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by fraud, by a suggestion of falsehood, or suppression of the truth, it is void, and the party is not bound to perform it. It is immaterial, with what formality, or under what solemnity, an obligation is entered into, if obtained by fraud, or imposition, it may be avoided, either in a court of equity, or a court of law, as these tribunals have concurrent jurisdiction. in all cases of fraud, where it is properly brought into question before them.

In the present case, it was alleged, that the plaintiff was in possession of material information, which was unknown to the defendant, and which the plaintiff withheld, by reason whereof, he was enabled to impose on the defendant, by purchasing his property at a price, far below its value at the time. This was the enquiry properly submitted to the consideration of the jury, and they have found it to be the fact, and this court has no reason to believe, that their verdict was without or contrary to evidence so far as it has been disclosed to them. The motion for a new trial must be overruled.

Note. It would certainly be well, for the best interests of society, if the pure principles of morality inculcated in this case, could be established as the law of the land, and practically enforced in the ordinary transactions of life. Such a rule, as is laid down in this case, has been considered by many enlightened tribunals, as replete with difficulties. A, by accident, or superior industry, hears rumors, calculated if true, to enhance the price of an article,and P, purchases it,without communicating this rumor to B. Is A bound to enquire of B, the extent of his knowledge, before he purchases from him-if so, before he enters upon a bargain, is he bound to communicate to him, every fact or rumor calculated to enhance the price of the article-or if not every fact, what facts, and who is to be the judge, or is there to be no certain standard? If A hears, that bad seasons have affected the crops, must he communicate it to B, before he purchases, and unfold to him, every fact within his possession, calculated to affect the price, and is the obligation on the part of B, to apprize A of every fact calculated to diminish the price of an article reciprocal, on pain of rendering the contract invalid? Or who shall decide that the facts not communicated, were material, or that they were fraudulently withheld, or how ascertain the fact of the ignorance of either party? In the case of Laidlaw vs. Organ, 2d Wheaton 178, the Supreme Court of the United States, in facts identical with those contained in this case, decided, as follows: "The question in this case is, whether the intelligence of extrinsic circumstances which might influence the price of the commodity, and which was exclusively within the knowledge of the vendee, ought to have been communicated by him to the vendor? The court is of opinion that he was not bound to communicate it." The fact withheld in this ease, was the news of the peace concluded between Great Britain and the United States, and the article purchased, was tobacco, materially enhance ! in price by this intelligence.

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GEORGE DELAHUFF vs. ABNER REED.

The want of the original process, to bring the party into court, when he appeared, and took defence, cannot be taken advantage of by writ of error.

It is very doubtful, whether there is any mode, in which such defect could be taken advantage of, after appearance, defence, and verdict, but if there be any made, it is by writ of certiorari.

The omission to state in the declaration, the sum claimed, and the date of the promise, may be taken advantage of by special demurrer, but such error is cured by a verdict. A verdict will aid a title or demand defectively set out, but not a defective title. Where there is a defect, imperfection, or omission, fatal on demurrer, yet, if the issue be such, as necessarily requires on the trial, proof of the facts omitted, or imperfectly stated, without which, the party could not recover, it is cured by verdict.

OPINION OF THE COURT-BY THE HON. JOHN TAYLOR.

This is a writ of error, to the superior court of Wilkinson county. The errors assigned are.

1st. There was no original writ.

2nd. No date, on which the promises should have been made, nor sum of money mentioned in the declaration.

3d. The jury ought to have been sworn to try the issue, whereas they were sworn to give a true verdict. On the first and third errors, whether the want of an original process, to bring the party into court, could in any way be taken advantage of, after the party appeared, and took defence, is very doubtful. If it could, it must be after such a suggestion on the record, and so sustained on a writ of certiorari, for the leading process, makes no part of the record, unless made so in this way. As to the third error; on an inspection of the record, it appears, not only substantially, but formally correct. After setting forth the issues joined in the cause, it goes on to state, that the jury were sworn to enquire of the premises.

With respect to the second error assigned, it certainly would have been fatal on a special demurrer, but the court are of opinion, it is cured by the verdict. From all the authorities, it appears, that where there is a defect, imperfection or omission, which would be fatal, on demurrer, yet if the issue be such, as necessarily requires on the trial of the cause, proof of the facts omitted, or defectively, or imperfectly stated, without which, the party could not recover, it is cured by the verdict, for it is to be presumed, that these facts were so proved.-11 Johnson, 143 Salk, 662. 2

Johnson 550. 1st Call. 91 253. 1 Term Rep. 144. 2 Bacon Ab'r 24. 4 Bur. 2455. 1 Saunders 129. Con. 826. Bur 2018.

Where the declaration wants a statement of time, place, and other circumstances, these defects may be cured by a plea in bar, and the finding of a jury. 8 Co. 120, 7 Co. 25. Dyer 15, pl. 78, 396, pl. 62. Cro. Car. 209. Co. Lit. 303. C. Pow. 149. I Tidd's prac. 405.

Again, a verdict will aid a title or claim defectively set out, but not a defective title or demand. That is, nothing is to be presumed, after verdict, which is not stated in the declaration, or necessarily implied therefrom. 2 Tidd's prac. 827. Dong. 683.

