Opinion
(1793.)
Debt against an executor. He pleaded several judgments in bar. The plaintiff replied that those judgments were satisfied and kept a foot by covin to deceive him. The defendant traversed the satisfaction of the judgments, whereupon the plaintiff demurred, for the satisfaction is only an inducement to the fraud and covin. In an action on the case sur assumpsit, the defendant cannot traverse the consideration, but may the assumpsit. Dyer, 361. Merrial and Tresham's case, 9 Rep., and Turner's, 8 Rep. Where the fraud is not traversable, but the principal thing, etc., as to the exception of the replication, the double rejoinder has cured it. It was urged on the other part that he might have taken issue on the fraud and covin, generally, if it had been so pleaded; but he waves this and offers another plea; therefore, the issue is well on the payment and the rest is only consequential, etc. In Turner's case, the recovery is on good ground, but the subsequent agreement made it covinous; the judgment is for £ 40, and £ 20 are given in satisfaction of it. It is no satisfaction, but the recovery is absolute until satisfaction be acknowledged on the record. Here the fraud should be alleged specially and not generally. But it was said that if he had averred it generally, the fraud and covin ought to have been traversed. But here he has barred himself by a particular allegation.
If the judgments were had by covin, he may traverse generally; but perhaps they were rightly obtained, and afterwards an agreement made to pay so much per month in satisfaction, etc.; in the meantime the judgments were kept on foot. In this case the keeping the judgments on foot is traversable, and the payment is only an inducement, and a matter of inducement is not traversable. Judgment was accordingly given for the plaintiff. Jones, 171; Bendl., 166.