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 A TREATISE 
 
 ON THE LAW OF 
 
 FRAUD AND MISTAKE. 
 
 BY 
 WILLIAM WILLIAMSO:^[ KEER, 
 
 OF Lincoln's inn, barrister-at-law. 
 
 WITH NOTES TO AMERICAN CASES, 
 
 By ORLANDO F. BUMP, 
 
 COUNSKLLOR AT LAW. 
 
 NEW YORK: 
 BAKER, VOORHIS & CO., PUBLISHERS, 
 
 GC NASSAU STREET. 
 1877.
 
 T 
 
 Entered, Bocordjng to Act of Congress, in the year one thousand eight hundred and f eventy-two, I y 
 
 BAKER, VOOEIIIS & CO., 
 
 In iio Office of the Librarian of Congress, at Washington.
 
 PREFACE TO THE AMERICAN EDITION. 
 
 TsE English edition of this work, upon its first appearance, 
 attracted the attention of the profession in this country on 
 account of its fuUness both in the text and in the citation oi 
 authorities, the general excellence of the plan, the mode 
 of treating the subject, and the importance of the topics dis- 
 cussed. A work which tlius presents the result of the latest 
 decisions in England, ought to find its way into the majority 
 of the libraries in this country, and an American edition be- 
 came desirable. 
 
 In |)reparing such an edition, two plans were open. One 
 was to make a collection of all the authorities in this country 
 and add them as notes to the original text. A work which 
 shall embrace all the English and American cases, is certainly 
 desirable, bul- the chief objection to adding the American 
 cases, as notea to an English text, is, that the notes Avould 
 OTcrwhelm the text, and such a result ought, in all cases, to 
 be avoided. What is needed, is a skilful treatise which shall 
 combine botl) the English and American law in one text ; and 
 the writer who has the patience and the diligence to examine 
 all the American cases, will prepare such a work rather than 
 make annotations to the text of some other author.
 
 IV PEEFACE. 
 
 The present notes to the English text, therefore, make no 
 such ambitious pretension as that of presenting the whole of 
 the American law upon the subjects treated in the original 
 text. Their aim is simply to make the English work more 
 practically available to the American lawyer. Some topics 
 have been treated more fully than others. On some points 
 tlie practitioner has been left to rely upon the English text 
 alone. This result has been the inevitable consequence of the 
 fact that they do not pretend to be exhaustive. It is believed, 
 however, that they will he found useful in practice and a 
 desirable addition to the work. 
 
 Oklando F. Bump. 
 
 Baltimore, Dec. 1st, 1871.
 
 SUMMARY OF CONTENTS. 
 
 PAQH 
 
 Table of English Cases cited ,., 1 
 
 Table of Ameeican Cases cited 21 
 
 CHAPTER I. 
 
 FEAUD. 
 
 Section 1. 
 
 Geneeal Consideeation-s 41 — 53 
 
 Section 2. 
 
 Miseepeesentation" and Concealment 53 — 142 
 
 Section 3. 
 
 Feaud to be peesumed feom the inequality of 
 
 the paeties; inadequacy of consideeation . 143 — 195 
 
 Section 4. 
 
 Feaud upon thied paeties 195 — 267 
 
 Fraud upon creditors 196 
 
 Fraud upon marriage articles 215 
 
 Fraud upon the marital rights 217 
 
 Marriage and place brokage bonds ^ 220 
 
 Bonds to many 222
 
 Yl COls'TENTS. 
 
 Fraud in -withholding consent to mamage 233 
 
 Fraud in respect of expectancies 223 
 
 Fraud in respect of sales by auction , 224 
 
 Voluntaiy conveyances in fraud of subsequent pur- 
 chasers 226 
 
 Notice 233 
 
 Section 5. 
 
 Miscellaneous Frauds 267 — 296 
 
 Fraud upon powers 267 
 
 Fraud in the prevention by undue means of acts to be 
 
 done for the benefit of third parties 273 
 
 Fraudulent suppression or destruction of deeds and 
 
 other instruments in violation of or injury to the 
 
 rights of others 275 
 
 Fraud in setting up an instrument obtained for one 
 
 Ijurpose for another puipose 276 
 
 Fraud in assignments, by assignees, »fcc. &c 277 
 
 Fraud by and upon companies 278 
 
 Fraud upon the Mortmain laws 279 
 
 Fraud upon the law of Forfeiture 280 
 
 Fraud upon the Bankrupt laws 280 
 
 Fraud upon the restraining statutes &c. &c 288 
 
 Fraud in awards 288 
 
 Fraud in Judgments ... 293 
 
 Fraud upon the Crown 294 
 
 Fraud upon Courts of competent jui'isdiction 295 
 
 Fraud upon the legislature 295 
 
 Section 6. 
 
 ITOW THE EIGHT TO EVIPEACH A TRANSACTION ON THE 
 
 GROUND OF Fraud may be lost • 296 — 324 
 
 Confirmation 296 
 
 Release 298 
 
 Acquiescence 298 
 
 Delay and Lapse of time ... 303 
 
 . Purchase for value without notice 312 
 
 Section 7. 
 
 Remedies 324—363 
 
 Remedies at law 324 
 
 Remedies in equity 333
 
 CONTEXTS. vii 
 
 Section 8. 
 
 Pleading. Parties. Proof * 365 — 395 
 
 Pleading ^^^ 
 
 Parties ^"^^ 
 
 Proof. 383 
 
 Costs 390 
 
 CHAPTEE II. 
 
 Mistake 39G— 456 
 
 GENERAL INDEX : 459—605 
 
 L
 
 TABLE OF EKGLISII CASES CITED. 
 
 -►-♦- 
 
 ^BOTT V. Gerahtv, 253. 
 — V. Sworder, 95, 102, 187, 188, 
 363, 390. 
 Aberdeen Railway Co. v. Blaikie, 151, 
 
 158. 161. 
 Adams v. Sworder, 158, 161, 165, 166, 
 
 348, 378. 
 Adamson v. Evitt, 44, 46, 54, 95. 
 Addis V. Campbell, 146, 147, 301, 311. 
 Adlington v. Cam], 279. 
 Adsetts V. Hives, 138, 139. 
 Affleck V. Affleck, 440, 
 Agace, ex-parie, 115. 
 Agassiz V. Squire, 271. 
 Ahearne v. Hogan, 190, 192. 
 Ainslie v. Medlycott, 59, 68, 69, 359. 
 Aitken's ArbitratioD, 448. 
 Aldboroujrh, Earl of, v. Trye, 187, 344. 
 Aldred v.'Constable, 285. 
 Alden v. Gregory, 52. 
 Alder v. Boyle, 435. 
 Alexander v. Crosbie, 423, 454. 
 Aleyn v. Belcher, 273. 
 Allen V. Anthony, 246. 
 
 — V. Davies, 192. 
 
 — V. Knight, 141, 251, 234, 316, 319, 
 
 391. 
 
 — V. Macpherson, 41, 44, 354. 
 Allfrey V. Allfrey, 51, 162, 161, 179, 306, 
 
 307, 309, 311, 387. 
 Alt V. Alt, 40. 
 Alvanley v. Kinnaird, 408, 411, 412, 454, 
 
 455. 
 Alven V. Bond, 161. 
 Anderson v. Ellsworth, 193, 387. 
 
 — V. Fitzgerald, 42, 70, 72, 73 
 Andrew v. Wrigley, 316. 
 
 Anon., 67, 160. 
 
 _ V. Mills, 289. 
 Archbold v. Commissioners of Charitable 
 Bequests, 383. 
 _ V. Lord Howth, 95, 97, 100, 
 112. 
 
 — V. Scull V, 129, 302 305. 
 
 Archer v. Hudson, 177, 178, 173, 258. 
 Ardglasse v. Muschamp, 180. 
 
 — V. Pitt, 152, 193. 
 Arnold v. Hardwick, 268, 272. 
 Arnot V. Biscoe, 148,341. 
 Arthur v. Midland Railway Co., 352. 
 Arundel v. Trevillian, 221. 
 Arundell, Lady, v. Phipps, 203, 211. 
 Ashurst V. Mill, 419, 434, 455. 
 Ashwin v. Burton, 323. 
 Askhfim V. Barber, 268. 
 Aspland v. Watte, 298, 306. 
 Aston V. Curzon, 370. 
 Athenffium Life Society v. Pooley, 297, 
 
 322. 
 Atkinson v. Macreth, 262. 
 Atterbury v. Wallis, 251, 260, 262. 
 Att.-Gen. v. Alford, 350. 
 
 — V. Backhouse, 248, 250. 
 
 — V. Balliol College, 346. 
 
 — V. Briggs, 116. 
 
 — V. Corporation ot Cashel, 162, 
 
 — V. Earl of Clarendon, 158, 161. 
 
 — V. Cox, 333. 
 
 — ■;;. Cradock, 380. 
 
 — V. Earl of Craven, 346. 
 
 — V. Davey, 346. 
 
 — V. Fishmongers' Co., 307. 
 
 — v. Flint, 240, 242,312,318,322. 
 
 — V. Grote, 452. 
 
 — V. Hall, 248. 
 
 — V. Jones, 252. 
 
 — V. Magd.alen College, 344, 346 
 
 — V. Pargeter, 250. 
 
 — V. Corporation of Poole, 366. 
 
 — V Rickards, 294. 
 
 — V. Sitwell, 418. 
 
 — V. Stephens, 244, 
 
 — V. Kerr, 346, 347. 
 
 — V. Vernon, 355. 
 
 — V. Wilkins, 313, 320, 321, 371. 
 Atwood V. , 404, 434, 454. 
 
 — V. Small, 54, 70, 74, 76, 77, 78, 
 93, 306, 326.
 
 TABLE OF ENGLISH CASES CITED. 
 
 Attwool V. Merryweather, 1*72, 373. 
 Auriol V. Smith, 289. 
 Austin V. Ciiambers, 159, 160, 168, 299, 
 300. 
 — V. Tawney, 260. 
 Aveline v. Melhuish, 298. 
 Avles V. Cox, 361, 362, 363. 
 Ayliffe v. Murray, 151, 156, 157. 
 Aylward v. Kearney, 178, 193, 194, 301, 
 
 311. 
 Ayre's Case, 41, 47, 69, 116, 333. 
 Azemar v. Casella, 59. 
 
 Bage, ex-parte, 160. 
 Baglehole v. Walters, 90, 101. 
 Bagshaw v. Seymour, 374. 
 Bagueley v. Hawley, 105. 
 Bailey, ex-parte, 
 
 — V. liicliardson, 244. 
 
 — V. Watkins, 158. 
 Baily v. Mcrrell, 83. 
 Bainbrigge v. Blair, 156. 
 
 — V. Moss, 94, 125, 251,366. 
 Baker v. Bradley, 180, 181, 182, 301, 
 344, 383, 393. 
 
 — V. Carter, 158, 161, 392. 
 
 — V. Monk, 143, 194, 390. 
 
 — V. Read, 3U5, 307, 391. 
 Ball V. Mannin, 146. 
 
 — V. Storie, 421. 
 Bandon, Lord, v. Beeher, 293. 
 Bankart v. Houghton, 448. 
 Bannerman v. White, 70, 72. 
 Barber v. Richards, 330, 
 Bargate v. Shortridge, 278. 
 Barker v. Harrison, 173, 175. 
 Barkworth v. Young, 89, 342. 
 Barling v. Bishop, 207, 208. 
 Barnard v. Bagshaw, 279. 
 
 — V. Hunter, 165. 
 
 — V. Sutton, 374, 375, 376. 
 
 — V. Wallis, 132. 
 Barnardiston v. Lingood, 187, 344, 
 Barnes v. Freeland, 331. 
 
 Barnesley v. Powell, 93, 275, 352, 353, 
 
 354. 
 Barnett v. Sheffield, 323. 
 Earnhardt v. Greenshields, 234, 246, 247 
 
 248. 
 Barr v. Gibson, 105, 432. 
 Barrack v. M'Culloch, 209. 
 Barrett zi. Hartley. 150, 156. 
 
 — V. Wells, 216. 
 Barrett's Case, 74, 93, 117, 118. 
 Barrow v. Barrow, 419, 423, 428, 455. 
 
 — V. Greenough, 275. 
 
 Barry v. Crosskey, 46, 47, 48, 74, 93, 94 
 
 116, 369, 374. 
 Bartholomew v. Leech, 159. 
 
 Bartlett v. Salmon. 46, 62, 81, 257, 352, 
 357, 391. 
 
 — V. Wells, 148. 
 Barton v. Hassard, 161. 
 
 — V. Vanheythuysen, 195, 207, 233. 
 Barwell v. Barwell, 306, 307. 
 Barwick v. English Joint Stock Banking 
 
 Co., 112, 123. 
 Bate V. Bank of England, 194. 
 — V . Hooper, 402. 
 Bateman v. Boynton, 436, 454. 
 
 — V. Ramsay, 374, 376. 
 
 — V. Willoe, 407. 
 Bates V. Graves, 44, 344. 
 
 — V. Hewitt, 120. 
 
 — V. Johnson, 313, 316, 324. 
 
 Bath & Montague's Case, 241, 258, 384 
 
 Battersby v. Smyth, 288. 
 
 Batty V. Chester, 377. 
 
 Baxendale v. Seale, 67, 412, 432, 435, 
 
 456. 
 Bavlis V. Att.-Gen., 452. 
 Bayly v. Wilkins, 171. 
 Baynard v. Woolley, 379. 
 Bayne v. Ferguson, 182, 302. 
 Beliden v. King, 160, 162, 304, 335. 
 Beadles v. Burch, 380, 394, 395, 
 Beale v. Billing, 165, 180. 
 Bemland v. Bradley, 183, 194. 
 Beasley v. Magrath, 177, 178, 179. 
 Beaufort, Duke of, v. Neeld, 407. 
 
 — V. Patrick, 130, 133, 
 
 135. 
 Beaumont, ex-parte, 161. 
 
 — V. Bramley, 419, 421, 423, 
 
 436. 
 
 — V. Fell, 449. 
 Beavan v. M'Donnell, 145. 
 
 . — V. Lord Oxford, 230, 267. 
 Beck V. Dean. 278. 
 
 — V. Kantorowicz, 95, 172, 175, 373. 
 Beckett v. Cordley, 130, 131, 148, 251. 
 Beckford v. Wade, 304, 305, 307. 
 Beckley v. Newland, 222, 224. 
 Beddoes v. Pugh, 269. 
 
 Bedford v. Bagshaw, 373. 
 
 Bedford, Duke of, v. Coke, 280. 
 
 Beeching r. Lloyd, 47, 369. 
 
 Beere v. Hufl'meister, 269. 
 
 Behn v. Burness, 69, 70, 71, 72, 331, 
 
 Belhaven's Case, Lord, 404. 
 
 Bell I'. Clarke, 217. 
 
 — V. Cureton, 199. 
 
 — V. Gardiner, 406. 
 
 — V. Howard, 146, 194. 
 
 — V. Midland Railway Co., 130. 
 
 — V. Simpson, 281, 282. 
 
 Bellamy t;. Sabine, 52, 166, 181, 311, 
 
 336, 343, 357, 371, 372, .'iSi, 390. 
 Bellew V. Russell, 302, 312. 
 Bell's Case, 333.
 
 TABLE OF ENGLISH CASES CITED. 
 
 Beloit, Bant of, v. Beale, 331. 
 Benham v. Kean'j, 266, 267. 
 
 — V. United Guarantee, &c., Asso- 
 
 ciation, 70. 
 Bennett, ex-parte, 157, 158, 159, 160, 161, 
 166, 346, 349, 
 
 — V. Colley, 301. 
 
 — V. Judson, 104. 
 
 — V. Wade, 52, 146, 367, 380, 385, 
 
 394. 
 Benson v. Heathorn, 161, 161, 172, 350, 
 
 373. 
 Bentley V. Craven, 172, 174, 175, 182. 
 
 — V. Mackay, 182, 195, 416, 421, 
 
 422, 423, 436, 454. 
 Benyon v. ^ettlefold, 378, 388. 
 Berdoe v. Dawson, 180, 182, 254, 301. 
 Bernal v. Lord Donegal, 302. 
 Bernard's Case, 116. 
 Berrisford v. Milward, 130. 
 Berry v. Armitstead, 333, 350, 380, 394. 
 Berwick, Mayor of, v. Murray, 238, 350. 
 Bessey v. Windham, 294. 
 Bevan v. Habzood, 162. 
 Bexwell v. Christie, 225. 
 Bigge V. Parkinson, 107. 
 Bilbie V. Lumley, 402, 403. 
 Bill V. Cureton, 230, 233. 
 Billage V. Southee, 152, 183, 191, 344, 
 
 383, 387. 
 Bills V. Smith, 286. 
 Bingham v. Bingham, 400, 454, 
 Birch V. Blagrave, 376. 
 Bird V. Fox, 256. 
 Bird-all v. Russell, 236, 237. 
 Birley v. Birlej^ 270. 
 Bisco V. Earl of Banbury, 241. 
 Bishop V. Church, 425. 
 
 — V. Countess of Jersey, 382, 
 Bittlestone v. Cooke, 212, 281. 
 Blackburn's Case, 90. 
 Blackford v. Christian, 146. 
 Blackball v. Coombs, 407. 
 
 Blackie v. Clarke, 189, 192, 254, 312, 
 436. 
 
 Blacklow V. Laws, 239. 
 
 Blagrave v. Routh, 166, 168. 
 
 Blain v. Agar, 47, 369. 
 
 Blair v. Bromley, 47, 52, 111, 116, 309, 
 333, 334, 381, 382. 
 
 Blake v. Mowatt. 95, 98, 99, 337. 
 
 Blakeinore v. Bristol and Exeter Rail- 
 way Co., 373. 
 
 Blakeney v. Ba^gott, 187. 
 
 Blake's Case, 351. 
 
 Blanchet v. Foster, 220. 
 
 Bland, ex-parle, 281, 283. 
 
 Blenkinsopp v. Blenkiusopp, 295. 
 
 Blenner!i:isselt r. D.iy, 162, 291, 300, 
 30i, 309, 310. 
 
 Blest V. Brown, 122, 393. 
 
 Blissett V. Daniel, 182. 
 
 Blood V. Keller, 134. 
 
 Bloye's Trust, Re, 158, 162, 166, 173. 
 
 Boddington v. Langford, 161. 
 
 Bold V. Hutchinson, 88, 90, 91, 424. 
 
 Bond V. Hopkins, 135. 
 
 Booth V. Creswicke, 167. 
 
 Borell V. Dann, 187, 239, 250, 258, 318, 
 
 36.3. 
 Bosanquet v. Dashwood, 377. 
 Roson V. Statham, 279. 
 Botbomley v. Squire, 366, 368. 
 Bolt V. Smith, 199, 212. 
 Boursot V. Savage, 51, 236, 259, 260 
 
 261. 
 Boweni;. Evans, 44, 51, 312, 314, 318, 
 320, 321, 367, 384 
 
 — V. Kir wan, 190, 191. 
 Bower v. Cooper, 187, 363. 
 Bowes V. Foster, 388. 
 
 Bowles V. Stuart, 96, 261, 276, 298, 380. 
 
 Boyd V. Belton, 130. 
 
 Boynton v. Hubbard, 221. 
 
 Boyse v. Russborough, 183, 184, 193, 
 
 195. 
 Bozon V. Williams, 142, 250, 251. 
 Brace v. Duchess of Marlboroua'h, 324, 
 
 370. 
 Brackenbury v. Brackenbury, 375, 376. 
 Braddick v. Mattock, 443. 
 Bradford, Earl of, v. Earl of Roniney, 
 
 421,455. 
 Bradley v. Bosley, 336. 
 Bradwin v. Harpur, 449. 
 Brandling v. Plummer, 92. 
 Brandlyn v. Ord, 316. 
 Breadalbane, Marquis of, v. Chandos, 
 
 407, 421, 422. 
 Brealey v. Collins, 358. 
 Bree v. Ilolbecli, 104. 
 Brennan v. Bolton, 136. 
 Brent v. Brent, 125, 380, 394. 
 Bridgman v. Green, 51, 191. 
 Brigi;s, ej: parte, 302. 
 Erigham v. Tillinghast, 213. 
 Bright V. Eynon. 47. 
 
 — V. Leu'erton, 300, 309. 
 Briglit's Trust, Re, 240, 252, 254, 255. 
 lirinkley v. Ilann, 185. 
 
 Brisbane v. Atlams, 224. 
 
 — V. Dacres, 402, 403. 
 Bristow I'. Whitmore, 114. 
 Briti.-h Linen Co. v. Caledonian Insur- 
 ance Co., 139. 
 Broadbent v. Barlow, 236, 239. 
 Brockwell's Case, 340. 
 Broderick v. Broderick, 53, 298. 
 Bromley v. Smith, 43, 187, 311, 366, 393. 
 Brooke" f. Gaily, 194. 
 
 — V. Lord Mostyn, 125, 353, 367. 
 
 404.
 
 TABLE OF ENGLISH CASES CITED. 
 
 Brooke, Lord, r. Roundthwaitc, Go, 75, 
 
 82, 359, 360, 301, 390. 
 Brookman v. Rothscliikl, 349. 
 Brooksbauk v. Smith, 304, 436. 
 Brotherton v. Ilatt, 2.38. 
 Broughton v. Broiighton, 154, 156. 
 
 — V. Ilutt, 134, 401, 406, 436, 
 454. 
 Brown v. Kennedy, 171, 429, 454. 
 Brown v. Brown, 288. 
 
 — V. Edcincton, 107. 
 
 — V. Keniiitx)n, 284, 285. 
 
 — V. Montgomery, 109. 
 
 — V. Thorpe, 130, 132. 
 Browne, He, 161. 
 
 — V. Cross, 304, 305, 310. 
 Bro\vnmg v. Morris, 377. 
 Brownsword v. Edwards, 294. 
 Brumfit V. Morton, 244. 
 Bruuton v. Lister, 82. 
 
 Brydges v. Branfill, 44, 96, 372, 381. 
 Bu'ckeli v. Bleukhorn, 274. 
 Buckle V. Mitchell, 227, 230, 235. 
 Bufe V. Turner, 122. 
 Bulkley v. Wiltbrd, 125, 171, 274. 
 Bullock V. Downes, 301, 404. 
 Burke v. Prior, 100, 1 29. 
 
 — V. Rogerson, 123. 
 Burnell, ex-pnrte, 162. 
 
 — V. Brown, 103. 
 
 Burnes v. Pennell, 74, 93, 115, 116. 
 Burrowes v. Lock, 69, 189, 333, 341, 
 
 342. 
 Burrows v. Walls, 300, 301, 303. 
 Burton v. Blakemore, 382. 
 
 — V. Knight, 288, 291. 
 
 — V. Wookey, 182. 
 Bury V. Oppenheim, 180. 
 Bushby v. Ellis, 341. 
 
 Bushell V. Bushell, 264, 265, 265. 
 Butcher v. Butcher, 45, 269, 273. 
 Butler V. Miller, 183, 187, 189. 
 
 — V. Mulvihill, 147. 
 
 — V. Lord Portarlington, 248. 
 Butterworth r. Walker, 432. 
 Buxton V. Lister, 363. 
 
 Byrne v. Vivian, 344. 
 Byrne v. Godfrey, 275. 
 
 Cadmak v. Horner, 94, 357. 
 Cadogan v. Kennett, 196, 199, 201, 210. 
 Caillaud v. Estwick, 209, 212. 
 Cairncross v. Lorimcr, 127. 
 Calcraft v. Roebuck, 291. 
 Callaghan v. Callaghan, 182. 
 Calverley v. "Williams, 424, 455, 
 Campbell v. Fleming, 328. 
 
 — V. French. 453. 
 
 — V. Hooper, 145. 
 
 — V. Leech 441. 
 
 Campbell v. Pennsylvania Life Insurance 
 Co., 161. 
 
 — V. "Walker, 158, 159. 
 Campion v. Cotton, 202. 
 
 Cane v. Lord Allen, 165, 166, 168, 173, 
 
 175. 
 Cann v. Cann, 297. 
 Cannan v. Reynolds, 445. 
 Cannock v. Jauncey, 98, 259. 
 Carew's Estate, Be, 225, 262, 263 
 Carey v. Carey, 1 78. 
 Carleton v. Earl of Dorset, 218. 
 Carpenter v. Heriot, 179. 
 Carpmael v. Powis, 64, 408, 429, 432. 
 Carte v. Carte, 280. 
 Carter v. Boehm, 72, 119, 120. 
 
 — V. Carter, 140, 141, 142, 234, 256, 
 
 313, 314, 316, 441,442. 
 
 — v. Palmer, 153, 167, 168,171, 175, 
 
 344. 
 Cartledge v. Radbourne, 350, 387. 
 Carver v. Richards, 272. 
 Casborne v. Barsham, 143, 150, 151, 163. 
 
 166, 179, 180, 183. 
 Case V. James, 138, 313, 321. 
 Casey's Trust, Ee, 287. 
 Castleton v. Turner, 452. 
 Caton V. Caton, 136. 
 Cator V. Burke, 322. 
 
 — V. Lord Pembroke, 407. 
 Cawdor, Earl of, v. Lewis, 129. 
 Cazenove v. British Equity Ins. Co., 73. 
 Cecil V. Butcher, 374, 375, 376. 
 Chadwick v. Chadwick, .366. 
 
 — V. Turner, 266. 
 Chalmer v. Bradley, 159, 303, 304. 
 Chamberlains v. Agar, 275. 
 
 — V. Chamberlaine, 275. 
 
 Chambers t;. Crabbe, ISO, 217, 218. 
 
 — V. Howell, 182. 
 
 — V. Minchin, 448. 
 
 — V. "Waters, 160, 162. 
 Champion v. Rigby, 163, 165, 166, 302, 
 
 305, 307, 311, 391. 
 Chanter v. Hopkins, 70, 107, 410, 
 Chapman v. Emery, 202. 
 
 — V. Gibson. 438, 443. 
 
 — V. Speller, 105. 
 Chappell V. Gregory. 104, 364. 
 Charlesworth v. Jennings, 64, 65. 
 Charlton v. Coombs, 352, 354, 380. 
 Charter v. Trevelyn, 173, 175, 300, 3>2, 
 
 310, 311. 
 Chennell v. Martin, 52, 
 Cheslyn v. Dalby, 166, 167. 
 Chester v. Spargo, 92, 110, 3C(1. 
 Chesterfield v. jansen, 43, 46, 297. 
 Childers v. Childers, 375. 
 Ching V. Ching, 447. 
 Cholmondeley v. Cluiton, 300, 304, 305, 
 
 307.
 
 TABLE OF ENGLlSn CASES CITED. 
 
 Chuck V. Cremer, 290. 
 
 Churchill v. Grove, 2G7. 
 
 Clark V. Holland, 322. 
 
 Clanricarde, Marquis of, v. Henning, 165, 
 
 305, 307, 311, 312, 3<)1. 
 Clapham «. Shilleto, 70. 
 Clare Hall v. Harding, 129, 133. 
 Clark V. Burgh, 427. 
 
 — V. Malpas, 194, 344, 371. 
 Clarke v. Bickers. 427. 
 
 — V. Cobley, 148. 
 
 — V. Dickson, 48, 75, 92, 329, 330, 
 
 336. 
 
 — «;. Grant, 364, 418. 
 
 — V. Mackintosh, 76, 77, 78, 359, 
 
 360, 390. 
 
 — V. Manning, 43. 
 
 — V. rarker,'"223. 
 
 — V. Sawyer, 146, 195. 
 
 — V. Swaile, 157. 
 
 — V. Tipping, 95, 173, 174. 
 
 — V. Wright, 204, 227, 232, 233. 
 Clarkson v. Ila'uway, 190, 191, 192, 385. 
 Clavering v. Thomas, 130. 
 
 Clegg V. Edmondson, 182, 302, 305, 306, 
 
 307, 312, 391. 
 Cleland v. Leech, 342. 
 Clements v. Hall, 182, 302, 306. 
 
 V. Welles, 241, 243, 257, 317. 
 Clermont, Viscount, v. Tasburgh, 359. 
 ClifTord v. Brooke, 373. 
 
 — V. Terrell, 191, 192. 
 Clifton V. Cockburn, 398, 401, 436. 
 Clinan v. Cooke, 135, 136, 418. 
 Clowes V. Higginson, 418, 435, 455, 456. 
 Clunn, Re, 288. 
 
 Cobbett V. Brock, 193, 254, 260, 312. 
 Cochrane v. Chambers, 209. 
 
