
    *Chew Executor of Wormeley v. Moffett and Wife Who Was Administratrix of Carter.
    
      Decided, Feb. 18th, 1818.
    3. Debt on Bond — Issue on Question of Fraud- Effect  —In debt on a bond. If the defendant plead that the same was obtained by false sng-g-estions and misrepresentations by the plaintiff, “as per preamble in the said bond;” and the plaintiff join Issue as to the fact; which issue Is found as ainst him by a Jury; whatever estoppel (if any) might have been to such plea, is thereby waived, and judgment ought to be for the defendant,
    a. Same — Same Verdict — Sufficiency.--Issue being joined on a plea that a bond was obtained by fraud, a Verdict, “for the defendant, because the Jury believe the bond was obtained by fraudulent means,” is sufficiently positive and certain.
    An action of Debt was brought in the County Court of Middlesex, by Anne B. Carter administratrix with the will annexed of Charles B. Carter deceased, who was assignee of Carter Beverley, against Eleanor Wormeley, Ralph Wormeley and Warner E. Wormeley, upon an obligation in the following words:—
    “Whereas it appearing, by the Will of Ralph Wormeley Esqr. deceased, that his daughter Jane had not been provided for as had been promised to her at her marriage with Carter Beverley Esqr., and whereas the said Ralph Wormeley having uniformly promised that he would at his death bequeath to his daughter aforesaid two thousand pounds, We the undersigned, from a full conviction of the equity his daughter Jane has in and to the sum of two thousand pounds intended to have been left her by her father, instead of the two thousand dollars mentioned in his Will, and from the mutual affection that ever existed between her father and herself, desirous as we are to perpetuate the same good understanding, and that there should exist every degree of harmony in the family of the said Ralph Wormeley towards her and her husband; solicitous too as we most ardently feel to repair the mistake that was made by Ralph Wormeley Esq. aforesaid in mentioning dollars instead of pounds to his daughter Beverley, do hereby mutually agree to adjust the same, and lor the payment of which well and truly to be made, we Eleanor Wormeley mother of said Jane, and Ralph Wormeley and Warner Eewis Wormeley brothers of said Jane, do hereby bind ourselves jointly and separately, our joint and separate heirs, executors and administrators in the penal sum of twenty eight hundred pounds current money.”
    “Whereas the condition of the above obligation is such, that, if the above bound Eleanor Wormeley, Ralph Wormeley and Warner Eewis Wormeley, shall well and *truly pay or cause to be paid to the said Carter Beverley, his heirs, executors, administrators or assigns, the just and full sum of fourteen hundred pounds, exclusive of the two thousand dollars bequeathed by the said R. Worme-ley as aforesaid, then the above obligation to be void, or else to remain in full force and virtue, dated this 7th day of February in the year of our Lord one thousand eight hundred and six. Signed, sealed &c.”
    
