Reports of Cases Argued and Determined in the Courts of Exchequer and Exchequer Chamber, from Easter Term, 11 Geo. IV., to [Trinity Term, 2 Will. IV.] Both Inclusive. [1830-1832]
This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1856 edition. Excerpt: ... that what tends to show an invalid or defective execution, may be given in evidence under non est factum. The present case falls within that rule. He then adds, that what irnpeaohes the deed by the matter or consideration thereof, must be specially pleaded. Here it is not attempted to impeach the matter or consideration of the bond, but the evidence was offered to show that the party was induced to execute by fraud. If unlettered and mis-read is evidence under non est factum, as to which there can be no doubt, (c) misrepresentation of the eifect of the instrument must U311 likewise be admissible under that plea. In Thompson v. Rock, 4 M. & S. 338, it was held, that, upon a plea of non est factum to a sheriff 's bond, the defendant might show, at the trial, that the bond was dated and executed on a day subsequent to the return of the writ.(b) E. V. Williams, for Harries.--Looking at the bond and the release, the intention of the parties was merely that a recovery should be suffered. The bond was executed upon an assumption that the circumstances recited were true; and if the recitals had been true, the recovery would have vested a fee in the plaintiff. The object of the recitals is to prevent a discussion as to the existing state of things, and to show upon what terms the obligation was entered into. In the argument upon the former occasion, an authority was cited, to show that recitals cannot operate as an estoppel, (c) and so it is laid down in Co. Litt. 352; but all the subsequent authorities a@ clearly the other way. The cases upon this subject were brought under consideration in Kelly v.' Wright, Willes, 12, and there the older authorities were overruled. The doctrine now is, that the intention of the parties is to be...
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- 13 Sep 2013
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