 — V. Willis, 406, 431, 432. 
 Cock V. Richards, 223. 
 Cockroft V. Sutcliffe, 269. 
 Cockell V. Taylor, 187, 190, 297, 300, 
 
 322, 323. 
 Cockerell v. Cholmeley, 297, 300, 419, 
 
 442, 443, 455. 
 Cocking V. Pratt, 298, 398, 401, 406, 414. 
 Cockshott V. Bennett, 215. 
 Colby V. Gadsden, 81, 82, 83, &2, 358, 
 
 359 
 Colclough V. Bolger, 344, 353. 
 
 — V. t?terum, 317. 
 Cole V. Gibbons, 297. 
 
 — V. Gibson, 194, 221. 
 Coleman v. Mellerish, 166, 167. 
 
 — V. Riches, 111. 
 
 — V. Wallis, 215. 
 Colemore, Be, 282, 283, 
 Coles V. Hulme, 435. 
 
 — V. Jones, 322. 
 
 — V. Sims, 235, 246. 
 
 — V. Trecothick, 157, 15!!, 187. 
 
 Collett V. Morrison, 421, 422. 
 Collier v. Brown, 186, 187. 
 
 — V. Jenkins, 64, 362, 363. 
 Collins V. Archer, 320. 
 
 — V. Blantern, 388. 
 
 — V. Evans, 57. 
 
 — V. Hare, 190, 193. 
 Colombine v. Penhall, 202, 282, 284. 
 Colpoys V. Colpoys, 452. 
 
 Colt V. Woollaston, 43, 44, 372. 
 Colyer v. Clay, 406, 431. 
 
 — V. Finch, 140, 141, 240. 251, 259 
 Conyers v. Ennis, 94. 
 
 Cook V. Pritchard, 285. 
 
 — V. Rogers, 286. 
 
 — V. Wolton, 396. 
 Cooke, ex-parte, 287. 
 
 — V. Burtchaell, 181. 
 
 — V. Clayworth, 147. 
 
 — V. Greeves, 125. 
 
 — V. Lamotte, 183, 190, 191, 193, 
 
 386, 387. 
 
 — V. Setree, 166. 
 
 — V. Walker, 211. 
 Cookson V. Lee, 259. 
 C'oonier v. Bromley, 382. 
 Coope V. Creswell, 214. 
 Cooper V. Joel, 126,344. 
 
 Cooper V. Phibbs, 346, 398, 399, 400^ 
 
 401, 430. 
 Copis V. Middleton, 186, 196, 199. 
 Coppin V. Fernyhough, 241. 
 Cordingley v. Clieeseborough, 67. 
 Corlettw.'Radcliffe. 199, 205. 
 Corley v. Stafford, 171. 
 Corneforth v. Geer, 446. 
 Cornfoot v. Fowke, 69. 
 Corry v. Cremorne, 321. 
 Cory V. Cor J', 147. 
 
 — V. Eyre, 142, 234, 321, 380. 
 
 — V. Gertchen, 148, 382. 
 Cesser v. Collinge, 249. 
 Cotching V. Bassett, 357. 
 Ccthaj' V. Sydenham, 251. 
 
 Cottani V. Eastern Counties Railway Co., 
 
 138, 142, 312, 314, 315, 386. 
 Cotterell v. Purchase, 51. 
 Coulson V. AlUson, 182, 193. 
 Couturier v. Hastie, 430, 
 Coverley v. Burrell, 362. 
 Coward v. Hughes, 401, 454. 
 Cowell V. Watts, 3u7. 
 Cowen, ex-paric, 288. 
 Cowper V. Cowper, 275. 
 Cox V. Bruton, 398, 408, 414, 419, 424, 
 429, 437, 4:.4. 
 
 — V. Coventon, 240, 241, 254, 255, 362, 
 
 390. 
 
 — V. Middleton, 80, 358, 
 Cranston v. Mar.^hall, 70. 
 Cranston, Lord, v. Johnstone, 160, 389
 
 TABLE OF ENGLISH CASIOS CTTKD. 
 
 Crawshay v. Thornton, 93, 
 
 Crciigh v. Blood, 14(). 
 
 Crcp:an v. Cullen, 319. 
 
 Cridland v. De Mauley, 4*7, 369, 3Y2. 
 
 Cripps V. Jee, 389. 
 
 Croft V. Graham, 344. 
 
 Crofton V. Ormsby, 244, 246. 
 
 Crofts V. Middleton, 92. 
 
 Croker v. Ma-tin, 200, 230. 
 
 Crosby v. Middk^on, 427. 
 
 Cross V. Spri<rge, 89 
 
 Crosskey v. Bank of Walos, 373. 
 
 Crosskill v. Bower, 154, 156. 
 
 Crowdy v. Daj', 1 64. 
 
 Crow i. Ballard. 143, 297, 344. 
 
 Cruikshank v. M'Vicnr, 307. 
 
 Cullen r. O'Meara, 243, 
 
 Cullen, Trustee, v. Johnson, 67, 91. 
 
 Oullingworth v. Lloyd, 215, 393. 
 
 Cumberlege v. Law.son, 410. 
 
 Currie v. Goold, 402. 
 
 — V. Nind, 230. 
 Curtis V. Curtis, 379. 
 
 — V. Perry, 288, 375 444. 
 
 — V. Price, 199. 
 
 Ciirzon V. Belworthy, 186, 191, 366, 382. 
 Constance, v. Constance, 194. 
 Cutts V. Salmon, 164. 
 
 Dacre v. Gorges, 436, 454. 
 Baking v. Whimper, 227, 230. 
 D'Albiac v. D'Albiac, 95, 154, 210, 341. 
 Dalby v. PuUen, 95. 
 Dale, V. Hamilton, 135. 
 Dally V. Wonham, 346, 390. 
 Daiston V. Coat^worth, 275. 
 Daly V. Kelly, 166. 
 Dauiel v. Mitchell, 61. 
 Daniels v. Davison, 246. 
 Daun, V. Spurrier, 129, 139. 
 Danvers v. JNIanning, 449. 
 D'Arcv V. D'Arcy,l94. 
 Darlev »'. Singleton, 183. 
 Darliiigtou v.^Hamillon, 62, 81, 244, 250, 
 257. 
 — V. Pulteney, 444. 
 Daubeny v. Cockburn', 51, 272. 
 Davenport v. Stafford, 352. 
 Davey v. Durrant, 346. 
 Davidson v. Tulloch, 374. 
 Davies ii Cooper. 95, 98. 
 
 — V. Davies, 100, 130, 132, 178, 180, 
 
 387, 390. 
 
 — V. Fit ton, 418. 
 
 — V. Marshall, 134. 
 
 — V. Ottv, 375, 392. 
 
 — D. Thomas 211, 317. 318. 
 Davia v. Abraliam, 171. 
 
 _ V. Chanter. 125, 434. 
 ^ V. Duke of Marlborough, 187, 223, 
 344. 
 
 Davis V. Morier, 398, 401 
 
 — V. Shepherd, 65, 432. 
 
 — V. Lord Strathmore, 267. 
 
 — V. Symonds, 392. 
 
 — V. Uphill, 269, 270, 271. 
 Davison v. Robinson, 286. 
 Davoe v. Fanning, 159. 
 Dawes v. Betts, 243. 
 Dawson v. Collis, 331. 
 
 Dawson v. Mussey, 177, 178, 311. 
 
 — V. Prince, 236, 239, 256, 312, 
 
 313, 314. 
 
 — V. Sadler, 289. 
 Day V. Newman, 189. 
 Dearie, v. Hall, 142. 
 Debenbam v. Ox, 222, 392. 
 Deere v. Guest, 45. 
 
 De Hoi^htun v. Money, 233. 
 
 Del Mare v. RoLello,''449, 450, 453. 
 
 De Manneville v. Crompton, 73, 219, 220, 
 
 De Mattos v. Gibson, 235. 
 
 De Montmorency v. Devereaux, 297, 298, 
 
 387, 391, 
 Dendy v. Gary, 126. 
 Denne v. Light, 73, 93. 
 Dent V. Bennett, 108, 183, 190, 192, 
 
 390. 
 Denton v. Donner. 162, 189, 387. 
 
 — V. Macneil, 82, 83, 87, 307. 
 Denys v. Shuckburgh, 397, 398. 436. 
 Deposit and General Life Assurance Co. 
 
 V. Ayscouuh, 48. 
 Dettmar v. Metropolitan and Provincial 
 
 Bank, 236. 
 Devaynes, v. Noble, 425. 
 Devenish v Baines, 275. 
 Devonshire, Duke of, v. Eglin, 135. 
 Dew V. Clarke, 146. 
 Dilkes V. Broadmead, 214. 
 Dimes v. Proprietors of Grand Junction 
 
 Railway Co., 162. 
 Dimmock v. Hallett, 74, 82, 83, 84, 85, 
 
 92, 363. 
 Dimsdale v. Dimsdale, 181, 302. 
 I)ixon V. Baldwin, 331. 
 Dixons I). Moiikland Canal Co., 402, 403. 
 Dobell V. Hutchinson, 64. 
 
 — V. Stevens, 80, 85, 93, 98, 326, 388 
 Dobson, V. Land, 162. 
 
 Dodds V. Hills, 142, 237, 239, 254, 312, 
 
 313, 316, 321, 323. 
 Doe V. Alsop, 205. 
 
 — V. Bevan, 286. 
 
 — V. Evans, 453. 
 
 — V. Ford, 388. 
 
 — V. Howells, 388. 
 
 — V. Lewis, 217. 
 
 — V. Manning, 227, 232. 
 
 — V. Roberts. 294, 374, 375, 376, 451. 
 
 — V. Routledge, 199. 
 
 — V. Rusham, 229, 230.
 
 TABLE OF EKGLISH CASES CITED. 
 
 Do^gett V. Emerson, 61, 77, 311. 
 Dolman v. Nokes, 9*7, 98, 390. 
 Dommett v. Bedford, 280. 
 Donaldson v. Giilott, 51, 138, 142, 
 Donovan v. Fricker, 346, 347. 
 Dooliu V. Ward, 224. 
 Door V. Geary, 449, 450. 
 Douglas V. Culverwell, 194, 346. 
 Dover v. Buck, 157. 
 Dowell V. Dew, 136, 234, 441. 
 Dowle V. Saunders, 138, 140, 386. 
 Downes v, Grazebrook, 157, 158, 159, 
 162. 
 
 — V. Jennings, 217, 218, 220, 305, 
 
 — ». Power, 240. 
 Draper v. Corlase, 130. 
 Draper's Co. v. Davis, 1 66. 
 Orewe v. Corp, 62, 361, 362. 
 
 — V. Lord Norbury, 265, 
 Drewry v. Barnes, 402, 407. 
 Driscoll V. Bromley, 175. 
 Druiff V. Parker, 4i9. 
 
 Dryden v. Frost, 234, 248, 251, 260. 
 
 Drysdale, v. Mace, 80, 82, 91, 360, 
 
 Dunbar v. Tredennick, 234, 297. 
 
 Dundas v. Dutens, 209. 
 
 Dunnage v. \\'hite, 125, 434, 
 
 Duranty's Case, 339, 340. 
 
 Durham, Earl of, v. Legard, 62, 339, 362, 
 
 363, 431, 
 Button V. Peel, 275. 
 Dyer v. Dyer. 132. 
 
 — V. liargrave, 79, 100, 339, 359, 
 361, 362, 363. 
 
 Dykes v. Blake, 63, 81 
 
 Eads v. "Williams, 293. 
 Earl V. Stocker, 288. 
 Early v. Garrett, 327. 
 Estubrook v. Scott, 344. 
 Eastham v. Wilkinson, 261, 262. 
 East India Co. v. Donald, 384, 389, 406, 
 414, 454. 
 
 — V. Uencliman, 93, 172, 
 
 174, 366. 
 
 — V. Neave, 406. 
 
 — V. Vincent, 129. 
 Eaton V. Bennett, 422. 
 
 Ede V. Knowles, 208. 
 Edgecumbe v. Stranger, 174, 289, 260. 
 Edgeworth v. Eilguworth, 318. 
 Edwards v. Browne, 350. 
 
 — V. Burt, 187. 
 
 — V. Glynn, 285. 
 
 — V. Harben, 209. 
 
 — V. M'Cleav, 54, 78, 100, 102, 
 
 333, 346, 347, 350, 390. 
 
 — V. Meyrick, 143, 150, 152, 165, 
 
 166^ 167, 170, 302, 391. 
 
 — V, Moi'gan, 453, , 
 
 Edwards v. Pike, 279. 
 
 — V. Williams, 170. 
 
 — V. Warwick, 82, 92 98. 
 Eicboltz V. Bannister, 105. 
 Ekins V. Tresham, 85. 
 
 Elard v. Llandaff, 98, 358. 
 
 Elliott V. Ince, 145. 
 
 Ellis V. Coleman, 333, 339 341. 
 
 Elsey V. Adams, 394. 
 
 Elwes V. Elwes, 428. 
 
 Emmerton v. Matthews, 106. 
 
 England v. Downs, 217, 218, 219, 220. 
 
 Ernest v. Vivian, 302, 306, 307, 312. 
 
 Esdaile v. La Nauze, 51, 314, 315. 
 
 Espey V. Lake, 152, 178, 179, 195, 236, 
 
 254, 383. 
 Espin V. Pemberton, 237, 256, 259, 260, 
 
 261. 
 Estwick V. Caillaud, 212. 
 Etty V. Bridges, 142. 
 Evans v. Bickuell, 46, 53, 137, 140, 149, 
 277, 333, 352, 389, 391. 
 
 — V. Blood, 146. 
 
 — V. Bremridge, 123, 411. 
 
 — V. Carrington, 95. 
 
 — V. Edmonds, 54, 55. 
 
 — V. Jones, 433. 
 
 — V. Lewellyn, 143, 187, 190, 193, 
 
 — V. Fowler, 69. 
 
 — V. Richardson, 288. 
 
 — V. Williams, 267. 
 
 — V. Wyatt, 60, 68. 
 Evelyn v. Templar, 227. 
 Evroy v. Nicholas, 148, 382. 
 Eyre, ex-parte, 161, 382. 
 
 — V. Burmester, 259, 298, 312, 321. 
 
 — V. Dolphin, 241. 
 
 — ». M'Donnell, 381. 
 
 — V. MDowell, 266. 
 Eyton V. Eyton, 276. 
 
 Fagg v. Dobie, 277. 
 — V. James, 313. 
 Fairhead v. South ee, 412. 
 Falck V. Gooch. 435. 
 Falcke v. Gray, 187, 357, 363, 411. 
 Falkner v. O'Brien, 52, 185, 190, 379. 
 Fallon V. Robins, 418, 422. 
 Fairbrother v. Gibson, 76, 77, 80. 
 Farewell v. Coker, 398. 
 Farler v. I,ane, 192. 
 Farley, ex-parte, 160. 
 Farmer v. Farmer, 193. 
 
 — V. Martin, 268, 272. 
 Farr v. Sheriffe, 428, 
 Farrant v. Blaiichford, 180, 180, 288, 
 
 298, 302, oU3. 
 Farrow v. Kees, 140, 252. 
 Fearon v Desbrisay, 269. 
 Felgate's Case, 339.
 
 8 
 
 TABLE OF ENGLISH CASES CITED. 
 
 Fellowes v. Lord Gwydvr, 88, 94, 364. 
 Fenton v. Browue, 82, 83, 392. 
 Feret v. Hill, 88, 329. 
 Fern}'hough v. Leader, 46, 218, 355. 
 Ferrarsr. Cherry, 242, 316. 
 Ferres v. Ferres, 193. 
 Fewster v. Turner, 362. 
 Field V. Boland, 234. 
 Fife V. Clayton, 418, 4.56. 
 Filmer v. Gott, 44, 192, 389. 
 Finch V. Newnham, 275. 
 — V. Shaw, 259, 321. 
 Fisher v. Moon, 134, 135. 
 Fisk V. Barber, 160. 
 Fitzgerald v. Falconberg, 259. 
 Fitzsimmon v. Joslin, 1 14. 
 Flight V. Barton. 80, 92, 103, 244, 255, 
 25Y. 
 
 — V. Booth, 69, 63, 92, 243. 
 
 Flint V. Woodin, 81,91, 92, 94, 99, 225. 
 
 Flook V. Jones, 285. 
 
 Foley V. Hill. 304. 
 
 Fonnerau v. Poyntz, 452. 
 
 Forbes v. Ross, 156. 
 
 Ford V. Harrington, 375, 378. 
 
 _ V. Olden. 162, 194. 
 
 _ V. While, 266, 321. 
 Forteblow v. Shirley, 103. 
 Foster, Be, 166. 
 
 — V. Blackstone, 142. 
 _ V. Charles, 56, 325. 
 
 Fowkes V. Manchester and London Life 
 
 Assurance Co. 121. 
 Fowler v. Fowler, 421, 422, 423. 
 V. Scottish Equitable Life As- 
 surance Society, 424, 455. 
 Fox V. Macreth, 97, 158, 186, 349. 
 Fox's Case, 351. 
 Frail v. EUis, 240, 249, 260. 
 Franks v. Bollans, 158, 307. 
 
 — V. Weaver, 43. 
 Fraser v. Levy, 282. 
 
 — V. Thompson, 189, 202, 284. 
 Frazer v. Jor.es, 137, 321, 322. 
 
 Freer v. Hesse, 267. ■, 
 
 French v. French, 109, 200, 204, 205. 
 Frost V. Brewer, 361. 
 Frowd, ex-parte, 116. 
 Fuller V. Abrahams, 224. 
 _ V. Bennett, 259, 260. 
 
 — V. Wilson, 326. 
 Fyler v. Fyler, 391. 
 
 Gale V. Lindo,216, 342. 
 — V. Williamson 199. 
 Galloway v. Corporation of London, 164. 
 Gallon V. Emuss, 224. 
 Gardner v. Gardner, 147, 194, 195. 
 
 — V. Ogden, 175. 
 Garrard v. Frankel, 413, 416, 438, 455. 
 
 Garrard v. Grinling, 417, 456, 
 Garstin, ex-parte, 278. 
 Garth v. Cotton, 43, 195, 379. 
 Gartside v. Gartside, 291. 
 
 — V. Isherwood, 146, 186, 18Y. 
 Garvey v. M'Minn, 176, 190, 193. 
 Gask.'ll V. Chambers, 162. 
 Gas Light and Coke Co. v. Turner, 388. 
 Geddes v. Pennington, 73, 74. 
 Gedge v. Duke of Montrose, 390. 
 General Steam Navigation Co. v. Rolt 
 
 238 239 254. 
 Gerard v. O'Reilly, 129, 260. 
 Gerhard v. Bates, 54, 326. 
 Gibbins v. Philips, 285. 
 Gibbons v. Caunt, 124. 
 Gibbs V. Daniel, 165, 167, 170, 387. 
 Gibson v. D'Este, 63, 346, 348, 350, 390. 
 
 — V. Goldsmid, 335. 
 
 — V. Ingo, 252. 
 
 — V. Jeyes, 151, 164, 165, 168, 187, 
 
 386. 
 Gibson v. Russell, 190, 191, 192. 
 
 — V. Spurrier, 103. 
 Gibson's Case, 116. 
 Giddings v. Giddings, 151, 182. 
 Gilbert v. Lewis, 366, 380, 394. 
 Giles V. Giles, 354, 449, 451. 
 Gillett V. Peppercorn, 174, 175, 306, 
 Ginger, ex-parte, 114. 
 
 Glascott V. Laing, 383. 
 Glasse v. Marshall, 43. 
 Gl^-n V. Bank of England, 383. 
 Goblett V. Bechey, 130, 453. 
 Goddard v. Carlisle, 170. 
 
 — V. Snow, 217, 218. 
 Goldicutt V. Townsend, 73,'202. 
 Goldsmith v. Bruning, 221. 
 
 — V. Russell, 199. 
 Gompertz v. Bartlett, 58. 
 
 — V. Denton, 328. 
 Goodman v. Sayers, 289, 402, 447. 
 Goodricke v. Browne, 277. 
 
 — V. Taylor, 282, 283. 
 Goram v. Sweeting, 09. 
 
 Gordon, Lord, v. Marquis of Hertford, 
 
 417. 
 Gordon v. Gordon, 124, 125, 404, 434. 
 
 — V. I'armelee, 77, 84. 
 
 — V. Shaw, 370. 
 Gore, ex-pnrte, 161. 
 
 — V. Gibson, 147. 
 
 — V. Stackpoole, 317, 318. 
 Gorsuch V. Cree, 62. 
 
 Goss V. Lord Nugent, 416. 
 Govett V. Richmond, 131. 
 Gowland v. De Faria, 187, 297, SOL 
 Goviiiour V. Pigge, 125. 
 Griham v. Chapman, 281, 282, 283 
 
 — V. O'Keefe, 200, 206, 208. 
 Grant v. Campbell, 240.
 
 TABLE OF ENGLISH CASES CITED. 
 
 Grnnt v. Munt, SO, 100, 359, 361. 
 
 Grayi;. Cliiswell, 425. 
 
 Grazebrook v. Percival, 220. 
 
 Great Luxembiirsj Railway Co. v Mag- 
 nay, 52, 161,"339, 348. 
 
 Great Northern Railway Co. v. Lanca- 
 shire, &c. Hailwaj^ Co., 135. 
 
 Great Western Railway Co. v. trips, 402. 
 
 Green v. Bank of England, 3.52. 
 
 — V. Barrett, 47, 369, 372, 
 
 — V. Baverstocke, 224. 
 
 — V. Gosden, 96. 
 
 — V. Lowes, 214. 
 Green v. Kixon, 41, 42, 278. 
 Greenfield v. Bates, 171. 
 
 — V. Edwards, 95, 122, 123, 137, 
 
 138, 248. 
 Greenhill v. Church, 288. 
 Greenlaw v. Hugell, 162. 
 
 — V. King, 152, 182. 
 Greenslade v. Dare, 235, 239, 240, 248, 
 
 254, 262, 321. 
 Greenwood v. Bairstow, 244. 
 
 — V. Greenwood, 125. 
 Gregory v. Gregory, 158, 301, 305, 307, 
 
 311. 
 
 — V. Mighell, 129. 
 
 — V. Pilkington, 414. 
 
 — V. "Wilson, 407. 
 
 Gresley v. Mouslev, 165, 166,302, 304, 
 
 305, 307, 31i;'348, 371, 379. 
 Grey v. Pearson, 451. 
 Grieveson v. Kirsoj^p, 433. 
 Griffin V. Clowes, 138. 
 Griffith V. Spratley, 186. 
 Griffiths V. Kobbins, 190, 192, 193. 
 Griggs V. Staplee, 219, 220. 
 Grisley v. Lother, 220. 
 Grissell v. Peto, 65. 
 Grogan v. Cooke, 212. 
 Grosvenor v. Green, 80, 243, 255. 
 
 — V. Sherratt, 190, 193, 302, 
 
 311. 
 Grove v. Bastard, 391. 
 Groverw. Hugell, 158, 162. 
 Groves v. Groves, 375, 376. 
 
 — V. Perkins, 95, 101, 392, 
 Grylls, cx-pnrte, 158. 
 Gubbins v. Creed, 184. 
 Gurney v. Womersley, 58. 
 Guy V. Pearkes, 209. 
 G Wynne v. Heaton, 187, 344. 
 
 Haiqh v. Ilaigh, 291, 477.' 
 ^ale V. Allnutt, 283. 
 
 ^ V. Saloon Omnibus Co. 212. 
 fiall V. Coiider, 105. 
 
 — V. Hall. 184. 
 
 — V. Hallett, 161, 349. 
 
 — V. Koyes, 158. 
 
 Hallt>. Potter, 221. 
 — V. Smith, 212. 
 HaUows V. F. rnie, 64, 74, 95, 391. 
 Harner v. Tilsley, 133. 
 Hamilton v. Ba 1, 374. 
 
 — V. Grant, 3o4. 
 
 — V. Kirwan, 384. 
 
 — V. Royse, 236, 241, 242, 259. 
 
 — V. Watson, 122, 123. 
 
 — V. Wright, 154, 158, 159. 
 Hammersley v. Ue Bid, 89, 90, 136, 342. 
 Hamj^den v. Hampden, 276. 
 Hampshire v. Peirco, 449. 
 
 Hampson w. H:inipson, 354. 
 Hanbury v. Litchfield, 244. 
 Hankey v. Vernon, 407. 
 Hannah v. Hodgson, 148. 
 Hannington v. Du Chatcl, 222. 
 Hanson v. Keating, 52, 335, 336. 
 Harbidge v. Wogaii, 428. 
 Harbin v. Darby, 156. 
 Harcourt v. Wliite, 129, 304. 
 Harding v. Wickham, 290, 292. 
 Hardingham v. Nicholls, 318, 319, 870. 
 Hardman v. Booth, 49. 
 
 — V. Ellames, 370. 
 Hare v. Horwood, 407. 
 Hargreave v. Everard, 194. 
 Hargreaves v. Rothwell, 259. 
 Harman v. Richards, 199, 201. 
 Harnett v. Yeilding, 412. 
 Harris v. Ingledew, 370. 
 
 — V. Kemble, 78, 93. 95, 358, 359. 
 
 — V. Pepperell, 414, 454, 455. 
 
 — V. Rickett, 283. 
 
 — V. Tremenheere, 170. 
 Harrison, ex-par te, 160, 161. 
 
 — V. Coppard, 323. 
 
 — V. Forth, 316. 
 
 — V. Gardiner, 356. 
 
 — V. Guest, 183, 186, 189, 191, 
 
 l'.»2, 238, 371. 
 
 — V. Randall, 273. 
 
 — V. Mayor, <fec. of Southampton, 
 
 294. 
 Harrod v. Harrod, 146. 
 Harrynian v. Collins, 250, 254. 
 Hart V. Windsor, 104. 
 Hartopp V. Hartopp, 180. 191, 352, 391. 
 Hartwell i-. Colvin, 304, 305. 
 
 — V. Hartwell, 222. 
 Harvey v. Cooke, 125, 404. 
 
 — V. Mount, 193, 393. 
 
 — V. Shelton, 292, 293. 
 
 — V. Youns:, 83, 84, 85. 
 Harwood v. Tooke, 222, 224. 
 Hasell, ex-parte, 3u7. 
 Ilastie V. Couturier, 406. 
 Hatch V. Hatch, 177, 178, 306. 
 
 — V. Searles, 248. 
 Haven v. Foster, 402.
 
 10 
 
 TABLE OF ENGLISH CASES CITED. 
 
 Hawkins v. Bone, 14Y. 
 Hawlev V. Cramer, 160, 168, 169, 224. 
 liaycraft v. Creasy, 57, 82, 325. 
 Haywood v. Cope^ 76, 77, 78, 83, 95, 359, 
 
 363, 390. 
 Hazard v. Irwin, 54. 
 Head v. Godlee, 181. 
 Ileaiie v. Ro2,ers, 99. 
 Heap V. Tonge, 224. 
 Heathcoate v. Paignon, 187. 
 Heming v. Swinerton, 289. 
 Hemingway v. Hamilton, 88. 
 Hemmer v. Cooper, 88. 
 Henderson v. Cook, 407. 
 
 — V. Hudson, 62, 359. 
 
 — V. Lacon, 47, 48, 68, 69, 85, 
 
 110, 326, 369. 
 
 — V. Royal British Bank, 330. 
 Henley «. Stone, 374. 
 
 Hennequin v. Naylor, 109, 388. 
 Herbert v. Bulkley, 44. 
 Hercy v. Dinwondy, 303. 
 Hern v. Nicbolls, 112. 
 Heme v Meeres, 151. 
 Heron v. Heron, 182, 298. 
 Hervey v. Hervey, 440. 
 
 — V. Smith, 247. 
 Hesse v. Briant, 165, 176. 
 Hewitt V. Loosemore, 141, 23V, 251, 256, 
 
 2(50, 262. 
 Hewlins v. Shipham, 134. 
 Hicliens v. Congreve, 373. 
 Hiclj V. Pliilipps, 362. 
 Hickes v. Cooke, 162, 194, 303, 304, 305, 
 
 306. 
 Hicks V. Morant, 309. 
 Hiekson v. Lombard, 383. 
 Hiern v. Mill, 234, 248, 251, 
 Higgins V. Joyce, 165. 
 
 — V. Samels, 78, 82, 83, 357, 359. 
 Higginson v. Clowes, 359, 412. 
 
 — V. Kelly, 287. 
 Higinbotbam v. Ilolme, 286, 287. 
 m\\,ex-p'irte,l62,2S1. 
 