    The declaration was in the usual form, in debt, on an assigned bond. The following plea was put in by the defendants.
    “These defendants by their Attornies come into Court, and, by leave of the Court first had and obtained, defend the force and injury when &c., and, for plea in this behalf say, that the plaintiff ought not to have and maintain her action aforesaid upon the bond in the declaration mentioned, because they say that the said bond was obtained from these defendants upon misrepresentations and false suggestions made by the said Carter Beverley, and by various undue and unfeeling means, by which the feelings and minds of these defendants were operated upon ; the consideration upon which the said bond was founded being excited and created by false suggestions, as per preamble in the said bond; these defendants having been induced to believe that Ralph Wormeley deceased had made a promise in his lifetime to the said Carter Beverley to make up his wife Jane’s fortune to 30001., which is untrue; and being also induced by the declarations and conduct of the said Beverley to believe that the testator Ralph Wormeley did in his Will make a mistake in setting down $2000, when he intended 20001., as bequeathed to his other daugh~ ters; all which is found to be untrue; it now being discovered to these defendants that the said Ralph Wormeley not only intended to make his daughter Jane the wife of the said Carter Beverley equal to his other daughters, but did actually do so, by advancements in money and negroes in his lifetime, which, together with the $2000, make up her part to 20001., the sum *devised to his other daughters: and this these defendants are ready to verify, &c.”
    Anne B. Carter, the plaintiff, having married William Moffett, the suit was permitted, by consent of parties, to remain on the docket in the name of William Moffett and Anne B. his wife. “And the plaintiffs, in answer to the said plea by the said defendants pleaded, say that they ought not to be precluded from having and maintaining their action against them, because they say there was no fraud committed in manner and form as the said defendants in their said plea have al-ledged; and this they pray may be en-quired of by the Country;” and “the defendants likewise.”
    Upon the issue thus joined, a trial was had; and the Verdict was, “We of the Jury find for the defendant, because we believe the bond was obtained by fraudulent means.”
    The suit having abated as to the defendants Warner I,. Wormeley by the Sheriff’s return of “no inhabitant,” and as to the defendant Ralph Wormeley by death, Judgment was entered in favour of Eleanor Wormeley according to the Verdict.
    The plaintiffs applied for a Writ of Su-persedeas to this Judgment on the following grounds; 1st, that “the plea and verdict thereon did not shew any bar to the action ; because the defendant was estopped by her obligation to deny the truth of the, facts recited in the obligation; and because, even if she were not estopped, yet the facts, alledged by the plea, and found by the Verdict of the Jury to be true, were no bar, since they went to shew a fraud in the consideration and not in the execution of the bond; and fraud in the consideration of a bond can not be pleaded in bar, since a bond is obligatory without consideration:” — 2dly, “that therefore judgment should have been given for the plaintiffs non obstante veredicto; or, if not, that a repleader should have been awarded, the issue being immaterial:”' — 3dly, that, if the issue was material, the finding of the Jury is insufficient, not being positive, but presumptive. ’ ’
    The Superior Court of law was of opinion, that “the judgment was' erroneous in this, that the defendant’s *testatrix,” (the defendant Eleanor Wormeley having died, and John Chew, her executor, having been made defendant to the Writ of Supersedeas,) “was permitted to plead and alledge that as false, in bar of the plaintiff’s action, which she had by her deed acknowledged to be true, and which she was therefore by law estopped to alledge; and, although the Jury by their verdict have found the plea to be true, the finding is not more available than if the same had been admitted by a demurrer.” The judgment was therefore reversed with costs, the proceedings set aside subsequent to the declaration, and the cause sent back to the County Court for farther proceedings.
    Erom this judgment the defendant appealed.
    Green, Wickham and Stanard for the Appellant.
    Eeigh for the Appellees.
    
      
       Specialty — Fraud—Effect.—In an action at law, on a specialty, it is not competent for the defendant to •avoid it. by pleading that it was “obtained by fraudulent misrepresentations made by the plaintiff. Wyc’ne v. Macklin, 2 Rand. 427, citing principal case as authority. See further, monographic note, on “Bonds” appended to Ward v. Churn, 18 Cratt. 801: monographic note on “Fraud” appended to Montgomery v. Rose, 1 Pat. & H. 5. The principal case is also cited in Tomlinson v. Mason, fl Rand. 171.
      Pleading and Practice -Verdict between Parties in Another Suit — flow Taken Advantage «1--Before a j ury. there is no evidence in itself necessarily conclusive. There is no evidence which may not be contradicted, except in the case of an estoppel, and even then it must be pleaded and relied on as such, or the matter will be left at large. Even a verdict between the same parties, on the same matter in controversy, must be pleaded by way of estoppel, or it will not conclude; for, if they go to trial on the general issue, it will only be evidence to be weighed by the jury, and they may find against it. Henrico Justices v. Turner, 6Leigh 129, citing principal case as authority. See generally, monographic note on “Estoppel” appended to Bower v. McCormick, 28 G-ratt. 310.
    
    
      
       Same — Defective Plea — Jeofails.—Where an improper or defective plea raises a substantial defense toan action, and it is undirected to in the court below, and issue is thereon j oined, after verdict or judgment it is too late to object, the defect being cured by the statute of jeofails State v. Seabright. 15 W. Va. 595, citing the principal case. But when the plea, is so defective as not to raise a substantial defense to the action, the plea is bad even under the statute of jeofails, and a repleader ought to be awarded by the appellate court, though no objection was raised to the plea in the court below, and issue had been joined thereon. Callis v. Waddy, 2 Munf. 511; Tomlinson v. Mason, 6 Rand. 169; Dim-mett v. Eskridge 6 Munf. 308; State v. Seabright, 15 W. Va. 695.
    
   JUDGE ROANE

pronounced the Opinion of this Court.

The Court is of opinion that, the appel-lees having joined issue on the plea in question, instead of demurring thereto, the estoppel, now relied upon by them, (if one existed,) was thereby waived.

The Judgment of the Superior Court is therefore reversed, and that of the County Court affirmed.  