¶1Dissenting from the opinion just delivered, it would seem proper that I should give-the reasons upon which that dissent is founded. In examining the question, I shall advert to the common law; to adjudications in some of our sister states; to some statutory provisions; and to the case of Pence et al. v. Smock, decided by this Court at its May term, 1830.
¶2*176The general proposition is admitted, that fraud is a defence at law; but from this admission, it does not of consequence follow, that as a defence it is applicable, without qualification, to all actions, Or.that when appropriate, it is in the election of the pleader, to use'either a general or a special plea. Pleading is a science, and as such is governed by rules. When exceptions occur in the operation of these rules, they are supposed to be founded on the original inapplicability of the rule to the development of a principle, or upon some innovation or -modification of the doctrine, to which the rule ■ applies, rendering its enforcement a defeat of the object proposed to be attained. Without dwelling upon the system, with its rules “founded in strong' sense and the soundest and closest logic,” .peculiar to the various actions, promoting justice, and protecting against the greatest of evils in judicial proceedings,' uncertainty and confusion, — I will only remark, that to an. action of debt on a specialty, the general issue is non est factum, and that matter legally in .avoidance of the action, and unconnected with the execution of the instrument, must be specially pleaded.
¶3To present the 'question of the admissibility of this general plea of fraud, so as to prevent any misapprehension of my view of it, it is necessary to examine what evidence may be given under the plea of non est factum, and what matters in avoidance of a deed, should be specially, pleaded. ■ >
¶4A deed is either void at common law ah initio, or it is voidable. When it. is the foundation of a suit, the defendant may give in evidence under the- plea of non est factum, which plea is merely to the execution of the instrument, that it was void ab initio, as that it was obtained by fraud, a different instrument being substituted from that which the defendant supposed he was executing; that he was made' to sigh the instrument when so drunk as not to know what he did; that it was made by a married woman, &c.; or that it became void after it was made, and before the commencement of the suit, by erasure, alteration, addition, &c. 1 Chitt. Pl. 479.—Collins v. Blantern, 2 Wils. 341, 347.—Lambert v. Atkins, 2 Camp. R. 272, 273.—Van Valkenburgh v. Rouk, 12 Johns. 337.—1 Phill. on Ev. 128.—Pitt v. Smith, 3 Camp. R. 33.—Dorr v. Munsell, 13 Johns. R. 430.—6 Com. Dig. Pl. 2 w 18. But where the deed is merely voidable, on account of infancy or duress, or void by statute, as in the case of gaming, &c., such matters must in general be *177pleaded. Ibid.In 6 Com. Dig. Pl. 2 w 18, treating of non est factum, it appears that that plea is good in all cases, where the bond or specialty was not executed, or, if it was executed, was void ah initio, and if void ab initio, that, fhe facts which make it so may be averred and specially pleaded; but that it is no plea when the deed'is only voidable, in which event, the matter of avoidance must be specially pleaded. It would thus seem, that matter which shows the deed to be voidable, must-be specially pleaded, but that matter which shows the deed to be void, may either be given in evidence under the plea of non est factum, or be pleaded specially. - •
¶5A special plea must state the facts constituting the defence, on which the defendant means to rely, and consequently in adopting a special plea, embracing matter which could be given in evidence under the plea of non est-factum, or which shows the deed to be voidable, the party is bound to present those facts in his'plea. This is necessary to enable the Court to determine, if an issue in law be joined, whether the facts so pleaded constitute a legal defence; or, if an issue to the country and a verdict, whether a judgment can be rendered. At common law, a seal importing a consideration, the want or the failure of consideration1 was not a defence, because the party would thus contradict his solemn act. A distinction, however, exists between the illegality of the consideration, and the want or the failure of the consideration. The former, as we have seen, as it would show the bond to be void, it affecting its execution, could be given in evidence under the plea of non est factum, orbe specially pleaded; the latter was only an-equitable defence. If, then, fraud be the ground of defence to an action on a deed, if it be not given in evidence under the plea of non est factum, it must be specially pleaded.