 — V. Buckley, 65, 80, 361. 
 
 — V. Gray, 88, 98. 
 
 — V. Manchester Waterworks Co. 388. 
 
 — V. Simpson, 239. 
 
 — V. South Staffordshire Railway Co., 
 
 130. 
 Hills V. Downton, 443. 
 
 — V. Rowland, 428. 
 Hinchinbrooke, Lord v. Seymour, 268. 
 Ilinde's Lessees v. Longworth, 206. 
 Hiiidson v. Wentheiill, 171. 
 
 Hine v. Do.ld, 239. 
 Hinton v. Ilinton, 184. 
 Hiortis v. Hoiilton, 138. 
 Hipkins v. Aniery, 251. 
 Hitchcock V. Gi'ddings, 406, 430, 432, 
 455. 
 
 Hitchin v. Groom, 417. 
 Hf>bbs V. Norton, 92, 341. 
 Hobday v. Peters, 171, 174, 175, 111. 
 Ilodgkinson v. Fernie, 448. 
 Hodgson, ex-par tc, 161. 
 
 — V. Dean, 265. 
 Hoffge V. Burgess, 447, 448. 
 Iloghton V. Hoghton, 152, 180, 182, 345, 
 
 387. 
 Holbird v. Anderson, 212. 
 Holdernest v. Rankin, 368. 
 Holloway v. Headington, 203. 
 
 — V. Millard, 199, 207, 208. 
 Holman?; Loj^nes, 153, 159, 163, 165, 
 
 166, 167, 170, 175, 371. 
 Holmes v. Coghill, 439. 
 
 — V. Custance, 449, 450. 
 
 — V. Penney, 200, 201, 203, 207. 
 
 — V. Powell, 244, 245. 
 Holmes' Estate, He, 170, 386. 
 Holt V. Holt, 154. 
 
 Holt's Case, 116. , 
 Holworthy v. Mortlock, 40*7. 
 Holyman, ex-parte, 161. 
 Honner v. Morton, 3oO, 301. 
 Hood V. Oglander, 412. 
 Hooper v. Clark, 132. 
 
 — V. Gumm, 130. 
 
 — V. Smith, 281. 
 Hope V. Liddell, 241. 
 Hopgood 0. Ernest, 141, 251. 
 Hopkins v. Tanqueray, 70. 
 Hopkinson v. Rolt, 324. 
 Hore V. Becher, 406, 431. 
 Horn V. Horn, 209. 
 
 — V. Kilkenny <fec. Railway Co. 278. 
 Hornby v. Matcham, 275. 
 Horsfall v. Thomas, 95, 100. 
 Horton v. Westminster Improvement 
 
 Commissioners, 388. 
 Hotchkiss V. Dickson, 124. 
 Hotson V. BrowTie, 93, 388. 
 Hough V. Richardson, 61, 74, 77, 78. 
 Houghton V. Lees, 223, 434. 
 Hovenden «;. Lord Annesley, 191, 304, 
 
 307, 314. 
 How V. Wehlon, 188, 194, 318, 322. 
 Howard v. Castle, 225, 
 
 — V. Clhaffers, 257. 
 
 — V. Duciine, 162. 
 
 — V. Earl of Shrewsbury, 288. 
 Howden v. Haigh, 215. 
 
 Howell V. Baker, 168. 
 
 — V. Howell, 348. 
 Howkins v. Jackson, 433, 434. 
 Howland v. Norris, 62, 339, 361, 363. 
 Hubbard v. Briggs, 385. 
 
 Hudson V. Beauchamp, 146. 
 Hughes, ex-parte, 161, 172, 174, 346, 
 340. 
 — V. Garner, 258, 313, 367, 370.
 
 TABLE OF ENGLISH CASES CITED. 
 
 11 
 
 Hughes V. Garth, 369. 
 
 — V. Howard, 277. 
 
 — V. Jones, 361. 
 
 — V. Wells, 440. 
 Huguenin v. Basley, 51, 183, 198. 
 Hiiiett's Case, 323. 
 
 Hume V. Pocock, 83, 359. 
 Humphrey v. Olver, 268, 385, 386. 
 Humphreys v. Pensam, 229. 
 Humphries v. Home, 424, 456. 
 Hunsden v. Cheyney, 130, 131, 
 Hunt V. Elmes, 141, 256. 
 
 — V. Hort, 452. 
 
 — V. Matthews, 218, 275. 
 
 — V. Mortimer, 286. 
 
 Hunter v. Atkins, 170, 176, 177, 191. 
 Hutchinson v. Morley, 85. 
 HuttoD V. Cruttwell,"284. 
 
 — V. Rossiter, 54, 69, 342. 
 Hvde V. White, 224. 
 
 Hylton V. Hylton, 177, 178. 
 
 Ibbotsox v. Rhodes, 130, 132. 
 
 Ingle i>. Richards, 158. 
 
 Inglis V. Lumsden, 341. 
 
 Ingram v. Thorp, 48, 83, 342, 344, 369, 
 
 379. 
 Innes v. Jackson, 427. 
 
 — Sayer, 440. 
 
 Ireland, Bank of, v. Trustees of Evans' 
 
 Charities, 137, 142. 
 Irnham, Lord, v. Child, 428, 429. 
 Irvine v. Kirkpatrick, 51, 75, 83, 93, 95, 
 
 98, 125, 366. 
 Ives V. Medcalfe, 291, 292. 
 Izon V. Gorton, 104. 
 
 Jackman v. Mitchell, 214, 344, 392. 
 Jackson v. Jackson, 268. 
 
 — V. King, 146. 
 
 — V. Rowe, 239, 252, 257, 317, 369. 
 Jacobs V. Richards, 145, 146. 
 
 James, ex-parte, 154, 157, 158, 159, 161, 
 
 165. 
 Jameson v. Stein, 73, 74, 93, 342. 
 Jar \ is V Duke, 53. 
 Jay V. Richardscn, 235, 240. 
 JefFerys v. Jefferys, 203, 445. 
 Jendwine v. Slade, 83. 
 Jenkins v. Jones, 317. 
 Jenkiuson v. Pepys, 412. 
 Jenkyn v. Vau-han, 207, 208, 
 Jenm'r v. Je.mer, 180, 181, 182, 
 Jennings v. Broughton, 54, 73, 74, 75, 76, 
 
 77, 78, 82, 83, 100, 302, 307, 382, 
 
 390. 
 Jerrard v. S;Hinders, 313. 
 Jewson V. Moullon, 203. 
 Johnson v. P'esemcyer, 169, 285, 
 
 — V. Gallii-xlier, 149. 
 
 — V. Lcgard, 230, 232. 
 
 Johnson v. Ogilvv, 46. 
 
 — V. Pye, 148. 
 
 — V. Smart, 83, 860. 
 
 — V. Taber, 77, 78, 
 Jones V. Bennett, 293. 
 
 — V. Caswell, 224. 
 
 — V. Croucher, 233. 
 
 — V. Garcia del Rio, 878, 
 
 — V. Gregory, 44. 
 
 — V. Jones, 142. 
 
 — V. Just, 105, 107. 
 
 — V. Kearney, 148, 235, 
 
 — V. Keene, 98. 
 
 — V. Marsh, 203. 
 
 — V. Martin, 217. 
 
 — V. I'owles, 51, 314, 317. 
 
 — V. Price, 164, 165. 
 
 — V. Provincial Insurance Co, 120, 
 
 122. 
 
 — V. Ricketts, 892. 
 
 — V. Roberts, 166. 
 
 — V. Smith, 237, 238, 239, 240, 241, 
 
 244, 247, 251, 252, 254, 255, 
 256, 257. 
 
 — V. Stanley, 319. 
 
 — V. Thomas, 137, 163, 168, 170. 
 
 — V. Tripp, 166. 
 
 — V. Turberville, 303. 
 
 — V. Williams, 238, 242, 256. 
 
 — V. Wright, 107. 
 Jorden v. Money, 88, 89. 
 
 Joyce V. De Moleyns, 313, 320, 32L 
 Joynes v. Statham, 417, 418, 
 
 Kain v. Old, 69, 99. 
 Kay V. Crook, 88, 342. 
 — V. Smith, 386. 
 Keat V. Allen, 222. 
 Keates v. Lord Cadogan, 100, 104. 
 Keech v, Sandford, 154. 
 Kelly V. Rogers, 366. 
 
 — V. Solari, 406, 414, 
 Kelsall V. Bennett, 370. 
 
 Kebon v. Kelson, 20j, 227, 229, 231. 
 Kemp V. Ro^c, 292. 
 Kendall, ex-pnrfe, 425. 
 
 — V. Hulls, 260, 261. 
 Kennedy v. Daly, 316. 
 
 ,- V. Green, 137, 138, 238, 248, 
 261, 370. 
 
 — V. Panama, &c. Co. 58, 59, 60, 
 
 334. 
 Kennell v. Abbott, 354, 451. 
 Kenney v. Browne, 132, 254, 347. 
 Kensington, Lord, v. Bouverie, 348. 
 Kent V. Freehold Land and Brickmaking 
 
 Co. 80, 95, 110, 351. 
 Ker V. Lord Dun2;annon, 250, 317. 
 Kerrick v. Brans'iy, 44. 
 Ki Inc}' V Coussmaker, 453 
 Killick V. Flexney, 161.
 
 12 
 
 TABLE OF EXGLISH CASES CITED. 
 
 King V. ITamilton, 223, 338. 
 
 — V. Hamlet, 339, 344. 
 
 — V. Savery, 343. 
 
 — V. Wil3on, 80, 361. 
 Kingsford v. Merry, 48, 329. 
 Kirkwood v. Tliompson, 162. 
 Kirwan v. CuUen, 193. 
 
 Kisch V. Central Venezuela Railway, 75, 
 79, 80, 82, 83, 87, 94, 95, 110, 111, 
 256. 
 
 Knatchbull v. Grueber, 64, 362, 363. 
 
 Knight V. Bowver, 165, 238, 246, 248, 
 304, "307. 
 
 — V. Hunt, 215. 
 
 — V. Marjoribanks, 78, 96, 152, 157, 
 
 159," 162, 182, 185. 
 Knowles v. Houghton, 379. 
 Knox V Symmonds, 4^7. 
 
 Lacet, ez-parte, 154, 157, 161, 324, 349. 
 
 — V. Ingle, 
 
 Laehlan v. Reynolds, 343, 362. 
 
 Lackersteen v. Lackersteen, 423. 
 
 Lacon v. Liifen, 286. 
 
 Laidlow v. Organ, 97. 
 
 Laing v. Fidgeon, 107. 
 
 Laird v. Birkenhead Railway Co. 129, 
 
 135, 136. 
 Lambert v. Lambert, 193. 
 Lamlee v. Hanman, 216. 
 Lamplugh v. Lamplugh, 184. 
 Lancaster v. Evors, 371. 
 Lance v. Xorman, 217. 
 Lane v. Jackson, 267, 321. 
 
 — V. Page, 268, 273. 
 Langley v. Fisher, 111, 354, 390. 
 Langridge v. Levy, 373. 
 Lansdowne v. Lansdowne, 400. 
 Lassence v. Tierney, 202. 
 Latimer v. Batson, 211. 
 Latouche v. Lord Dunsany, 265. 
 Laver v. Fielder, 90, 342. 
 
 Law V. Law, 221, 222, 378. 
 
 Lawless v. Mansfield, 163, 166. 
 
 Lawley v. Hooper, 42, 344. 
 
 Lawrence v. Galsworthy, 158. 
 
 Lawrence's Case, 64, 79, 263,* 302, 307. 
 
 Lawrenson v. Butler, 440. 
 
 Lawton v. Campion, 404, 434. 
 
 Layard v. Maud, 137, 141. 
 
 Leach v. MuUett, 63. 
 
 Leake v. Young, 281, 283. 
 
 Leakins v. Clissi'U, 84, 83. 
 
 Leather Cloth Co. v. American Leather 
 
 Cloth Co., 392, 393, 
 Lee V. Angas, 50. 
 
 — V. Fernie, 271. 
 
 — V. Hart, 281. 
 
 — V. Jones, 99. 122, 123. 
 
 — V. LockLart, 214. 
 
 Leeds, Duke of, v. Lord Amherst, 129, 
 
 298. 299, 301, 304. 
 Leeds v. Xutall, 175. 
 Legge V. Croker, 62, 92. 
 Leifchild's Case, 368. 
 Leigh V. Lloyd, 234, 240. 
 Le Neve v. Le Xeve, 200, 266. 
 Leonard v. Leonard, 124,404, 434. 
 Lerow v. Wilmarth, 206. 
 Leslie v. Baillie, 402. 
 
 — V. Thompson, 62, 67, 363, 365. 
 Lester v. Garland, 287. 
 
 Leuty V. Hillas, 407, 413, 419, 437, 454. 
 Lewis, ex-parte, 349. 
 
 — V. Bond, 243. 
 
 — V. Hillraan, 158, 166, 173, 174. 
 
 — V. Jones, 90, 215. 
 
 — V. Bead, 191. 
 
 — V. Rees, 229, 230. 
 
 Leyland v. Illingworth, 82, 86, 339, 390. 
 
 Leibman v. Harcourt, 303, 321. 
 
 Life Association of Scotland v. Siddall, 
 299, 301, 303, 303, 307. 
 
 Liggins V. Inge, 134. 
 
 Llghtfoot V. Heron, 147. 
 
 Lillie V. Legh, 135. 
 
 Lincoln v. Wright, 135. 
 
 Lindenau v. Lesborough, 119, 120, 122. 
 
 Lindo V. Lindo, 298. 
 
 Lin don v. Sharp, 211. 
 
 Lindsay V. Gibbs, 127. 
 
 Linehau v. Cotter, 64, 343, 362. 
 
 Lingood v. Crouch, 290. 
 
 Lister v. Turner, 230. 
 
 Liverpool Adelphia Association v. Fair- 
 hurst, 148. 
 
 Livingstone v. Reade, 205. 
 
 Llewellia v. Cobbold, 179, 217. 
 
 — V. Mackworth, 384. 
 
 — V. Pace, 47. 
 
 Lloyd V. Atwood, 125, 199, 260, 298, 
 300, 324. 
 
 — V. Brewster, 331. 
 
 — V. Clarke, 47, 193. 
 
 — V. Cocker, 421. 
 
 — V. Passingham, 125, 312, 314. 
 Load V. Green, 328, 
 
 Loader v. Clark, 217, 220, 302, 390. 
 
 Locke V. Prescott, 240. 
 
 Loffus V. Maw, 89, 90. 
 
 Lomax v. Riplev, 279, 382. 
 
 London, Bank of, v. TyrreU, 347, 350. 
 
 London and Birmingham Railway Co. v. 
 
 Winter, 418. 
 London Assurance Co. v. Moses, 46, 355. 
 Londonderry and Enniskillen Railway 
 
 Co. V. Leishman, 290. 
 Longmate v. Ledger, 146, 150, 190, 344, 
 
 371. 
 Longmeid v. Holliday, 373. 
 [ Lonsdale, Lord, v. Littledale, 290.
 
 TABLE OF ENGLISH CASES CITED. 
 
 13 
 
 Lord V. Underdonck, 135. 
 
 Lovell V. Hicks, 93, 115, 302, 844, 350. 
 
 Loveridj^e v. Cooper, 142. 
 
 Lowndes w. Laue, 76, 77, 78, 81, 91, 92. 
 
 Lowther v. Carlton, 316. 
 
 — V. Lowther, 173. 
 Loxley v. Heath, 89, 90. 
 Lucas v. Worswick, 406. 
 Luceua v. Lucena, 442. 
 Lucy, ex-parle, 404. 
 Luff«;. Lord, 157, 383, 390. 
 Lund V. Bliinchard, 373, 380. 
 Luttrell a. Olmius, 274. 
 
 Lyddon v. Muss, 163, 164, 165, 302,305, 
 
 307. 
 Lyde v. Mynn, 224. 
 Lyne v. Lyne, 369. 
 
 Lyon V. Home, 183, 191, 193, 391, 392. 
 Lysney v. Selby, 75, 78, 80, 82, 85. 
 
 Maber v. Hobbs, 259. 
 
 M' Alpine v. Swift, 436, 455. 
 
 Macarthy v. Decaix, 398, 401, 406. 
 
 M'Blair v. Gibbes, 379. 
 
 Macb-ide v. Lindsay, 355. 
 
 M'Bryde v. Weekes, 302. 
 
 M'Burnie, ex-parte, 202. 
 
 M'Cabe v. Hussey, 171. 
 
 M'Culloch V. Gre^-ory, 92, 255, 343, 350. 
 
 M'Diarmid v. M'Uiarmid, 190, 194. 
 
 Macdona v. Swiney, 211. 
 
 Macdonald v. Macdonald. 307. 
 
 M'Donnell v. White, 307, 309. 
 
 MackelUir v. Wallace, 125. 
 
 M'Kenna, Jie, 157. 
 
 M'Kinnell v. Robinson, 374. 
 
 Maclure v. Ripley, 95, 182. 
 
 M'Xeill V. Cahill, 191, 214, 217. 
 
 M'Queen v. Farqubar, 254, 316, 384, 392. 
 
 Macreth v. Symons, 234. 
 
 Maddeford v. Austwick, 125, 182. 
 
 Maddox V. M:iddox, 258. 
 
 Madeley v. Booth, 62, 64, 362, 363. 
 
 Madeii v. Vee^ers, 302. 
 
 Madrid Bank, He, 95. 
 
 Magenois v. Fallon, 362, 363. 
 
 Maitland v. Backhouse, 178, 236, 238. 
 
 — ?>. Irving:, 178, 254. 
 Major V. Major, 126. 
 
 Maiden v. Menill, 397, 433, 436. 
 
 Malet He, 429. 
 
 Malins v. Freeman, 412, 455. 
 
 Mallalieu v. Hodgson, 388. 
 
 Malmi'sbury v. Malmesbury, 419, 437. 
 
 Malpas V. Ackland, 241. 
 
 Man V. Ward, 383, 38 U 
 
 Manby v. Bewickc, 146. 
 
 Mangles v. Dixon, 130, 236, 322. 
 
 — V. Grand Dock Colliery Co., 296. 
 Manning!). Albee, 84. 
 
 — V. Lecbmere, 383, 
 
 Manningford v. Toleman, 221. 
 Manser v. Back, 411, 413, 418. 455. 
 Manser's Case, 396. 
 March v. Lee, 324. 
 Mare v. Malachv, 381. 
 
 — V. Sandford, 214. 
 
 — V. Warner, 214. 
 Marjoribankst). Ilovenden, 259, 260,261. 
 Marker v. Marker, 132. 
 
 Marsden's Trust, Jie, 268, 269,270,271, 
 
 385. 
 Marshall v. Collett, 397, 433. 
 
 — V. Sladden, 366, 394. 
 
 Martin 2). Cotter, 18, 19, 243, 244,255, 
 339, 300. 
 
 — V. Martin, 228. 
 
 — V. Mitchell, 357. 
 
 — V. Morgan, 99. 
 
 — V. Pycroft, 147, 364, 365, 418. 
 
 — V. Sedgwick, 142. 
 Martindale i'. "Booth, 210, 211. 
 Martinez v. Coojjcr, 141. 
 ilarvin v. Bennett, 67. 
 Mason v. Armitage, 412. 
 
 — V. Crosby, 77, 78. 
 Massey v. Davies, 172, 174. 
 Masson v. Bovet, 337. 
 Masters v. Ibberson, 331. 
 Matthew v. Brise, 178, 306, 311. 
 Matthie v. Edwards, 176. 
 
 Maturin u. Tredenuick, 88, 175, 336, 337, 
 
 340, 350. 
 Maundrell v. Maundrell, 313. 
 Maunsell v. Hedges, 89, 90, 93, 342. 
 Maxwell v. Port Tenant Steam Fuel Co., 
 
 172. 
 May *'. Chapman, 330. 
 ilayhew v. Fames, 259. 
 Maynard v. Moscley, 407. 
 Meadows v. Meadows, 410, 414, 436, 
 
 454. 
 Medbury v. Watson, 84, 85. 
 ^leddowcroft v. Huguenin, 294. 
 Medwin v. Sandham, 410. 
 Meilers v. Duke of Devonshire, 39Y. 
 Mellish V. Mellish, 178, 449. 
 
 — V. Motteux, 100. 
 Mercer v. Peterson, 281, 283. 
 Meredith v. Saunders, 186, 189, 
 Mei-ewethcr v. Shaw, GO, 69, 73. 
 Mertins v. Jolliffe 241, 316. 
 Mestaer v. Gillespie, 275, 444. 
 Metcalfe, Be. 193. 
 
 — V. Pulvertnn, 230. 
 Meux's Executors" Case, 115. 
 Middlecombe v. Mailow, 203. 
 Middleton v. Middlelon, 184, 195, 273. 
 
 — V. Sherhurn, 184. 193. 
 Midland Great Wc.-tern Railway Co., 
 
 of Ireland v. Jolmson, 397. 
 Mildoiay v. Hungerford, 401. 
 
 I
 
 u 
 
 TABLE OF ENGLISH CASES CITED 
 
 Miles V. Lansley, 247. 
 Mill V. Hill, 265, 346, 347. 
 Millar v. Craig, 298, 414, 436. 
 Millard's Case, 369. 
 Mills ),'. Bowyers' Society, 447, 448. 
 Milner v. Milncr, 448, 449. 
 Mince v. Peters, 379. 
 Minshall v. Lloyd, 210. 
 Mitchell V. Steward, 2.')2. 
 Mix(r'3 Case, 48, 117. 336. 
 Mocatta V. Murgatroj-d, 251. 
 Moens v. Ileyworlh, 56, 72. 
 Mogg V. Baker, 285. 
 Molineux, ex-parte, 161. 
 Mold V. WLeatcroft, 251. 
 Molony v. Kuruaii, 152, 173, 249, 318, 
 370. 
 
 — V. L'Estrange, 165, 297, 306. 
 Molton V. Camroux, 145, 147. 
 Monro v. Taylor, 419, 432. 
 Montefiore v. Browne, 239, 242. 
 Monteliori v. Montefiori, 342. 
 Montesquieu v. Sandys, 165, 168, 170, 
 
 366, 391. 
 Moodie v. Reid, 440. 
 Moor V. Bennett, 241. 
 Moore v. Frowd, 156. 
 
 — V. Jervis, 323. 
 
 — V. Mayhow, 319, 370. 
 
 — V. Moore, 402. 
 
 ~ V. Prance, 165, 386, 387, 394. 
 
 — V. Rycault, 203. 
 Morecock v. Dickens, 264. 
 Moreland c. Richardsnn, 247. 
 Morgan, ex-parle, ] 62, 349. 
 
 — V. Bruen, 392. 
 
 — V. Evans, 100. 
 
 — V. Higgins, 165. 
 
 — V. Lewes, 166. 307. 
 
 — V. Mather, 447. 
 Morland, ex-parte, 160. 
 Morley v. Attenboroiigh, 105, 
 
 — V. Clavcring, 244, 257. 
 
 — V. Reniioldsori, 453. 
 Morphett v. Jones, 135. 
 Morrett v. Paske, 324. 
 Morris v. Clarks<m, 216. 
 
 — V. Livie, 322, 323. 
 
 — V. arCulloch, 222. 
 
 — V. Venables, 284. 
 Morris Canal Co. v. Emmett, 67. 
 Morse v. Royal, 157, 159, 187, 190, 
 
 297. 
 Mortimer v. Bell, 226. 
 
 — V. Capper, 432. 
 
 — V. Orcliurd, 456. 
 
 — V. Shortall, 422, 423, 454, 455. 
 Moss V. Baiiibrigge, 166, 168, 169. 
 Mount ford v. Scctt, 259. 
 
 Mowatt V. Blake 382. 
 Moxey V. Bigwood, 412, 455. 
 
 Miickleston v. Brown, 279. 
 Mugiieridge v. Kew Jirunswick, Ac, 
 
 "Railway Co., 95, 96, 110. 
 Mulhallen v. Marum, 173, 177, 179, 297, 
 
 346, 347, 350, 390. 
 Mulvany v. Dillon, 160. 
 Mummery v. Paul, 326. 
 Munday v. Kniglit, 366. 
 Mundy V. JoUiffe, 135, 136. 
 Murphy, ex-parte, 287. 
 
 — V. Abraham, 200, 207. 
 
 — V. O'Shea, 173, 174, 347. 
 Murray v. 15arlee, 148. 
 
 — V. Mann, 332, 383. 
 
 — V. Palmer, 56, 186, 190, 297, 305, 
 
 310, 312, 346, 347, 350. 
 
 — V. Parker, 419, 455. 
 
 — V. Pinkett, 323. 
 Myers v. Watson, 357, 364, 390. 
 
 Nagle v. Baylor, 147, 302. 
 
 Nanney v. Williams. 171, 274. 
 
 Nantes v. Corrock, 209. 
 
 Nash V. Ash, 379. 
 
 National Assurance Association, Jie, 
 
 239, 242. 
 National Exchange Company v. Drew, 
 
 78, 83, 93, 115, 116, 117, 118, 366, 
 
 373. 
 National Life Assurance and Investment 
 
 Association, Be, 254. 
 Naylor v. Winch, 152, 398, 404, 434, 
 
 454. 
 Neale v. Day, 200. 
 
 — V. Neale, 404, 434. 
 Neap V. Abbott, 412, 435, 456. 
 Neate v. Ball, 331. 
 
 Nedby v. Nedby. 193. 
 
 Neesom v. (Jlarkson, 240, 241, 257, 311, 
 
 335, 346, 347. 
 Nellis V. Clark, 374, 375. 
 Nelson v. Duncombe, 145. 
 
 — 1^. Stocker, 75, 76, 79, 113 
 Nelthorpe v. Holgate, 100, 244, 247, 
 
 364. 
 — V. Pennyman, 166, 349. 
 
 Nesbitt V. Berrid'-e, 171, 368, 394. 
 
 Neville t;. Wilkiirson, 216, 341. 
 
 New Brunswick, <fec.. Railway Co. v. 
 Conybeare. 74, 76, 77, 83, 92, 111, 
 112,115,116,117,118,326,366,390. 
 
 New Brunswick, tfec. Railway Co. v. 
 Muggeridge, 80, 95, 109, 359. 
 
 Newburgh v. Newburgh, 452. 
 
 Newhara v. May, 45. 
 
 Newman v. Payne, 163, 166, 170, 344. 
 
 NichoU V. Jones, 150. 
 
 NichoUs V. Leeson, 402. 
 
 — V. Kicholls, 184. 
 
 — V. Pinner, 109. 
 
 — V. Roe, 289, 2'JO.
 
 TABLE OF EliTGLISH CASES CITED. 
 
 15 
 
 Nichols V. Charlie, 290. 
 
 — V. Hancock, 293. 
 
 — V. Pinner, 385. 
 Nicholson v. Hooper, 130, 132. 
 Nicol V. Vaug-han, 1*76. 
 NicoU V. Chambers, 6Y. 
 
 Mcoll's Case, 48, 74, 75, 93, 111, 115, 
 116, 117, 118, 137, 317, 330. 
 
 Niell V. Morley, 145. 
 
 Niven ?j. Belknap, 127. 
 
 Nixon V. Hamilton, 191, 259, 261, 266, 
 
 Nock V. Newman, 413. 
 
 Nokes V. Wharton, 164. 
 
 Norcutt V. Dodd, 209 
 
 Norfolk, Duke of, v. Worthy, 63. 82. 
 
 North British Insurance Co. v. Lloyd, 
 122. 
 
 Norton v. Relly, 193. 
 
 Norway v. Kowe, 202. 
 
 Nott ?j. Hill, 188, 189. 
 
 Nottridge v. Prince, 193. 
 
 Nunn V. Fabian, 129, 136. 
 
 Oakes v. Turqnand, 48, 49, 94, 112, 116, 
 
 307, 330, 336. 
 O'Brien v. Lewis, 170. 
 O'Fay V. Burke, 129, 133. 
 Ogilvie V. Jeaffreson, 60, 51, 139, 260, 
 
 261, 262, 312, 314, 315, 317, 345. 
 Okill V. Wiiittaker, 433, 454. 
 Oldham v. Hand, 170. 
 
 — V. Litchfield, 275. 
 Oldin V. Sambouru, 177. 
 Oliver, ex-paiic, 215. 
 Olliver v. Court, 305, 306. 
 Olivant v. Bayley, 107, 410. 
 Olliver «. Kiiio;, 127, 130. 
 
