Kirkland v. Lott et al.

town of Jerseyville, by their numbers, for which he executed the note declared on; that at the time the contract was made the plaintiffs pointed out and showed to the defendant the location and situation of the said lots; and that he bargained for the lots so pointed out and shown, but that the lots as numbered on the plat of said town do not include the ground purchased, nor are the said lots located at the place pointed out and shown by the plaintiffs. The defendant further averred that the plaintiffs knew at the time of the sale of said lots, that they were not situated at the place pointed out and shown, and that the knowledge of this fact was by them fraudulently concealed from the defendant. The defendant also avers that since the sale of the lots to him, the plaintiffs have sold and conveyed the same lots to another, whereby they are unable to convey them to him; wherefore the consideration has failed. The fourth plea also charges that the plaintiffs falsely and fraudulently represented the lots to be on a high piece of ground on one of the principal streets in the town, and that they pointed out their location; and that the defendant relying upon the representations so made, purchased the said lots, whereas the said lots were not so situated, &c.

This plea differs from the second only in form, and in not alleging the lots to have been purchased by their numbers. The third, fifth, and sixth pleas are essentially alike, and all allege a want of consideration for the same reasons assigned in the second and fourth pleas; but neither of them charges the plaintiffs with fraudulently or knowingly misrepresenting the situation of the lots sold to the defendant. The omission in each of these pleas to charge the plaintiffs with fraud in the transaction, is a fatal defect. Without this allegation they do not constitute a defence to the action. The demurrers to them were therefore properly sustained. The second and fourth pleas are not very technically drawn, but they charge in terms sufficiently clear, that the lots which the plaintiff's pointed out and showed to the defendant, and which he purchased upon their representation as to their location, and upon his own view of them as pointed out, were not designated upon the plat of the town by the numbers which the plaintiffs represented them to be; and that the representations respecting their location and numbers were made with a knowledge of their falsehood, and with a fraudulent intention.

The demurrer to these pleas admits the truth of all the allegations they contain. It is manifest, then, that the plaintiffs have, by false and fraudulent acts and representations, deceived the defendant and induced him to believe that he was purchasing lots in one part of the town, when, according to the plat of the town, they were situated in a different and less eligible part of it. It is well known that the disparity in the value of town lots is often very great; and that that disparity is owing principally to their location.

Lawrence . Yeatman et al.

If the mistake relative to the situation of those lots had been mutual, or if the plaintiffs had made no false representations, nor used any means to deceive the defendant, he would have had no ground of defence. If the plaintiffs had made no representations as to the location of the lots, the defendant would reasonably have sought, and might have obtained, correct information from some other source; and it is not for the plaintiffs to say that it was his folly not to have done so, when their representations were the cause of his omission. Credulity on his part, is no excuse for fraud on theirs.

I do not however consider the defendant chargeable with any culpable degree of confidence or want of circumspection. The statements of the plaintiffs, and the pointing out the situation of the lots, were such practices of deception as might well mislead and deceive a more than ordinarily cautious man; and when accompanied with the intention so to deceive, as is alleged, were certainly such as to vitiate the contract which they beguiled the defendant into making. The demurrers to the second and fourth pleas were therefore improperly sustained. The judgment is reversed with costs, and the cause remanded with directions to the Circuit Court to try the cause agreeably to this decision. Judgment reversed.

Note. See Tyler v. Young et al., Post; Miller v. Howell, 1 Scam.

DANIEL LAWRENCE, plaintiff in error, v. PRESTON YEAT-
MAN and GERMANICUS KENT, defendants in error.

Error to St. Clair.

An attachment bond which does not describe the Court from which the process is to be issued, or to which it is to be returned, or the term of the Court, is fatally defective, and a judgment rendered by default in such a case, will be reversed on writ of error.

An attachment bond described the writ of attachment as "sued out, returnable on the third Monday of August next," without any other description of the Court or term: Held that the description was uncertain and insufficient.

Where the proceedings are ex parte and in rem, there must be a strict conformity with the statute.

THIS was an action of debt commenced by attachment by Yeatman & Kent against Lawrence, to recover a debt of $ 339 75-100, and $375 in damages. The affidavit and bond were made by A. Cowles, as the agent of the plaintiffs. The condition of the bond

was as follows.

