#### *John Den ex dem. The State Bank at New Brunswick *against*Rynear Moore.

IN EJECTMENT.

In ejectment, where claims under a mortgage, defendant may shew that andThat the6’ bond and were ñ-audulently ob-given áfsupforgery. In verdict with which the li«f not dis-S" turbed.

THIS case was argued on a rule to shew cause why a new trial should not be granted.

The action was tried at the *Somerset*circuit, in *April*1818, and at the succeeding term the following report juj-nnu-íT*was made by the Chief Justice.

After confession of lease entry and ouster, the plaintiff gave in evidence a mortgage , of the lands in question, dated *August*10th 1813, made by *Moore,*the defendant, to the *Bank,*to secure the payment of a bond of 5450 dollars and 52 cents, with interest, &c.; he gave in evidence the said bond, and the possession of the defendant being admitted, he then rested.

The defendant then, by way of defence, offered to prove,

l.'That one *John 0. Moore,*the son of the said, defendard> kaA discounted at the *Bank,*seven promissory notes, on which was the name, of the defendant, either as endorser or drawer, and also the name of one *John Ryder,*the father-in-law of the said *John C. Moore;*that this bond and mortgage were taken as collateral security for the payment of these notes ; that at the time of taking the same, the *Bank*had been informed and well knew that the name of the said defendant, as well as of the said *John Ryder,*on the said notes, was forged and not genuine and true, that at the time of this transaction, and long before and after, the said defendant had laboured under a derangement of mind.which rendered him incapable of transacting business with discretion and understanding, that under these circumstances, the said *Bank*by very extraordinary measures, (particularly stated) had procured this bond and mortgage, and that therefore it ought to be considered as void.

2. That the said *Bank*had caused the said *John G. Moore,*to be arrested for forgery in endorsing the name of the said defendant and *John Ryder*on the said notes, or in passing them, knowing the said names to be forged, *541that this bond and mortgage were taken from the father, as a composition for the crime of the son, and that the-son was thereupon discharged.

To the admission of this evidence it was objected. 1. That *tlxe court cannot go into the consideration of the bond and mortgage, and inquire for what it was given. 2. That it is not admissible for a man to stultify himself in order to avoid his deed. And 3., That the *Bank*existing in contemplation of law only, can not be guilty of crime, such as the compounding of offences, &c. But after stating the law upon these questions, the court overruled the objection and admitted the witness to be sworn. *Andrew Parsons,*the witness, was then sworn, and after inspecting the seven notes, said in substance : that he was a clerk in the *Bank*at the time of this transaction, and that he understood that the bond and mortgage in question, were taken as payment for the same; that some of the officers of the *Bank*had entertained suspicions respecting the fairness of these notes, so far as related to the name of *John Ryder;*that he was sent to *Ryder*to make inquiry concerning them; that he exhibited to him the notes on which his name was, and that *Ryder*denied the writing ; that at his return a special meeting of the directors was called; *John G. Moore*was taken into custody on a warrant, and brought before them, and being informed that *Ryder*had denied his name, he said if he could see *Ryder*he would acknowledge the notes; that he, the witness, was again sent to *Ryder's,*in company with one of the directors, on the same business, but that *Ryder*again denied his name; that after his return there was another meeting of the board. That he was then sent in company with *James C. Van Dike,*one of the said directors, and the said *John G. Moore,*in the custody of the constable, to the defendant’s house, which was five or six miles distant, to see whether the defendant would acknowledge the notes; that they set off on this expedition some time after 12 o’clock at night and got there little before day-light; that when they approached the house, *John G.*Moore, requested the liberty of entering alone, that he might prepare his father, as he was in a low state of health, that this liberty was granted to him; that he did enter alone, *542and continued there some considerable time, then came -to the door, and told them, he believed *it would do now,Ms father would acknowledge them,*and then they all entered the house; that the defendant appeared to have just risen from his bed, was very silent and said little or nothing. That the witness told over to him the notes on which his name was, (I think four in number) and asked him if he acknowledged the signature, and that he said to each “yes,” that *he then presented to him the other three of the said seven notes, which had not his name on them, and he endorsed them in his presence; that he has seen the defendant write several times, and believes that his name on the four notes first mentioned to him, and acknowledged by him, was not his hand-writing; that when he presented to him the three notes last mentioned for his endorsement, he did not inform him, the defendant, that *Ryder*had denied his name on the same, or' that it was supposed to be a forgery; that upon these acknowledgments and endorsements being made, *John G. Moore*was discharged, as he believed, from the custody of the constable, permitted to go home, and no further steps taken concerning him. He further stated, that *Ryder*came to the *Bank,*(I think) the next morning, and acknowledged his hand on (I believe) four of the said notes, but that he, the witness, did not believe that, the name acknowledged was his hand-writing, nor did he believe so when he exhibited them to *Rynear Moore*the defendant. He further stated, that he had no conversation with the defendant about the liberation of his son, nor had he any authority from the *Bank,*to make any proposals concerning it; that this transaction at *Moores,*was between the 7th and- 15th of *August,*and that the bond and mortgage were taken some days afterwards. He then stated, that when the notes became due, the *Bank*went on to protest them, give notice of non-payment, &c. as usual, the bond and mortgage notwithstanding, and that an action had been brought on them against the defendant, and a verdict rendered in his favour before this ejectment was instituted.

