Hawley v. Beeman

2 Tyl. 238

• Court: Supreme Court of Vermont
• Decided: June 15, 1803
• Status: Published

Opinion

Sed per Curiam.

The evidence must be admitted. The subscribing a promissory note is prima facie evidence of a consideration; but every thing which goes to prove there was no consideration is good showing to the Jury, under the plea of non assumpsit. The distinction between what may be shown under the general issue, and what ought to be pleaded in actions of this nature, seems to be, that that which shows there was no consideration, as infancy or usury, which render the contract void, may be shown under the general issue; but that which acknowledges the consideration, but avoids it by new matter which did not accompany the contract, as accord and satisfaction, tender, &c. must be pleaded,, or, what is tantamount by our practice, shown under a notice.

If the Jury shall consider, that the defendant took this quit-claim deed merely to perfect a title, and well understanding, from the plaintiff’s representations, the nature of his claim to the lands in Fairfield, then the conideration of the note declared upon is good, and they will return a verdict for the plaintiff for the sum in the note, ,and interest. But if they consider that there has been a fraud practised upon the defendant by the plaintiff in obtaining this note as the consideration for the deed, they will find for the defendant. There can be no doubt, if the facts shown in evidence are not controverted, the defendant may obtain relief in the Court of Chancery. But where a fraud has been practised and fully proved, this Court will be ever ready to render justice in favour of the party injured, without turning him over to the more tedious process of Chancery.

William C. Harrington, for plaintiff. Josias Smith, for defendant.

Verdict for defendant, with costs.

Esp. Dig. vol. 1. p. 140. Vide Riley, edit. p. 153.