Opinion
Spring Sessions, 1846.
Cullen, for plaintiff.
Layton, for defendant.
DEBT upon specialties. The declaration contained several counts on single bills. The defendant pleaded; 1. Non est factum. 2. That each of the said several single bills in the said several counts of the plaintiff's declaration mentioned, was obtained from the defendant, by the plaintiff, through and by means of the fraud, covin, and misrepresentations of the plaintiff, upon the sale of a certain mare by the plaintiff to the defendant; which said mare, the plaintiff falsely and fraudulently represented to the defendant, to be sound, c. 3. Payment. 4. Set-off. To the first, third and fourth pleas, the plaintiff replied and took issue; and to the second plea, he put in a general demurrer.
Mr. Cullen, for plaintiff, cited, 1 Chit. Cont. 461; 2 Johns. Rep. 177; 13 Ibid 430; 2 Mass. Rep. 159; 7 T. Rep. 471; 4 Wend. 471; 8 Cowen 290; 4 Kent 465.
Mr. Layton, contra., cited, 1 Arch. N. P. 218; Ibid 94, 98; 6 Car. P. 511.
By the Court:
The want or failure of consideration cannot be set up against a specialty. Being under the party's seal, it is conclusive evidence of a sufficient consideration. Therefore, to avoid a bond or other specialty the defendant must show either fraud in the execution, or a want of due execution or delivery of the instrument; or that the subject matter or consideration is forbidden by statute or by the common law; or is against good morals or the general policy of the law; or that the specialty was obtained by duress; or that the party was incapable of executing it, by reason of infancy, coverture, incompetency of mind, or drunkeness.
But the breach of a warranty as to the quality of goods sold, cannot be pleaded in discharge of a bond; nor can any parol declarations or representations, however false or fraudulent, as to the quality of an article sold, for the price of which the bond was given, be pleaded or given in evidence in a court of law, to avoid a specialty.
Judgment for plaintiff on the demurrer.