Lester v. . Zachary

4 N.C. 50

• Court: Supreme Court of North Carolina
• Decided: January 5, 1814
• Status: Published

Opinion

In declaring that evidence of the inadequacy of the consideration of the bond was properly received on trial, it is not intended by the Court to countenance, in the most distant manner, an idea that the bond, for that cause, is invalid. The law is too well settled to the contrary to permit that point to be even doubted; for if a bond is good without any consideration, inadequacy of consideration cannot vitiate it. But where the contest is whether the bond was ever made, or, if formally made, whether under such circumstances of fraud and imposition as to render it void in law, inadequacy of consideration may be received as a circumstance to show the truth of the defense.

With respect to the surprise disclosed in the plaintiff's affidavit, that he had been informed by his counsel that evidence of the above description was inadmissible, and that he was, therefore, unprepared to rebut it, it is to be lamented if the fact be so; but it is out of the power of this Court, without introducing a rule pregnant with inconvenience, to remedy it. Surprise, in questions of law, arising at the trial, it is true, affords good ground for a new trial; but then the questions should be such as really afford room to doubt. If every mistake of counsel, however plain the point might be, afforded causes for new trials, applications of this kind might be without number. We, therefore, think that there should not be a new trial. (51)

NOTE. — Upon the first point, see Guy v. McLean, 12 N.C. 46; and on the second, see the cases referred to in the note on the last point inRutledge v. Read, 3 N.C. 242.

Cited: Perry v. Fleming, post, 345; Fentress v. Robbins, post, 612.