Williams v. Haynes.

jury trial of such causes, than to narrow in the least, by judicial construction, the invaluable right of trial by jury.

Under the New York code, which is broader than ours, the courts have wisely shown a disposition to limit compulsory references to cases clearly within the language of the provision. It has been there held, that an action upon one bill of fifty items was not referable (Swift v. Wells, 2 How. Pr. 79); so with a bill of seven items, of two different dates (Smith v. Brown, 3 id. 9); so in a case upon one bill of lading of eleven different items (Miller v. Hooker, 2 id. 171); a bill of particulars is not an account, in the meaning of the code authorizing a reference when the examination of a "long account" is involved. Dickinson v. Mitchell, 19 Abb. Pr. 286. See, also, and especially, Sharp v. Mayor, etc., 18 How. 213; and Cameron v. Freeman, id. 310.

In this case there are fourteen items under eight different dates, and two credits. The account is all on one side, and no discovery sought. The defenses are denial, payment, and the statute of limit ations. This would not afford a basis for an action of account at the common law, nor for a bill in equity under the former chancery practice. The defendant has a right to a jury trial, of which he cannot be deprived without his consent.

Reversed.

Under the statute of Iowa the want of consideration in a sealed instrument may be inquired into, and this does not except instruments made in other states.

This statute affects all sealed contracts made after its passage. It relates to the remedy, and does not impair the obligation of the contract, within the meaning of the adjudications of the United States supreme court.

APPEAL from Jones district court.

This action was brought by the payee of a promissory note made in Maryland, against the maker. The note was executed with a "scroll," which plaintiff claimed was, under the laws of Maryland,

Williams v. Haynes.

equivalent to a seal. The defendant, among other things, plead a want of consideration, to which plea plaintiff demurred, claiming that the consideration of a sealed instrument could not be inquired into under the common law, which, at the time the note was made, prevailed in Maryland. The demurrer was overruled, and plaintiff appeals.

G. W. Field, for appellant.

C. R. Scott, for appellee.

DILLON, C. J. Respecting contracts under seal, the common law, except in certain special cases, conclusively presumes a consideraation. It will be taken as true that the instrument in suit is a sealed instrument, and that the common law as to sealed instruments prevails in the state of Maryland, in which the note was executed, and where the parties thereto resided at the time. Under the averments of the petition, the defense of want of consideration would not have been a good plea had the plaintiff brought suit against the defendant in the state of Maryland. Such is the basis of the plaintiff's premises, and its correctness will not be controverted by us. But the plaintiff has brought his action in the courts of Iowa, and must be content with such remedies as the laws of this state give him. By statute (Rev. ch. 76), the important distinction which the common law made between simple contracts and those under seal is abolished. In this country that distinction had ceased to have any philosophy or reason to support it. Hence, the legislature enacted, that "the addition of a private seal to an instrument of writing should not affect its character in any respect," and that "the want or failure, in whole or in part, of the consideration of a written contract, may be shown as a defense," etc.

Under this statute, want of consideration is inquirable into and is a good defense. The statute is broad, and does not except the cases of instruments executed in other states. It professes to apply to all instruments made after its passage, and it does apply to all such, whether made in this state or evhere, if they are sought to

be enforced here.

before the me the note in suit

This statute was in force at an was executed. As to the right c the legislature to change the common law rule, no question can be maie. The wisdom of the change

Williams v. Haynes.

in this particular is apparent. Certain it is, that the legislature has declared in terms that the defense set up is available to the defendant. The plaintiff must take such remedy as our laws afford him. He has not a vested right in the courts of other states to all the common-law incidents of contracts, provided the obligation of the contract be not impaired.

Respecting what shall be good defenses to actions in this state, ita courts must administer its own laws, and not those of other states. The common-law rules do not so inhere in the contract as to have the portable quality ascribed to them by the plaintiff's counsel, much less can they operate to override the plain declaration of the legislative will.

Our act of the legislature, allowing the defense of want of consideration to be pleaded to all actions on subsequent sealed contracts, is a matter relating to the remedy, and does not impair the obligation of the contract, within the meaning of the authoritative adjudications of the supreme court of the United States. Sturgis v. Crowninshield, 4 Wheat. 122; Ogden v. Saunders, 11 id. 213. See Hawley v. Hunt, ante, 183, and cases cited.

