Ewins v. Calhoun

The opinion of the court was delivered by Mattocks, J. The exceptions present several questions, which will be disposed of in their order. 1. That the county court, on motion of the plaintiff, ordered the plaintiff to furnish additional bail. The act regulating judicial proceedings, section 45, p. 71, requires the plaintiff, in writs of attachment, to give security by way of recognizance to the opposite party for costs, and provides that, pending any suit, on the suggestion of the defendant that the surety or recognizance is insufficient, the court may order further bail. This act gave the courts no authority, to order the defendant to put in bail; but an additional act, number 15, p. 97, section 1st, after mitigating the liability of the sheriff as to bail, in certain cases, says, “ and if the plaintiff' shall, pending any suit, suggest to the court that the surety [82] or sureties are insufficient to respond the judgment that may be recovered in said action, the court may, in their discretion, order bail to be put in sufficient for the purposes aforesaid, by such time as they shall direct, or otherwise order judgment as by default.” This clause, although inserted in the same section which speaks oí sheriff’s bail, is a distinct and general enactment, and comprehends all cases where there has been bail put in before the action has been entered, either by endorsing the writ, or entering bail for an appeal from a justice; and so it has been construed, and bail ordered in such cases at discretion. This decides this objection, without stopping to inquire whether, if it were otherwise, we could reverse the judgment for this irregularity, especially after the order has been complied with, and the cause proceeded to trial. 2. It has been urged, that no action of this sort should be sustained, that the attempt is a modern innovation upon the common law, and in fraud of the very statute of frauds, and has lately been abolished by act of parliament. In the case of Pasley vs. Freeman, 3 T. R. 51, which was very like this case, the court sustained the action. Gross, J., having led with an opinion for the defendant, the other judges gave full and separate opinions the other way, which, especially as they contain some very good discourse upon the interesting subject of lying, are well worth the further perusal of the bar. To the objection there taken, that the action was new, Ashurst, J., said it was not new in the principle, but only in the instance; and to the objection, that to support the action of deceit not only one party must lose but the other make, he says it is the more diabolical to lie without the temptation of gain, and the gist is the injury done to the plaintiff; and he thought that one great reason why actions had not before been brought against those not interested in the fraud was, that others would not be likely to be concerned in such practice; and it may be added, if they were interested, it would in most cases be impossible to prove it. That ease was, we think, decided upon the soundest principles of justice and common honesty, and having been' followed by other cases in England and the neighboring states, as appears by the cases cited by the plaintiff’s counsel, we adopt it as the law of this land, and for the reasons I refer to the case in the Term Reports. They being nearly the last set of the English Reports that contain any great body of the law, are in almost every office. If this action has been destroyed by an act of Parliament, it only shows, that although it was not of ancient growth, it was so firmly rooted that it required that powerful engine to uplift it. If, as stated by coun [83] sel, (for I have not seen the act,) it requires the fraudulent representations to be in writing, it is singular, and it would seem must be intended to prevent any redress in those cases. That the evidence of contracts which require mutual consent should be required to be in writing, or have any other prescribed formalities, is practicable at least, and may be useful. But that the proof of facts which constitute fraud or crime should be so privileged, would exempt most offenders. To undertake to prevent fraud by supposing all verbal communications false, would destroy all confidence in business and in society. Great practices of perjury may have required this act in England, but merely the fear of it here should not prevent us from acting upon the great principle upon which the action is founded, unless our legislature also interfere. But the theory of the requirement of the act, unless it was intended to expunge all remedy in such cases, is as singular as to require swindling or crim. con. to be proved by a memorandum in writing. The last question is, the motion in arrest for the insufficiency of the declaration. This is little else than the same question in another form, whether this action can be sustained, as the declaration certainly contains all the essential facts and averments of that in 3 T. R., which was holden good, and no technical defects have been named or seen that would have made it defective even before verdict. Judgment of county court affirmed.