It was then moved to overrule this whole testimony as *543unlawful and irrelevant in the defendant’s defence, but the court overruled the motion.

Other witnesses were then called to disprove the handwriting of the defendant, on the four notes above mentioned, and admitted and sworn.

The defendant then called Dr. *William M’Kissack,*to prove the state of the defendant’s mind, during the summer and autumn of the year 1818, which was the year in which this transaction took place.

This was objected to on the ground that the witness ought to be confined in his testimony, to the very day and time of the making of the bond and mortgage; because, even admitting a general state of lunacy, he may have had lucid intervals.

*But by the court. It is true, that though a general state of lunacy or derangement of mind should be established to the satisfaction of the jury, yet, if the defendant hath had lucid intervals in which he hath had the full exercise of his rational faculties, in which he could clearly discern his rights, his duties, and his obligations, and fully understand the effect of what he had done in the acknowledgement of these notes, and of what he was about to do in the giving of this bond and mortgage, then his acts done during such lucid intervals, will bind him as effectually as if he had laboured under no such malady. But then, I apprehend it will be sufficient for the defendant, to prove the derangement generally, and then it will be incumbent on the plaintiff, if he would make advantage of it, to shew the lucid intervals, *(a)*

I)r. *M’Kissaclc,*was then examined, and after him, a number of witnesses on both sides of the question, as to the defendant’s state of mind about the time of this transaction, and long before and after, and also as to his state of mind on the day, and at the very time of the making of this bond and mortgage.

The evidence was then summed up with great ability *544on both sides, and to, what I thought, a very intelligent jury.

The questions of law, which would necessarily present themselves, in considering of the verdict having already been considered and resolved in the course of the trial, and the facts presenting themselves to my mind in a very, strong point of view, I thought it most prudent to give no charge to the jury.

A verdict was rendered for the defendant, and I thought rightly.

In making out this case, I have stated the evidence so far only, as appeared to me to be necessary to bring into view the decisions of the court as to the admission of testimony, and the questions necessarily connected with it, but I have not thought it necessary to go further, as the court, I believe will never hear an argument on the merits or testimony reported in this way, in order to impugn the verdict of a jury.

*Scott*and *R. Stockton*maintained,

that the rul e should be made absolute. 1. Because the evidence respecting the consideration of the bond and mortgage was inadmissible. *Swif. Evi.*248. 2 *John.*177. 8 *John*375. 1 *John.*139. *Cowp.*47. 2 *Wils.*275. 1 *Bur.*396. 2. Because the jury had before them no evidence of fraud to justify their verdict.

**F. Erelinghuysen*and the *Attorney General,*for the defendant, contended.

1. That the consideration was properly inquired into. *Coxe 178. 8 John.*54. *Pow. on Mortgages 65. 2.*That the case abundantly proved that the defendant was circumvented, and executed the bond and mortgage in ignorance of the facts, especially of the forgery of *Ryder’s*name. 3. That justice had been done, and therefore a new trial ought not' to be granted. 2 *Wils.*306. 2 *Salk.*644-6. 3 *John*271. 4. That there was contradictory evidence, and the judge had certified that he was satisfied. 6 *Bac.*664. 2 *Str.*1142. *Pen.*947.

(a)

*Whitenack vs. Stryker, 1 Gr. Ch. 8. Den. Trumbull vs. Gibbons, 2 Zab. 117. Goble vs. Grant, 2 Gr. Ch. 629. Turner vs. Cheesman, 2 McC. 243. Den vs. Clark, 5 Hal. 217. Yauger vs. Skinner, 1 McC. 389. Andress vs. Weller, 2 Gr. Ch. 604. Dixon vs. Dixon, 7 C. E. Gr. 93.*

Southard J.

I do not think it necessary to recapitulate *545the facts. They are familiar to the recollection of those who feel an interest in the cause.

