Wilson’s Red Book, 19[*]
Court of Common Pleas of Delaware, Sussex County.
May 1, 1794.
62.
Debt [£]37.10.0. Narratio. Non est factum. Fraud, payment, with liberty etc.
Ridgely and Wilson for plaintiff.
Hall and Perry for defendant.
Plaintiff’s witness, John Twiford, proves the bill. Defendant’s attorney asks the witness a question which goes to the validity of a former bond upon the giving up of which this was taken.
Objected by plaintiff’s counsel that no parol averment can be made varying the condition of a bond — no inquiry can be made into the consideration of the bond, 1 Esp.N.P. 247, and defendant cannot go beyond the condition of the bond. Plowd-Comm. 3089, Fin. 159, Jenk. 109, 3 Burr. 1671, 3 P. Wms. 128, 294.
Argued by defendant’s counsel that such evidence was proper under the plea of fraud, that fraud would vacate every contract,
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1 Burr. 396, and is always inquirable into by courts of common law in any stage of proceeding, and read 1 Term 296, Walton v. Shelley,
to show that the consideration of the first bond was inquirable into, etc.; also 4 Bl.Comm. 441, [1] Dall. 17, 1 Esp.N.P. 249, and that common law and chancery have concurrent jurisdiction — which was denied by plaintiff’s counsel, who said the case of Walton v. Shelley
was an action of debt on bond on the Statute of Usury, and upon that the consideration of the notes for which the bond was given being usurious was a good defense under the Statute.
CHIEF JUSTICE asked the question whether if A gives bond t B, 1790; in 1791 A gives a new bond to B, for the same debt, the second destroys the first? It was answered by the counsel on both sides, it would not destroy the first.
PER CURIAM.
YOU cannot ask the question proposed. Pow. Con. 333 is a book not cited, but is decisive of the point; the ceremony is in law such a consent as is conclusive to the party, the consideration is not to be inquired into, and this is to show that a defective bond previous to this was the consideration of it.
Verdict for plaintiff.