 O'Neil V. Hamil, 178, 298, 310, 311. 
 
 Onions v. Tyrer, 453. 
 
 Onslow V. ( orrie, 277. 
 
 Oriental Banking Co. v. Coleman, 282. 
 
 Ornies ». Beadel, 293, 299. 
 
 Ormrod v. Huth, 57, 325. 
 
 Orr«. Union Bank of Scotland, 139. 
 
 Osborne v. Williams, 222, 288, 377. 
 
 Osmond v. Fitzroy, 146, 194. 
 
 Overton v. Hannister, 382. 
 
 Ovey V. Leigh ton, 370. 
 
 Owen V. Ilo'man, 122, 123, 236, 237. 
 
 Oxwick V. Brockett, 437. 
 
 Oxwith V. Plummer, 247. 
 
 Page v. Home, 193. 
 Pain V. Coombs, 135. 
 Paine v. Hall, 275, 279. 
 ■f'ainter v. Newby, 363, 365. 
 Palmer v. Neavo, 215. 
 
 — V. Wheeler, 241, 268, 377. 
 Pares v. Pares, 384. 
 
 Paikur V. Bloxam, 208, 310. 
 
 — V. Carter, 229. 
 
 Parker v. Clarke, 185, 321 
 
 — V. Taswell, 412, 428, 454. 
 
 — V. Whyte, 257, 317. 
 Parkes v. White, 162. 
 Parkinson v. Haubury, 158, 347. 
 
 — V, Lee, 106. 
 Parnell v. Tyler, 171. 
 Parr v. Jewell, 383. 
 
 — V. Lovegrove, 390, 392. 
 Parsons v. Parsons, 449. 
 Partridge v. Stevens, 404. 
 
 — V. Usborne, 311. 
 Pasley v. Freeman, 324, 325, 339. 
 Patcli V. Ward, 353. 
 
 Patent File Co., cx-parte White, 352, 396. 
 Paulson V. Wellington, 218. 
 Paxton V. Popham, 388. 
 Payne v. Compton, 320. 
 — V. Hornby, 284. 
 Peacock v. Evans, 344. 
 
 — V. Kernot, 192. 
 Pearson v. Benson, 165, 169. 
 Peel V. , 184, 193. 
 
 — w.Loggon, 184. 
 Peel's Case, 3u7. 
 Pelly V. Bascombe, 347. 
 Pember v. Mather, 389. 
 Pendlebury v. Walker, 215. 
 Pennell v. Reynolds, 281, 282, 288. 
 Pennington v. Beechej', 370. 
 Penny v. Watts, 253. 
 
 Perens v. Johnson, 160, 182. 
 Perfect v. Lane, 81. 
 Perkes, ex-parte, 161. 
 I'errins v. Marine Insurance Co., 73. 
 Perry v. Holl, 236, 254, 256, 260, 261, 
 262. 
 
 — V. Meddowcroft, 294. 
 
 Perry llcrrick v. Attwood, 137, 140, 141, 
 
 227, 240, 251. 
 Persse v. Persse, 434. 
 Peter v. Russell, 140, 141. 
 Peto V. Hammond, 249, 251, Zll. 
 Petre v. Espinasse, 199. 
 Petts, Be, 449. 
 
 Peyton v. Bladwell, 216, 222. 
 I'liilipps V. Duke of Bucks, 358. 
 
 — V. ('liamberlaine, 448, 449. 
 
 — V. Evans, 447. 
 
 — V. Philipps, 321, 322, 369, 371. 
 Philippson v. Lord Egremont, 293. 
 Philipson v. Kerrj^ 429, 455. 
 Philpotts V. Philpotts, 375. 
 
 Phippen v. Sticknej^, 225. 
 Pickard v. Sears, 54. 
 Pickeriijg v. Dowson, 99. 
 
 — V. Pickering, 125, 161, 404, 
 
 434. 
 
 — V. Lord Stamford, 305. 
 Pickett V. Loggon, 184, 190, 277, 345, 
 
 347, 354.
 
 16 
 
 TABLE OF ENGLISH CASES CITED. 
 
 ricklos V. Pickles, •'584. 385. 
 Pickstock V Lyster, 212. 
 Pidcock V. Bishop, 123. 
 Piers V. Piers, 317. 
 Piggott V. Peiirice, 2Y4, 445. 
 
 — V. btratton, 86, 89, 126, 356. 
 Pike V. Vigers, 75, 384. 
 
 Pilling V. Arraitage, 133, 136. 389. 
 Pillmure v. Hood, 98, 291, 327. 
 Pim V. Insall, 214. 
 Pince V. Beattie, 164. 
 Pinkett v. Wright, 323. 
 Pitcher v. Rigby, 167. 
 Platanione v. Staple, 376. 
 Piatt V. Bromage, 402. 
 Pledge V. Buss, 393. 
 Plenderleath r. Eraser, 166, 302. 
 Plews and Middleton, J^e, 291. 292. 
 Plumb V. Flintt, 234, 237, 241. 
 Podmore v. Gunning, 273, 354. 
 Poillon V. jMartin, 171. 
 Polhill V. Walter, 56, 94, 324. 
 Poole V. Shergold, .S61. 
 Pooley V. Brown, 396. 
 
 — V. Quilter, 161. 
 
 Pope V. Garland, 80, 92, 243, 255, 256, 
 
 361. 
 Popham V. Brooke, 98, 192. 
 
 — V. Exhain, 158. 
 Portarlington, Lord, v. Soulby, S'TO. 
 Portland,"Duke of, v. Topham, 272. 
 Portinan, Lord, i: Mill 65, 361. 
 Portmore, Lord, v. Morris, 428, 456. 
 Pott V. Todhunter, 200. 
 
 Potts )'. Surr, 180, 182, 297, 306. 
 Poulson V. Welliniiton, 218, 441. 
 Powell v. Dillon. 244, 246. 
 
 — V. Donbble, 63. 
 
 — V. Lovegrove, 135. 
 
 — V. Thomas, 1 29. 
 Powis V. Andrews, 44. 
 
 — V. Harding. 330. 
 Powles V. Page, 262. 
 
 Pratt V. Barker, 191, 192, 193. 
 Prendergast v. Turton, 302, 306, 307. 
 Prevost I'. Gratz, 160. 
 Price V. Berrington, 145, 383. 
 
 — V. Brice, 453. 
 
 — V. Jones, 447. 
 
 — V. Ley, 424, 455. 
 
 — V. Macaulay, 62, 69, 74, 78, 19, 
 
 358, 359, 361. 
 
 — V. North, 62. 361, 363. 
 
 — V. Price, 191, 193, 195. 
 
 — V. Salu-btirg, 135. 
 Priddy v. Rose, 322. 
 
 Prideaux r. Lonsdale, 161, 182,190, 194, 
 
 220, 392. 
 Pridham v. Philipps, 294. 
 Prince of Wales Assurance Co. v. Palmer. 
 
 386. 
 
 Pritchard v. Merchants' Life Assurance 
 
 Society, 121, 43(.i. 
 Pritt V. Clay, 431, 434. 
 Froby v. Landor, 440. 
 Procter v. Cooper, 257, 265, 267. 
 Proc-tor >: Robinson, 163, 193, 306, 380. 
 Prole V. Soady, 89, 342. 
 Proofs. Hines, 166, 190, 344. 
 Prosser v. Rice, 235, 313. 
 Proudfoot V. Montefiore, 120. 
 Pryor v. Prvor, 270. 
 Pugh, He, 166. 
 Pulsford V. Richards, 62, 63, 69, 73, 94, 
 
 333, 339, 3411, 361, 390. 
 Pulvertoft V. Pulvertoft, 227, 230, 235. 
 Purcell V. KellT, 312. 
 
 — V. Macnamara, 1 71, 297, 306, 344, 
 Purdie v. Millett, 191. 
 Purse V. Snaplin, 449. 
 Pusey V. Desbouverie, 95, 298, 398, 401. 
 
 Queen v. Saddler's Co. 93, 329. 
 
 Radcuffe v. Warrington, 357. 
 RafHes v. Wicklehaus, 435. 
 Railton v. Matthews, 96. 
 Ramsbottom v. Gosden, 418. 
 
 — V. Parker, 165, 184, 191. 
 
 Ramsden v. Dvson, 117, 129, 131, 136. 
 
 — i;. Hylton, 203, -JOl. 
 RanclifFe v. Parkins, 251, 304. 
 Randall v. Eriington, 157, 158, 300, 349. 
 
 — V. JMorgan, 202, 203. 
 
 — V. Willis, 217. 
 
 Ranger v Great Western Railway Co., 
 
 115. 
 Ranking v. Barnes, 270, 271, 272. 
 Kapp V. Latham, 114, 115. 
 Rashdall v. Ford, 90. 
 Raw V. Pole, 130. 
 Rawlins v. Wickham, 48, 54, 69, 75, 78, 
 
 80, 81, 258, 334, 357, 359, 379, 393. 
 Raworth v. Marriott, 171. 
 Rawstone v. Parr, 426, 427. 
 Rayne v. Baker, 141, 318. 
 Read V. Prest, 381. 
 Reade v. Armstrong, 419. 
 
 — V. Livingstone, 205, 206. 
 Redman «. Redman, 216. 
 Reech v. Kennigate, 275. 
 Reed v. Norris, 175, 182. 
 Reese River Silver Mining Co. JRe Smith's 
 
 Case, 74, 79. 
 Reid V. Reid, 268, 269. 
 
 — V. Shergold, 442. 
 
 Rfeis V. Equitable Assurance Co., 121. 
 liemfrey v. Butler, 108. 
 llcniiie V. Young, 133. 
 Kevett V. Harvey, 178, 179. 
 Rex V. Hurdett, 385. 
 
 — V. Duchess of Kingston, 294.
 
 TABLE OF ENGLISH CASES CITED. 
 
 17 
 
 Reynard v. Spence, 453. 
 
 Reynell v. Sprve, 44, 51, 6*7, 78, 19, 81, 
 
 114, 377, 382, 388, 398, 404. 
 Reynolds, ex-jxirte, 161, 349. 
 Rhodes v. Bate, 123, 152, 153, 165, 175, 
 178, 182, 183, 184, 190. 
 
 — V. Beauvoir, 163, 166, 176. 
 
 — V. Cooke, 180, 182, 254. 
 Rice V. Gordon, 187. 
 
 — V. liice, 141, 142, 234, 321, 322. 
 Richards v. Curlewis, 185, 191. 
 Richardson v. Goss, 331. 
 
 — V. Horton, 214. 
 
 — V. Small wood, 208. 
 Riches v. Evans, 213. 
 Richmond v. Ta3!eur, 44. 
 Rider v. Kidder, 209. 
 Ridgway v. Gray, 65. 
 
 — V. Newstead, 306. 
 
 — V. Sneyd, 432, 453. 
 Ridley v. Ridley, 158. 
 Ringo ('. Binns, 175, 
 Rishton v. Cobb, 450. 
 Ritchie v. Couper, 172. 
 River's Case, 449. 
 Roberts v. Croft, 236. 
 
 — V. Roberts, 376. 
 
 — V. Tuiistall, 297, 301, 305, 306, 
 
 307, 311. 
 
 — V. Williams, 229, 377. 
 Robertson v. Norris, 162. 
 Robinson v. Briggs, 249, 260, 317. 
 
 — V. Dickenson, 430. 
 
 — V. Musgrove, 63. 
 
 — V. Pett, 130, 151, 156. 
 
 — V. Lord Vernon, 44, 389. 
 
 — V. Wall, 226. 
 
 Robson V. Earl of Devon, 46, 73, 74, 81, 
 366, 382. 
 
 — V. Flight, 317. 
 Rochard v. Fulton, 266. 
 
 Roche V. O'Brien, 221, 297, 301, 311, 
 
 434. 
 Roddy V. Williams, 95, 241, 258, 260, 
 
 2'61, 394, 395. 
 Rodgers v. Marshall, 443, 445, 446. 
 Roe V. Galliers, 286. 
 Rogers v. Bruce, 182. 
 
 — V. Hadlej-, 44, 389. 
 
 Rolfe V. Gregory, 52. 152, 307, 309, 352. 
 
 Rolleston v. Morton, 317. 
 
 Ronayne's Estate, lie, 102. 
 
 Rooke V. Lord Kensington, 421, 422. 
 
 Rooperv. Ilarriaon, 130, 142, 320, 321, 
 
 324. 
 Rorke's Estate, Re, 260, 261, 262, 266. 
 Ross V. Estates Invc^stment Co., 68, 83, 
 
 88, 92, 94,351. 
 — V. Steele, 178. 
 
 Rothschild v. Brnckman, 172, 174, 349. 
 Routledge v. Dorrill, 270. 
 
 Rowley v. Rowley, 268, 273. 
 Roy V. Duke of Beaufort, 184, 185. 
 Ru'shout V. Turner, 138, 139. 
 Russell V. Hammond, 199, 207. ' 
 
 — V. Jackson, 51, 275, 279, 386. 
 
 Sadler v. Jackson, 215. 
 
 — V. Lee, 381. 
 Salkeld v. Vernon, 298, 310. 
 Salmon v. Cutts, 297, 301, 391. 
 Salte V. Field, 331. 
 
 Saltern v. Melhuish, 275. 
 Saltmarshe v. Barrett, 402. 
 Sanderson v. Walker, 158, 159. 
 Sandford v. Handy, 88, 258. 
 Sandford v. Raikes, 452. 
 Saunders v. Dehew, 234, 313. 
 Saunderson v. Marr, 148. 
 Savage v. Carroll, 136. 
 
 — V. Foster, 130, 148. 
 
 — V. Murphy, 2ii8. 
 
 — V. Taylor, 345. 
 
 Savery v. King, 165, 180, 182, 297, 300, 
 
 310, 335. 
 Sawyer v. Goodwin, 379. 
 
 — V. Vernon, 42. 
 
 Saxon Life Assurance Co., Re, 400, 436. 
 
 Say V. Barwick, 147, 297. 
 
 Sayer v. Sayer, 438, 441, 446. 
 
 Schloss V. Stiebel, 45u. 
 
 Schneider v. Pleatli, 102. 
 
 Scholefield v. Templar, 48, 51, 64, 336, 
 
 400, 436. 
 Scholfield V. Loclcwood, 419. 
 Scott V. Dixon, 374. 
 
 — V. Dunbar, 175. 
 
 — V. Hanson, 83, 84, 8(i, 361. 
 
 — V. Scott, 125, 184, 185, 216, 434. 
 Scroggs V. Scroggs, 277. 
 
 Seaman v. Vawdrey, 103. 
 
 Seddon v. Conneli, 340, 380, 381. 
 
 Segrave v. Kirwan, 171, 274, 354 
 
 Selby V. Jackson, 145. 
 
 Sellack v. Harris, 275. 
 
 Sells j;. Sells, 421, 422. 
 
 Selsey, Lord, v. Rhoades, 173, 302. 
 
 Selway v. Fo^g, 328. 
 
 Selwuod V. Mildmay, 450, 452. 
 
 Sepalino v. Twitty, 276. 
 
 Scrcombe v. Saunders, 193, 254. 
 
 Serle, ix-parte, 101. 
 
 Seward v. Jackson, 204, 206. 
 
 Seymour v. Lucas, 286. 
 
 Sliackleton v. Sutclilfe, 63, 79, 95, 33tf, 
 
 363, 393. 
 Shand v. Grant, 414. 
 Shannon v. Bradstreet, 303, 438, 441, 
 
 443. 
 Sharp V. Arbuthtiot, 248. 
 
 — V. Cosseratt, 287. 
 
 — V. Leach, 193, 301, 350, 387
 
 18 
 
 TABLE OF ENGLISH CASES CUED. 
 
 Sharp V. Taylor, 379. 
 Sharpless v. Adams, 313, 315. 
 Shaw V. Bunny, lt)2. 
 
 — V. Jeffery, 53. 200. 
 
 — V. Nealo, lie, 267. 
 
 — V. Thackeray, 147. 
 Sheard v, Venables, 81, S60. 
 Shearman v. Macgregor, 413. 
 Sliedden v. Patrick, 293, 294. 
 Sheldon v. Cox, 235. 241, 250. 
 Shepherd v. Pybus, 107. 
 
 — V. Sharpe, 100. 
 Sherwin v. Shakespeare, 348. 
 Sherwood v. Robbing, 64. 
 Shillibeer v. Jarvis, 136. 
 Ship's Case, 64. 
 
 Shirley v. Davis, 404. 
 
 — V. Stratton, 363. 
 Shrewsbury & Eiiniing-ham Railway 
 
 Co. V. North AVestern Railway 
 
 Co., 411. 
 Shrubsole v. Sussams, 281, 284. 
 Sibbald v. Hill, 93. 
 
 Sibbering v. Earl of Balcarres, 304, 305. 
 Sibson V. Edgeworth, 366. 
 Sidny v. Ranger, 166, 349. 
 Siebert V. Spooner, 281. 
 Sillem V. Thornton, 72, 121. 
 Simpson v. Lord Howden, 296. 
 
 — V. Vaughan, 425. 
 Sims V. Marry att, 105. 
 Sismey v. Eley, 378. 
 Skarff V. Soulby, 204. 
 Skillbeck v. Hilton, 298. 
 Skinner, ex-parte, 163. 
 
 Skottowe V. Williams, 299, 304, 312. 
 
 Slater's Case, 278. 
 
 Sieech's Case, 425. 
 
 Slim V. Croucher, 46, 47, 54, 69, 833, 
 
 342, 345, 35 ), 390. 
 Sluysken v. Hunter, 276. 
 Small V. Attwood, 73, 74, 302, 351, 366, 
 373. 
 
 — V. Currie, 122. 
 Smallman's Estate, Re, 260. 
 Smedley v. Varley, 161. 
 Smith V. AshtoM, 443. 
 
 — V. Eakes, 307. 
 
 — V. Bank of Scotland, 100, 122, 
 
 123. 
 
 — V. Bromley, 377. 
 
 — V. Bruiiing, 221. 
 
 — V. Cannan, 212, 281, 283. 
 
 — V. Caproii, 242. 
 
 — V. Ch.rii.l, 204, 205, 232 
 
 — V. Clarke, 226. 
 
 — V. Clay, 3n3, 304. 
 
 — V. Countryman, 87. 
 
 — V. Evans, 138. 
 
 — V. Garland, 230. 
 
 — V. Harrison. 81, 101. 
 
 Smith V. Hurst, 213. 
 
 — V. Jeffreys, 435. 
 
 — V. Kay, 74, 75, 93, 94, 152, 182, 
 
 183, 190, 193, 297, 382. 
 
 — V. Maitland, 449. 
 
 — V. Marrable, 104. 
 
 — V. Parkes, 322. 
 
 — V. Pawson, 384. 
 
 — V. Pincombe, 125. 
 
 — V. Reese River Silver Mining Co., 
 47, 80, 81, 251, 255, 307, 309, 372. 
 
 — V. Timms, 281, 283. 
 
 — V. Underdouck, 135. 
 
 — V. Whitmore, 289, 290, 293. 
 Smith's Case, 68, 79, 110. 
 Smithson v. Powell, 65. 
 
 Smout V. llbery, 55. 
 
 Smyth V. Griffin, 377. 
 
 Snell V. Jones, 225. 
 
 Snook V. Watts, 145. 
 
 Sober v. Kemp, 335. 
 
 Solomon v. Honywood, 102, 112. 
 
 Somersetshire Canal Co. v, Harcourt, 
 
 126, 130. 
 South Sea Co. v. Bumpstead, 44, 291. 
 Spackman's Case, 43, 263, 298, 300, 301, 
 
 311. 
 Spackman v. Timbrell, 214. 
 Spaight V. Cowne, 123, 138, 139, 259, 
 
 260, 261, 317. 
 Spencer v. Topham, 165. 
 Spettigue v. Carpenter, 292. 
 Spirett V. Willows, 204, 207. 
 Spittal V. Smith, 182. 
 Spring V. Pride, 159. 
 Spunner v. Walsh, 92, 243, 244. 
 Spurgeon v. Collier, 202, 
 Squire v. Campbell, 418. 
 
 — V. Whitton, 123. 
 
 St. Albyn V. Harding, 381, 393. 
 
 St. Aubyn v. Smart, 47, 350. 
 
 St. George v. Wake, 219. 
 
 St. John V. St. John, 378. 
 
 Stacey v. Elph, 162. 
 
 Stackhouse v. Countess of Jersey, 142, 
 
 321, 322, 323. 
 Stafford V. Staff"ord, 402. 
 Stainbank v. Fernley, 47, 340, 369, 381. 
 Staines v. Morris, 391. 
 Stainton v. Carron Co., 166, 434. 
 Stamford, Earl of, v. Bawson, 350, 395. 
 Standen v. Standen, 450. 
 Stanes v. Parker, 164, 298. 
 Stanger v. Wilkins, 281, 283. 
 Stanhope's Case, 263, 300, 311. 
 Stanilaud v. Willott, 393. 
 Stanley v. Bond, 393. 
 Stanton v. Tattersall, 62, 63, 92, 392. 
 Stapilton v. Scott, 409, 411, 430. 
 
 — V. Stapilton, 404. 
 Steadman v. Poole, 241, 249, 253.
 
 TABLE OF BXGLISn CASES CITED. 
 
 19 
 
 Steadman v. Palling, 1Y8, 298. 
 Stebbing v. Walkey, 449. 
 Stebbins v. Eddy, 07. 
 Stedman v. CoUett, 166. 
 
 — V. Hart, 145. 
 Steed V. Calley, 146. 
 
 — V. Whittaker, 259. 
 Steel V. Baylis, 43. 
 Steevens' Hospital v. Dyas, 135. 
 Steff V. Andrews, 447. 
 Stephens v. Medina, 104. 
 
 — V. Ollive, 207. 
 
 — V. Venables, 341, 342. 
 Stephenson v. Royse, 239, 254. 
 
 — V. Wilson, 407. 
 
 Stepney v. Biddulph, 346, 347, 350. 
 Stevens v. Lynch, 396, 402. 
 
 — V. Praed, 407. 
 
 — V. Stevens, 141. 
 
 Stewart v. Alliston, 62, 81, 359, 360, 
 361, 362, 363. 
 
 — V. Great Western Railway Co., 
 45, 46, 47, 367. 
 
 — V. Stewart, 125, 404, 434. 
 Stewart's Case, 64, 255, 256, 262, 263, 
 
 300, 301, 305. 
 Stickland v. Aldridge, 275. 
 Stikeman v. Dawson, 95, 148, 382, 884, 
 
 385. 
 Stileman v. Ashdown, 207, 208. 
 Stillwell V. Wilkins, 187. 
 Stocker v. Stocker, 217. 
 Stockley v. Stockley, 434, 
 Stokes V. Cox, 72, 121. 
 Stokesley Union, Guardians of, v. 
 
 Strother, 123. 
 Stokoe V. Cowan, 209. 
 Stone V. Denny, 54. 
 — V. Godfrey, 302, 398, 399, 408, 
 436, 455. 
 Story V. Lord Windsor, 318, 319. 
 Strachan v. Barton, 285. 
 Straker v. Ewing, 390. 
 Strange v. Brennan, 164. 
 Strangways v. Bishop, 1 8, 243. 
 Stratford v. Bosworth, 455. 
 
 — V. Twynam, 160. 
 Stratford and JNloreton Railway Co. v. 
 
 Stratton, 388. 
 Strathmore, Lady, v. Bowes, 217, 218. 
 Stray v. Russell, 108. 
 Street v. Blay, 331, 332. 
 Stribblehill v. Brett, 222. 
 Strickland v. Turner, 406, 430. 
 Strong V. Stroni;, 199. 
 Stroughill V. Anstey, 249. 
 Stuckley v. Bailey, 70. 
 Stump V. Gaby, 48, 207, 298. 
 Sturge V. Stiirge, 190, 193, 398, 401, 
 
 454. 
 Sturgis V. Morse, 309. 
 
 Summers v. Griffiths, 187. 190. 
 
 Sumner v. Powell, 427. 
 
 Surcombe v. Pinniger, 135. 
 
 Surman v. Barlow, 241. 
 
 Surplice v. Farnswortli, 104. 
 
 Sutherland v. Briggs, 136. 
 
 Sutton V. Temple, 104. 
 
 Swaine v. Great Northern Railway Co., 
 
 134. 
 Swaisland v. Dearsley, 360, 412, 413. 
 Swan V. North British Australasian Co., 
 
 54, 69, 136, 137. 
 Sweet V. Southcote, 316. 
 
 Taite's Case, 307. 
 Talbot V. Staniforth, 187. 
 Talleyrand v. Boulanger, 1 84. 
 Tanner v. Elworthy, 152, 182. 
 
 — V. Florence, 241. 
 Tapp V. Lee, 94. 
 Tarback v. Marbury, 207. 
 Tarleton v. Liddell, 198, 354, 372. 
 Tate V. Williamson, 87, 151, 152, 153, 
 
 171, 182, 190, 193. 
 
 Tatbam v. Vernon, 415. 
 
 Tayler v. Great Indian Peninsular Kail- 
 way Co., 137,138. 
 
 Taylor, ex-parte, 148. 
 
 — v. Ashwortli, 54, 55. 
 
 — V. Baker, 241, 252. 
 
 — V. Bullen, 70, 99. 
 
 — V. Chichester, <tc. Railway CCi 
 
 296. 
 ~ V. Hughes, 278. 
 
 — ». Jones, 199. 
 
 — V. Martindale, 62, 92. 
 
 — V. Obee, 183. 
 
 — V. Pugh, 217, 218, 219. 
 
 — V. Richardson, 452. 
 
 — V. Salmon, 175, 373. 
 
 — V. Shum, 277. 
 
 — V. Stibbert, 234, 241, 244. 
 
 — V. btile, 227. 
 Teasdale v. Teasdale, 130, 137. 
 Teed v. Beere, 309. 
 
 Teede v. Johnson, 396. 
 
 Terry v. Wacher, 193. 
 
 Thacker v. I'hinney, 206. 
 
 Theyer v. Tombs, 393. 
 
 Thorn V. Big'and, 54, 55, 57, 325. 
 
 Thomas v. Frazer, 425. 
 
 — V. Powell, 343, 407. 
 Thompson v. Barclay, 47, 369. 
 
 — V. Caitwright, 261. 
 
 — V. Harrison, 381. 
 
 — V. lleilornan, 193. 
 
 — V. Simpson, 130. 
 
 — V. Smith, 444. 
 
 — V. Tomkins, 142. 
 
 — V. Webster, 199, 205, 206, 
 207, 208.
 
 20 
 
 TABLE OF ENGLISH CASES CITED, 
 
 Thornber v. Sheard, 180, 254, 298. 
 
 Thorndike v. Hunt, 313, 323. 
 
 Tbornett v. Haines, 225. 
 
 Thornhill v. Evans, 184. 
 
 Thorpe v. Jackson, 425, 
 
 Thynn v. Tliynn, 354. 
 
 Tildesley v. Lodge, 239, 251, 319. 
 
 Todd V. Wilson, 164. 
 
 Toft V. Stephenson, 308. 
 
 Toker v. Toker, 189, 193, 387, 391, 
 
 Toilet V. Toilet, 440, 442, 445. 
 
 Tomlison v. Leigh, 423. 
 
 Tommey I'. 'WhiLe, 298. 
 
 Tomson v. Judge, 125, 1*70. 
 
 Topham v. Lul^e of Portland, 51, 269, 
 
 272. 
 Toulmin v. Steere, 258, 2G0, 2C2, 317, 
 
 324. 
 Tourville v. Naish, 319, 370. 
 To wart v. Sellers, 143. 
 Towne, ex-parte, 161. 
 Townend v. Toker, 200, 231, 232. 
 Townsend v. Cliampernowne, 390, 391. 
 
 — V. Crowdy, 414. 
 
 — V. Lowfield, 384. 
 
 — V. Westacott, 395. 
 TowEshend, Lord, v. Stangroom, 421, 
 
 428, 429, 456. 
 Traill v. Baring, 45, 67, 75, 355, 383. 
 Trenehard v. W anlev, 45, 384. 
 Trevelyan v. Charter, 173, 174, 346, 350. 
 
 — v. AVhite, 346. 
 
 Trigge v. Lavalee, 125, 404, 407, 408, 
 
 434. 
 Trower v. Xewecme, 82, 83. 
 Tucker v. I'hipps, 275. 
 Tulk V. Moxhay, 2.j5. 
 Turner v. liarvev, 97. 
 
 — V. Hill, 3*81. 
 Turquand v. Knight. 380, 395, 
 Turton v. Benson, 216, ;^22. 
 Tweddell v. Twedddl, ISO. 
 Tweedale v. Tweedale, 260. 
 Twining v. Morice, 362. 
 Twyford v. "Warcup, 67, 
 Twyne's Case, 199, 200. 
 Tvlee V. Webh, 251. 
 
