tainer. And, in so doing, I must consider these three corporations as constituting one continuouBtclient from January 1, 1876, to July 17, 1881, which, for convenience, may be considered five years and seven and a half months. And in fact this is the way the plaintiff treated them, and he so testified. This retainer, in my judgment, should not exceed $1,200 a year, or $6,750 lor the whole period. Add to this the two foreclosure fees of $756.80, and we have the sum of $7,506.80, which the plaintiff is entitled to r"ecover, with legal interest-$900.81-from the commencement of the action, or the period of one year and six making in all the sum of $8,407.61. The findings of the referee are set aside, and findings by the court in accordance with this opinion will be filed in their stead.
and others v.
August 4, 1884.)
A mere allegation of fraud in general terms, without stating 'the 'facts upon which the charge rests, is insufficient. '
BOND TO PERFORM DECREE-BREACH-NEGLECT TO READ BEFORE SIGNING.
A person capable of reading and understanding an instrument which sign's, is bound in law to know the contents thereof, unless prevented by soma fraudulent device, such 88 the substitution of one instrument fOl" auother.
tn an action for breach of 1\ bond given in a suit in equity brought by a stockhoider in cehalf of himself and other stockholders, the obligors cannot defeat the action by pleading that the court had no jurisdictioll of the suit in equity because the bill failed to allege that the corporation ha.\ been requested and had refused to bring the suit, the record made part of the plea showing that tbedefendallt was personally served and appeared in such suit.
SAME-PLEA TO JURISDICTION.
DureBs at common law, when no statute is violated, is a personal defense that can only be Bet up by the person subjected to the duress, and duress to the principal upon a bond will not avoid the obligationof the surety; at least, unless the surety, at the time of executing the obligation, is ignorant of the circumstances which made it voidable by the principal.
BAME-ltELEASE BEFORE BREACH.
A release by the receiver of a corporation,appointcd in Pennsylvan4t, Is not a good ground for defense in an action for a breach, which consisted in the non-performance of a decree afterwards passed by the supleme court of Rhode Island.
Action of Debt on Bond. Edwin Metcalf, for plaintiffs. Saml. R. Honey and Arnold Greene, for defendant. Before GRAY and COLT, JJ. GRAY, Justice. This is an action of debt, commenced in the supreme court of the state of Rhode Island, on March 3, 1883, by four cit,izens of Rhode Island against a citizen of New York, on a bond dated
August 24, 1868, and executeq by Thomas C. Vurant as principal, and the defendant and S. Dexter Bradford as sureties, binding them jointly and severally to the plaintiffs in the sum of $53,735, the condition of which is that Durant "shall on his part abide and perform the orders and decrees of the supreme court of the state of Rhode Island in the suit in equity of Isaac P, Hazard and others against Thomas C. Durant and others, now pending in said court within and for the county.of Newport." The breach assigned in the declaration is that Durant has not performed, a .decree by which that court, on December 2, 1882, ordered him to pay into its registry the sum of $16,071,659.97. After oyer prayed and granted. the defendant filed 10 pleas in bar, and the case was removed on his petition into this court, where the plaintiffs have filed special demurrers to five of the pleas, which have now been argued and will be considered in their order. The second plea alleges that the supposed writing obligatory "was obtained from the said defendant by the said plaintiffs; and others in collusion with them, by fraud, covin, and misrepresentation, and that the said writing was executed in confidence of such misrepresentations," The demurrer to this plea assigns for cause that the defendant therein "nowhere sets forth any instance of or facts constituting forth the misrepresentations by which fraud or covin, nor does he said writing obligatory is alleged to have been obtained." Th.is plea is drawn in accordance with the rules and forms given in 1 Chit. Pl. (7th Eng, and 16th Amer. Ed.) 564, 608, and 2 Chit. PI. 393. Bnt the only authorities which Mr. Chitty cites al'e the early precedents of Wimbish v. Tailbois, 1 Plow, 38a, 54a, and Treshatn's Case, 9 9 Rep. 107b, UOa, in which it is said "covin is so secret, whereof by intendment another man cannot have knowledge;" and the obiter dictum of Lord ELLENBOROJJGH in Hill v. Montagu, 2 Maule & S.377, 378, that "fraud and covin usually consist of a multiplicity of circumstances, and therefore it might be inconvenient to require them to be particularly set forth." Both these reasons find a conclusive answer in the clear and emphatic stat.ement of Mr, Justice BULLER, that by every l'ule of pleading "wherever one person charges another with fraud, he must know the particular instances on which his charge is founded, and therefore ought to disclose them, The rule in pleading is this: that wherever a subject comprehends multiplicity of matters, to avoid perplexity, generality of pleading is allowed, as a bond to return a,ll writs, etc. But if there be anything specific in the subject, though consisting of a number of acts, they must be all enumerated." J'Anson v. Stuart, 1 Term R. 748, 758. And by the weight of modern authority, English and American, it is well set· tled that at law, as in equity, a mere allegation of fraud in general terms, without stating the facts on which the charge rests, is insufficient. Lord Chancellor SELBOURNE, Lord HATHI1lRLEY, and Lord BLACKBURN, in Wallingford v. Mutual Soc. 5 App. Cas. 685, 697,701., .
