Hazard v. Griswold

• Citation: 21 F. 178
• Parties: HAZARD and others v. GRISWOLD.
• Decision Date: 04 August 1884
• Court: U.S. District Court — District of Rhode Island

21 F. 178

HAZARD and others v. GRISWOLD.

United States Circuit Court, D. Rhode Island.

August 4, 1884

Edwin Metcalf, for plaintiffs.

Saml. R. Honey and Arnold Greene, for defendant.

Before GRAY and COLT, JJ.

GRAY Justice.

This is an action of debt, commenced in the supreme court of the state of Rhode Island, on March 3, 1883, by four citizens of Rhode Island against a citizen of New York, on a bond dated August 24, 1868, and executed by Thomas C. Durant as principal, and the defendant and S. Dexter Bradford as sureties, binding them jointly and severally to the plaintiffs in the sum of $53,735, the condition of which is that Durant 'shall on his part abide and perform the orders and decrees of the supreme court of the state of Rhode Island in the suit in equity of Isaac P. Hazard and others against Thomas C. Durant and others, now pending in said court within and for the county of Newport.'

The breach assigned in the declaration is that Durant has not performed a decree by which that court, on December 2, 1882 ordered him to pay into its registry the sum of $16,071,659.97.

After oyer prayed and granted, the defendant filed 10 pleas in bar and the case was removed on his petition into this court where the plaintiffs have filed special demurrers to five of the pleas, which have now been argued and will be considered in their order.

The second plea alleges that the supposed writing obligatory 'was obtained from the said defendant by the said plaintiffs, and others in collusion with them, by fraud, covin, and misrepresentation, and that the said writing was executed in confidence of such misrepresentations. ' The demurrer to this plea assigns for cause that the defendant therein 'nowhere sets forth any instance of or facts constituting fraud or covin, nor does he set forth the misrepresentations by which said writing obligatory is alleged to have been obtained. ' This plea is drawn in accordance with the rules and forms given in 1 Chit.Pl. (7th Eng.and 16th Amer.Ed.) 564, 608, and 2 Chit.Pl. 393. But the only authorities which Mr. Chitty cites are the early precedents of Wimbish v. Tailbois, 1 Plow. 38a, 54a, and Tresham's Case, 9 9 Rep. 107b, 110a, in which it is said 'covin is so secret, whereof by intendment another man cannot have knowledge;' and the obiter dictum of Lord ELLENBOROUGH in Hill v. Montagu, 2 Maule & S. 377, 378, that 'fraud and covin usually consist of a multiplicity of circumstances, and therefore it might be inconvenient to require them to be particularly set forth. ' Both these reasons find a conclusive answer in the clear and emphatic statement of Mr. Justice BULLER, that by every rule of pleading 'wherever one person charges another with fraud, he must know the particular instances on which his charge is founded, and therefore ought to disclose them. The rule in pleading is this: that wherever a subject comprehends multiplicity of matters, to avoid perplexity, generality of pleading is allowed, as a bond to return all writs, etc. But if there be anything specific in the subject, though consisting of a number of acts, they must be all enumerated. ' J'Anson v. Stuart, 1 Term R. 748, 753. And by the weight of modern authority, English and American, it is well settled that at law, as in equity, a mere allegation of fraud in general terms, without stating the facts on which the charge rests, is insufficient. Lord Chancellor SELBOURNE, Lord HATHERLEY, and Lord BLACKBURN, in Wallingford v. Mutual Soc. 5 App.Cas. 685, 697, 701, 709; Service v. Heermance, 2 Johns. 96; Brereton v. Hull, 1 Denio, 75; Weld v. Locke, 18 N.H. 141; Bell v. Lamprey, 52 N.H. 41; Phillips v. Potter, 7 R.I. 289, 300; Sterling v. Mercantile Ins. Co. 32 Pa.St. 75; Giles v. Williams, 3 Ala. 316; Hynson v. Dunn, 5 Ark. 395; Hale v. West Virginia Co. 11 W.Va. 229; Capuro v. Builders' Ins. Co. 39 Cal. 123; Cole v. Joliet Opera House, 79 Ill. 96.

The third plea (relying upon the distinction affirmed in Griswold, Pet'r, 13 R.I. 125, to exist between a bond to 'abide and perform' and a bond to 'abide' a decree) alleges that the 'said writing was obtained from the said defendant by the plaintiffs, and by others in collusion with them, by fraud, covin, and misrepresentation that is to say, that heretofore the said Thomas C. Durant was arrested on a writ of ne exeat, issued from the supreme court of the state of Rhode Island, in a suit in equity, wherein one Isaac P. Hazard was complainant, and the said Durant and others respondents, which suit is the suit in equity mentioned in the condition to said supposed writing obligatory; and that the plaintiffs, with other persons colluding with them and assisting them as their agents and attorneys, procured the signature of the defendant to said supposed writing obligatory, representing to him that said writing was a bail-bond, and a bond conditioned that said Durant should abide the orders and decrees of the said supreme court in said cause; and that the defendant signed and sealed said writing, relying upon and believing such representations made by the plaintiffs, and such other persons colluding with them and assisting them as their agents and attorneys, all of which representations were untrue and false, and by means of said misrepresentations the defendant, in confidence thereof, signed and sealed said writing. ' For causes of demurrer to this plea, the plaintiffs have assigned that the defendant does not allege therein that he is an illiterate or a blind person, and that upon his request to have the writing read to him it was falsely read, nor that he had not himself read it, nor that he was ignorant of its contents, nor that his signature to it was obtained by the fraudulent substitution of it for another instrument, which it was his intention to execute as surety, nor any other facts showing that he did not in fact know and was not bound in law to know its legal tenor and effect, or which would entitle him to rely upon the alleged representations of the...