 Tyrrell v. Limk of London, 163, 166, 
 172, 174, 175, 346. 
 
 Udell v. Athcrton, 97, 111, 112. 
 Ulrich V. Litcl'.lield, 448, 4.J3. 
 Underbill v. llorwood, 184, 187, 425. 
 Underwood v. Lord Courtown, 303. 
 United States, Bank of, v. Havies, 262, 
 263. 
 
 — — V. Houseman, 206. 
 
 — V. T'lice, 426. 
 Unity Bank, ex-pm-le, 148. 
 Uppington v. BuUen, 165, 166, 167, 191, 
 
 192, 37L 
 
 Upton V. Vanner, 130, 
 Urmston v. I'ate, 407. 
 
 Mas v. Corpe, 80, 92, 244, 255. 
 Vancouver v. Bliss, 390, 391, 392. 
 Vandeleur v. Blagrave, 137, 138, 139. 
 Vane v. Cobbold, 95. 
 
 — V. Fletcher, 274. 
 
 Van Epps v. Harrison, 84, 86, 88, 
 — V. Van Epps, 151, 160. 
 
 Vaughan v. Vanderstegen, 149. 
 
 Vaugbton v. Koble, 154. 
 
 Vauxball Bridge Co. v. Spencer, 221, 
 341. 
 
 Venezuela, Central Railway Co. of, v, 
 Kisch, 
 
 Vernede v. Weber, 70. 
 
 Vernon 1). Keys, 78, 82, 87, 88. 
 
 — V. Vernon, 441. 
 Vickers v. Bell, 193. 
 
 Vigers v. Pike, 76, 79, 302, 357. 
 Vignolles v. Bowen, 63, 255. 
 Villiers v. Villiers, 384. 
 Vine V. .Mitchell, 102. 
 A^ivers v. Tuck, 359. 
 Vorley v. Cooke, 49, 312. 
 Vyvyan v. Vyvyan, 301. 
 
 "Wade v. Paget, 442. 
 "WagstafT v. Read, 369, 
 Wake V. Ilarrop, 418, 428. 
 
 — V. Wake, 453. 
 Wakefield v. Gibbon, 200. 
 Waldron v. Sloper, 138, 141. 
 Wallord v. Adie, 262, 263, 303, 306, 307 
 Walker v. Armstrong, 420. 
 
 — V. Burrows, 208. 
 
 — V. Smith, 170, 171, 386. 
 
 — V. Symonds, 91, 124, 125, 180, 
 
 297, 303, 384. 
 Wall V. Cockerell, 138, 139, 297, 301, 302. 
 
 — V. Stubbs, 84, 363. 
 Wallace v. Wallace, 182. 
 Walli^rave v. Tebbs, 279. 
 Wailisi'. Harrison, 113. 
 
 — V. Duke of Portland, 195. 
 Wallwvnn v. Lee, 315, 320 
 Walmsley v. Booth, 163, 166, 303. 
 Walsh V. Studdert, 170. 
 
 Walsham v. Stainton, 47, 51, 172, 309, 
 
 308, 371, 379, 380. 
 Walters v. Mauiide, 242. 
 
 — V. Morgan, 97, 100, 358, 365, 
 392. 
 Waltham v. Broughton, 43. 
 Ward V. Booth, 274. 
 
 — V. Hartpule, 166, 170, 346, 372, 
 
 392. 
 
 — V. Lant, 376. 
 
 — V. bhallett, 203. 
 
 — V. Tratheu, 343.
 
 TABLE OF EI^GLISH CASES CITED. 
 
 21 
 
 Warde v. Diclcson, 180, 269 
 
 Warden v. Jones, 41, 136, 202, 203. 
 
 "Wardour v. Berisford, 275. 
 
 "Ware v. Egmoiit, 238, 239, 240, 250, 254. 
 
 "Warinn' v. Waring, 146. 
 
 Warner v. Daniels. 78, 100, 408. 
 
 Warrick v. ^^ arrick 259, 436. 
 
 Warrin v, Tliomas, 393. 
 
 W^ason V. Waring, 252. 
 
 Waters v. Bailey, 152, 182. 
 
 — V. Groom, 100. 
 
 — V. Tborn, 161, 297, 298, 390. 
 Watson V. Toone, 161. 
 
 — V. Marston, 357, 398, 411, 412. 
 Watt V. Grove, 164, 173, 191, 192, 344, 
 
 352, 386. 
 Watts v. Brooks, 379. 
 
 — V. Cresswell, 148. 
 Way V. Hearne, 93. 
 Webb V. Brookes 402. 
 
 — V. Byng, 452. 
 
 — V. Eorke, 42, 194. 
 Webster v. Cecil, 412, 455. 
 Webster's Case, 256. 
 
 Wedderburn v. Wedderburn, 161, 297, 
 
 298, 308. 
 Welchman v. Coventry Union Bank, 240. 
 Welles V. Middleton, 170. 
 Wellesley v. Lord Mornington, 268. 
 Wensley, ex-parte, 281, 283, 285. 
 Wentworth v. Lloyd, 165, 174, 306. 
 West V. De Wezele, 435. 
 
 — V. Jones, 54, 137, 138. 
 
 — V. Rav, 274. 
 
 — V. Reid, 238, 239, 240, 241, 254, 
 
 257. 
 Westby v. Westby, 434, 454. 
 Western Bank of Scotland v. Addie, 48, 
 
 54, 93, 111, 112, 113, 116, 326, 330, 
 
 335, 336, 337. 
 Wethered v. Wetliered, 222, 224. 
 Whalley V. Whallev, 52, 189, 192, 193, 
 
 302, 304, 305,^310, 312. 
 Wharton v. May, 344. 
 Wheeler v. Caryl, 203. 
 Wheelton v. Hardisty, 72, 74, 93, 111, 
 
 116, 121. 
 Whelan v. Whelan, 194. 
 Wliiclicote V. Lawrence, 158. 
 Whitbread v. Jordan, 239, 266. 
 Whitcombe, He, 104. 
 White V. Bradshaw, 63, 359. 
 
 — V. Cuddon, 83. 
 
 — V. Damon, 357. 
 
 — V. Garden, 48, 329. 
 
 — V. Hall, 44. 
 
 — V. Small, 146. 
 
 — V. Wakefield, 129, 247. 
 
 — V. Wakley, 135. 
 WhitcliousL'a Case, 307. 
 Whitlield v. Faussett, 239. 
 
 Whitmore v. Claridge, 283. 
 
 — V. JIaekeson, 48, 339, 343. 
 
 — V. Mason, 286. 
 Whitney v. Allaire, 330. 
 Whittiugton v. Jennings, 208. 
 Whitworth v. Gau-aiu, 318, 389. 
 Whvte V. Meade, 193. 
 
 WMckes V. Cooke, 206. 
 
 Wickham v. Wickham, 115. 
 
 Wigg V. Wigg,- 320. 
 
 Wilbur V. Howe, 224. 
 
 Wild V. Hillas, 407. 
 
 Wilde V. Gibson, 56, 92, 97, 112, 114, 
 
 259, 260, 357, 366. 
 Wilkie II. Holmes, 442. 
 Wilkinson v. Brayfield, 277. 
 
 — V. Fowkes, 335, 344, 350, 351, 
 
 371. 
 
 — V. Joughin, 354. 
 
 — V. Nelson, 423, 428. 
 
 — V. Stafford, 185. 
 Wilkinson's Case, 263. 
 
 Willan V. Willan, 190, 191, 192, 193, 357, 
 
 406. 
 Willats V. Busby, 230. 
 AVilliams v. Bayley, 143, 183, 184, 194. 
 
 — V. Lambe, 320. 
 
 — V. Livesej-, 246. 
 
 — V. Llewellin, 366. 
 
 — V. Piggott, 167. 
 
 — V. Smith, 190, 298, 367, 372. 
 
 — V. Wentworth, 145. 
 
 — t). Williams, 181,434. 
 Williamson v. Brown, 236. 
 
 — V. Gihon, 221, 345. 
 
 — V. Henderson, 425. 
 
 — V. Seaber, 349. 
 Willis V. Willis, 96. 
 
 Willoughby v. Willoughby, 313, 314, 320. 
 Wills V. Stradling, 130. 
 Wilson 1'. Puller, 111. 
 
 — V. Hart, 238, 252, 257. 
 
 — V. Piggott, 441. 
 
 — V. Short, 46, 79, 80, 174, 254, 344. 
 
 — V. Sinclair, 403. 
 
 — V. West Hartepool Railway Co., 
 
 135. 
 
 — V.Wilson, 417, 418. 
 Wiltshire v. Marshall, 147. 
 
 — V. Rabbits, 142. 
 Winch V. Winchester, 65, 361, 364. 
 Windsor, Dean and Chapter of, v. Pen- 
 
 vin, 288. 
 
 Winter v. Brockwell, 134, 
 
 AVintour v. Clifton, 453. 
 
 Wolfe V.Frost, 135. 
 
 Wallaston's Case, 116. 
 
 Wolverhampton and Staffordshire Bant- 
 ing Co. V. Marston, 212. 
 
 Wood V. Abrey, 186, 187, 190, 194, 392. 
 
 — V. Barker, 215.
 
 TABLE OF ElifGLISH CASES CITED. 
 
 Wood «. Dixie, 212. 
 
 — V. Do^nes, 125, 163, 168, 170, 
 
 297. 
 
 — V. Dwarris, 121. 
 
 — V. Gviftith, 447. 
 
 — V. ScartI), 411, 412, 413, 455. 
 Woodlianis v. Anglo-Australian, <fec. Co., 
 
 278, 323. 
 Woodhousev. Meredith, 158, 173, 174. 
 
 — V. Murray, 280, 281. 
 
 — V. Shcpley, 223. 
 Woodward v. Miller, 225. 
 Woollam V. Hearn, 418, 456. 
 Worcester Corn Exchange Co., Ee, 262. 
 Wormald v. Maitland, 235, 250, 266. 
 Worrall v. Jacob, 429. 
 
 Worsley v. De Mattes, 199, 201, 220, 
 280. 
 _ f. Frank, 401,413, 414. 
 
 — V. Lord Scarborough, 259. 
 Worthington v. Morixan, 141, 251. 
 Worth's Case, 116, 339, 340. 
 Wortley v. Eirkhead, 324. 
 Wright, ex-pnrte, 421. 
 
 — V. Crookes, 388. 
 
 — V. Goff, 423. 
 
 — V. Howard, 393. 
 
 — V. Proud, 161, IVO, 192. 
 
 — V, Snowe, 148. 
 
 Wright V. Vanderplank, 179, 301, 305, 
 
 306,311, 391. 
 Wrigley v. Swainson, 220. 
 Wrought V. Davies, 138. 
 Wyatt V. Barwell, 266. 
 Wycherley v. Wycherley, 195. 
 Wycombe Railway Co. v. Donnington 
 
 Hospital, 412. 
 Wyld, ex-partc, 293. 
 Wyllie V. Pollen, 259, 261. 
 Wyse V. Lambert, 152, 171, 176, 183, 
 
 195. 
 Wythes v. Labouchere, 122, 260. 
 
 Yeomans v. Williams, 89, 126, 341. 
 York and North Midland Railway Co. v. 
 
 Hudson, 161. 
 York Buildings Co. v. M'Kenzie, 158, 
 
 160, 172, 173, 174, 175, 346, 347. 
 Young V. Fletcher, 212, 281, 283. 
 
 — "v. Grote, 139. 
 
 — V. Guy, 138. 
 
 — V. Peachey, 179, 278, 277. 
 
 — V. Walter, 447. 
 
 — V. Waud, 280, 283, 
 
 — V. White, 138. 
 
 ZuLtJETA V. Tyrie, 180.
 
 TABLE OF AMERICAN CASES CITED. 
 
 Abbey v. Dewey, 94. 
 Abbott V. Allen, 104, 334. 
 
 — V. Goodwin, 213. 
 Abel V. Cave, 332, 335. 
 Abney v. Kinj^sland, 211. 
 Adams v. Soule, 83. 
 Addington v. Ethorid^e, 213. 
 AgTicultural Bank v. Dorsey, 313. 
 Aiken v. Bruen, 228. 
 Aills V. Graham, 132. 
 Aldridge v. Weems, 419. 
 Alexander v. Kerr, 134. 
 
 — V. Newton, 418. 
 
 — V. Pendleton, 316. 
 
 — V. Ultez, 299. 
 Allen V. Addington, 326. 
 
 — V. Hammond, 416. 
 
 — V. Ilopson, 44, 104, 355. 
 
 — V. Kanney, 292. 
 
 — V. Sunders, 234. 
 
 — V. Wanumaker, 325. 
 
 — V. Winston, 131. 
 Allison V. Mattiiieu, 108. 
 Alston V. Outerbridge, 103. 
 Amos V. Blunt, 212, 
 Anderson v. Bennett, '75, 19. 
 
 — V. Bradford, 198. 
 
 — V. Green, 227, 228, 229. 
 
 — V. Hall, 84. 
 
 — V. Hill, 329. 
 
 — V. Johnson, 328. 
 Andrews v. Brooks, 211. 
 Appleton V. Ilorton, 339. 
 Armstrong v. Campbell, 157. 
 
 — V. Gushing, 328. 
 
 — V. Tufts, 328. 
 
 — V. Tuttle, 213. 
 Arman v. Stout, 144. 
 Arnett v. Wanett, 206. 
 Arthur v. Arthur, 397. 
 Ash V. Savage, 210. 
 Ashbrook v. Wutkins, 415. 
 Ashmead v. Ilean, 199. 
 Ashunt w. Jlartin, 212. 
 Ask V. Putnam, 108. 
 
 Astor V. "Wells, 202. 
 Atkinson v. Jordan, 212. 
 Atwood V. Wright, 325. 
 Austin V. Clark, 212. 
 Austin V. Winston, 377. 
 Averill v. Guthrie, 323. 
 Aylett V. King, 306. 
 Ayres v. Mitciiell, 299, 334, SM. 
 
 — V. Moore, 200. 
 
 Babb V. Clemson, 210. 
 Babcock v. Case, 79, 32V. 
 Backentoss v. Speicher, 110. 
 Backhouse v. Jetts, 345. 
 Bacon v. Bronson, S'i'S. 
 
 — V. Johnson, 61, 342. 
 Badger v. Badger, 303, 309, 367. 
 Bahara v. Bach, 225. 
 
 Eailey v. Burton, 197. 
 
 — V. Jordan, 61. 
 
 — V. Snyder, 65. 
 
 — V. Trammel, 149. 
 Bain v. Wilson, 327. 
 Baines v. Williams, 310. 
 Baker v. Howell, 187. 
 
 — V. Bobbins, 327. 
 _ V. Welch, 206. 
 
 Baldwin v. Allison, 155. 
 
 — V. Jolmson, 245. 
 
 — V. Marshall, 265. 
 
 — V. liichman, 133. 
 Ball V. Lively, 327. 
 Ballanco v. Underbill, 418. 
 Bidsdbaugh v. Fraser, 164. 
 Baltimore Mar. Ins. Co. v. Dalrymple, 
 
 161. 
 Bancroft v. Blizzard, 202, 
 Banker v. Mills, 172. 
 Bank of Alexandria v. Atwater, 207. 
 
 — — V. Patton, 206, 228, 
 
 229. 
 
 — Georgia v. Higginbottom, 48, 
 
 210. 
 
 — Orleans V. Torrey, 156. 
 
 — Pittsburg V. Whitehead, 262
 
 22 
 
 TABLE OF AMERICAN CASES CITED. 
 
 Bank of U. S. v. rirown, 203. 
 
 — — V, Daniel, 397, 402. 
 
 — — V. Davis, 2(5'2. 
 
 — — V. Lee, 149. 
 Bank v. Gore, 328. 
 
 — V. Wollaston, 127. 
 Banks ik Jiulali, 174. 305, 307. 
 
 — V. Martin, 262. 
 Barclay v. Davidson. 129. 
 Bareibeau p. Hrant, 186. 
 Barham v. Tuberville, 148. 
 Barnes v. Camart, 42.5. 
 
 — V. Carmack, 50, 
 
 — V. McKay, 132. 
 Barnett v. Fergus, 213. 
 
 — V. Spratt, 187. 
 
 — V. Stanton, 71, 101, 300. 
 Barney v. Saunders, 154, 156. 
 Barr v. Broadway Ins. Co. 417. 
 
 — V. Ilatcli, 420, 441. 
 Barrincass v. McMurray, 227. 
 Barron v. Alexander, 101. 
 Barry v, Whitney, 163. 
 Bartle v. Natt. 374. 
 Bartleman v. Douglass, 215. 
 Bartlett v. Williams, 211. 
 Barton v. Moss, 174. 
 
 Bass V. Gilliland, 419. 
 Bates V. Norcross, 264. 
 Baugher v. Duplioin, 262. 
 
 — V, Merry man, 194. 
 Baxter v. Coston, 157. 
 
 — V. Gaines, 210. 
 Bayard v. Huffman, 209. 
 Baynard v. Norris, 370, 419. 
 Bench v. Ollendorf, 215. 
 Beal V. Warren, 228. 
 
 Bean v. Merrick, 79, 82, 333. 
 
 — V. Smith, 209, 313. 
 
 — V. Valle, 364. 
 Beard v. Campbell, 78. 
 
 — V Hubble, 421. 
 Beardsley v. Bennett, 104. 
 
 — V. Knight, 418, 419. 
 Beaubien v. Beaubien, 308, 367. 
 Beaupland v. McKeen, 129, 133. 
 Beck V. Simmons, 343, 419. 
 Beckwith v. Butler, 144. 
 Bedel v. Looinis, 186. 
 Bedford ?r. Crane, 207. 
 
 Beers v. Bottsford, 383. 
 
 — V. Daw?on, 211. 
 
 — v. Williams, 107. 
 Beersley v. Hamilton, 371. 
 Beeson v. Beeson, 158. 
 Bein v. Heath, 149. 
 Belcher v. Belcher, 42, 147. 
 Belknap v. Sealey, 61, 65, 66. 
 Bell V. Blaaey, 227, 229. 
 
 — 71. Byerson, 77. 
 
 — r. Henderson, 77, 366. 
 
 Bell V. McCauley, 228. 
 
 — V. Price, 447. 
 
 — V. Steel, 397. 
 Bellamy v. Bellamy, 158. 
 Bellows V. Steno, 410, 418. 
 Bendurant v. Crawford, 325. 
 Benedict v. Oilman, 225. 
 Bennett v. Fail, 300. 
 
 — V. Judson, 55, 111, 325. 
 
 — V. Union Bank, 197. 
 Benton v. Jones, 206. 
 
 — V. Stewart, 327. 
 Benzein v. Lenoir, 239. 
 B rg V. Radcliffe, 427. 
 Berker v. Vrooman, 327. 
 Berrien v. McLane, 170. 
 Betts V. Gunn, 410. 
 Beverly v. Ellis, 264, 
 
 — V. Rennolds, 291. 
 Bibb V. Prather, 350. 
 
 — V. Smith, 165. 
 
 Bidault V. Wales, 108, 109, 110. 
 Bigelow V. Barr, 400. 
 Biggs v. Bai'ry, 109. 
 Billw. Webb, 154. 
 Bingaman v. Hyatt, 236. 
 Bird V. Aitken, 201. 
 
 — V. Benton, 131. 
 
 — V. Bolduc, 206. 
 Birdsong v. Birdsong, 124. 
 Birely v. Staley, 46. 
 Bischoff I). Lucas, 327. 
 Bissel V. Hopkins, 211. 
 Black V. Jones, 217. 
 
 — V. Thornton, 235. 
 Blackwood v. Jones, 132. 
 Blair v. McDonnell, 419. 
 Blaisdell v. Cowell, 383. 
 
 — V. Stevens, 236 
 Blake v. Graham, 264. 
 
 — V. Jones, 207. 
 
 — «). Pick, 124. 
 Blancbard v. Tyler, 318. 
 Blankenskip v. Douglass, 248. 
 Blen V. Bear River, etc., Co., 329. 
 Blessing v. Beatty, 419, 
 
 Blight V. Banks, 318, 
 Bliss V. Cottle, 328. 
 Blodgett V. Hobart, 419. 
 Blount V. Robeson, 172. 
 Blow V. Maynard, 155, 203. 
 Blumenthal v. Brainerd, 259. 
 Blydenburch v. Welsh, 299. 
 Bogard v. Gardley, 207. 
 Boggs V. Merced et al, 132. 
 Boian V. Headley, 233. 
 Boils V. Boils, 198, 
 Bolt V. Rogers, 374. 
 Bond V. Brown, 304, 
 
 — V. Clark, 325. 
 Boon V. Miller, 415.
 
 TABLE OF AMERICAN CASES CITED. 
 
 23 
 
 Boone V. riules, 306, 308, 322, 370. 
 Booth V. Bariui ji, 230. 
 
 — 'u. Booth, 366. 
 Boreini!^ v. yiti^-ery, 44. 
 Borhnnd v. Walker, 196, 345. 
 Bossard r. Wliite, 264. 
 
 Boston Water Power Co, v. Gray, 447. 
 Bostwick V. Lewns, 326. 
 Boswell V. Biiclmiian, 318. 
 Botsford V. McLean, 413. 
 Bouck V. Wilber, 446. 
 Boulin V. Pollock, 417. 
 Bowers v. Johnson, 112. 
 Bowman v. Bates, 97. 
 
 — V. Herring, 211. 
 
 — V. Wathen, 304. 
 
 Boyce v. Grundy, 46, 79, 334, 343, 388. 
 
 — V. Waller, 313. 
 
 — V. Watson, 74. 
 Boyd V. Barclay, 374. 
 
 — V. Bopst, 10.5. 
 
 — V. Brown, 325. 
 
 — V. Dunlap, 210. 
 
 — V. Hawkins, 154, 297. 
 
 — V. Vanderkemp, 259. 
 Boyer v. Wilson, 437. 
 Bozmaii v. Dr.mghan, 200. 
 Bracken v. Miller, 259, 316. 
 Brackenridge v. Holland, 386. 
 Bradbury v. Keas, 331, 333. 
 
 — V. White, 417. 
 Bradley v. Bosley, 73. 
 
 ~ V. Chase, 298. 391, 
 Brady v. Briscoe, 200. 
 Brainerd v, Brainerd, 388. 
 Brantley v. Key, 154. 
 
 — V. West, 421. 
 Brashear v. West, 212. 
 Breck v. Cole, 215. 
 Breed v. Con ley, 264. 
 Bremmel v. Stockton, 211. 
 Brentou v. Davis, 107. 
 Brewer v. Lynch, 173. 
 
 — V. Vanarsdale, 178. 
 Brice v. Brice, 144. 
 Bridgen v. Atkins, 174. 
 Briggs V. Parkman, 210. 
 
 — V. Taylor, 239. 
 Bright V. Boyd, 444. 
 Brinkerhof D. Brown, 45, 154. 
 
 — V. Lansing. 370. 
 Broadwell v. Broadwell, 91, 397. 
 Brock V. Barnes. 163, 170. 
 
 — V. McKaughtrey, 383. 
 Brodduc v. Call,~297. 
 Broddus V. McCall, 84. 
 Brogden v. Walker, 144, 383. 
 Brooke v. Berry, 173, 345. 
 Brooks V. Hamilton, 61. 
 
 — V. Powers, 211. 
 
 — V. Wimer, 213. 
 
 Brothers v. Porter, 131. 
 Browcr v. PeabodjjL 315. 
 Brown v. Anderson, 245. 
 
 — V. Armistead, 397 
 
 — V. Bucks, 228. 
 
 — V. Donald, 19G. 
 
 — V. Lamphear, 416. 
 
 — V. Lynch, 225. 
 
 — V. McCune, 148. 
 
 — V. McDonald, 199, 208. 
 
 — V. Murphee 107. 
 
 — V. Ptilev, 211. 
 
 — V. Smith, 201. 
 
 — V. Webb, 202. 
 
 Bruce v. Davenport, 1 72, 299. 
 Bueliler v. Gloninger, 375. 
 Bruen v. Hone, 335. 
 Bryan v. Duncan, 157. 
 Bryant v. Kelton, 211. 
 
 — V. Mansfield, 375, 397. 
 Buchanan v. Horney. 329. 
 Bucliner v. Forker, 353. 
 
 Buck V. McCaughtry, 101, 335, 344. 
 
 — V. Sherman, 384. 
 Buckcr V. Lightner, 310. 
 Bucl<ingham v. Smith, 132, 133, 244. 
 Buckley v. Artcher, 109. 
 Buckner v. Calcote, 311. 
 Butlalow V. Buffalow, 146, 164. 
 Bulord V. Brown, 300. 
 
 — V. Caklwell, 55. 
 Bulkley v. Starr, 292. 
 Bullis V. Borden, 211. 
 Bullock ('. Beemis, 345. 
 
 — V. Irving, 201. 
 Bum V. Ahl, 200. 
 Bumpass v. Dotson, 201, 
 
 — V. Plainer, 316. 
 
 — V. Webb, 291, 447. 
 Bunch IK Hurst, 144. 
 Bunting v. Ricks, 239. 
 Burbank v. Hammond, 196. 
 Burchill V. Marsh, 447. 
 Burley v. Russell, 148. 
 Purnhara v. Chandley, 264. 
 Burrill v. Bull, 172. 
 Burrows v. Alter, 328. 
 Burtch V. Hogge, 364. 
 Burt V. Wilson, 400. 
 Burton v. Willers, 77. 
 Butler V. Durham, 420. 
 
 — V. Haskell, 144, 173, 184, 186, 
 
 187, 189, 297. 
 
 — V. Stoddard, 201. 
 Butler's Appeal, 97. 
 
 Byers v. Surget, 169, 187, 188, 295. 
 
 Cady V. Owens, 127. 
 Cain V. Guthrie, 299. 
 — V. Jones, 229. 
 CaldweU v. Bartlelt, 313.
 
 24 
 
 TABLE OF AMERICAN CASES CIIED. 
 
 Caldwell v. Caldwell, 336. 
 
 — V. CaiTino;ton, 234. 
 
 — n Gillis, 219. 
 
 — V. Tasjgart, 157. 
 
 — V. White, 345. 
 
 — V. Williams, 128. 
 Callen v. Thompson, 211. 
 tJallis V. Ridout, 154. 
 
 — V. Waddy, 310. 
 Cameron t'. Cameron. 220. 
 Camp V. Camp, 79, 81, 83. 
 Campbell v. Tarter, 399. 
 
 — V. Johnson, 157. 
 
 — V. Sloan, 293. 
 
 — V. Vining, 310. 
 
 — V. "Western, 448. 
 
 — v. Whittingham, 103, 133. 
 Camplin v. Burton, 344. 
 
 Canal Co. v. Gordon, 50. 
 Cannon v. Jenkins, 161. 
 Capehart v. Moon, 407. 
 Carberry v. Tannehill, 358, 411. 
 Card V. Wallace, 446. 
 Cardwell v. McClelland, 101, 
 Carlisle v. Rich, 198, 207. 
 Carr v. Bob, 311. 
 
 — V. Callaghan, 103, 124, 319, 416. 
 
 — V. Hill, 200. 
 
 — V. Wallace, 129, 131. 
 Carroll v. Potter, 49. 
 
 — V. Rice, 299, 306, 3£5. 
 
 — V. Shields, 215. 
 Carpenter V. Hart, 293. 
 
 — V. Roe, 206. 
 
 — V. Stillwell, 128. 
 Carson v. Bailie, 106. 
 Carter v. Caitleberry, 231. 
 
 — V. Castlebury, 227. 
 
 — V. Champion, 264. 
 Case V. Carroll, 169. 
 
 — V. Garish, 215. 
 
 — V. Hall, 103. 
 
 — V. Jennings, 315. 
 
 — V. Phelps, 207. 
 Casey v. Allen, 54, 76, 384. 
 
 — V. Casey, 173. 
 
 Cathcart v. Robinson, 227, 364, 413, 
 
 417. 
 Catlin V. Grote, 131. 
 Cecil V. Ppurger, 101, 327. 
 Central Bank v Copeland, 184. 
 
 — Ins. Co. V. Protection Ins. Co., 
 176. 
 