709; Service v. lIeermance, 2 Johns. 96; Brereton v. Hull, 1 Denio, 75; Weld v. Locke, 18 N.H. 141; Bellv.Larnprey, 52N.H.41; Phil· lips v. Potter, 7 R.1. 2ti9, 300; Ste1'lillg v. Mercantile Ins. Co. 39 Pa. St. 75; Gile's v. WilliG'lns, 3 Ala. 316; Hynson v. Dunn, 5 Ark. 395; Hale v. West Virginia Co. 11 W. Va. 229; Capuro v. Builders' [itS. Co. 39 Cal. 123; Cole v. Joliet Opera House, 79 Ill. 96. 'l'he third plea (relying upon the distinction affirmed in Griswold, Pet'r, 13 R. 1. 125, to exist between a bond to "abide and perform"
and a bond to "abide" a decree) alleges that the "said writing was ob· tained from the said defendant by the plaintiffs, and by others in collusion with them, by fraud, covin, and misrepresentation; that is to say, that heretofore the said Thomas C. Durant was arrested on a writ of ne exeat, issued from the supreme court of the state of Rhode Island, in a suit in equity, wherein one Isaac P. Hazard was complainant, and the said Durant and others respondents, which suit is the suit in equity mentioned in the condition to said supposed writing obligatory; and that the plaintiffs, with other persons colluding with them and assisting them as their agents and attorneys, procured the signature of the defendant to said supposed writing obligatory, representing to him that said writing was a bail-bond, and a bond conditioned that said Durant should abide the orders and decrees of the said supreme court in said cause; and that the defendant signed and sealed said writing, relying upon and believing such representations made by the plaintiffs, and such other persons colluding with them and assisting them as their agents and attorneys, all which representations were untrue and false, and by means of said misrepresentations the de· fendant, in confidence thereof, signed and sealed said writing." For causes of demurrer to this plea, thtl plaintiffs have assigned that the defendant does not allege therein that he is an illiterate Or a blind person, ,and that upon his request to have the writing read to him it was falsely read, nor tha.t he had not himself readit, noi"that he was ignorant of its contents; nor that his signature to it was obtained by the fraudulent substitution of it for another instrument, which it was his intention to execute as su-rety, nor any other facts showing that he did not in fact know and was not bound in law to' know its legal tenor and effect, or which would entitle him to rely upon the alleged representations of the plaintiffs and their agents and attorneys. This plea is clearly insufficient, for the reasons assigned in the demurrer. A person, capable of reading and understanding an instrument which he signs, is bound in law to know the contents thereof, unless prevented by some fraudulent device,' such as the fraudulent substitution. of one instrument for another. This plea does not aver any fact to excuse or justify the defendant in relyilig: representations alleged to have been made in behalf of the plaintiffs. 'Thoroughgood's Case, 2 Rep. 9; Anon. Skin. 159; Mairte Irjs. Co; v. Hodgkins, 66 Me. 109; Seeright v. Fletcher. 6 Blackf:3S0jHawkins Y. Hawkins, 50 Cal. 558.
HAZARD V. GRISWOLD.
