35 N.J.L. 437 | N.J. | 1872
Among the pleas Avhich have been demurred to, three of them rest ou a common ground. They are, as they stand on the record, the second, third, and fourth. The first of this class alleges, in substance, that the
The counsel for the plaintiff insisted that these pleas are bad, for the reason that the matters stated in them are contradictions of the recitals in the sealed instrument on which the suit rests. There is no doubt that such contradiction exists. The recital is that “ this bond is made and issued” “ pursuant to a resolution adopted by a vote of two-thirds of the inhabitants of said township of Winslow present at a special town meeting assembled according to law.” Two of the pleas in question deny that this town meeting was assembled according to law, and the third avers that the writing in dispute was not directed to be issued by a two-thirds vote. The statements of the pleas are in evident opposition to the admissions of the recital, and hence it is argued that by force of the doctrine of estoppel, such statements cannot be put upon the record. That a party is concluded by the admissions of his own deed is the admitted rule of law, and such admissions cannot be put in dispute, either by the pleadings or evidence. But this rule, I think, has no application to the present case. The principle is applicable only where the existence of the deed, as the act of the party, is admitted. This is shown by the very definition of an estoppel, which arises, in the words of Lord Coke, “ when a man’s own act or acceptance stoppeth or eloseth up his mouth to allege or plead the truth.” Co. Litt. 352, a. In the case of The State Bank
But in the present case the defendants, in the pleas under consideration, do not admit the deed in this suit. On the contrary, the facts which they here aver, if such facts have any legal effect, show that the obligation in question has no existence in law.' As no one appeared at the argument for the defendants, we have not been favored with the views of the pleader, but it would seem that each of these pleas was intended to be a special non est factum. Such a form of pleading is, in some instances, not improper. Its effect is to admit the execution of the instrument, and, at the same time, to exhibit circumstances showing it is not, in law, the deed of the party. The defence can be made in this mode where the deed was delivered as an escrow, or has been altered since delivery, or was executed by a feme covert. Gould’s Pl., ch. 6, § 64. The .present defence certainly seems to be near to the principle which authorizes this course of pleading in the case of the married woman, but it is not necessary to decide whether, as a matter of form, the present pleas are proper or not. On demurrer, by force of our statute, the only question is, whether the substance of the defence is sufficient.
The defendants have no capacity to execute this writing, except such as is conferred by the act of February 22d, 1865. The mode of executing the power thus conferred is prescribed. The inhabitants must be assembled according to law, and the order to issue the bonds, &c., must be sanctioned by a vote of two-thirds of those present. Now it seems to me very plain that these requisitions of the statute must be complied with in order to give any legal force to the obligation now in contro
These three pleas contain a legal answer to this action.
I have failed to see anything illegal in this consideration. 'The legal sufficiency of this consideration cannot be examined, inasmuch as this is a sealed instrument, and it would seem that a promise to pay a person a certain sum of money in consideration of his doing his legal and constitutional duty, is ■devoid of all taint of illegality.
This plea is bad in substance.
The tenth plea also seems to me insufficient. It alleges that the writing obligatory was made by three of the township committee, “without consultation” with the two others, and without their presence, knowledge, or consent. But these circumstances may be true, and yet the deed have been legally sanctioned by the township committee as a body. Thus, if the committee had been legally summoned, and two of the committeemen had' absented themselves, and the three who . attended had directed the bond to issue and the seal to be .affixed, such act would have been clearly legal, and yet all the circumstances stated in the plea would have existed — that is, the bond would have been issued without consultation with the two absentees, and without their “ presence, knowledge, or cousent.” The facts stated are not sufficent to raise the question probably intended by the pleader.
Nor do I think the eleventh plea, which is the last one demurred to, can be sustained. It avers, in general terms, that the said supposed writing obligatory “ was obtained from the
As some of the pleas contained in the demurrer are good, the defendants are entitled to judgment.
Judgment for defendants.
Justices Scuddbr and Vas Syckel concurred.