 Chaflfee v. Fort, 108, 109. 
 Chaffin V. Kimball, 228. 
 Chamberlain v. Pillsbury, 106. 
 — V. Thompson, 419. 
 
 Chamberlaine v. Marsh, 416. 
 Chamberlayne v. Temple, 45, 46. 
 Champion v. Wliite, 328. 
 Cliamijlin v. Lay tin, 241, 399, 
 
 Chnndler v. Wiggins, 105. 
 Chapin v. Pease, 197, 
 
 — V. W^eed, 154. 
 Chapman v. Chapman, 358, 
 Charles v. Dubose, 157. 
 Charlton v. Leay, 196. 
 Chenery v. Palmer, 211, 
 Cherry'^i'. IS'ewsom, 297. 
 Chestermnn v. Gardner, 104, 332. 
 Chew V. Caloiit, 241. 
 
 — V. Calvei't, 134, 241, 
 Chickering v. Hatch, 201, 
 Child V. Brener, 1 57. 
 Chipman r. Briggs, 66. 
 Chisholm V. Gadsden, 93. 
 Choban v. Jones, 264. 
 Chophard v. Bayard, 213. 
 Chouteau v. Sherman, 202. 
 Christian v. Scott, 329. 
 Christmas v. Mitchell, 241, 
 
 — V. Spink, 384. 
 Chumar v. W^ood, 210, 
 Church v. Sterling, 172. 
 
 City Council v. Page, 266, 316, 
 Clabaugh v. Byerly, 128. 
 Clapp V. Leatherbee, 231, 
 
 — V. Tirrell, 227. 230. 
 Clapton V. Cozart, 79, 325. 
 Clark V. Baird, 104. 
 
 — V. Clark, 146. 
 
 — V. Douglas, 196, 197, 293. 
 
 — V. Dutcher, 402. 
 
 — V. Everhart, 74. 
 
 — V. French, 207. 
 
 — V. Man. Ins. Co. 119. 
 
 — V. Partridge, 368. 
 
 — V. Van Riemdvke, 390. 
 
 — ',). White, 94, 96, 215, 325, 384* 
 Clarkson v. Mitchell, 52. 
 
 Clanter »;. Burgess, 227, 
 Clay V. Dennis, 368. 
 
 — V. Turner, 336. 
 Clayborn v. Hill, 210. 
 Clayton v. Brown, 228. 
 
 — V. Burney, 400. 
 Cleary v. Cour, 448. 
 Cleaveland v. Dixon, 447. 
 
 — V. Rogers, 66. 
 Cleavinger v. Reimar, 163, 169. 
 Clem V. New. <fe Dan. R. R. Co. 9a 
 Clemens v. Davis, 201. 
 Clement v. Moore, 199. 
 
 — V. Smith, 300, 
 Clements v. Loggins, 127, 
 
 — V. Reid, 358. 
 Clitherall v. Ogilvie, 357. 
 Coburn ;•. Pickering, 211. 
 Cochran v. Cummings, 93. 
 Cocke V. Hardin, 335. 
 
 — V. McGinniss, 310. 
 Cocks V. Izdi-d, 173, 224.
 
 TABLE OF AMERICAN CASES CITED. 
 
 Coddington v. Bay, 310. 
 
 — V. Goddard, 112, 
 Coffee V. Newsom, 78, 335. 
 Coffing V. Taylor, 409. 
 
 Coggill V. Hart. & N. Hav. R. R. Co. 313. 
 
 Cogiiill V. Boring, 328. 
 
 Colchester v. Ciilver, 420. 
 
 Colcock V. Reed, 105. 
 
 Cole V. McGlathry, 310. 
 
 Coleman v. Bank of Hamburg, 211. 
 
 — V. Barklew, 248 
 
 — V. Cocke, 197, 313. 
 
 — V. Lyne, 303. 
 Coles V. Brown, 411. 
 Collier v. Lanier, 419. 
 
 — V. Thompson, 299. 
 CoUins V. Dennison, 56, 325. 
 
 — V. McElroy, 213. 
 
 — V. Myers, 211. 
 
 — V. Smith, 161. 
 Colquitt V. Thomas, 239. 
 Colter V. Morgan, 91. 
 Coltrains v. Causey, 375. 
 Combs V. Cooper, 133. 
 Commonwealth v. Rodes, 264. 
 Comstock V. Ames, 298, 371. 
 
 — V. Comstock, 174. 
 
 — V. Rayford, 211. 
 Conant v. Jackson, 144, 385. 
 Concord Banka^.Gregg, 111,112,327,325). 
 Conkey v. Bond, 174. 
 
 Conkling v. Carson, 212. 
 
 — V Shelby, 213. 
 Connersville v. Wadleigh, 79. 
 Connor v. Henderson, 416. 
 Conrad v. Atlantic Fire Ins. Co. 211. 
 Conroe v. Birdsall, 148. 
 
 Conway v. Alexander, 194. 
 
 — V. Ellison, 366. 
 Conyers v, Ennis, 109. 
 
 — V. Keenans, 310. 
 
 — V. Ring, 156. 
 Cook V. Cole, 144. 
 
 — V. Collyer, 377. 
 
 — V. Gilman, 327. 
 
 — V. Travis, 246. 
 
 — V. Williams, 308. 
 Cooke V. Kell, 228, 229. 
 
 — V. Nathan, 399. 
 Coolidge V. Brigham, 105. 
 Coon V. Atwell, 329. 
 Cooper V. Crosby, 397. 
 Copeland v. Copeland, 128. 
 Coppage V. Barnett, 228, 
 Corbett v. Norcross, 129, 
 Corkhill v. Landers, 129, 138. 
 Corprew v. Arthur, 228. 
 Cosby V. Ross, 207. 
 Cotton V. Hart, 237. 
 Couch V. Sutton, 149. 
 Coulson V. Walton, 306. 
 
 Coults V. Greenhorn, 203. 
 Cowan V. Barrett, 169. 
 Cowles V. Baco, 127. 
 Cox V. Buck, 131. 
 — V. Sullivan, 163, 164. 
 Crabtree v. Green, 448. 
 Craddock v. Cabiness, 144. 
 Cragg V. Martin, 200. 
 Craig V. Leiper, 322. 
 
 — V. Ward, 325. 
 Cram v. Mitchell, 174. 
 Crane v. Conklin, 44, 147. 
 
 — V. Prather, 405. 
 Cravens v. Booth, 149. 
 
 — V. Grant, 326. 
 Crawford v. Beetholf, 96, 321. 
 Crawley v. Timberlake, 299, 368. 
 Creath v. Sims, 374. 
 
 Cressy v. Philips, 312. 
 Crest t). Jack, 128, 134. 
 Cries v. Withers, 417. 
 Croat V. De Wolf, 127. 
 Crocker v. Lewis, 112. 
 Crockett v. Lashbrock, 127. 
 
 — V. Maguire, 264. 
 Crofts V. Arthur, 197, 202, 310. 
 Cromwell v. Owings, 447. 
 
 — V. Winchester, 420. 
 Cross V. Peters, 108. 
 Crowder v. Langdon, 409. 
 Crozier v. Acer, 299. 
 Cruise v. Christopher, 147. 
 Crump V. Dudley, 219. 
 
 — V. U. S. Mining Co., 114, 116. 
 Crutchfield v. Haynes, 154. 
 Cubbins V. Markwood, 186. 
 CuUam V. Branch Bank, 329. 
 Culver V. Avery, 329. 
 
 Cumberland Coal Co. v. Sherman, 155, 
 
 158, 161, 174. 297, 298, 399. 
 Cummings v. McCuUough, 313, 346. 
 Cunningham v, Fithian, 335. 
 
 — V. Freeborn, 389. 
 
 — V. Hull, 107. 
 
 — V. Sliields, 374. 
 
 — V. Smith, 73. 
 Curd V. Dodd, 149. 
 Currens v. Hart, 240. 
 Currie v. Cowles, 344. 
 
 — V. Steele, 124. 
 Curtis V. Hitchcock, 318. 
 Gushing v. Wyman, 327. 
 
 Custer V. Titusviile Water & Gas Co. 115 
 
 — Tompkins Co. Bank, 262. 
 
 Dacey v. Daniel, 200. 
 Dalton V. Rust, 66. 
 Danforth v. Adams, 132. 
 
 — V. Wood, 210. 
 
 Daniel v. Mitchell, 73, 98, 407, 416. 
 Danley v. Rector, 131.
 
 2G 
 
 TABLE OF AMERICAN CASES CITED. 
 
 Darwin v. Handley, 207. 
 Dausihty v. Savage, 215. 
 Davidson v. Greer, 421. 
 
 — V. Moss, 61, 95, 103, 334. 
 Davis V. Bavlej-, 402. 
 
 — V. Bigler, 233, 234, 237. 
 
 — V. Bow land, 334. 
 
 — V. Calvert, 185. 
 
 — V. Handy, 129. 
 
 — V. James, 299. 
 
 — V. McKally, 146, 
 
 — V. Meeker' 82. 
 
 — V. Morgan, 184. 
 
 — V. Payne, 206. 
 
 — V. Pbelps, 421. 
 
 — V. Tliomas, 127. 
 
 — V. Tnrner, 211. 
 Davoe v. Fanning, 158, 161. 
 Day V. Seeley, 146. 
 Deaderick v. Watkins, 187. 
 Dean v. Mason, 105. 
 Dearman v. Dearman, 209, 220. 
 De Armand v. Phillips, 299. 
 
 De Cater v. Lerf«y de Chaumont, 157. 
 
 Decouche v. Swetier, 308. 
 
 Deep River Gold Mining Co. v. Fox, 175. 
 
 Deerbell v. Fisher, 203. 
 
 Delaware v. Ensign, 213. 
 
 Delesdernier v. Moarj', 198. 
 
 Deming v. Foster, 106. 
 
 Denton v. M'Kenzie, 173, 389, 385. 
 
 Dertley v. Murphy, 377. 
 
 De Rose v. Fay, 163. 
 
 Desell V. Casey, 419. 
 
 Devereux v. Burgwyn, 128. 
 
 Devinney v. Xorris, 169. 
 
 Dewev v. Field, 131. 
 
 De Witt V. Moulton, 264. 
 
 Dey V. Dunham, 266. 
 
 Dick V. Cowper, 225. 
 
 — V. Grissom, 199, 389. 
 Dickens v. Jordan, 106. 
 Dickerson v. Tillinghast, 319. 
 Dickinson v. Braden, 266. 
 
 — V. Davis, 131. 
 
 — V. Glenney, 420. 
 Diehl V. Page, 245. 
 
 Dill V. Camp, 300. 
 
 — V. Shahan, 397. 
 Dillard v. Dillard, 206. 
 
 Dirnan v. Providence R. R. Co., 407. 
 Disbrow v. Jones, 246, 299. 
 Disnuikes v. Terry, 144, 183,, 377. 
 Dixtield V. Newton, 132. 
 Dobson V. Racey, 173, 174. 
 Dockray v. Dockray, 212. 
 Dodd V. M'e'raw, 206. 
 Dodge V. Griswold, 46. 
 Dodson V. Cooke, 228. 
 Doe V. Reed, 266. 
 Doggett V. Emerson, 98 
 
 Dolkray v. Mason, 197. 
 Donaldson v. M'Roy, 225. 
 Donelson v. Clements, 54, 61. 
 Donnell v. King, 370. 
 Doolev V. Jennings, 96. 
 Doolittle V. Lyman, 231. 
 Dorr V. Munsell, 328. 
 Dorsey v. Dorsey, 158. 
 
 — V. Jackman, 105. 
 
 — V. Smithson, 375. 
 Doswell V. Buchanan, 264, 
 Dougherty v. Dougherty, 299. 
 
 — V. Jack, 228. 
 
 — V. M'Colgan, 194. 
 Douglas V. Dunlap, 231. 
 Dow V. Ker, .'^97. 
 Downes v. Kissam, 197. 
 Downey v. Garrard, 169. 
 Downing v. Major, 165. 
 Dovle V. Teas, 240. 
 
 Drake v. Collins, 397. 
 
 — V. Glover, 149. 
 
 — V. Latham, 85. 
 Drew V. Clarke. 91. 
 Driver v. Fortune, 184.' 
 Drury v. Cross, 202. 
 Dudley v. Little, 224, 225. 
 Dugan V. Gittings, 390. 
 
 — V. Massey, 197. 
 
 — V. \"attier, 313, 318. 
 Duncan v. J.eter, 335. 
 Dunham v. Dey, 266. 
 Dunlob V. Richards, 176. 
 Dunn V. Amass, 147. 
 
 — V. Chambers, 189. 
 Dunnock v. Dunnock, 220. 
 Duphey v. Frenage, 264, 318. 
 Dupont V. W'etherman, 321. 
 Dupre V. Thompson, 400. 
 Durant v. Bacot, 428. 
 
 — V. Durant, 397. 
 Durell V. Halev, 108, 109. 
 Duval V. Mowi-y, 328. 
 Duvall V. Stafford, 310. 
 
 Eagle V. Burns, 130, 131. 
 
 Eastland v. Vanarsdale, 357. 
 
 East Tennessee R.R. Co. v. Gammon, 115, 
 
 Eddins v. Wilson, 231. 
 
 Edgington v. Williams, 199. 
 
 Edick V. Crim, 105. 
 
 Edmonds v. Goodwin, 311. 
 
 Edwards v. Morris, 234. 
 
 — V. Roberts, 299. 
 Edzell V. Hart, 213. 
 Ege V. Koontz, 402. 
 Eigleberger v. Kibler, 208, 309. 
 Eishleman v. Lewis, 173. 
 Elder i'. Elder, 418. 
 
 Eldred v. Hazlett, 128. 
 Elliott V. Boaly, 83.
 
 TABLE OF AMERICAN CASES CITED. 
 
 'Si 
 
 Elliott V. Boaz, 56. 
 
 — V. Horn. 197, 227. 
 
 — t. Swartwout, 402. 
 Ellis V. Burden, S58. 
 
 — V. Graves, 345. 
 Elmendorf v. Taylor, 804, 308. 
 El well V. Chamberlain, 111. 
 Ely V. Pcrrine, 412. 
 
 — V. Scofiekl, 319. 
 
 — V. Wilcox, 248. 
 Emerson v. Udall, 288, 292. 
 Emery v. Owings, 2'.)1. 
 Emmons v. Murraj-, 245. 
 Enders v. Williams, 228, 229. 
 Endor v. Scott, 7 I . 
 English V. Beuwood, 335. 
 
 Epley V. Witherow, 129, 131, 235. 
 Erwin V. Parham, 186. 
 Esham v. taniar, 184. 
 Evans v. Boiling, 84, 334. 
 
 — V. Ellis, 164. 
 Evarts v. Strodo, 399. 
 Ewiiig V. Beaiichamp, 447. 
 
 — V. Cantrell, 209. 
 
 Eyre v. Potter, 146, 186, 366, 383. 
 
 Fall i>. Torreance, 311. 
 Fallon V. Hood, 78. 
 
 — V. Kelioe, 265. 
 Farley v. Bryant, 409, 421. 
 Farmers' Bank v. Douglas, 200. 
 
 — of Va, V. Groves, 52. 
 
 Farnam v. Brooks, 95, 144, 146, 174. 
 
 186, 191, 308, 310, 311, 367, 389. 
 Farns worth v. Bell, 198. 
 
 — V. Shepherd, 210. 
 Farrar v. Alston, 78, 94, 325. 
 
 — V Bridges, 41. 
 
 Farrell Foundry Co. v. Dart, 263. 
 Farrow v. Teackle, 197. 
 Faust V. Smith, 246. 
 Fay V. Oliver, 52. 
 Fee V. Fee, 310. 
 Feigley v. Feigley, 198. 
 Fenimore v. United States, 324. 
 Fenno v. Say res, 316. 
 Fergerson v. Fergerson, 397. 
 Ferris v. Coover, 133. 
 Ferson v. Sanger, 306, 407. 
 Field V. Arrowsmith, 157. 
 Filton V. Pitneau, 204. 
 Finley v. Lynch, 299. 
 
 — V. Lynn, 419. 
 
 Fireman's Insurance Co. v, Powell, 420, 
 Tuh V. Cleland, 9n. 
 — V. Miller, 178. 
 Fisher v. Boody. 366. 
 
 — V. Probart, 83. 
 Fisl>er's Appeal, 173. 
 Fisk V. Tank, 107. 
 Fitzgerald v. Fou-istal, 375. 
 
 Fitzgerald v. Peck, 398. 
 Fitzimmons v. Ou,<len, 316. 
 
 — V. Joslin, 112, 114. 
 
 Fitzpatrick v. Beattj', 366. 
 Flaag V. Mann, 182, 235, 245, 300, 313, 
 
 ^318, 389, 390. 
 Flagier v. Preiss, 388. 
 Flake v. Brown, 198. 
 Fleming v. Townsend, 234. 
 Fletcher v. Commonwealth Ins. Co., 119. 
 Floyd V. Good\\-in, 211. 
 Foley V. Cowgill, 82. 
 
 — V. Knight, 211. 
 Folk V. Birdelmar, 1 28. 
 
 — V. Beidelman, 132. 
 Fooks V. Waples, 326. 
 Footman v. Pendergrass, 226, 238. 
 Ford V. Harrington, 378. 
 
 — V. Heron, 186. 
 
 — V. Williams, 201, 213. 
 Forey v. Clark, 366. 
 Forkner v. Stuart, 211. 
 Foster v. Gersett, 335. 
 
 — V. Gillman, 329. 
 
 — V. McGregor, 209. 
 
 — V. Walton, 228, 231. 
 Foulk V. McFarlaus, 1 98. 
 Fowler v. Frisbie, 198. 
 
 — V. Stoneum, 228, 231. 
 
 — V. Waldrip, 234. 
 Fox V. Clark, 197. 
 Frakes v. Browu. 198. 
 Franchot v. Leach, 328. 
 Franklin Bank v Cooper, 123 
 FrankUn v. Elzell, 113. 
 
 — V. Ridenour, 144. 
 
 — V. Waters, 310. 
 Fratt V. Fiske, 299. 
 Frazier v. Gervais, 97. 
 Freelaud v. Eldridge, 144. 
 Freelove v. Cole, 377. 
 Freeman v. Clute, 107. 
 
 — V. Curtis, 399. 
 
 — r. Dui'gins, 144. 
 
 — V. Eatuian, 227. 
 
 — V, Harwood, 154. 
 
 — V. Lewis, 231. 
 
 — V. Piauson, 213, 
 
 — V. Staats, 332. 
 French v. French, 147. 
 
 — V. White, 328. 
 Frew V. Daenman, 319. 
 Frield v. Simcoe, 211. 
 Frisbie v. Ballance, 357. 
 
 — V. McCarty, 228. 
 Frost V. Beekman,' 265, 370. 
 
 — V. Raymond, 104. 
 
 — V. Warren, 201,213. 
 Fulknwider v. Roberts, 229, 231 
 Fuller V. Iloaden, 04. 
 
 — V. Perkins, 358.
 
 28 
 
 TABLE OJF AMERICAN C^SES CITED. 
 
 Fuller V. Sears, 210. 
 
 Fulton Bank v. N. Y. &c. Canal Co., 2G2. 
 
 Furris v. Dunham, 374. 
 
 Gaines v. Acre, 174. 
 Gaither v. Gaitlier, 275. 
 Galatian v. Cunningham, 371. 
 
 — V. Erwin, 177, 236, 353, 370, 
 371. 
 
 Gall)raith v. Elder, 167. 
 Gale V. Gale, 42. 
 
 — V. AVells, 178. 
 Gallagher v. Waring, 107. 
 Gallego V. Galleo:o, 206. 
 Gallion v. McCaslin, 322. 
 Galloway v. Finley, 345. 
 
 — V. Holmes. 49. 
 
 — V. "Witherspoon, 147. 
 Galpin v. Abbott, 264. 
 
 Gait V. Dibrell, 264. 
 Gardiner Bank v. Wheaton, 346, 390. 
 Gardiner v. Gardiner, 185. 
 Gardner v. Booth, 228. 
 
 — V. Cole, 328, 229. 
 
 — V. Gardner, 419. 
 
 — V. McEwen, 213. 
 
 — V. Ogden, 172, 344. 
 Garger v. Small, 364. 
 Garland v, Bowling, 335. 
 
 — V. Chambers, 211, 
 Garner v. Bird, 132, 414. 
 
 — V. Garner, 399. 
 
 — V. Leorett, 335. 
 Garrell v. Grant, 2i»3. 
 Garrison v. Rives, 233. 
 Garrow v. Davis, 94. 325, 389. 
 Garvin v. Lowez, 300. 
 
 Gass V. Moson, 146. 
 Gates V. Cole, 449. 
 Gatling v. Newell, 335. 
 
 — V. Rodman, 149. 
 Gazzam v. Poyntz, 390. 
 Gelton V. Hawkins, 419. 
 
 Geiieral Insurance Co. v. U. S. Insurance 
 
 Co., 263. 
 George v. Richardson, 190. 
 Gettv V. Rountree, 107. 
 Gibson v. Love, 211, 233. 
 
 — V. Randolph, 383. 
 Giddings v. Eastman, 163, 313. 
 Gifford V. Carvill, 326. 
 Gihon V. Lew, 106. 
 
 Gilbert v. Gilbert. 397. 
 Giles V. Williams. 368. 
 Gill V. Carter, 294. 
 
 — V. Grithtli. 265. 
 Gillett V. Phelps, 73. 
 Gillespie ». Moon, 416, 418,421. 
 Giimore v. Morgan, 405. 
 
 Gist V, Pressley, 210. 
 Glass V. Brown, 345. 
 
 Glasscock v. Batton, 210. 
 
 — V. Minor, 78. 
 Glassell v. Thomas, 336, 416. 
 Glidden v. Strippler, 149, 150. 
 Glover v. Smith, 344. 
 Golden v. Maupin, 336. 
 
 Good V. Hawkins, 90, 225, 383. 
 
 — V. Herr, 397. 
 Goode V. Goode, 448. 
 Goodell V. Field, 418. 
 
 — V. Taylor, 199. 
 Goodworth v. Paine, 197. 
 Gordere v. Downing, 410. 
 Gordon v. Parmelee, 329. 
 
 — V. Sizer, 241. 
 Gottschalk v. De Santos, 131. 
 Gould V. Gould, 174. 
 
 — V. Womack, 357. 
 Goustt'. Martin, 318, 319. 
 Gouverneur v. Elmendorf, 366. 
 
 — V. Titus, 420. 
 
 Governor v. Freeman, 131. 
 Graham v. Davidson, 303. 
 
 — V. Torreance, 304. 
 Grannis v. Smith, 196, 390. 
 Grant v. Cole, 259. 
 
 — V. Lloyd, 224. 
 
 — V. Ser'tzinger, 172. 
 Grantland v. Wright, 66. 
 Grapengether v. Fejervary, 420, 
 Graves v. Graves, 241. 
 
 — V. Mattingley, 416. 
 
 — V. Spier, 112. 
 
 — V. White, 93, 
 Gray v. Bartlett, 133. 
 
 — V. Emmons, 163. 
 
 — V. Rumph, 420. 
 
 — V Tappan, 198. 
 
 Great Falls Co. v, Worster, 246. 
 Green v. Bateman, 416. 
 
 — V. Drinker, 248. 
 
 — V. Goodall, 217. 
 
 — V. Morris, &c. R.R. Co., 399. 
 
 — V. Tanner, 202, 212, 312, 313,389. 
 
 — V. Thompson, 187, 189. 
 
 — V. W^inter, 154. 
 Greenwood v. Spring, 176. 
 Greer v. Boone, 412. 
 
 — V. Caldwell, 413. 
 Gregg V. Sayers, 385. 
 Greiggs v. AVoodruff, 83. 
 Griffin v. Nitcher, 46. 
 
 — V. Sketto, 295. 
 
 Griffith V. Frederick Co. Bank, 14Y. 
 
 — V. Griffith, 241, 371. 
 Grimes v. Hoyt, 378. 
 Grimstone v. Carter, 245. 
 Griswold v. Haven, 112. 
 
 — V. Smith, 244. 
 Groff v. Hansel, 327 
 Grundy v. Jackson, 344.
 
 TABLE OF AMERICAiJ CASES CITED. 
 
 29 
 
 Giilick V. Ward, 224. 
 Gulth V. White, 327. 
 Gnnter v. Thomas, 397. 
 Guthrie v. Gardner, 197. 
 Guy V. Faris, 197. 
 Gwynu v. Hamilton, 397. 
 
 — V. Turner, 264. 
 
 Ilaclvwith V. Dawson, 241, 246. 
 Iladdcick V. Williams, 408. 
 Haden v. Garden, 44. 
 Hadley v. Latimer, 144. 
 Hadslior v. Williams, 201, 
 Haines v. Coales, 188. 
 Halhert v. Grant, 45, 46, 103. 
 Halcome v. Ray, 201. 
 Halett V. Collins, 144, 161, 305, 322. 
 Hall V. Edrii.gton, 206. 
 
 — V. Fisher, 129. 
 
 — V. Hall, 186, 294. 
 
 - V. Ilinks, 313. 
 
 — V. Mayhew, 65, 
 
 — V. Naylor, 109. 
 
 — V. Paisons, 210. 
 
 — V. Perkins, 190. 
 
 — V. Hops, 357. 
 
 — V. Sands, 207. 
 
 — V. Timmons, 148. 
 
 Halls V. Thompson, 73, 77, 78, 82, 84. 
 Halsey V. Whitney, 212. 
 Hamiiton v. Beal, 384. 
 
 — V. Ganvard 106. 
 
 — V. llussell. 210. 
 
 — V. Smith, 310. 
 _ V. Thomas, 207. 
 
 Hanford v. Artcher, 211. 
 Hauly V. Morse, 244. 
 Hanna v. Spotts, 177, 179. 
 Hannay v. Eve, 374. 
 Hanzen v. Power, 207. 
 Hardeman v. Purge,. 187, 188. 
 
 — V. Cuiian, 335. 
 
 Hardinge v. Handy, 146, 345, 348, 366. 
 
 — V. Randall, 55, 355, 413. 
 Hardy v. Summers, 244. 
 Hargraves I'. King, 172. 
 Harlan v. Barnes, 208. 
 Harman v. Abbey, 213. 
 Harper v. Reno, 264. 
 
 — V. Scott, 234, 
 Harrell?;. Hill, 65. 
 
 — V. Kelly, 309, 310. 
 Harris w. Alcock, lii9. 
 
 — V. Arnold, 245. 
 
 — t). Carter, 237, 244. 
 
 — V. Columbiana Co. Lis, Co., 420. 
 
 — V. Delaniiir, 388. 
 
 — V. Flv, 370. 
 
 — V. Tyson, 97. 
 Harrison *'. Edwards, 130. 
 
 _ V. Mirge, 427. 
 
 Harrison v. Talbot, 65. 
 
 — V. Tenn, 363, 
 Harrisburg Bank v. Foster, 310 
 Harrod v. Cowan, 408. 
 Hartman v. Diller, 200. 
 
 Hart V. Farmers' <fec. Bank, 259. 
 
 — V. Stull, 65. 
 
 — V. Talmadge, 325. 
 Hartshorn v. Cuttrell, 447. 
 Harvey v. Smith, 78. 
 Hathorn v. Hodges, 328, 
 Hattin v. Detinaud, 447. 
 Hauley v. Marcius, 154. 
 Haven v. Foster, 402. 
 
 — V. Low, 211, 375. 
 
 — V. Richardson, 212. 
 Havens v. Dale, 248. 
 
 Hawley V. Cramer, 158, 169, 190, 303, 
 
 304, 305, 312. 
 Hays V. Henry, 220. 
 Havwood V. Marsh, 309, 
 Hazard v. Irwin, 61, 328, 
 Hazard v. Irvin, 73, 
 Head v. Muir, 447. 
 Henderson v. Dodd, 207. 
 
 — V. Hays, 357, 
 
 — V. Railroad Co., 61, 114, 115. 
 Hendricks v. Robinson, 45, 197. 
 Hennequin v. Kaylor, 109, 110. 
 Henry v. FuUerton, 207. 
 
 — V. Raiman, 168. 
 Ilenshaw v. Atkins, 46. 
 
 — V. Bryant, 108, 331. 
 Hcilbronv. Bissell,397. 
 Hepburn v. McDowell, 134. 
 Hermance v. Vernoy, 105. 
 Herrick v. Blair, 292. 
 Herriu v. Libbey, 328. 330. 
 Herring v. Winans, 370. 
 
 Hester v. Memphis Ac. Railroad Co., 115. 
 
