#### Dorr *against*Munsell.

debt" oan'‘tend! caunotdepfieadnR derat?onfo“hat to give1the bond-representation of. the valué of a thing, wbich afterwards turn* no Take0-136 as SraHoneoCftiie jbo^d was a transfer of-a patent right to which the plaintiff was not entitled as the original inventor.

Fraud may be given in evidence under *ést factum,*only where it relatesto the execution of the instrument.

THIS was an action of debt on a bond in the penalty of 400 dollars, dated the 21st *’September,*1810. ■ The defendant craved oyer, arid set forth the condition of the bond, which was for the payment of three sums, each of 66 dollars and 67 cents, in one, two, and three years, from the date; and then pleaded. 1. *Non*^ , ’ , • ? *est factum**2. lhat the bond was fraudulently obtained by 47 4 , # > *«*Pontiff, by represehting-hirnself to be the original inventor and patentee of an improvement in a- machine for shearing *431cloth, containing a new mode' and principle of drawing and moving the cloth in the machine while in the operation of being sheared; and that the same had not been invented by, or patented to, any other person previous to the date of the' letters patent granted to the plaintiff by the president of the United States. The defendant then averred that the said inode of drawing cloth, while in the operation of being sheared, was patented on the 22d *November,*1805, to one *Kellogg,*and to one *Samuel G. Dorr,*on the 29th *October,*1792; and that the defendant was not the original inventor and patentee thereof. That the defendant, in confidence of the representations of the plaintiff, made the bond in the declaration mentioned, and received therefor, from the plaintiff, a conveyance of his right, to make and use the said machine for 14 years, in the county of Cayuga, and in the township of *Marcellus,*in the county of *Onondaga,*excepting the town of *Aurelius,*in the county of Cayuga. 3. Generally, that the bond was obtained by fraud.

To the second plea the plaintiff demurred, and assigned special causes of demurrer, which it is unnecessary to state, as the opinion of the court was founded on the insufficiency of the plea in substance; and, to.the third pleaf.he replied tendering an issue thereon. The cause was submitted to the court, without argument.

Spencer, J.,

delivered the opinion of the court. The plea demurred to is bad. It sets up a fraudulent representation of the plaintiff’s patent right; an.d, in substance, it is a denial of any consideration for the botfd. At law, the defendant cannot avoid a solemn deed on the ground of a want of consideration. That inquiry is precluded by the very nature of the instrument. The case of *Vroman*v. *Phelps,*(2 *Johns. Rep.*177.,) is directly in point, that a fraudulent representation of the quality and value of the thing sold forms no defence in a suit on a specialty.

In some of the elementary writers, it is stated that fraud may be given in evidence under the plea of *non est factum.*This must be confined to cases where the fraud relates to the execution of the instrument, as if a deed be fraudulently mis-read, and is executed under that imposition ; or where there is a fraudulent substitution of one deed for another, and the party’s signature is obtained to a deed which he did not intend to execute. The case of *Hayne*v. *Maltby,*(3 *Term. Rep.*440.,) does not apply. There, *432the suit was on the covenant which, was' the’ instrument’of the fraud, and Lord *Kenyon*evidently meant to exclude the idea that the defence would-have been admitted, had therebeen a covenant- to pay a sum in gross.

Judgment for the plaintiff*