The first question to be considered, is the competency of the evidence respecting the consideration of the bond and mortgage. Their validity was necessary to justify a recovery of the premises by the plaintiff, and the defendant offered to prove that they were given under an agreement to discharge *John G. Moore,*who was in custody under an accusation of forgery, and were extorted from the defendant by fraud, device, and concealment, at a time, when by the visitation of God, he was deprived of his reason, (a) Three objections were taken to this evidence. 1. That a man may not stultify himself in order to avoid his deed. 2. That the *Bank,*who is lessor of the plaintiffs, as it exists only in contemplation of law, cannot be guilty of crimes, such as compounding of felony. 3. That the consideration of the bond and mortgage could not be inquired into. The Chief Justice, however, admitted the evidence.

Upon the argument of this rule, the two first objections were not noticed, but the counsel of the plaintiff relied altogether upon the third. That is the only one, therefore, to which I shall direct the attention. And in considering it, it is necessary to remark, that the evidence was not offered to prove that there was *no*consideration for the notes, or for the bond and mortgage, which were executed as collateral security for the notes. There is no doubt that *John G. Moore*received from the *Bank*the full amount for which they were given, and if his father, the defendant, without fraud and imposition, executed them as a surety and to secure the payment, they were unquestionably valid; the ^consideration was amply sufficient to sustain them. We may, therefore, lay out of view all that was said in argument, and all the authorities which were read to satisfy the court, that a writing under seal always imports, in itself, a consideration, and that it is not legal and proper to defeat it, by proving that no consideration existed.

Our inquiry on this subject, resolves itself into two questions. In an action of ejectment, where the plaintiff *546claims title under a mortgage, is it proper for the defend- - ant to prove that the bond and mortgage were fraudulently obtained by deception and concealment? or were given to suppress a prosecution for forgery already commenced ? I think both these questions may be very safely answered in the affirmative. Whatever will avoid the bond and mortgage, is a competent defence in such a case, and that which shews a fraudulent or illegal consideration, will avoid them. A bond fraudulently obtained, or given to suppress a prosecution for felony, never can be supported in a court of justice. 2 *Wils.*341-7. 1 P. *Wms.*156, 220.

The counsel seemed to admit, in the argument, that fraud in the execution of a sealed instrument might be inquired into, but that fraud in the consideration could not. *(a)***I do not well comprehend the grounds of this distinction. The consideration and execution of such instruments are so united as not readily to be separated. It seldom, perhaps never, happens that there is fraud in the one and not in the other. But if this were not so, the law is not as was argued. Fraud reaches through every subject which it touches; it invalidates the consideration as well as the execution of all contracts, and may alwaj^s be proved. Besides, the evidence in this case was expressly designed to shew that the execution, both of the notes and of the bond and mortgage, was induced by imposition and fraud. I think, therefore, that the court judged rightly in admitting the evidence. Did the jury correctly estimate it when admitted? Was there proof of fraud ?

In considering this part of the case, it is important to remark, that the defendant attempted to prove, that at the time of the execution of these writings, an afflicting dispensation of providence had bereaved him of his understanding. His right to prove this was not questioned upon the argument: and the state of the case, the verdict of the *547jury, and the manner in which the allegation was met by the counsel, leave a full impression that this part of *the defence was amply sustained upon the trial. It is under this full impression that the second point is considered : and I think it would be useless to spend much time upon it.

The question called peculiarly for the investigation of a jury and their opinion ought not to be lightly disturbed. The train of circumstances laid before them, from the first suspicion of the forgery and the mission to *Ryder;*to the midnight visit with the guilty son to the house of the unhappy father, and terminating in the concealment of the forgery of *Ryder’s*name; was certainly calculated to delude and defraud a firmer mind than *Rynear Moore’s,*in its best moments, much more in its then feeble and imbecile state. With such evidence before it, I should have been surprised had the jury come to a different result; and I think their verdict ought not to be set aside.

I express no opinion upon the evidence of compounding the felony, as a distinct point in this controversy. The facts which are supposed to prove it, form a part, and no inconsiderable part in that extraordinary detail, which so certainly and unavoidably led the jury to the true answer to the issue before them.

I think the rule should be discharged, and judgment entered for the defendant.

By the whole Court:

Let the rule be discharged.

(a)

**See *Price vs. Summers, post 578.*

(a)

 Accord, *Armstrong vs. Hall, Coxe 178. Mason vs. Evans, Coxe 182. Den. Obert vs. Hammel, 3 Har. 81. Den vs. McKnight, 6 Hal. 392. Den. Wooden vs. Shotwell, 3 Zab. 465. Mulford vs. Peterson, 6 Vr. 127, 136.*But see *Rogers vs. Colt, 1 Zab. 18, 704. Stryker vs. Vanderbilt, 1 Dutch. 482.*Gar*retson vs. Kane, 3 Dutch. 208. Leigh vs. Clark, 3 Stock. 110.*