 — V. Wilkinson, 207. 
 Hewes v. W'iswall, 245. 
 Hevdock v. Stanhope, 212. 
 Hiatt V. W^ade, 228. 
 Hicks v. Cram, 127. 
 Hickman ?;. Quinn, 201. 
 Higginbotham v. Barnett, 129. 
 Iliggins V. Mayer, 215. 
 
 Hinh V. Batte,'3tl9. 
 Highberger v. StilHer, 144. 
 Hiidreth v. Sands. 200. 
 Hill V. Bush, 74, 408. 
 
 — V. Paul, 316. 
 
 — V. McLaurin, 144. 
 Hillman v. W^rigiit, 421. 
 lliiR-hman v. Oiiians, 397. 
 Hinckley v. Hendrickson, 327. 
 Hiude V. Longwoith, 206, 2oa 
 
 — V. Vattier, 237. 
 Hitchcock V. Covill, 108. 
 Hite V. Hite, 311.
 
 30 
 
 TABLE OF AMERICAN CASES CITED. 
 
 Hobbs V. Bibb, 211. 
 
 — V. Parker, 96. 
 Hockenburg v. Carlisle, 167. 
 Hoe V. Sanborn, 107. 
 Hoffman Steamboat Co. v. Cumberland 
 
 Coal Co., 155, 161. 
 Hoffman Steam Coal Co. v. Cumberland 
 
 Coal Co., 297. 
 Hoitt V. Holcomb, 44, 79, 328, 368. 
 Hoke II. Henderson, 196. 
 Holbrook v. Burt, 388, 
 Holden v. Crawford, 190. 
 Hollingsworth v. Liipton, 447. 
 Holly V. Young, 328. 
 Holmes v. Barker, 437. 
 
 — V. Clark, 325. 
 
 — V. Fresh, 190. 
 
 — V. Hokoes, 220. 
 
 — V. Stout, 248, 316. 
 Hood V. Fabnestock, 259. 
 Hoopes V. Burnett, 163. 
 Hope V. Evans, 336. 
 Hopkins v. Stump, 358. 
 
 — V. Webb, 229. 
 Hopkirk v. Randolph, 206. 
 Hopper V. Lisk, 326. 
 Hopping V. Burnam, 266, 
 Horem V. Libbey, 330. 
 Hornbeck v. Vanmetre, 211. 
 Hotchkiss V. Fortson, 147. 
 Hough V. Hunt, 184. 
 
 — V. Richardson, 75, 98, 114, 
 Housatonic Bank v. Martin, 262, 
 Hovey v. Blanchai'd, 258. 
 
 How V. Wayman, 209. 
 — V. Waysman, 231. 
 Howard v. Carpenter, 439. 
 
 — V. Edgill, 190. 
 
 - V. Hoev, 107. 
 
 — V. Warfield, 447. 
 
 — V. "Williams, 228. 
 Howe V. Bishop, 197, 
 
 — V. "Ward, 198. 
 Howell V. Baker, 169. 
 
 — v. Ransom, 165. 
 Howland v. Scott, 131. 
 Hoyt V. Sheldon, 238. 
 Hubbard v. Turner, 201, 
 
 — V. Martin, 402. 
 Huckabee v. Autter, 327. 
 Huden v. Ware, 399. 
 Hudnal v. Wilder, 228, 234. 
 Hudson V. Warner, 266. 
 Hutfv. Earl. 15-0. 
 Hughes I'. Bloomer, 346. 
 
 — V. Edwards, 264. 
 
 — V. Sloan, 75. 
 
 — V. U, S., 244. 
 
 Humbart v. Trinity Cliurch, 304, 310. 
 Hundley v. Webb,' 2 11. 
 Hunt V. Bass, 157, 184. 
 
 Hunt V. Freeman, 419. 
 
 — V. McConnell, 334, 
 
 — V. Moore, 55, 113, 114, 
 
 — V. Rousnianier, 397, 428. 
 
 — V. White, 448. 
 
 — V. WickUffe, 304. 
 Hunter v. Foster, 148, 149, 196. 
 
 — V. Goudy, 409. 
 
 — V. Hudson River Iron Co. 
 
 113. 
 Huntington v. Hall, 105. 
 Hurst V. Hurst, 447. 
 Huson V. Pitman, 418, 420. 
 Huston V. Cantril, 309. 
 Hutchinson v. Brown, 147, 383. 
 
 — V. Kellv, 198, 207. 
 
 — V. Tindal, 147, 
 Hyatt V. Boyle, 106. 
 Hyde v. Tanner, 425. 
 Hyne v. Campbell, 417. 
 Hvnson v. Dunn, 368. 
 Hyslop V. Clark, 197, 212. 
 
 Ide V. Gray, 94. 
 
 Ilej' V. Kiswanger, 207. 
 
 Ingalls V. Morgan, 258. 
 
 Ingerson v. Starkweather, 173, 318 
 
 Ingraham v. WheeLr, 212. 
 
 — V. Morgan, 47, 103, 319. 
 
 — V. Phillips, 207, 266. 
 Irick V. Fulton, 416. 
 
 Irish V. Morse, 210. 
 
 Irving V. Thomas, 76, 300. 
 
 Irwin V. Sherrill, 324. 
 
 Isaac V. Clark, 161. 
 
 Isham V. Bennington Iron Co., 264. 
 
 Iversv. Chandler, 131. 
 
 Izard V. Izard, 203. 
 
 Jackson v. Ashton, 343. 
 
 — V. Henrv, 316. 
 
 — V. Hodg'^es, 216. 
 
 — V. Inabit, 132. 
 
 — V. Leek, 266. 
 
 — V. Myers, 198. 
 
 — V. Parker, 196. 
 
 — V. Payne, 448. 
 
 — V. Summervillc, 318. 
 
 — V. Town, 228. 
 James v. Bird, 375. 
 
 — V. Drake, 235. 
 
 — V. Langdon, 144. 
 
 — V. McKcrnan, 172. 
 Jameson v. Glasscock, 154. 
 Jankin v. Simpson, 52, 
 Jarvis v. Davis, 210. 
 Jasper v. Hamilton, 90, 104 
 Jemison v. Woodruff, 329. 
 
 — V. Eldridse, 238. 
 Jenkins v. Bodley, 244, 370, 
 
 — V. Hogg, 225.
 
 TABLE OF AjMEEICAII CASES CITED. 
 
 31 
 
 Jenkins r. Tye, 180, 303. 
 Jenks V. Fritz, 405. 
 Jenninga v. Gaze, 52. 
 
 — V. Wood, 264, 266. 
 Jewettv. Palmer, 318. 
 
 — V. Petit, 52. 
 
 — V. Miller, 154. 
 Johns V. Reanlon, 264. 
 Johnson v. Bennett, 157. 
 
 — «. BoyIes,315. 
 
 — V. Braudis, 201. 
 
 — V. Cooper, 378. 
 
 — V. Hendley, 46. 
 
 — V. Johnson, 178, 303. 
 ^ V. Jones, 335. 
 
 — V, Noble, 447. 
 
 — V. Pryor, 104. 
 
 — V. Tliweatt, 241. 
 Johnston v. Cope, 106. 
 
 — V. Glancey, 245. 
 
 — V. Gwathmey, 241. 
 
 — V. La Motte, 225. 
 Jones V. BoUes, 43. 
 
 — V. Bra m ford, 258. 
 
 — V. Comer, 375. 
 
 — V. Conoway, 310. 
 
 — V. Green, 46. 
 
 — V. Hail, 233. 
 
 — V. Henry, 203. 
 
 — V. Plater, 66. 
 
 — V. Read, 318. 
 
 — V. Sass.'r, 129. 
 
 — V. Watkins, 402. 
 
 — V. ZoUicoflfer, 321. 
 Joplin V. D(.oley, 336. 
 Jopping V. Dorie}', 334. 
 Jorda V. L'wis, 211. 
 Jordan v. Hyatt, 292. 
 
 — V. Stevens, 399. 
 
 Jouzin V. Toulmin, 55, 95, 18T, 189, 408. 
 
 Joy II. Sears, 211. 
 
 Joyce V. Taylor, 61. 
 
 Judge V. Wiildns. 188. 
 
 Junction R. R. Co. v. Harpold, 132. 
 
 Kanada V. North, 172. 
 
 Kane v. Bloodgood, 304, 308. 
 
 Kayser v. Sichcl, 328. 
 
 Kearney v. Taylor, 159, 173, 225. 
 
 Keaton v. Cobbs. 154. 
 
 Keeblev. Cummins, 144. 
 
 Keelerw. Vantuyle, 131. 
 
 Keen v. Coleman, 149. 
 
 — V. Hartman, 149. 
 Keenan v. Mo., <fec. Ins. Co., 260. 
 Keiiihler v. Savage M.uuif. Co., 172. 
 Keitcrease v. Levin, 318, 
 
 Keller v. Nutz, 264. 
 Kelly V. McGuire, 144. 
 
 — V. Pember, 326. 
 Kelsey v. Hobby, 184. 
 Kempner v. rlmichill, 200. 
 Kendall v. Lawrence, 248. 
 
 Kennedy v. Johnson, 103. 
 
 — V. Kemiedy. 42, 157, 3C7, 388, 
 Kenney v. Udall, 184. 
 
 Kent V. Carcaud, 06. 
 Kenzon v. Weltz, 397. 
 Kepner v. Buckhart, 196. 
 Kerr v. Kitchen, 241. 
 Kerssilbrack v. Livingston, 418. 
 Ketchum v, Catliu, 4()5. 
 
 — V. Stoat, 60. 
 
 — V. Watson, 211. 
 Kettlewell v. Stewart, 212. 
 Keutgen v. Purks, 328. 
 Key ten v. Branford, 419. 
 Killough V. Steele, 199. 
 KimbaU v. Cunningham, 52. 
 
 — V. Hutchins, 231. 
 Kimmel v. Mesright, 197. 
 King v. Cohon, 144. 
 
 — V. Doolittle, 397. 
 
 — V. Eagle, 325. 
 
 — V. Hamilton, 357. 
 
 — V. Morford, 306. 
 
 — V. Wilcox, 207. 
 Kingsbury v. Ta3'lor, 106. 
 Kinney v. Kiernan, 52, 327, 329. 
 Kintzing v. McEh-ath, 97. 
 Kirby v. Ingersoll, 41, 197. 
 
 — V. Taylor, 178. 
 
 — ■;;. Turner, 178. 
 Kirtknd«. Snow, 210. 
 Kissam v. Edmondston, 200. 
 Kite V. Lumpkin, 408. 
 Knabe v. Pernot, 172. 
 Knobb V. Lindsay, 187, 363. 
 Knotts V. Ginger, 206. 
 KuoufF?;. Thomj)soii, 134. 
 Knowlton v. Kicldes, 291. 
 Knox V, Thompson, 245. 
 Knuckolls V. Lea. 299. 
 Kuykendall v, McDonald, 211. 
 
 Lackey v. Stouder, 105. 
 Lacy V. Wilson, 316. 
 Laidlaw v. Organ, 55, 9Y. 
 Lamb v. Harris, 407. 
 Lamis v. Aukl, 105. 
 Lamkin v. Reese, 419. 
 Lammott v, Bowiy, 399. 
 Lamont v. Stimson, 239. 
 Lancaster v. Dolan, 228, 229, 231 
 Land v. Jeffries, 196. 
 Landis v. Brant, 244. 
 Lane v. Borland, 210. 
 
 — V. Robinson, 109. 
 Lang V. Lee, 213. 
 Langden v. Woodfield, 234. 
 Langlord v. Fly, 198. 
 Lankton v. Scott, 292. 
 Lansing v. Woodworth, 197 
 Larkins ;;. Bidille, 419. 
 Lasselle v. Barnett, 131, 237, 264 
 Latter v. Morrison, 227, 230.
 
 32 
 
 TABLE OF AMEKICAX CASES CITED. 
 
 Lawrence v. Penubien, 400. 
 
 — V. Cl:irk-, 215. 
 
 — I'. liaiul, 111. 
 
 — V. Tucker, 259. 
 LawTison V. Baer, 101, 
 Lawton v. Lcvj-, 4G. 
 
 Lea V. Poke Co. Copper Co., 244. 
 
 Leach v. Fowler, 168. 
 
 Leary v. Cox, 347. 
 
 Leavitt v. Taliner, 397, 414. 
 
 Lecutt V. Siillee, 165. 
 
 Ledgard v. Butler, 231. 
 
 Lee V. Fo.x, 177, 178. 
 
 — V. Lee, 288. 
 
 — V. Patillo, 290. 
 
 — V. Porter, 130. 
 
 — V. Vauglian, 339. 
 Leftwicb v. Oiiie, 370. 
 Legatt V. Sallee, 164, 1^0. 
 Leger v. BonafFe, 416. 
 Legro V. Lord, 209. 
 Leigh V. Crump, 357. 
 Leisinring v. Black, 169. 
 Leitensdorfer v. l^elphy, 418. 
 Lemmon v. Browr., 312. 
 Lennox v. Notix-b';, 154. 
 Leonard v. Austin, 419. 
 
 — V. Pitney, 310. 
 Lerow v. Wihuarth, 206. 
 Le Roy v. I'latt, 420. 
 Letcher v. Xorton, 210. 
 Lewis f. A. J., 165, 169. 
 
 — V. Baird, 264. 
 
 — V. Beattv, 319. 
 
 — V. Houston, 310. 
 
 — V. Love, 229, 231. 
 
 — V. McLenion, 61. 86. 
 
 — V. San Anionij, 132. 
 Lexington v. Lindsay, 308. 
 Leyne v. Bank of K}'., 206. 
 Lies V. Stubb, 409. 
 Ligbtfoot V. Colgin, 220. 
 Lightney v. Mooney, 264. 
 Ligon V. P()2:er3, 420. 
 Lillard /■. M'Gee, 198. 
 Lily V. Wolf, 264. 
 Lincoln v. Wri lit, 236. 
 
 V. jidsay v. Lindsay, 208. 
 
 — V. Rankin, 316. 
 Lines v. Darden, 439. 
 Linkuw. Smiti), 217. 
 Lippincott v. Barker, 212. 
 
 — V. Stokes, 439. 
 Lishey v. Clayton, 209. 
 Litchfield Bank v. Peck, 116. 
 Livermore v. Johnson, 310. 
 Livingston v. Littell, 211. 
 
 — II. Peru Iron Co., 97 
 Lloyd V. Brewster, 108. 
 
 — V. Lynch, 319. 
 Lobdell V. Baker, 111. 
 Lockbridge v. Poster et al, 48, 61. 
 Lockwood V. Kelson, 202. 
 
 Locke V. Armstrong, 308, 311. 
 
 — V. Stevens, 381. 
 Long V. Iliekingbottonj, 105. 
 
 — V. Long, 377. 
 Longworth v. Hunt, 309. 
 Looniis V. Wainwright, 62. 
 Lord V. Col ley, 326. 
 
 — V. Goddard, 326. 
 Lothrop V. King, 215. 
 Love V. Bcik. i? 
 
 — V. Braxton, 312. 
 
 — V. Lea, 177. 
 
 — V. Oldham, 326. 
 Low V. Treadwell, 364. 
 Lowndes v. Chisolm, 399. 
 Lowry v. Brown, 240, 
 
 — V. Pinson, 201, 
 Lucas V. Mitchell, 374. 
 Ludlow V. Cooper, 304. 
 Lupin V. Marie, 108, 109. 
 Lupton V. Cornell, 266. 
 
 — V. Janney, 303. 
 Lutz V. Sinthicum, 292. 
 Lukin V. Aird, 196. 
 Lyman v. Little, 421. 
 
 — V. U. S. Ins. Co., 42L 
 
 — V. Utica Ins. Co., 410. 
 Lynch v. Tibbits, 50. 
 Lynde v. McGregor, 200, 
 
 Lyne i'. Bank of Ky-, 227, 228, 263 
 Lyon V. Richmond, 397. 
 
 — V. Senders, 397. 
 
 — V. Tallmadge, 184, 402. 
 
 Mace V. Boyer, 146. 
 Mackie v. Cairns, 196, 197, 
 Mackinley v. McGie^or, 109, 110. 
 Mawm V. Shepperd, 246. 
 Maddox v. Simmons, 190, 
 Magniac v. Thompson, 202, 398. 
 Mahone v. Reeves, 327. 
 Maine v. King, 105. 
 Mallory v. Leach, 326. 
 
 — V. Stodder, 316. 
 Manes v. Durant, 217. 
 Maney v. Kil lough, 210. 
 Manhattan Co. j'.^Evertson, 197, 198, 370 
 Manley v. Killough, 211. 
 
 Mann v. Betterly, 144, 190. 
 Manney v. Eater, 334. 
 
 — V. Porter, 82, 104. 
 Manz V. Beekman Iron Co., 419, 
 Marbury v. Brooks, 212. 
 
 — V. Stonestreet, 65. 
 March v. Weekerly, 131, 
 Mark v. Lawrence, 161, 
 Markham v. Todd, 367. 
 Marshall v. Billingslea, 144. 
 
 — V. Buchanan, 3^5. 
 
 — V. Gray, 325. 
 
 — V. Joy, 165, 173, 174. 
 
 — V. Martin, 144. 
 
 — V. Stephens, 157,
 
 TABLE OF A]MERICAN CASES CITED. 
 
 33 
 
 Martin t). Blight, 173, 224. 
 
 — V. Martin, 144. 
 
 — V. I'ennock, 93. 
 
 — V. Raulett, 224. 
 
 — V. Roberts, 52. 
 
 — V. Wharton, 90. 
 Marvin v. Bennett, 65, 416. 
 Mason v. Baker, 375. 
 
 — V. Crosby, 76, 112. 
 
 — V. Martin, 157. 
 
 — ■ V. Paine, 241. 
 
 — V. Ron-ers, 207. 
 
 — V. Williams, 144. 
 Massie v. Greenhow, 238. 
 
 — V. Watts, 172. 
 Massoii V. Bovet, 52. 
 
 Mass. Turnpike Co. v. Field, 310. 
 Massy v. Mcllvain, 234. 
 
 — V. Mcliwain, 246. 
 Matta V. Hentlersnn, 335. 
 Matter of Oakley, 154. 
 
 — Post, 164. 
 Mattheus v. Dezaud, 157. 
 Matthews v. Bliss, 97. 
 
 — V. Demerritt, 248. 
 
 — V. Light, 172. 
 
 — V. W'iivi.e, 197. 
 Mattingly v. Nve, 206. 
 Mattock V. Todd, 77. 
 Maxwell v. Kennedy, 311. 
 
 — V. Petinn r, 147. 
 Mayer v. ("lark, 211. 
 Mayfield v. Averitt, 240. 
 Mayor & C. C. v. Williams, 228. 
 McAfferty v. Conover, 132. 
 McAninch v. Laiighlin, 397. 
 McBride v. Wilkinson, 444. 
 McCall V. Hinkley, 212. 
 McCarty v. Bee, 157. 
 McCauley v. Rhodes, 203. 
 M'Clantihan v. Henderson, 154. 
 McClure v. Ashbj% 310. 
 
 — V. Miller, 155, 219. 
 M'Clure v. Purcell, 374. 
 McCobb V. Richardson, 409. 
 M'Conike v. Sawyer, 385. 
 McCouii'e V. Sawyer, 207. 
 McCormick v. Malin, 144, 183, 187, 
 
 297, 389. 
 
 — V. McMurtrie, 133. 
 
 — V. Wheeler, 259. 
 M'Coun V. Delaney, 65, 334. 
 McCoy V. Artcher, 105. 
 McCraw v. Davis, 146. 
 McCrea v. Leonstreth, 66. 
 McCulloch V. Scott, 300. 
 McDanicl v. Moorman, 144. 
 McDonald v. Fitliian, 172. 
 
 — V. Trafton, 73, 74. 
 BTDonald v. Lindiill, 131. 
 
 — V. Neilson, 306, 391. 
 McElderry v. Shipley, 414. 
 McFerran v. Taylor, 61. 
 
 M'Ferran v. Taylor, 408. 
 McGinn v. Shaeffer, 157- 
 McGuire v. Callahan, 52. 
 Mcintosh V. Smith, 1 19. 
 McKay v. Simpson. 419. 
 M'Kelvey v. Truby, 132. 
 McKelway v. Cook, 405. 
 McKinley v. Irvine, 155,172. 
 McKinney v. Fort, 101. 
 
 — f. Pinekard, 190. 
 McKnightf. Kellett, 328. 
 
 — V. Taylor, 303. 
 McLaughlin v. Bank of Potomac, 208. 
 McLean v. Parton, 303. 
 McMeclien v. Griffing, 246. 
 McMiilen V. McMillin, 419. 
 McMurray v. St. Louis &c. Co., B91 
 McXaughton v. Partridge, 299, 420. 
 M'^'eely v. Rucker, 229. 
 
 McNeil V. Turner, 344. 
 
 McPherson v. Walters, 129. 
 
 McRimmers v. Martin,. 241. 
 
 McVickar v. Wolcott, 447. 
 
 McWliorter v. McM.ihon, 357. 
 
 Md. Fire Ins. Co. v. D.drymple, 155, 161. 
 
 Meanor v. Hamilton, Kil. 
 
 Mechanics' Bank of Alexandria i;. Setoa, 
 
 262. 
 Meek o. Perry, 177. 
 Meeker v. York, 172. 
 Mellick V. Robertson, 397. 
 Merchauls' Nat'l Baidv v. Nat'l Eagle 
 Bank, 415. 
 
 — Bank v. Mclntyre, 405. 
 Merriweather v. Ileiran, 97. 
 Merry v. Bostwick, 2<iO. 
 Michael v. Michael, 387. 
 
 Michoud V. Girod, 150, 158, 298, 304. 
 
 306. 308, 309, 347. 
 Middleton, ifec. Bank v. Dubuque, 262. 
 Miles V. Barry, 310. 
 
 — V. Stevens, 405, 416. 
 Miller v. Bradford, 265. 
 
 — V. Colton, 359. 
 
 — V. Coukling, 212. 
 
 — V. FraleJ^ 258. 
 
 — V. Lockwood, 213, 
 
 — V. Mclntyre, 304. 
 
 — V. Pancoast, 211. 
 
 — V. Piatt, 129. 
 
 — V. Thompson, 207. 
 Miller v. Tolleson, 389. 
 Mills V. Camp, 210. 
 
 — V. Ervin, 164, 165, 344. 
 
 — V. Mills, 164. 
 
 — V. Warner, 210. 
 Miner v. Granger, 107. 
 
 — V. Medhury, 79. 
 Minturn v. Seymour, 420. 
 Mississippi Union Bank v. Wilkinson, 77 
 Mitchell V. Beal, 196, 197. 
 
 — V. Denson, 439, 441. 
 
 — V. Mims, 111.
 
 34 
 
 TABLE OF AMEEICAN CASES CITED. 
 
 Mitchell V. Moore, 154. 
 
 — V. Pickett. 319, 
 
 — V. Thompson, 310. 
 
 — V. AVorden. 108, 109. 
 
 — V. Zimmerman, 61. 
 Mixer v. Coburn, 106. 
 Moale V. Buclianan, 418. 
 Mockbee v. Gardner, 105. 
 Moffat V. Winslow, 299. 
 Moncrieff v. Goldsborough, 225. 
 Monell V. Golden, 86. 
 Montville v. Haughton, 420. 
 Moore v. Auditor. 264. 
 
 — V. Blauvelt, 186. 
 
 — V. Bracken, 169. 
 
 — V. Clay, 312, 370. 
 
 — V. Green, 367. 
 
 — V. Reed. 299. 
 
 — V. Mandelbaum, 172, 173, 174. 
 
 — V. Moore, 174. 
 
 — V. TurbeYille, 78. 
 Mordecai v. Tankersley, 328. 
 More V. Sraedbiirg, 335. 
 Morehead v. Hunt, 225. 
 Moreland v. Atcbinson, 335, 399. 
 
 — V. Lemastar, 234, 244. 
 Morey v. Forsyth. 198. 
 Morgan v. Bliss, 94, 325. 
 
 — V. Morgan, 244. 
 
 — V. Republic, 211. 
 
 — V. Snapp, 74. 
 
 — V. Spanglcr, 128, 398. 
 Morland f. bliss, 131. 
 
 Morris Canal Co. v. Emmett, 73. 
 
 — V. Moore, 128. 
 
 — V. Philiber, 188. 
 
 — V. Ross, 448. 
 
 — V. Terrell, 241. 
 Morrison v. McLeod, 147. 
 Mortimer v. Pritcbard, 399. 
 Morton v. tJogdon, 128. 
 
 — V. Robards, 266. 
 
 — V. Scull. 112, 325. 
 Mosby V. Wall, 418, 421. 
 Moseley v. Buck, 173, 345. 
 
 — V. Moseley, 231. 
 Moss V. Davidson, 384. 
 
 — V. Riddle, 368. 
 Motley V. Motley, 173. 
 Mott V. Harrington, 164. 
 Moultrie v. Jennings, 228. 
 Mulford V. ]\Iiiiels, 161. 
 Mullen V. Wilson, 207. 
 Mundorf v. Wickersham, 11 L 
 Munson v. Ilallowell, 310. 
 
 — V. Gairdner, 325. 
 Murray v. Ballou, 264, 370. 
 
 — V. llhx^, 212. 
 
 _ V. Yanelerbilt, 156. 
 Myers v. Myers, 154. 
 
 — V. Peck, 316. 
 
 — V. Rives, 178. 
 Myer's Appeal, 172. 
 
 Nabours v. Cocke, 404. 
 
 Nance v. Thompson, 447. 
 Nantz V. McPherson, 370. 
 Napier v. Elam, 103, 322, 386. 
 Narcissa v. Wathan, 78, 158. 
 National Fire Ins. Co. v. Crane, 420. 
 
 — Bank v. Norton, 262. 
 Neal V. Williams, 313. 
 Neale v. Haythrop, 241. 
 Neely v. Anderson, 190. 
 Nellis V. Clark, 374. 
 
 Nelson v. Carrington, 299, 806. 
 Nesbit V. Lockman. 170. 
 
 — V. Diffbv, 212. 
 Nevin v. Belknap, 128. 
 Nevius V. Dunlnp, 410. 
 Newcomer v. Kline, 419, 420, 
 Newman v. Chapman, 266. 
 
 — V. Edwards, ] 32. 
 
 — V. Meek, 187, 188, 22.5. 
 
 New Orleans R. H. Co. v. Williams, 115, 
 Nichols V. Michaels, 328. 
 
 — V. Pinner, 108. 
 
 — V. Reynolds, 264. 
 Niles V. Anderson, 44, 355, 368. 
 Niolen v. Douglass, 212. 
 Noble V. Googins, 65. 
 Noonan v. Lee, 334. 
 
 North Bait. Building Association v. Cald- 
 well, 158. 
 North V. Belden, 201. 
 Northrop v. Graves, 402, 
 Norton v. Hooten, 105. 
 
 — V. Young, 327, 
 Nowlan v. Cain, 78. 
 Nutt n. Nutt, 448. 
 N.Y.Bowerylns. Co. v. N. Y. Ins. Co..ll9. 
 
 Obert V. Obert, 306. 
 
 O'Brien v. Coulter, 46, 199. 
 
 Ochler V. Walker, 311, 
 
 Odiin V. Gove. 133. 
 
 Ohio Life Ins. Co. v. Ledyard, 266. 
 
 Oliver v. Piatt, 155, 238, 241. 308. 
 
 Ormsby v. Bakenell, 447, 
 
 Osborn v. Carr, 323. 
 
 Osborne v. Moss. 375. 
 
 — V. Phelps, 418. 
 Osgood V. Franklin, 187. 
 
 — V. Lewis, 106. 
 Oswold V. McGehee, 61. 
 Overton v. Phelan, 107. 
 Owing's Case, 144, 146, 344, 387. 
 Owingsw. Juit, 312. 
 
 Padget V. LawTcnce, 319. 
 Page V. Bent, 56. 
 
 — V. Booth, 304. 
 
 — V. Ford, 107, 
 Paige V. Nagiee, 154. 
 Painter v. Henderson, 164. 
 Palmer v. Cross, 140. 
 Parham v. Parham 418. 
 
 1 — V. Randolph, 81.
 
 TABLE OF AMERICA^?^ CASES CITED. 
 
 35 
 
 P.ii'i-h V. ]\Turplii-ee, 206. 
 rarker v. Ildlmes, 346. 
 Parkham v. JMcCrary, 311. 
 