¶6On examination, I have been unable to find a single adjudication, other than that of Pence et al. v. Smock, in support of a general plea of fraud to an action on a deed, although I have met with two or three cases, in which such pleas have been filed, but these cases appear to have been decided without reference to such plea. " From the general principles of the law, it would seem that such a plea could not be sustained, and from a decision to which I will refer, the reasons why such a plea is not good, are, to my satisfaction, irrefutably presented. A general plea such as that before me, with the exception *178perhaps of the verification, would appear to be warranted by a suggestion of Chitty, at the conclusion of the form he gives of a special plea of covin and fraud, in 2d vol. on PI. 512; and in a note to that plea he says, “that fraud is a defence at law.” He cites in support of this position Cockshott v. Bennett, 2 T. R. 765, and Hayne v. Maltby, 3 ib. 438. The first was assumpsit, the plea special, and unquestionably from the. action, the defence proper. The second was covenant, but the case does not sustain a general plea, nor does it establish that fraud is a defence on a specialty. The pleas were special and the deed not contradicted, but avoided by collateral matter, and Lord Kenyon, in answer to the objection of an estoppel, and distinguishing the case before him from one relied on, assumed ground entirely opposite to the support of a plea per fraudem, such as is now under examination. ■ These cases, therefore, neither support the plea, nor the unqualified dictum of Chitty, “that fraud is a defence at law.” -
¶7In New-York, in a series of adjudications, although fraud is admitted to be a defence in the action of assumpsit, it is denied to be such in an action on a bond. Dorlan v. Sammis, 2 Johns. R. 179, in a note.—Vrooman v. Phelps, 2 ib. 177.—Beecker v. Vrooman, 13 ib. 302.—Dorr v. Munsell, 13 ib. 430.—Parker v. Parmele, 20 ib. 130.—Dale v. Roosevelt, 9 Cow. R. 307—Stevens v. Judson, 4 Wend. R. 471.
¶8In Dorr v. Munsell, which was debt on a bond, there were three pleas — 1. non est factum; 2. a special plea of fraud; 3. a general plea of fraud. On demurrer to the 2d plea, C. J. Spencer said, “at law, the defendant cannot avoid a solemn ’deed on the ground of a want of consideration. That inquiry is precluded by the very nature of the consideration. In some-elementary writers it is said, that -fraud may be given in _evidence under the plea of non est factum. This must be confined to cases where the fraud .relates to the execution of the instrument; as if a deed be fraudulently misread, and is executed under that imposition, or where there is a fraudulent substitution of one deed for another, and ,the party executes a deed he did not intend to execute.” The plea was adjudged insufficient.
¶9Dale v. Roosevelt was an action of covenant, and non est factum was pleaded with a stipulation, “that the defendant might give in evidence under the plea, all matters which he might do, as if the same had been specially pleaded, or notice thereof given.” *179The defendant offered to prove, that the execution of the bond bad been induced by the fraudulent representations of the plaintiff, that the lands mentioned in it contained a coal mine, which was untrue: the offer was overruled. It was said, “the offer was no more than to prove a partial failure of consideration, and that this was no defence to a sealed instrument. Matter may be shown, which- strikes at the contract itself, in such a manner as to show it had no legal entity, as usury, simony,” &c¿ The well-settled distinction was also taken in this case, between the illegality of the consideration, and the want or failure of consideration,'and the Court said, “that any matter which shows the consideration illegal by the common law or statute, may be given in evidence under non est factum, and that in a Court , of law, a bond cannot be invalidated for any other cause than the illegality of the consideration, as when the bond is void in law or procured by fraud.”
¶10The cases' of Chew, ex'r. of Wormeley, v. Moffett, 6 Munf. R. 120, and Taylor v. King, ib. 358, are accordant, and show that fraud cannot be pleaded to an action at law on a bond, and limit its proof on the plea of non est factum, to the mere execution of the deed; and in a late case, Tomlinson's adm'r. v. Mason, 6 Rand. R. 169, in an action on a bond, that Court has said, in relation to a-genera.1 plea of fraud, covin, and misrepresentation, “The third (alluding to that plea) does not state whether the fraud and misrepresentation affected the consideration of the bond, or the manner of its execution, and therefore presents no point on which an issue could be taken, or judgment rendered.”
