Legal Opinion

Fitzgerald v. Smith

Indiana Supreme Court

Decided November 15, 1848Published

ERROR to the Grant Circuit Court. Trover, by the plaintiff in error against the defendants in error, for the conversion of 400 canal land certificates, commonly called scrip, of the denomination of five dollars each. The defendants pleaded in bar, a release, of which the plaintiff obtained oyer.

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ERROR to the Grant Circuit Court. Trover, by the plaintiff in error against the defendants in error, for the conversion of 400 canal land certificates, commonly called scrip, of the denomination of five dollars each. The defendants pleaded in bar, a release, of which the plaintiff obtained oyer. It was in the usual form releasing -Smith, one of the defendants, “ from all causes of action, debts, contracts, trespasses, damages, judgments, claims and demands whatsoever, either in law or equity. The plaintiff replied to the plea, that before the release, to wit, &e., he ivas possessed, as of his…

1Opinion of the CourtPerkins, J.

— “ A release without consideration, when the fact could be shown, was void at common law, and if executed without a seal, its want of consideration might be shown. Jackson v. Stackhouse, 1 Cow. 122. But if sealed, it then, like all other specialties, imported a consideration, which, at law, could not be controverted. Leonard v. Bates, 1 Blackf. 172; 1 Chit. Pl. 362, note 2. Our statute, however, has abrogated this rale of the common law. By it, the consideration of any specialty, when made the foundation of, or set up as a defence to an action, may be enquired into in like manner as though…

2Cases cited4 opinions

  1. Jackson v. StackhouseNew York Supreme Court · 1823
  2. Leonard v. BatesIndiana Supreme Court · 1822
  3. Bateman v. DanielsIndiana Supreme Court · 1839
  4. Patterson v. SalmonIndiana Supreme Court · 1832

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