James Sawyer, Sheriff of Chittenden County, Appellant, against Jonathan Hoyt and Silas Hathaway, Appellees, 2 Tyl. 288

Sed per Curiam. The issue carved by the parties is, whether the discharge was fraudulently obtained or not; and this is the sole question to the Jury. If the defendants had inclined to rest their defence on this point of law, they should have demurred to the plaintiff’s replication: but since they have elected to traverse the fraud to the country, to show the fraud in Allen in obtaining the discharge, must be considered pertinent to the issue. Co. Litt. 305. 2 Mod. 37. Estoppels are said to be odious in law.

The doctrine of estoppels is one of those hard but perhaps necessary precepts of the law, where, for the acquirement of a general good, particular injury is often suffered to be inflicted. It was introduced originally to prevent chicanery, but it has sometimes been made the sanction of fraud. The Court certainly will not be inclined to apply it in cases of an alleged fraud, where the pleadings do not render it absolutely necessary. It has been decided in the parent country, that estoppels cannot be taken notice of unless relied on in pleading; and so this Court have ever considered. Let the evidence be admitted.

The facts which appeared in evidence were, That Sandford was an illiterate man. That on the 27th of June, a few days after the judgment had been obtained, Allen sent for him by a special agent to come and settle with him. That Sandford came; but at this time he knew that there had been an action pending in the Supreme Court in favour of Allen, against himself, Kindall and the others, but imagined that the action had been discontinued. Allen informed him that it had been called out of Court, and the parties both considered that it had been in their whole conversation.

Allen proposed to pass receipts; and wrote two, each for the consideration of one dollar, and each similar in language, as applicable to a mutual discharge. These receipts were read correctly and audibly in the hearing of Sandford. Allen then signed one of the receipts, and pushing it on the table towards Sandford, requested him to sign it. Sandford, hesitating, said, “ If I thought there was no trick in it, I would sign it; for I owe you nothing, and you owe me nothing.” Allen appearing to be offended, said, “ Sir, do you doubt my honour ?

This is the first time my honour was ever called in question by nobility or gentry in Europe or America Sandford then signed the receipt, and delivered the receipt to Allen. Samuel Miller, Daniel Chipman, Elnathan Keyes, and Josias Smith, for the plaintiff. William C. Harrington and Amos Marsh, for defendants. The Jury returned a verdict for the plaintiff. The defendants entered a review, and at the January term, 1804, were defaulted by order of Court for neglect in advancing fees.