the case of fraud, which may be in the heart of one only, for if- one by deed makes a fraudulent gift of his goods to divers, who know not of it, it is a fraud only in him who makes it.
The case of Wimbish v. Tailbois, Plow. Com., 38, is to the point, that an averment that a recovery in a real action was by covin between the parties, is good; and the question, whether the covin should not be specially averred, was argued at great length both by the counsel and the court, and it was' held, that the covin was well averred without special cause shown.
The case in the Yearbook, 33 Hen. VI., 5, abridged Bro. Ab. Trespass, 26, was trespass de bonis asportatis. The defendant pleaded a purchase in market overt. The plaintiff’s reply was, that the seller by covin between him and the defendant sold them in said market overt, and it was held that no property passed, and no question made as-to the sufficiency of the replication.
The case of Knight v. Peachy, T. Ray., 303; Vent., 329, 331; S. C. Anon.; 2 T. Jon., 199, was thus: In debt for rent against an assignee of lessee, the defendant pleaded an assignment by him to J. S., such a day, and notice to the plaintiff be
In Daniels v. Coombe, 2 Scott N. R., 597, in an action against a third indorser by a remote endorsee of a bill of exchange, defendant the pleaded, that he was induced to indorse the bill by the fraud, covin and misrepresentation of the plaintiff and two others of the indorsers, and other persons in collusion with them, and without value or consideration. The replication traversed the alleged fraud, covin and misrepresentation. To this there was a special demurrer, and the replication held good. It seems no question was made of the sufficiency of the plea.
In Sherwood v. Jonson, 1 Wend., 443, it was held, that in a replication to a plea by an executor, of an outstanding judgment and no assets further, that the judgment was fraudulently obtained, it is sufficient' to allege fraud and covin generally, without showing the fraud specially. This is the same point raised and so decided in Tresham’s case.
In Pierce v. Smock, 2 Blackf., 316, a general plea to an action on a bond, that the bond was obtained by fraud and covin, without setting out the particulars of the fraud, was held good.
In Mason v. Evans, Coxe, 182, it was held, that a plea, that a bond was obtained by fraud generally, is a good plea.
In Pemberton v. Staples, 6 Miss., 59, it was held, fraud is á good defence at law, and it is sufficient to allege fraud generally in a plea.
In Stower v. Wier, 10 S. & R., 25, in debt on a single bill, the defendant pleaded, that the instrument was obtained from him by fraud. The plaintiff replied that it was the defendant’s deed. It was held after verdict for the plaintiffs, that the plea was in the nature of a special non est factum, and the issue well joined, and the judgment regular.
In Potter v. Wibb, 2 Greenl. Rep., 257, in a sciréfacids for further execution on a judgment on a probate bond, a plea by
Pleas in this general form are found in Crail v. D’Acth, 7 D. & E., 670, (b.); Hamfray v. Rigby, 5 M. & S. 60.; Green v. Gadsden, 4 Scott, N. R., 13; 5 Jur., 1010 ; Cornfoote v. Fowke, 6 M. & W., 358 ; 4 Jur., 918 ; Webb v. Steele, 13 N. H. Rep., 230 ; and Hewett v. Bronaugh, 3 Dana, 459; in which no exception was taken on account of this general form.
This form of pleading seems to us well sustained by the decisions of ancient and modern times, by the books of precedents, and usage of the profession, as well as by the reason of the case. The defence of fraud may be shown in assumpsit under the general issue. Lawes Pl., in Asst., 586; 3 Ph. Ev., 88; Ch. Con., 295 ; 2 Kent Com., 482; or if the document is put in evidence under the general issue, fraud in it may be shown by parol evidence.
So fraud in any sealed instrument may be shown under the plea of non est factum. Anon. Lofft., 457 ; 1 Tidd’s Pr., 595 ; Whelpdales case, 5 Co., 119; 2 Wils., 341; Vine v. Mitchell, 1 M. & R., 337; 2 Greenl. Ev., § 246; Van Valkenburg v. Rouk, 12 Johns., 337 ; Candy v. Twitchell, 2 Root, 123; Ragsdale v. Thorn, 1 McMull., 335. There would seem to be a very useless refinement, to require that the precise facts, by which the fraud was effected, should be stated in a special plea, when they are equally available under the general issue. Especially as it is never necessary to plead fraud, which is but a special non est factum. Bickford v. Daniels, 2 N. H. Rep., 74; 10 S. & R., 25; Union Bank v. Ridgeley, 1 H. & G., 324.
The third and fourth replications follow the form in 2 Ch. Pl., 464, (Day’s Ed.,) a plea that a deed was obtained by fraud, also given in Hurlstone on Bonds, 191.
The particular facts to beset out in the plea, as the matters by which the fraud was accomplished, must of course vary in each particular case; and in deciding upon the sufficiency of the statement of them, we have to consider, what is the nature of the misrepresentations, which are required to support the charge
Upon comparing the first of these with the allegations of the third and fourth replications, we think these pleadings contain all that is necessary to be alleged. The misstatements are clearly stated, and them materiality is apparent upon the pleadings. The knowledge in regard to these facts cannot be reasonably supposed to have been in possession of the plaintiff, especially when it is stated, that he confided in the statements made to him, and it is sufficiently alleged that the defendant was imposed upon and deceived. The answer given by the plaintiff’s counsel to the objection, that it is not alleged that the releasee knew of the falsehood of his statements is entirely satisfactory. It is alleged that those statements were fraudulently made, and that is a sufficient allegation that they were known to be untrue. These replications then being in good form and entirely sufficient, the demurrer must be overruled.
"We have examined the decisions in the State of New-York, to which our attention has been called by the counsel for the defendant; and we are aware of like decisions in Yirginia and North Carolina, in Ohio, Indiana and Illinois, in Missouri and Arkansas, which are supposed to establish the points, that in an action upon a bond or other specialty, fraud is no defence, if it relate to the consideration of the instrument, and that it must
In Vrooman v. Phelps, the plea was fraudulent representations as to the character of the slaves for the price of which the bond was given, — and general demurrer. The judge, who delivered the opinion of the court, says, “ In Dollan v. Sammis, it was held, that the want or failure of consideration could not be set up at law to impeach a specialty. The principle applies to this case. It has been repeatedly decided, that the breach of a written warranty, as to the quality of goods sold, cannot be pleaded in discharge of a bond given for the consideration; much less ought parol representations, as to the quality of a thing, made antecedent to the contract, though false and fraudulent, and though they may have induced the defendant to make the purchase, be pleaded in avoidance of a specialty. The special plea forms no valid defence to this suit.” The plea of fraud was in good form, setting forth the particulars. The decision was in effect, as it was expressed by the judge in the case of
These decisions do not appear by the Digests to have been followed in any of the New-England States, nor in Pennsylvania, Maryland, or South Carolina. And we entertain no doubt, that