Legal Opinion

Fisher v. New-York Common Pleas

New York Supreme Court

Decided October 15, 1836PublishedCited by 52 opinions

[609] Motion for a mandamus. The relator moved for a mandamus to the New York common pleas, commanding them to vacate a rule for a new trial, granted by them in a cause prosecuted by one McWade against the relator. The action was covenant for rent due on an agreement under seal. The defendant executed the agreement as a surety for the lessee, who entered and held for three or four months.

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[609] Motion for a mandamus. The relator moved for a mandamus to the New York common pleas, commanding them to vacate a rule for a new trial, granted by them in a cause prosecuted by one McWade against the relator. The action was covenant for rent due on an agreement under seal. The defendant executed the agreement as a surety for the lessee, who entered and held for three or four months. The defendant had given notice with a plea of non est factum, pursuant to the statute, 2 R. S. 406, § 77, 78, -that he would impeach the instrument on the trial as obtained by fraud; and proved that the…

1Opinion of the Court

By the Court,

Cowen, J.

Without inquiring whether this be a case for a mandamus, within The People v. The Judges of the Superior Court, (10 Wendell, 285,) I am satisfied the motion must be denied on the merits. The new trial was granted on several grounds ; but the main one was clearly sufficient. Fraud cannot be predicated of a promise not performed, for the purpose of avoiding a written instrument, or a bargain of any kind. This case is no more. A contrary doctrine would avoid almost every contract for the breach of which a suit is to be brought.

[610] It is said, here was an intention not to…

2Cases cited2 opinions

  1. People v. Superior CourtNew York Supreme Court · 1833
  2. Commonwealth ex rel. Mishey v. BrennemanSupreme Court of Pennsylvania · 1829

3Cited by52 opinions

  1. Trist v. ChildSupreme Court of the United States · 1875
  2. Williams v. . IngersollNew York Court of Appeals · 1882
  3. Dillon v. BarnardSupreme Court of the United States · 1875
  4. Willcox v. SmithNew York Supreme Court · 1858
  5. Attorney-General v. Continental Life InsuranceNew York Court of Appeals · 1877

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