In the present case, the plaintiff has shown a good cause of action, that is, a valuable consideration, and a promise to pay. The omission is, the time of the promise, and the value of the articles. Those defects or omissions are clearly within the foregoing rules, and are cured by the pleas, and the verdict of the jury. In the language of the authorities, it is a good title, defectively set out. The amount and value of the goods, or the sum promised to have been paid therefor, must have been proved to the jury, or it is not be presumed, they would have found for the plaintiff, and in establishing the sale of the goods, the date of the transaction must have appeared. The judgment of the Court below must be affirmed,

SAMUEL STOCKETT vs. JAMES NICHOLSON.

The authority of the County Court to order public roads to be laid out, is a special delegation of power, and must be strictly pursued, or all its acts are absolutely void. The court cannot lay out a public road, but only order it to be done by a jury. Neither the court, nor the jury, can exercise powers delegated to the other, nor can a road be established, till the Court order it, and the jury lay it out.

The jury must lay out the road in the mode prescribed by the statute, or the road will not be legally established.

Where a court has no jurisdiction over the subject matter, or where an inferior court has jurisdiction over the subject matter, but is bound to adopt certain forms in its proceedings, from which it deviates, the proceedings, in either case, are coram non judiceand constitute no justification in an action of trespass. The county court is an inferior tribunal, and if it steps beyond the limits of its jurisdiction or power, its act

are absolutely void, and may be so regarded in an action of trespass, though not ar rested by appeal or certiorari.

The defects of the proceedings of the county court, cannot be supplied by parol testitimony. Their proceedings must be recorded, and can be proved only by the re

cord.

Motion to set aside a non suit transferred from Wilkinson Superior Court.

Rankin and Harding for the motion, contended.

In pleadings, and proof under them the allegata and probata, must correspond. If matter in avoidance or justification is set up in a plea by the defendant, the proof must correspond. The justification relied upon by the defendant, for the commission of the trespass in this case, is to be found in the record of the proceedings of the County Court of Wilkinson County, purporting to establish a public road, over the premises of the plaintiff. We object to this record, on the ground that the county court is an inferior tribunal, of special and limited jurisdiction, that the provisions of the statute are its letter of attorney, and that it must strictly pursue the power delegated by the statute, and that all this must appear on the face of the proceedings, and that if it does not so appear, those acting under such void authority are trespassers. The proceedings of the County Court show manifestly, that they did not pursue the provisions of the statute, in laying out the road, and consequently their order constituted no justification, and should not have been permitted to be read as evidence to the jury. 5 Bin. 612.

Reed against the motion contended.

The County Court proceeded regularly, and persons acting under their authority, were not culpable. The jury did report, substantially, as required by the law, and the order of the County Court was valid. But can that inquiry be entered upon, collaterally, under the issue in this case, and if the proceedings of the County Court were irregular, were not the proper remedies, by appeal or certiorari? Can a man acting under the positive order of the county court, be held liable for damages to individuals, and could the defendant, as overseer of the roads, have refused obedience to the order? When a defendant sets up a judgment, even of a foreign court, the judgment will be taken as final and conclusive, if the court had jurisdiction over the subject matter.

Swifts Ev. 2, 13.

Phil. Ev. 251, 252, 254. Peakes Ev. 77. 2 Am. dig. 278. 4 Days 407. Hardress 480, 483. 1 Esp. N. P. 390. 2 Wilson 385. 1 Salk 408. Bullers' N. P. 230.

OPINION OF THE COURT-BY THE HON. JOHN TAYLOR.

This is an action, brought in the Superior Court of Wilkinson County, for trespass, in breaking and entering the plaintiff's close, treading down the grass &c. to which the defendant has plead not guilty, and justification as overseer of the road, under the judgment and order of the county court of said county.

On the trial of the cause, the defendant, under his plea of justification, offered in evidence a record of the county court of Wilkinson county, establishing, as he alleged, a public road, over the land upon which the said trespass is supposed to have been committed. This record states, that a petition of sundry persons was presented to the court, praying for a road, leading from Woodville, the nearest and best way to the line of demarcation, at or near Robert Davis' plantation, that the said petition was allowed, and a jury appointed to mark and lay out the road, and report to the next court. The order issued by the clerk, directs the jury, to view mark, and lay out a road, from Woodville, passing near the plantation of Moses Hadley, John Audebert, Moses Liddle, and Jeremiah Nolan, to intersect the line of demarcation, at or near Col. Stockett's plantation. The jury made the following report, "We the jury, appointed to view a road leading from Woodville to St. Francisville, near the line of demarcation, at or near Col. Stockett's plantation, report that the road can be a good one," upon which, the court made the following order. "The court grant the above road, on condition, that it is not to deviate more than from the sectional line."

On the trial, the plaintiff's counsel objected to this record going to the jury. The court admitted the evidence, reserving the point for the further consideration of the court, upon which, the plaintiff suffered a non suit, subject to the determination of the court, on the point reserved. The cause was afterwards transferred to this court, for argument and decision.

The act of assembly, authorising the laying out of roads, empowers the county court, to order the laying out of public roads when necessary, and directs,that all roads thereafter to be laid out,shall be laid out by a jury

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