"The condition of this obligation is such that whereas the

Lawrence v. Yeatman et al.

above bounden Preston Yeatman and Germanicus Kent, partners in company, have, on the day of the date hereof, prayed an attachment, at the suit of Preston Yeatman and Germanicus Kent, partners in company, against the estate of the said Daniel Lawrence, for the sum of five hundred and seventy-three dollars and thirtyfive cents, and the same being about to be sued out returnable on the third Monday of August next. Now, if the said Preston Yeatman and Germanicus Kent, partners in company, shall prosecute their suit with effect, or in case of failure therein, shall well and truly pay and satisfy the said Daniel Lawrence all such costs in said suit, and such damages as shall be awarded against the said Daniel Lawrence, his heirs, executors, or administrators, in any suit or suits which may hereafter be brought for wrongfully suing out said attachment, then the above obligation to be void, otherwise to remain in full force and virtue."

No service was effected upon Lawrence, but the requisite notice by publication having been given, judgment was rendered against him by default, at the August term of the St. Clair Circuit Court, 1838, for $ 320 debt, and $253 damages. The suit was instituted against Lawrence as the assignor of a writing obligatory made by one Hardy Robinson, dated September 3d, 1824, for $320, payable to said Lawrence, by December 25th, 1825. Lawrence, before said instrument became due, assigned the same, for value received, to Yeatman & Kent, who brought suit thereon against said Robinson to the October term, 1826, of the Circuit Court of Madison county, Alabama; and upon an issue joined in said Court upon a plea of fraud and failure of consideration, said issue was found for the defendant, and judgment entered against said Yeatman and Kent for costs of suit, amounting to $17.25; to recover which, together with the amount due on the said writing obligatory, this action was commenced.

The points taken and authorities referred to on the part of the plaintiff in error are,

1st. Insufficiency of the affidavit upon which the attachment issued, in not stating of whom the person making it was the agent; also in not disclosing either in the body of the affidavit or the jurat annexed thereto, the official character of the person before whom it was made. Mears v. Morrison, Breese, 172. Advantage may be taken by writ of error of a defective affidavit. Phelps r. Young, Breese, 255; 6 Gill and Johns. 345.

2d. The attachment bond is defective, the person entering into it on the part of the plaintiffs below, not having legal authority so to do. And if the agent was lawfully authorized, the bond is still defective in not stating to what term of the Court, if any, the attachment was returnable. R. L. 85, § 7; Gale's Stat. 65.

3d. The action is misconceived, and the declaration defective.

Mitcheltree v. Stewart et al.

Debt does not lie by the assignee against the assignor of a promissory note or other instrument in writing. 1 Chit. Plead. 97, 106, and authorities there cited.

When the objection to the form of the action is substantial and appears upon the face of the declaration, it may be taken advantage of by writ of error. 1 Chit. Plead. 196.

4th. That the judgment is irresponsive to the writ and declaration. Hughes v. Union Insurance Co., 5 Peters' Cond. R. 443; 8 Wheat. 294.

5th. That the damages are excessive, and exceed the legal interest upon the debt.

L. TRUMBULL, for the plaintiff in error.

A. CowLES, J. M. KRUM, and J. Y. SCAMMON, for the defendants in error.

SMITH, Justice, delivered the opinion of the Court:

This was a proceeding under the attachment laws against the plaintiff in error as a non-resident debtor.

Several objections have been urged against the regularity of the proceedings in the Circuit Court. Without noticing any other than that relating to the insufficiency of the attachment bond, it will be apparent that the objection urged against the bond must prevail. The recital in the condition of the bond is essentially defective in that portion of it which attempts to describe the attachment, and the return of it. It describes no Court from which it has been issued, nor to which it is to be returned, nor the term to which it is made returnable. It is consequently so wholly uncertain that it may be well doubted whether an action could ever be maintained on it, in case of a breach of its condition. The proceedings, however, being ex parte and in rem, and the judgment being by default because of no appearance by the defendants, the rule which requires a strict conformity to the statute modes of proceeding, must prevail. The judgment is reversed with costs. Judgment reversed.

JOHN MITCHELTREE, appellant, v. ISAAC STEWART and JAMES E. PEARSON, appellees.

Appeal from Schuyler.

The return of a sheriff upon a scire facias to foreclose a mortgage, was as follows: "Executed the within as the law directs, by reading and delivering to defendant a true. copy, November 1st, 1837." The process was returnable on the first Monday of November, 1837: Held that the return was formally correct.