
    
      Lester v. Zachary.
    
    This was an action of debt, on bond, for 1000l. which is resisted on the ground of fraud and imposition, in obtaining the bond. Evidence of the inadequacy of the value of the bond, among other circumstances, to prove the fraud, was received by the Court.
   Henderson, J.

delivered the opinion of the Court.

In declaring that evidence of the inadequacy of the consideration of the bond was properly received on trial, it is not intended by the Court to countenance, in the most distant manner, an idea that the bond, for that cause, is invalid. The law is too well settled to the contrary, to permit that point to be even doubted; for, if a bond is good without any consideration, inadequacy of consideration cannot vitiate it. But where the contest is, whether the bond was ever made, or if formally made, whether under such circumstances of fraud and imposition as to render it void in law, inadequacy of consideration may be received as a circumstance to shew the truth of the defence.

With respect to the surprise disclosed in the plaintiff’s affidavit, that he had been informed, by his counsel, that evidence of the above description was inadmissible, and that he was, therefore, unprepared to rebut it, it is to be lamented if the fact be so—but it is out of the power of this Court, without introducing a rule, pregnant with inconvenience, to remedy it. Surprise, in questions of law, arising at the trial, it is true, affords good ground for a new trial; but then the questions should be such as really afford room to doubt: If every mistake of counsel, however plain the point might be, afforded causes for new trials, applications of this kind might be without number. We, therefore, think that there should not be a new trial.  