
    *Wyche v. Macklin. Same v. Same. Same v. Harwell. Gee v. Malone.
    May, 1824.
    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.
    Office-Judgment — Setting- Aside — Pleas to Be Received Thereon. — Where pleas are offered on setting aside an office-judgment, the Court may exercise a sound discretion about receiving them; and , should receive none (if objected to.) that do not go to the merits of the action.
    These were appeals from the Superior Court of "Law for Brunswick county. They were all actions of debt, founded on instruments under seal, on which office-judgments were obtained. In three of the cases, pleas were tendered by the defendants, alledging that the bonds were obtained by fraudulent misrepresentations; but, the Court refused to receive them. In one of the cases of Wyche v. -Macklin, the defendant pleaded a similar matter of defence, and the plaintiff replied the es-toppel .of the bond. To this replication, the defendant filed a demurrer. Judgment was rendered in all the cases for the plaintiffs, and the defendants appealed.
    Spooner, for the appellants.
    Gilmer, for the appellees.
    May 7.
    
      
      Specialty — Fraud—Effect.—It is not competent in an action at law on a specialty, for the defendant to avoid it by pleading that it was obtained by fraudulent misrepresentations made by the plaintiff. Hay v. Alexandria & W. R. Co., 11 Ned. Cas. 888, citing principal case. See also, citing principal case, footnote to Taylor v. King. 6 Munf. 358; Williamson v. Cline, 40 W. Va. 205. 20 S. E. Rep. 921; Fisher v. Bur-dett, 21 W. Va. 629; Sterling Organ Co. v. House, 25 W. Va. 88.
    
    
      
      lOffice Judgment, — Setting Aside — Pleas to Be Received Thereon. — It has been uniformly held that a plea In abatement is not an issuable plea or a “plea to the issue” which can be allowed under ch. 171, section 45 to set aside an office judgment. Hinton v. Ballard, 3 W. Va. 586. citing principal case. When a plea is offered to set aside an office judgment, though the court is to loot only to the matter of the plea, it should receive none (if objected to) that does not go to the merits of the action. It should reject all that contain no grounds of legal defense. Johnston v. Bank of Princeton, 41 W. Va. 557, 23 S. E. Rep. 519. See generally, monographic note on "Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
   JUDGE CABELE,

delivered the opinion of the Court.

These four cases depend on principles common to them all. The actions were brought on specialties; and the defendants sought to avoid -them by pleas, stating that the obligations had been obtained by fraudulent misrepresentations made by the plaintiffs:, But, the, circumstances relied on, did not relate to the execution of the specialties; they went to shew a want of consideration only.

*The case of Taylor v. King, 6 Munf. 358, is a .conclusive authority, that a specialty cannot be avoided in a Court of Law, on such grounds. The judgment in the case of Wyche v. Macklin, where this very question was brought before the Court by the demurrer, must, therefore, be affirmed. There is nothing in this opinion, opposed to the decision in Wormley’s ex’r. v. Moffet, 6 Munf. 120. There the plaintiff waived the estoppel, and. joined issue on the fact'. He was, therefore, held to be bound by the verdict. But, here he insists on the estoppel, and is entitled to its benefit.

It is contended, however, by the counsel for the appellants, that the Court below erred in the three other cases, in rejecting the pleas of the defendants; that the proper course was,- to receive the pleas, leaving it to- the plaintiffs to reply or to demur. But, as these pleas were offered on setting aside-the office-judgments, the application was addressed to the sound discretion of the Court. On such occasions, although the Court is to look only to the matter of the plea, it should receive none, (if objected to,) that does not go to the merits of the action; it should reject all that contain no ground of legal defence whatever.

In the case of Gee v. Malone, in addition to’ the plea which states the particular misrepresentations, alledged to have been made by the plaintiff, there is a plea stating, in general terms, that the obligation was obtained by fraud, covin and misrepresentation, by the plaintiff, in collusion with others, and concluding, that the obligation is, therefore, “void in law.” The conclusion of this plea shews, that the fraud complained of relates to the consideration only; and, therefore, as in the other more special pleas, it is unavailing in a Court of Law.

The judgments, in all the cases, are affirmed.  