The fourth plea, of which a copy of the bill and record in the suit in equity in the supreme court of Rhode Island, mentioned in the bond sued on, is made part, alleges that it appears from an inspec. tion of thai bill and record that that court had no jurisdiction of the bill, or of the matter therein set forth, and that there was nothing al· leged in the bill. upon which that court .could make any valid order or decree whatever, except to dismiss the bill, and that no decree had been made in the suit which the defendant could be lawfully called upon to abide and perform. This plea is demurred to, on the gl'ound that it nowhere alleges that that 'court had not jurisdiction of that sqit by reason of Durant's therein as defendant or sub· mitting himself to the jurisdiction of the court, or that that court had not jurisdiction of the suit and of Durant, or that its orders and decrees therein were not valid and binding upon him. The record of that suit shows that personal service was made on Durant within the jurisdiction of the court, and that he appeared in the suit. The bond, so far as this plea shows, was voluntarily given by Durant, and by the defendant as his surety. The only ground, appearing on the record or suggested in argument, for impugning the jurisdiction of the court, is that the bill, which was filed by Hazard, in behalf of himself and other stockholders in the Credit Mobilier of America. to charge Durant with certain funds of that corporation, did not contain sufficient allegations that the corporation had 1:>een requested and had refused to bring suit against Durant, to support a bill in behalf of the stockholders, within the rule established by the supreme court of tho United States in Hawes v. Oaklaltd, 104 U. S. 450. But the supreme court of Rhode Island is a court of general equity jurisdiction, and as such entertained that suit. Pub. St. R. 1. c. 192, § 8; Hazard v. Durant, 11 R. 1. 195, and 14 R. 1. --. The defect sugge:lted is not want of jurisdiction over the whole subject, but incompleteness in the statement of the facts required to justify the stockholders in invoking the exercise of that jurisdiction. Such a defect or informality cannot be availed of by either of the obligors to defeat an action upon the bond; and whether want of jurisdiction of the former suit on any ground could be set up in defense of this action need not be consid· ered. Jesup v. Hill, 7 Paige, 95; Griswold, Pet'r, ubi supra. The fifth plea alleges. that Durant, at the time and place of the making of the supposed writing obligatory, "was unlawfully iniprisoned by the said plaintiffs and others in collusion with them, and then and there detained in prison, until, by the force and duress of impqsonment of him, the said Thomas C..Durant, he, with the said defendant as surety,made the said writing, signed and sealed and delivered the same to tue said plaintiffs as their deed." To this plea the plaintiffs have demurred, because it does not allege that the writing was executed by the defendant under force and duress ofimprisonmentof himself, nor that he did not voluntarily execute it as surety with· knowledge that it was executed by Durant as principal
under force and duress of imprisonment, as alleged in the plea. This plea does not set forth facts enough to make out a defense. Duress at common law, where no statute is violated, is a personal defense, which can only be set up by the person subjected to the dtlress; and duress to the principal will not avoid the obligation of a surety; at least, unless the surety, at the time of executing the obligation, is ignorant of the circumstances which render it voidable by the principal. Thompson v. Lockwood, 15 Johns. 256; Fisher v. Shattuck, 17 Pick. 252; Robinson v. Gould, 11 Cush. 55; Bowman v. Hiller, 130 Mass. 153; Harris v. Carmody, 181 Mass. 51; Griffith v. Sitgreaves, 90 Pa. St. 161. The case of Hawes v. Marchant, 1 Curtis, 136, )n this court, was not a case of duress at common law, but of oppression by the illegal exercise of official power in excess of statute authority, and was decided upon that ground. The seventh plea, setting up a release executed to Durant in 1881 by a receiver of the corporation appointed in Pennsylvania, is clearly bad, because that release was executed a year before the decree of the supreme court of Rhode Island, the non-performance of which is the breach alleged ill the declaration. The release, if it had any legal effect, could only be availed of by pleading it in that court be. fore the decree. Biddle v. Wilkins, 1 Pet. 686. Demurrers sustained.
In re AH
CHINESE RESTRICTION ACTS DENCE.
f,Oireuit Court, D. California.
August 7, 1884.)
CERTIFICATE OF COLLECTOR OF PORT -
With reference to Chinese laborers re·entering the United States after hav. ing once left, congress did not intend. in the amendatory act of July Ii, 1884, that the certificate of the collector of the port, required by section 4 of the orig. inal statute, should be produced by such Vhmamen as had departed from the United States before it would have been possible to obtain the certificate from the collector. The presentation of such a certificate gives the Chinese a prima faCie privilege to return, but the privilege may rest upon evidence other than the certificate, bearing upon the facts it would have proved.
SAME - CHINESE, O'l'HER THAN LABORERS, JULY Ii, 1884.
!iOUTB TO UNITED l:3TATES ON
Chinese, other than Chinese laborers entitled under the treaty with China. and not prohibited from entering the United States by the restriction acts, who left China or other foreign country before July Ii, 1884, on their way to enter the United States, are now entitled to enter, upon such sl\tisfactory evidence as was recognized as competent and sufficient before the amendatory act of .T uly 4, 1884.
SAME-CERTIFICATE-GooD ONLY TO ADMIT INDIVIDUAL DESCRIBED IN IT.
The certiflcate required of returning Chinese cannot entitle the .wife or chilo dren of the holder to enter with him. There must be either an independent certificate for each, or else the certificate issued to the husband or father must contain also a certificate of the facts required, both as to the wife and each minor child sought to be introduced.