Van Valkenburgh v. Smith

Appleton, C. J. The plaintiff having a suit pending against the P. & O, Central Railroad for services, the defendants, ‘ to obtain the discharge of said suit,’ gave the bond, which this action is brought to enforce. There is no allegation of fraud or misrepresentation on the part of the plaintiff in procuring it. The bond, being under seal, the law implies a consideration. ‘A bond,’ observes Parsons, C. J., in Page v. Trufant, 2 Mass. 159, ‘from the solemnity of its execution, imports a consideration, the want of which the obligor is estopped by law to plead. He may avoid the bond, by showing it was obtained by fraud or duress, or that the consideration is illegal or against the policy of the law.’ But the defendants offer no such proof. There is nothing illegal in the discharge of a pending suit. ‘At law,’ remarks Spencer, J., in Dorr v. Munsell, 13 Johns. 430, ‘ the defendant cannot avoid a solemn deed on the ground of want of consideration. That inquiry is precluded by the very nature of the [99] instrument. The case of Vroman v. Phelps, 2 Johns. 177, is directly in point, that a fraudulent representation of the quality and value of a thing sold, forms no defense in a suit on a specialty. In some of the elementary writers it is stated, that fraud may be be given in evidence under the plea of non est factum. This must be confined to cases where the fraud relates to the execution of the instrument, as if a deed be fraudulently misread, and is executed under that imposition; or where there is a fraudulent substitution of one deed for another, and the party’s signature is obtained to a deed which he did not intend to execute.’ Exceptions overruled. Cutting, Walton, Dickerson, Danforth, and Tablet, JJ., concurred.