Montgomery v. Tipton

• Decision Date: 31 May 1824
• Citation: 1 Mo. 446
• Parties: MONTGOMERY, BY HIS NEXT FRIEND, D'LASHMUTT, v. TIPTON.
• Court: Missouri Supreme Court

1 Mo. 446

MONTGOMERY, BY HIS NEXT FRIEND, D'LASHMUTT,

v.TIPTON.

Supreme Court of Missouri.

May Term, 1824.

PETTIBONE, J.

This is an action of debt, on a sealed note, for $603 The defendant pleaded four pleas. To the first three there were demurrers, which were sustained. The fourth plea was traversed by the plaintiff, and a verdict was found upon that plea for the defendant. A new trial was moved for by the plaintiff, and granted by the court. On the second trial a verdict was found for the plaintiff, and judgment given for the amount of the debt claimed in the declaration. To reverse that judgment, the defendant in the court below brings his writ of error, and assigns for error, that the demurrers to the three first pleas were improperly sustained. The first plea is, that D'Lashmutt was not the next friend of the said plaintiff. This is no good plea in bar. If it can be pleaded at all, it must be in abatement. Besides, in addition to the appearance of the plaintiff, by D'Lashmutt, as his next friend, in the commencement of the suit, and in the subsequent proceedings, there is an express entry upon the record, prior to the said plea, which this court consider as a sufficient recognition of him in that character, by the court below. It is as follows: “Van B. D'Lashmutt, above named, comes into court and acknowledges himself as the next friend of Robert Montgomery, the plaintiff in this cause, who is an infant, under the age of twenty-one years.” The defendant cannot plead a fact against the record. The first plea is, therefore, bad in every point of view, and the demurrer to it was rightly sustained. The second plea is, that the writing obligatory in the declaration mentioned, was obtained from the defendant by one James Montgomery, from whom the consideration of said writing moved and was obtained, and by whose direction and request the said writing was made payable to Robert Montgomery, in the declaration mentioned, by fraud, covin and misrepresentation; wherefore, the said writing was and is void in law, &c.

The court are of opinion that this plea is good, and that the demurrer to it was improperly sustained. Fraud constitutes a good defense in law, the same as in equity; and the general allegation of fraud, without specifying the particulars, is sufficient: 1 Chitty Pl. 553.^(a) The judgment on the demurrer to this plea must be reversed.

The third plea states that the writing declared on was obtained in the same way as in the last plea, by fraud, covin, and misrepresentation; and then proceeds to specify the particulars of that fraud, to-wit: that the said James Montgomery falsely and fraudulently asserted to the said defendant that the negro woman (part of the consideration of the said writing) was sound and free from defect; whereas, she was unsound, and became unable to work, from the wound she had received before the sale of her to the said defendant as aforesaid; that defendant, confiding in the truth and fairness of the representations so made, gave the writing in the declaration mentioned, in the manner and form stated; wherefore, the said writing was and is void, &c. This plea is clearly bad. The specification of fraud here set out does not constitute a bar...