Cases standing upon the same principle as the one before us, have been frequently decided. United States v. Donnally, 8 Pet. (U. S). 361, 373; Warren v. Lynch, 5 Johns. 239; Andrews v. Harriot, 4 Cow. 508; Thrasher v. Everhart, 3 Gill. & Johns. 234; Douglas v Oldham, 6 N. H. 150.

Affirmed.

State v. Dowe.

STATE, appellant, v. DowE.

(27 Iowa, 273. )

Criminal law-false pretenses.

A false promise will not sustain a charge of crime or false pretense. It must be a representation in fact that is false, and this must be relied on by the party defrauded. But if a pretense and promise blend together, and jointly act upon the defrauded person, whereby he is induced to give faith to the pretense, the case is within the statute.

When D. pretended to H. that he had come to pay a debt due H., whereby H. was induced to make and deliver to D. a receipt, which D. immediately took and carried away without payment or consent of H.,-Held, within the statute.

APPEAL from Dubuque district court.

Indictment for false pretences, to which defendant demurred. Demurrer sustained, from which the state appeals.

Henry O'Connor, attorney-general, for state.

No appearance for appellee.

BECK, J. The indictment charges the crime in the following words: "The said C. E. Dowe heretofore, etc., at, etc., designedly and by false pretense, and with intent to defraud one Nicholas Hunsen, did, etc., designedly and falsely pretend to said Hunsen that he, the said Dowe, had come to pay the said Hunsen twenty dollars, a debt due the said Hunsen from the said Dowe, and the said Hunsen, believing the said false pretenses and representations so made, as aforesaid, etc., and being deceived thereby, was induced, by reason of the false pretenses and representations so made, to sign a receipt for the payment of the said sum of twenty dollars, which said receipt was of the tenor following:" (giving copy of receipt) "which said receipt the said Dowe took into his possession and carried away, without the consent of said Hunsen, and did not pay said Hunsen the twenty dollars, or any other sum." The indictment further alleged, that defendant "had not come to pay said Hunsen twenty doll:rs, or any other sum."

State v. Dowe.

The statute under which the indictment is presented is as fol lows: "If any person designedly and by false pretense, or by any privy or false token, and with intent to defraud, obtain from another any money, goods or other property, or so obtain the signature of any person to any written instrument, the false making of which would be punished as forgery, he shall be punished," etc. Rev. §§ 43, 94.

The false making of the receipt would be an indictable offense, and is classed as forgery by the state. Rev. ch. 168. The demurrer to the indictment, however, raises no such question. The objection presented by the demurrer is, that the pretense set forth in the indictment was not of a nature to deceive or defraud, under the statute, and was a false promise and not a misrepresentation. This seems to have been the view taken by the court below. It is true that a false promise will not sustain the charge of crime for which punishment is provided in the statute above quoted. It must be a pretense, a representation in fact, that is false, and this must be relied upon by the party who, it is charged, was defrauded; upon this point no objection is made to the indictment. But the fact that a promise is combined with the false pretense does not take away the criminal character of the act. If the pretense and promise blend together, and jointly act upon the defrauded person, whereby he is induced to give faith to the pretense, the case is within the statute. 2 Bishop's Crim. Law, §§ 348, 352. In the case before us, the pretense was the act of coming, and the averment that defendant had come, to pay the money. These, doubtless, implied a promise to pay, otherwise they could not have operated upon the mind of the party defrauded to induce him to make and sign the receipt. The act of the defendant in coming to the other party, proclaiming his intention and purpose to pay the money, is readily distinguishable from a promise so to do. A pretense may be gathered from the acts and conduct of a party. 2 Bishop's Crim. Law, § 355; see The Commonwealth v. Drew, 19 Pick. 179. And it was the acts and conduct of the party, as charged in the indictment, that constituted the pretense. Their fraudulent and false character, and that the defrauded party was deceived thereby, and other ingredients of the crime, are sufficiently averred. In our opinion the demurrer should have been overruled.

Reversed.