¶11We have a statute which authorises a defendant -to allege, by “special plea,” the want or failure of the. consideration of a specialty. This is unquestionably an important change, and a great improvement of the common law; -but it surely does not amount to a radical change of all the rules of pleading, governing actions on specialties, nor can the statute, authorising a “special plea” of the want or failure of the consideration' of a specialty, be construed to alter the rules of evidence, applicable to the plea of non est factum and other pleas, or legitimate a general plea of fraud, which leaves at large the application of testimony under it. The statute permits a defence .at law, which was previously confined to a Court of chancery; and when it authorises a defendant, by “special plea,” to allege the want or the failure of the consideration, it could not contemplate *180that a gener'al plea per fraudem, without setting out the facts relied on, and applying them either to the want or to the failure of the consideration, would be sufficient. The word “special,” aPP^e<^ a plea, has a known, legal, and technical import, to which I have adverted, and of which it is inadmissible to presume the legislature to have been ignorant. The statute provides two separate and distinct grounds of relief at law, by special plea, neither of which was available at common law. In the language of the Court in the case of Tomlinson’s adm’r. v. Mason, may. I not say, “that this plea does not state whether the fraud and misrepresentation affected the consideration of the bond, or the manner of its execution, and therefore presents no point, on. which an' issue could be taken or judgment rendered.” Exclusive, however, of this decision, directly in point, and of our statutory provision,! regard the plea as insufficient, and opposed to the principles to which, sustained by authorities, I have adverted. ’ .
¶12Before I direct my attention to the case of Pence et al. v. Smock, I will remark, that the want or. the failure of the consideration of a specialty, may arise from circumstances unconnected with fraud on the part of the obligee, or may arise from his fraudulent act. The statute does not seem to contemplate fraud as essential to either defence; but when either is used, it must be by “special plea;” consequently, the plea in this case, being general, cannot apply. Its application to the execution of the specialty is equally as inadmissible, since, from the positions assumed, matter of that character, if not admissible under the plea 'of non est factum, must be specially pleaded.
¶13From this examination, in which the common law and its exposition by enlightened Courts, and our particular statutory provisions are presented, I am brought to the conclusion, that the Circuit Court was correct in its judgment; Here I would willingly stop, but as my opinion is in conflict with the case of Pence et al. v. Smock, which has been reviewed in the opinion just delivered, and recognised as law, it would seem proper that I should, also, examine the principles of that case; ■
¶14In that case, at its May term, 1830, this Court held a plea, such as the present, good, and say, “the objection is, that the particulars of fraud are not set out. This general mode of pleading fraud, we conceive to be correct. It is supported by good authority.” Wimbish v. Tailbois, 1 Plowd. R. 38,54,— *181Tresham’s Case, 9 Co. 108,-3 Chitt. Pl. 363,—Mason v. Evans, Cox’s R. 182,—Gordon v. Gordon, 1 Stark. R. 294, are cited. These cases do not establish to my satisfaction the sufficiency of the plea. They .are decisive of the law as far as they go. They relate, however, to 'replications and to pleas presenting matter collateral to actions, and not to such as constitute their foundation.! The case of Tailbois■ was trespass guare clausum fregit: plea, liberum tenementum; and replication thereto, covin in the recovery of the land set out in the plea; The replication was founded on the statute 11 Hen. 7. c. 26, by. which it is enacted, “That upon recovery by covin, it shall be lawful for the person to enter into tbe same tenements,” &e. Replication adjudged good, although it showed covin generally. Hales, J. said, “that when statutes speak of covin generally, it shall be shown generally, but otherwise óf covin at common law.” Tresham’s Case was debt on bond' against an administratrix. Plea, debts by recognizances acknowledged, &c. and unpaid. Replication per fraudem and adjudged good. The‘reference to 3 Chitt. Pl. 563, shows a form of a replication per yi-awdem to a plea of release. Gordon v. Gordon was covenant, and the case went off, without adjudication, upon a plea of fraud. Chitty, (1st vol. on Pl. 553,) treating of replications, says that “it is in general unnecessary to state the particulars of fraud.” He cites Tresham’s Case and other cases, whi,ch relate however to replications per fraudem. ■ In Sherwood v. Johnson, 1 Wend. R. 443, the Court- overruled a demurrer- -to a replication per fraudem, to a plea of judgments outstanding, and'C. J. Savage, delivering the opinion of the Court, sustains the text of Chitty above cited, and says, “it is sufficient to allege fraud generally.” This approval was, however, confined to the particular point before the Court.
¶15From this general view of the question, I am compelled to dissent from the opinion just delivered. Iii doing so, I feel less reluctance than I otherwise should, from the reflection, that if there be error in the view I have taken, the error is harmless in its operation upon the interests of litigants in.this Court.
¶16The judgment is reversed with costs. Cause remanded, &c.