Webber vs. Sylva, Administrator of Sylva, 2 Hayw. 135

cpHS defendant pleaded amongst other things, a judgment obtained against one Stoughton, of New York, and there was no replication died nor entered on the docket. The cause being now called, a question arose concerning the replication. — - It was said by Webber’s counsel, that by agreement between the adverse counsel and himself, they were to go to trial, supposing a replication to be filed, and that the substance thereof was per fraudem. The adverse counsel did not recollect such agreement, and understood the replication to be general.

It seemed to be admitted on both sides, that a replication is understood to have been made, though not Sled ; and the comt was appealed to; who said it was agreeable to the practice to suppose a general replication, not a special one. But he said whenever the pleadings are in such a state, that they will not bring before the court the merits of the case, they might be amended and that therefore he would now admit a special replication s and when it was entered, that the opposite partv might or might not try bin cause at this term.

The plaintiff replied per fraudem; and issue being joined, the parties went to trial, and there was a verdict for the plaintiff. But the defendant’s counsel ailedging, they were surprized by testimony produced on the part of the plaintiff, which their client could counteract by testimony to be had at New York, the court granted a new trial, notwithstanding it was greatly opposed by the plaintiff’s counsel.

The court in charging the jury, said, that ever.” judgment in a court of competent jurisdiction, is to be presumed fair till the contrary be proved; and that the evidence to impeach it must be strong and convincing. This was in answer to what the plaintiff’s counsel had said, namely, that where a judgment had been confessed by the executor as this had been, that amounted to declaration on his part, that he had satisfactory evidence to convince him of the fairness of the demand, and to an undertaking to produce this satisfactory evidence whenever a creditor called for it.

And his not doing so when called on. is a proof that he had not such evidence ; and then the consequence is, that he has confessed, not knowing whether it was fair or not -from whence the jury may infer a fraudulent design. — And therefore ou such an issue as the present, that slight testimony on the plaintiff’s side to induce a suspicion of fraud, was enough to turn ?t upon the defendant to prove the judgment a fair one.