
    Anderson v. Johnson and others.
    
    Under a replication to a plea of a release in bar, that the release was obtained from the plaintiff' by fraud, the plaintiff can only prove fraud in its execution ; such as a fraudulent reading of the release, or its substitution for some other paper, or that by some device a different instrument was given from that intended. Ho cannot prove that the release was obtained from the plaintiff in fraud of the rights of his attorney to whom the demand released equitably belonged.
    (Before Oakley, Ch. J. and Vakdekfoel and Sahdford, J. J.)
    March 13;
    April 14, 1849.
    This was an action of debt on a bond for $250, dated January 13,1842, executed to the plaintiff Anderson, by Johnson as principal and the other two defendants as sureties, on suing out a writ of error from the common pleas of New York to the late supreme court, to remove a judgment recovered by Anderson against Johnson. The condition was in the usual form, that Johnson should pay the judgment below with costs and damages, in case the judgment were affirmed.
    The declaration counted on the bond, and for breach, set forth the affirmance of the judgment in the supreme court, with costs and damages, and the omission of Johnson to pay the same.
    The defendants pleaded a release under seal, executed to them by Anderson alter the commencement of the suit on the bond, by which he released and discharged the bond and all sums due or to grow due thereon, and all actions, &c., upon or growing out of the same.
    To this plea the plaintiff replied, that the release was had and obtained from him by fraud and covin of the defendants, upon which issue was joined.
    At the trial in December, 1848, the defendants proved the release executed by the plaintiff, dated .January 29, 1848. The consideration was proved to be a receipt given by the deiendant Watson to the plaintiff for $150, on a judgment in favor of Drummond and Watson against the plaintiff, and the payment of iifteen dollars in money. The defendants read in evidence the record of the last mentioned judgment, which was for $295 2<>. recovered in this court,, for costs, in a suit of Anderson against Drummond and Watson, in March, 1845.
    It was then proved on the part of the plaintiff, that the judgment recovered by the plaintiff on the writ of error in the supreme court was for costs only, and that Samuel F. Clarkson was the attorney for the plaintiff in that suit, as well as in this. That on the 2<)th of November, 1843, Mr. Clarkson gave a notice in writing to the defendants in this suit, that the judgment on the writ of error was for costs, and belonged to him ; that Anderson had not paid any part of the costs to him, either in that suit or in thfe court below, and that the now defendants were forbidden to settle the costs with any one except him. That on the 12th of January, 1848, a notice in this suit was served on Mr. Watson as defendant and as attorney for the defendants, referring to the former notice, stating that Mr. Clarkson's cosls were not paid, forbidding them to make any settlement with Anderson, and notifying them that any settlement with him would be illegal. The evidence of these notices was objected to by the defendants.
    The defendants then called the plaintiff as a witness, who testified that he executed the release freely and fairly, after consultation with bis own counsel; that be did not authorize this suit to be commenced ; and that the suit against Drummond and Watson, which resulted in the judgment against him, was prosecuted by Mr. Clarkson without his consent, and for his own benefit.
    The judge directed a verdict for the plaintiff, with leave to the defendants to move to enter a nonsuit. They moved accordingly on a case.
    IF. Watson, for the defendants,
    cited 2 Hall’s R. 433 ; 9 Co wen 34; 3 John. 425 ; It John. 291; 1 Mass. R. 117.
    
      8. F. Clarkson, for the plaintiff,
    cited 1 Chitty’s PI. 570 [613]; 2 M. and Sel. 378 ; 1 John. Cas. 411; 11 John. R. 49; 15 ibid. 405; 1 Coven 174; 4 ibid. 416; 13 Wend. 419; 1 Wheaton 233.
    
      
      
         This and several of the cases which follow, were omitted in their regular order, because they could not be prepared for the press in time.
    
   By the Coukt.

Oakley, Oh. J.

The question arises on the testimony offered in support of the replication, and whether the latter can be sustained by such evidence.

The defendants contend that the only fact put in issue bv such a replication to a plea of a release, is whether the release was obtained by any fraudulent device or practice, as by substituting one paper for another. He referred to Belden v. Davies, 2 Hall’s R. 433, in which there was an attempt to impeach a release by showing fraud in the consideration on which it was founded; and the court held the evidence to be inadmissible, on the ground that the only fraud which could he pleaded at law, to avoid a deed, was fraud in its execution, such as a fraudulent reading of it, or the substituting of one instrument for another, or the obtaining by some device such an instrument as the party did not intend to give.

This decision., it will be observed, was before the revised statutes, which allow the obligee to palead and prove the want of consideration in defence of an action upon a sealed instrument. We do not think, on consideration, that the rule is altered as to the effect of a plea setting up fraud in the execution of the instrument. Under such a plea, we think that the same evidence, and no other, may be given, as was admissible in support of it before the revised statutes.

In a case like that sought to be proved by the plaintiff, the facts must be stated upon the record, in order to enable the court to protect the rights of the party. The plaintiff relied very much upon Martin v. Hawks, 15 John. 405; but that case differs essentially from this in the manner in which the question was presented. There the matter relied upon to defeat the release came up in evidence, in answer to a special notice with the plea of the general issue, setting up the release of the plaintiff in the judgment, in an action of debt for an escape, prosecuted by the attorney in the name of the plaintiff. It is true that the court there upheld the lien of the attorney for his costs (the judgment being for costs only), against the effect of the plaintiff’s release to the sheriff; but the case has no bearing upon the point before us.

The mistake here consists in putting in a general replication, per fnmdem, instead of replying the special circumstances relied upon to show the equity of the attorney.

The plaintiff must be nonsuited, pursuant to the reservation to that effect at the trial.  