
    DUBOIS v. LOPER.
    In debt on bond, defendant pleads that plaintiff falsely asserting (what he knew to be false) that the defendant was legally liable to pay him a certain sum of money, and thereby induced him to execute the bond in question — this plea is bad on demurrer.
    
      This was an action of debt brought on a bond executed by Loper to Dubois for £90, conditioned for the payment of £45. The defendant prayed oyer of the bond and condition, which, being set forth, he pleaded, first, non est factum ; second, [383] that before and at the time of executing the said bond to Dubois, he, the defendant, was seized and possessed of one acre and three-quarters of an acre of land or cedar swamp in Pittsgrove, and did sell to one Birch the trees growing thereon. That on the 30th of August, 1792, Dubois falsely and deceitfully declared and affirmed to the defendant that Birch had cut and carried away fifteen trees standing on his, the plaintiff’s, land, and that Loper was liable to pay Dubois £3 for each tree, under the act of assembly, he, the said Dubois, well knowing, at the time, the affirmation was false, and that the trees were, in fact, cut on the land belonging to Loper; and this writing obligatory was given for this cause, and for none other, and so was had and obtained by fraud. The third plea was per fraudem generally.
    The plaintiff took issue on the first and third pleas, and demurred to the second.
    The demurrer was argued by L. II. Stockton and Pearce, for the plaintiff, and by Leake, for the defendant.
    For the plaintiff—
    1st. The plea, if considered as merely stating a want of consideration, cannot be supported, an allegation of want of consideration being no defence to an action of this kind. 1 Powell on Cont. 333; 2 Bl. Com. 446; 3 Burr. 1669 ; Pillans v. Mierop, 1 Esp. 316 ; Cowp. 47; Jenk. Cent. 108, 9, pl. 9 ; Ib. 166; Morris v. Lutterel, Cro. El. 672 ; Finney v. Finney, 1 Wils. 34; 1 Bac. Abr. 112, “Agreements,” B 2.
    2d. If the plea was intended to exonerate the defendant on the ground of fraud, the facts stated do not amount to that species or degree of fraud which would authorize the interposition of the court to avoid the deed. It states that Dubois falsely, and knowing it false, affirmed Birch had cut his trees, and Loper, to make him amends, gave his bond for the penalty.
    But the mere assertion of an untruth, without other artifice, particularly in a case where the party deceived had it in his power to obtain correct inform ition, will not avoid a contract solemnly entered into. There must be some artful device, sufficient to ensnare a man of ordinary prudence, to eon-[384]-stitute fraud. 3 Bac. Abr. 294, “Fraud,” A; Thoroughgood’s case, 2 Co. Rep. 9; 1 Burr. 397; Salk. 211; Cro. Jac. 196; 7 Bull. 30, 31.
    
      Thoroughgood’s case illustrates the distinction which has been taken. The reason why the bond was in that case adjudged void was not because read falsely, but because it was read falsely to one that was unlettered and could not read it himself. If the defendant had himself been able to have read the instrument, his plea that it was falsely read would have been rejected.
    It is more fully adopted by the court in the case of Bayley v. Merril, Cro. Jac. 386, where it was held by the court, on a motion in arrest of judgment, that on an agreement to carry goods at so much per hundred weight, an action will not lie for falsely affirming the goods weighed less than they actually did, because the plaintiff might have inquired into the truth of the assertion. In the language of the court in that case, “ it was his gross negligence that he would undertake a weight so -far exceeding the affirmation without causing it to be weighed.”
    
      Leake,'contra.
    
    The demurrer admits the allegations contained in the plea, viz., that the plaintiff did falsely and knowingly affirm, &c., by which means he prevailed upon the defendant to enter into the bond. This comes up entirely to the idea which my mind entertains of fraud. A suggestio falsi, as well as a suppressio veri, will, and ever ought to, vitiate contracts. The plaintiff procured this instrument by a plain and willful lie, and this fact is admitted by the demurrer.
   Pub Cue.

The plea is clearly bad. There must be judgment for the plaintiff on this demurrer  