 — V. Kandolph, 335. 
 Parkhnrst v. Alexander, 172. 
 Parkinson v. Hanna, 201. 
 Parknian v. Welch, 207. 
 Parks V. Willard, 266. 
 Parrett v. Sliaiibhut, 204. 
 Parson v. Hughes, 298. 
 Partels v. Harris, 202. 
 Patten v. Gurney, 324. 
 
 — V. PloUidaysburg, 244. 
 
 — V. Moore, 248. 
 Patton V. Taylor, 334. 
 
 — V. McClare, 133. 
 Payne v. Rodden, 105. 
 
 — V. Smith, 82. 
 Peabody v. Fenton, 320. 
 Peacock v. Black, 304. 
 Pearce v. Blaekwell, 102. 
 
 — V. Chastain, 391. 
 Pearrett v. Shawbhut, 95. 
 PearsoU v. Chapin, 49, 297, 327 
 Pearson v. Daniel, 237. 
 
 Pease v. Sabin, 107. 
 Peay v. Sublet, 197. 
 Peck V. Baldwin, 50. 
 
 — V. Brewer, 330. 
 
 — V. Land, 200. 
 ?edeu8 V. Owens, 66. 
 peers v. Davis, 325. 
 Pemberton v. Staples, 368. 
 Pendergast v. Reed, 88. 
 Pendkton v. Galloway, 309, 366 
 Pequeno v. Taylor, 109, 328. 
 Persons i). Jones, 310. 
 PerijEjue v. Wood, 44. 
 
 Perins v. Dunn, 200. 
 Perkins v. Cartmell, 304. 
 
 — V. McGavock, 96, 91 
 
 — V. Rice, 77, 85. 
 
 — V. Webster, 66. 
 Perkins v. Wright, 357. 
 Perry v. Crary, 311. 
 Petere v. Foster, 1 27. 
 Peters v. Florence, 397. 
 
 — V. Goodrich, 236, 264. 
 
 — V. Newkirk, 292. 
 Peterson v. Grover, 419. 
 Petrie v. Wright, 384. 
 Petters v. Smith, 201, 299. 
 Pettes Bank v. Whitehall, 397 
 Pettibone v. Stevens, 200, 383. 
 Pettigrew v. Chellis, 325. 
 Petty V. Petty, 220. 
 
 Peyton v. Butler, 84, 347. 
 
 — V. Stith, 304. 
 Phalon V. Clark, 43, 310, 374. 
 Phelan v. Crosby, 327. 
 Phillips w. Moore, 147. 
 Phelps V. Overton, 165. 
 Phettiplace v. Sayles, 96, 210, 216, 
 
 Phippen v. Ptickrpy, 226. 
 Piatt V. Vatlier, 303. 
 Picard v. McCormick, 18, 
 Pickett V. Barron, 319. 
 Pierce v. Fan nee, 316. 
 
 — 7). Jackson, 212. 
 
 — V. Kesbitt, 155. 
 
 — V. Perkins. 291. 
 
 — V. Wilson, 329. 
 Pierpont v. Graham, 212. 
 Pike V. Wictinii', 1()9. 
 Pillow V. Shannon, 318. 
 Pillsbury v. Pillsbury, 172. 
 Pinkhiim v. Gear, 402. 
 Pinnco v. Higgins, 215. 
 Pinson v. Ivey, 308, 321. 
 Pintardv. Martin, 307, 335, 336. 
 Pitney v. Leonard, 236, 238. 
 Pitts i;. Cottingham, 84, 86. 
 Pixley t'. Bennett, 198. 
 Place V. Langworth, 213. 
 Planters' Bank v. Henderson, 209. 
 
 — and Merchants' Bank v. Willis, 
 210. 
 Plaster v. Burger, 225. 
 Piatt V. Oliver, 224. 
 Pleasants v. Ross, 447. 
 Plitt ex-pnrte, 164. 
 Poague V. Boyce, 45, 200, 209. 
 Poillon V. Martin, 171, 321. 
 Pollard V. Rogers, 103, 299, 300, 333. 
 Pollock V. Wilson, 65. 
 Poor V. Price, 44, 50. 
 Poore V. Woodl)urn, 329. 
 Pope V. Andrews, 196, 385. 
 Porter v. Bank of Rutland, 262. 
 
 — V. Sevej% 266. 
 Portland Bank v. Stacey, 211. 
 Potts V. Blaekwell, 231. 
 ■Poulet V. Johnson, 240. 
 Powell V. Bradlee, 108, 33L 
 
 — V. Clark, 66. 
 
 — V. Jefferies, 319. 
 Pratt V. Carroll, 357. 
 
 — V. Philbrook, 96. 
 Prentice v. Achorn, 147. 
 Prentiss v. Russ, 94. 
 Preston I'. Crofut, 313. 
 
 — v. Mann, 128, 133. 
 Prevo V. Walters, 312. 
 Prevost V. Gratz, 304. 
 Prewitt V. Copwood, 377. 
 
 — V. Graves, 336. 
 Price V. Grand Ilapids & Ind. R. R. Co., 
 
 163. 
 — V. Sykes, 198. 
 Pries V. Evans, 159. 
 Pringle v. Philips, 237. 
 
 — V. Samuel, 66, 82, 83. 
 Prior V. Kinney, 196. 
 Proctor V. Thrall, 397. 
 Prout V. Roberts, 103, 335. 
 
 384. Putnam v. Dutch, 211.
 
 36 
 
 TABLE OF AMERICAN CASES CITED. 
 
 Quarles v. Lacey, 157. 
 Quesnel v. "Woociliof, 65. 
 Quick V. Stuyvesaut, 358. 
 
 Radcliflfe v. Wightman, 44Y. 
 Railroad Co. v. Kowe, 299. 
 Rainsford v. Kainsford, 297. 
 Eamsaj' v. Joyce, 217. 
 Ramsdell v. Edgaiton, 215. 
 Rand V. Redington, 291. 
 Randall v. Howard, 374. 
 
 — V. rinl.ijjs, 198, 
 Randolph v. Doss, 198, 
 
 — V. Ware, 304. 
 Rankin v. HoUoway, 211. 
 
 — V. Lnder, 212. 
 Rapalie v. Jloieworthy, 178. 
 Ratclifife v. Sani;ston, 319. 
 Raugley v. Spring, 131. 
 Rawdon v. Blatchford, 94. 
 Rawley v. ^^'oodl•llff, 94. 
 Raymond v. ^imonson, 310l 
 Read v. Cramer, 65, 413. 
 
 — V. i^later, 313. 
 
 — V. Wari.er, 172. 
 Reading v. Pric^, 101, 
 Reardon v. Seavj', 306. 
 Reed v. Barber, 105. 
 
 — V. Cole, 264. 
 
 — V. Jewett, 211. 
 
 — V. Noxon, 2iiO, 385. 
 Reed's Appeal, 258. 
 Reese v. Wj-man, 93. 421. 
 Reid V. Stanley, 167. 
 Reiniek v. Smith, 391. 
 Reinieker v. Smith, 147, 35Y. 
 Reservoir Co. v. Chase, 399. 
 Reynolds v. Vance, 220, 
 
 — V. Vilas, 220. 
 Rice V. Clighorn, 155. 
 
 — V. McDonald, 239. 
 
 — V. Riuvlings, 357, 
 
 — V. White, 310. 
 Richards v. Fridley Wright, 60 
 
 — V. Hunt, 216, 
 Richardson v. Adams, 275, 
 
 — V. Bliglit, 421, 
 
 — V. Johnson, 106. 
 
 — V. Linney, 178. 
 
 — V. Spencer, 157. 
 Richmond v. Curdup, 196. 
 Ricker v. Ham, 227, 231. 
 Ridgway v. Underwood, 230 
 Rieuier v. Cantillon, 419. 
 Rigdon V. M:ntin, 292. 
 Ringgold V. Ringgold, 158. 
 Ringo V. Binns, 176. 
 Ringrow v. Warder, 132. 
 Ripi)y V. Grant, 146. 
 River i'. Plankroad Co., 116. 
 Robbins v. Butler, 155. 
 Roberts v. Anderson, 236, 313, 
 
 — • V. Stiinton, 240. 
 
 Robinson v. Bates, 198. 
 
 — V. Justice, 127, 138, 
 
 — V. Rives, 105. 
 Rodgers v. N des, 107, 
 Rodman v. Gillej', 147. 
 Roe V. Jerome, 127. 
 Rogers v, Atkinson, 419, 
 
 — V. Jones, 241, 248, 268^ 
 
 — V. Saunders, 307. 
 Roosevelt v. Fulton, 61. 
 Root V. French, 108. 
 
 — V. Reynolds, 2001, 
 Rose V. Mead, 224. 
 
 — V. Mynatt, 165, 
 Ross V. Houston, 258. 
 
 — V. Vestner, 368. 
 Roth V. Palmer, 328. 
 Rowan v. Adams, 240, 
 Rowley v. Bigelow, 108, 109. 
 Rudd V. Jones, 447. 
 Ruddick v. Leggatt, 310. 
 Ruffner v. McCouuell, 410, 421. 
 Rumpli V. Abercrombie, 333. 
 Russell V. Branham, 90. 
 
 — V. Clarke, 45. 325. 
 
 — V. Kearney, 228. 
 
 — V. Stinson, 198, 207. 
 
 — V. Wines, 213. 
 Rutherford v. Ruff, 144. 
 Rutland v. Paige, 420. 
 Rutledge V. Smith, 420. 
 Rutter V. Barr, 241. 
 
 — V. Blake, 327. 
 Ryan v. Blunt, 447. 
 
 Saddler v. Robinson, 299. 
 Sanders v. Pepoor, 211. 
 Sand ford i'. Handy, 88. 
 Sands V. Codwise, 345. 
 Sands w Hildreth, 108, 202. 
 Sanger v. Craiger, 264. 
 
 — r. Eastwood, 228, 231. 
 Salem India Rubber i o. v. Adams, 101 
 Sallee v. Chandler, 157. 
 
 Salmon v. Bennett, 206, 228, 
 Saltonstall v. Gordon, 124, 
 Sanborn v. Osgood, 327. 
 
 — V. Stetson, 384. 
 
 — V. Wood, 299. 
 Saunders v. Fen ill, 203. 
 
 — V. Ilatterman, 78. 
 
 — V. Turbeville, 213, 
 Savage i;. Berrv, 419. 
 
 — V. Murphy, 207, 208. 
 Sawyer v. Crane, 265. 
 Schedda v. Sawyer, 172. 
 Schermei'horn v. George, 77, 
 Schultz /'. Moore, 264, 
 Schutt V. Large, 264. 
 Schwartz?). Wendell, 158. 
 Scott v. Bamer, 94. 
 
 — V. Duncan, 410. 
 
 — V, Freeland, 177.
 
 TABLE OF AMERICAN CASES CITED. 
 
 37 
 
 Scott V. Gallagher, 246. 
 
 — V. Hix, 105. 
 
 — V. Perrin, 33*7. 
 
 — V. Renick, 106. 
 
 — V. "Warner, 415. 
 Scran ton v. Clark, 105. 
 Segar v. Edwards, 174 
 Segur V. Fingley, 408. 
 Selden v. Myers, 38Y. 
 Seligmau v. Kalkman, 108. 
 Seving v. Gale, 216. 
 Sewall V. Gliddon, 233, 
 
 — V. Russell, 197. 
 Seward v. Jackson, 228. 
 Sexton V. Wheatou, 149, 206. 
 Seymour v. Delaney, 363. 
 
 — V. Freer, 308. 
 Shackelford v. Handley. 61, 300. 
 
 — V. Handy, 326, 327 337. 
 
 Shaeffer v. Sleade, 55. 
 Shafer v. Davis, 397. 
 Shannon v. White, 311. 
 
 — V. Marmaduke, 174. 
 Sharman v. Miller. 421. 
 Sharp V. New York, 325. 
 Shaw V. Barnharl, 329. 
 
 — V. Levy, 228, 231, 234. 
 
 — V. Stine, 74. 
 Shearin v. Eaton, 304. 
 Sheckell v. Hopkins, 194. 
 Sliepperd v. Bevis, 363. 
 Sheppard v. Turpin, 213. 
 
 Sherman v. Champlain Trans. Co., 105. 
 Sherry v. Stansbury, 178. 
 Sherwood v. Sutton, 310. 
 Shields v. Anderson, 210. 
 
 — V. Bogliolo, 345. 
 Shinnis v. Coil, 292. 
 Shipp V. Swan, 300. 
 Shirras v. Craig, 201, 266. 
 Short V. Stevenson, 182. 
 Shotwell V. Murray, 397. 
 Simeon v. Wilson, 146. 
 Simerson v. Bank of Decatur, 211. 
 Simmons v. North, 419, 420. 
 
 — V. Vulcan Oil Co., 182. 
 Simpson v. Dall, 196. 
 
 — V. Graves, 202, 203. 
 
 — V. Mitchell, 207. 
 Sims V. Steele, 374. 
 Skcel ('. Spraker, 240. 
 Skilhnan v. Teeple, 400. 
 Skinner I). Strouse, 131. 
 Skinning v. Neufville, 132. 
 SkipNvith V. Cunningham, 212. 
 Skirving v. Neufville, 131. 
 Skrine v. Simmons, 367. 
 Slack V. McLagau, 358. 
 Slade V. Van Vechten, 154. 
 State V. McGowen, 308. 
 Slater v. Maxwell, 187, 224. 
 Sloo V. Law, 156. 
 Slothower v. Gordon, 65. 
 
 Smith V. Allen, 418. 
 
 — V. Babcock, 76, 367. 
 
 — V. Bishop, 310. 
 
 — V. Beatty, 97, 146. 
 
 — V. Brotherline, 168. 
 
 — V. Click, 94. 
 
 — V. Dall, 2-16. 
 
 — V. Elliott, 377. 
 
 — V. Evans, 66. 
 
 — V. Fly, 65, 311. 
 
 — V. Greenlee, 225. 
 
 — V. Greer, 203. 
 
 — V. Hall, 266. 
 
 — V. Lansing, 173, 344. 
 
 — V. McDougal, 397. 
 
 — V. Mclver, 44. 
 
 — V. Mitchell, 61, 93, 326. 
 
 — V. Oliver, 258. 
 
 — V. Onion, 201. 
 
 — V. Owens, 215. 
 
 — V. Prince, 264. 
 
 — V. Richards, 61, 73, 79, 102. 
 
 — V. Robertson, 417. 
 
 — V. Shane, 240, 245. 
 
 — V. Smith, 110, 196, 220, 327, 448. 
 
 — V. Stone, 215. 
 
 — li. Talbot, 311. 
 
 — V. Thompson, 165, 169, 306. 
 
 — V. Yule, 246. 
 Smolson & Co. v. Franklin, 95. 
 SmuU V. Jones, 225. 
 Snelgrove v. Snelarove, 132, 369. 
 Snelson & Co. v. Franklin, 103. 
 Snyder v. Warbasse, 449. 
 Somerville v. Horton, 207. 
 SouthalU. Clark, 178. 
 Spalding v. Fisher, 1 97. 
 
 — V. Hedges, 79. 
 
 — V. Vandercrook, 32Y. 
 Sparks v. White, 400. 
 Speise v. McCoy, 228. 
 Spence v. Buren, 366. 
 
 — V. Whitaker, 78, 161. 
 Spencer ?). Spencer, 391. 
 Spindlerv. Atkinson, 154. 
 Splaun V. Martin, 202. 
 Spoftord V. Weston, 2(56. 
 Sponabler v. Snyder, 258. 
 Sprague v. Duel, 146. 
 Springs v. Harven, 420. 
 Stadtier v. Wood. 210. 
 Stafford v. Ballou, 236. 
 Staines v. Shores, 225, 325. 
 Stamps V. Bracy, 387. 
 
 St. Andrew's Church v. Tomkins, 323. 
 Stanton v. Green, 375. 
 Stark V. Littlepage, 375. 
 Starr v. Bennett, 90. 
 
 — V. Vandersheyden, 164. 
 State V. Paup, 397. 
 
 — V. Reed, 295. 
 
 — V. Reigart, 397. 
 Stebbins v. Eddy, 66, 88, 367.
 
 38 
 
 TABLE OF AMEEICAIif CASES CITED. 
 
 Stedwell v. Anderson, 419. 
 Steele v. Ellmaker, 226. 
 
 — V. Kinkle, 95, 103, 309. 
 
 — V. Worthington, 186, 188, 3*74, 
 Steers v. Hoagland, 386. 
 
 Step V. Alkire, 336. 
 Sterns v. I'age, 367. 
 Sterry v. Arden, 229. 
 Stevens v. Ilvde, 52, 328. 
 
 — V. Morse, 231. 
 
 — V. f^mith, 106. 
 Stewart v. Rogers, 206. 
 
 — V. Stewart, 184, 220. 
 Stickney v. Bosnian, 375. 
 Stiles V. White, 325, 381. 
 Stockton V. Ford, 169. 
 Stoddard v. Hart, 414. 
 Stone V. Denny, 55, 326. 
 
 — V. Gover, 329. 
 
 — V. Ramsay, 335. 
 Stoolfoos V. Jenkins, 148. 
 Storer v. Harrington, 201. 
 Storrs V. Barker, 131, 132, 397. 
 Stovall V. Northern Bank of Mississippi, 
 
 368. 
 Stover V. Farmers & Merchants Bank,21 1. 
 
 — V. Herrington, 202. 
 Strang v. Beach, 419. 
 Street v. Dow, 299. 
 Stribling v. Ross, 197. 
 Strong V. Barnes, 105. 
 
 — V. Ellsworth, 132. 
 
 — V. Peters, 78. 
 Stuart V. Luddington, 127. 
 Stnbblefield v. Patterson, 18Y. 
 Stuyvesant v. Hall, 264. 
 Summers v. Bebb, 197. 
 
 — V. Roos, 213. 
 Sumner v Rhodes, 264. 
 Surmberger v. Webster, 246. 
 Sutphen v. Fowler, 391. 
 Swain v. Ferine, 220. 
 
 — V. Seamens, 129. 
 Swayze v. Burk, 161. 
 Switzer v. Skiles, 225. 
 
 Talbot >i. Subree, 345. 
 Tarbell v. Bowman, 65. 
 Tate V. Connor, 308. 
 
 — V. Tate, 207, 220, 229, 230, 810. 
 
 — V. Leggatt, 227, 228. 
 
 — V. Wliitnej', 184. 
 Taylor v. B nham, 308. 
 
 — V. Ely, 128. 
 
 — V. Fleet, 73, 386. 
 
 — V. Frost, 325. 
 
 — V. Heriot, 266. 
 
 — V. Knox, 173. 
 
 — t). Mills, 211. 
 
 — V. Nicholson, 447. 
 
 — V. Sands, 107. 
 
 — V. Taylor, 180. 
 
 — V. Zipp, 128. 
 
 Taymon v. Mitchell, 300, 333. 
 Teackle i'. Bailey, 173, 384. 
 Teasdale v. Atkinson, 231, 233. 
 Ten Eick v. Simpson, 131. 
 Terry v. Belcher, 211. 
 
 — V. Buck, 102, 104. 
 Thayer v. Thayer, 220. 
 
 — i>. Turner, 327. 
 The Distilled Spirits, 259. 
 Thomas v. Goodwin, 200. 
 
 — V. Grand Gulf Bank, 264, 
 
 — V. McCormick, 418. 
 
 — V. Perry, 65. 
 
 — V. Shepperd, 144. 
 Thompson Scale Manuf.Co.v.Osgood '10. 
 Thompson v. Elanchard, 211. 
 
 — V. Davis, 225. 
 
 — V. Dougherty, 207. 
 
 — V. Jack'son, 366, 416. 
 
 — V. Lee, 194. 
 
 — V. Sanborn, 131. 
 
 — V. Sanders, 389. 
 
 — V. Sod, 358. 
 
 — V. Thomjison, 198. 
 Thornton v. Davenport, 201. 
 Thorp V. McCullum, 157. 
 Thurston v. Blanchard, 328. 
 Tibbs V. Timberlake, 300. 
 Tickner v. Wishall, 197. 
 Ticknor v. Wisnall, 213. 
 
 Tilt V. Walker, 201. 
 Tilghman v. We.st, 132. 
 Tilton V. Hunter, 264. 
 
 — V. Nelson, 132. 
 
 — V. Tilton, 419, 420. 
 Todd V. Benedict, 264. 
 
 — V. Grove, 190. 
 Tomlin v. Den, 131. 
 Tomlinson v. Savage, 335. 
 Tompkins v. Pen ell, 316. 
 
 — V. Wheeler, 212. 
 Tongue v. Nutwell, 128, 131, 132. 
 Torrance v. Lamsden, 447. 
 
 Torrey v. Bank of New Orleans, 173, 174. 
 
 Toule V. Hoit, 210. 
 
 Towle V. Leavitt, 225. 
 
 Town V. Keedham, 129, 389. 
 
 Townsend v. Coales, 91. 
 
 Tracy v. Sackett, 144. 
 
 Trenton Banking Co. v. Woodruflf, 50. 
 
 Trexter v. Miller, 448. 
 
 Trigg V. Read, 94, 124, 364, 397, 400. 
 
 408, 412. 
 Triplet v. Bailey, 421. 
 Tripp V. Childs, 196. 
 Trotter v. Watson, 20a 
 Troup V. Wood, 224. 
 Troupe v. Smith, 310. 
 Truesdale v. Ford, 248. 
 Trust V. Delaplaine, 225. 
 Tryon v. Whitmarsh, 325. 
 Tucker v. Andrews, 217. 
 
 — V. Maddin, 421.
 
 TABLE OF AMERICAN CASES CITED. 
 
 39 
 
 Turner v. Cheescraan, 186. 
 
 — V. Huggins, 101, 
 
 — V. Navigation Co. 82. 
 Tyler v. Black, 345. 
 
 — V. Gardner, 186. 
 Tyson v. Hardesty, 65. 
 
 — V. Passmore, 358. 
 
 Ulmer v. Hills. 211. 
 
 Union Canal Co. v. Lloyd, 262. 
 
 United States Bank v. Hath, 212. 
 
 — Ins. Co. V. Shriver, 263. 
 
 — V. Hoe, 197, 210. 
 
 — V. Monroe, 421, 454. 
 Upton V. Vail, 326. 
 
 Valentine v. Stewart, 163. 
 
 Van Cliff v. Fleet, 108. 
 
 Van Cortland v. Underhill, 291, 447. 
 
 Vanderpoel v. Kearaey, 176. 
 
 Van Dorn v. Robinson, 241. 
 
 Van Epps v. Van Epps, 154. 
 
 Vannickle v. Malta, 177. 
 
 Van Wyck v. Seward, 196, 198, 206. 
 
 Varickv. Briggs, 316. 
 
 Varlick v. Edwards, 304. 
 
 Vaughan v. Tracey, 245. 
 
 Veasey v. Doton, 75. 
 
 Veazie V. Williams, 112, 173. 187,226, 
 
 309, 334, 337, 344, 366. 
 Verplank v. Sterry, 227, 232, 
 Vick V. Keys, 211. 
 Villard v. Roberts, 264. 
 Villines v. Norfleet, 157. 
 Violett V. Violett, 202. 
 Voorhees v. De Meyer, 417. 
 Voorbies v. Earl, 52. 
 Vose V. Holcomb, 212. 
 
 Wade V. Green, 196, 308. 
 
 — V. Pettebone, 169, 303. 
 
 — V. Sberman, 329. 
 Wagner v. Baird, 306. 
 
 — t). Bird, 311. 
 Wailes v. Cooper, 241. 
 Wakeman v Grover, 212. 
 Walden v. Louisiana Ins. Co., 119. 
 Walker v. Ayres, 258. 
 
 — V. City Council, 292, 
 
 — V. Collins, f,43. 
 
 — V. Gilbert, 244. 
 
 — V. McConnico, 375. 
 
 — V. Walker, 177. 
 Wall V. Arrington, 419. 
 Wallace v. Barlow, 104. 
 
 — V. Craps, 266. 
 
 Waller v. Armistead, 177, 178, 179. 
 Wallis V. Loubat, 164. 
 Walradt v. Brown, 198. 
 Walter v. Cralle, 231. 
 
 — V. Wimer. 213. 
 Walton V. Cody, 107. 
 
 — V. Wortliington, 146. 
 Wamburzee v. Kennedy, 46. 309. 312. 
 
 Waples V. Waples, 288. 
 Warb V. Webber, 427. 
 Warburton v. Aiken, 374. 
 Ward V. Lowry, 213. 
 
 — V. Packard, 103. 
 
 — V. Reynolds, 327. 
 
 — V. Trotter, 2()0. 
 Wardell v. Fosdick, 104, 326. 
 Warner v. Daniels, 188, 407. 
 
 — V. Norton, 211. 
 Warnock v. Wrightman, 266. 
 Warren v. Hall, 375. 
 Washburn v. Merrills, 416, 418. 
 Washington Bank v. Lewis, 263. 
 Wasson v. Bovet, 327. 
 
 — V. English, 157. 
 Watchman v. Ware, 212. 
 Waters v. Lemmon, 344. 
 Watkins v. Wallace, 385, 
 Watson V. Cox, 42n. 
 
 — V. McLaren, 127. 
 
 — V. Wells, 262, 419. 
 
 — V. Williams, 211. 
 Way v. Cutting, 310. 
 
 — V. Lyon, 266. 
 Weatherl'ord v. Fishback, 324. 
 
 — V. Tate, 304. 
 
 Weaver v. Carter, 06, 408. 
 
 — V. Shrj-ork, 425. 
 Webb V. White, 109. 
 Webster v. Rtid, 293. 
 Weedon v. Hawes, 197, 345. 
 Weeks v. Burton, 325. 
 
 — V. Robie, 327. 
 Weimar t-. Clement, 327, 330. 
 Weir V. Hale, 197. 
 
 Welford v. Chancellor, 172, 344, 
 Well 0. Silverston, 386. 
 
 — V. Treadwell, 228, 
 Wells V. Morrow, 318. 
 
 — V. Pierce, 132. 
 Wemple v. Stewart, 410. 
 Wendell v. Van Renssler, 130, 168, 
 West V. Emery, 325. 
 
 — V. Tilghman, 129. 
 Wcstall V. Austin, 335. 
 
 Western R. R. Co. v. Babcock, 358, 4(»7 
 Westevelt v. Matheson, 189, 
 Whaley v. Ellott, 314, 405. 
 Wlu'adon v. Olds, 405. 
 Wheatley v. Martin, 447. 
 Wheaton v. Wheaton, 402. 
 Wheeler v. Sage, 182, 374. 
 
 — V. Smith, 404. 
 Wheelock v. Whcek-r, 57. 
 Wlielan v. Whelan, 144. 
 Whilt V. Parker, 177. 
 Whipple V. McCliire, 144, 
 White II. Cox, 147. 
 
 — V. Den man 367. 
 
 — V. Dodds, 328. 
 
 — V. Flora, 187, 191, 
 
 — V. Graves, 201, 345.
 
 40 
 
 TABLE OF AMERICAN CASES CITED. 
 
 White V. Jones, 44. 
 
 — V. Meday, 391. 
 
 — V. Sawyer, 381. 
 
 — V. Seaver, 77. 
 
 — V. Trotter, 385. 
 
 — V. White, 375. 
 
 — V. Williams, 420. 
 
 — V. Wilson, 420. 
 Whiteford v. McLeod, 363. 
 Whitehorn v. Hines, 146. 
 Whitesides v. Greenlee, 147. 
 Whiting V. Johnson. 199. 
 Whitney v. Allaire, 329, 330. 
 Whittaker v. Williams, 132, 
 Whittier V. Vose, 329. 
 Whittin-lon v. Wright, 131, 148. 
 Wicker v. Creas, 66. 
 
 Wickes V. Clarke, 203, 228. 
 Wickliffe V. Lee, 334. 
 Wigand V. Sichel, 328. 
 Wigglesworth v. Steers, 147. 
 Wild V. Kees, 189. 
 Wiley V. Fitzpatrick, 405. 
 Wilks V. Fitzpatrick, 150. 
 Willeford v. Galbraith, 66. 
 Williams v. Champion, 400. 
 
 — V. First Presbyterian Society, 
 
 367. 
 
 — V. Fowler, 295. 
 
 — V. Hollo way, 318. 
 
 — V. Jones, 201. 
 
 — V. Marshall, 155. 
 
 — V. Powell, 178. 
 
 — V. Reed. 163, 297. 
 
 — V. Rogers, 345. 
 _ V. Shafford, 415. 
 
 — V. Slaughter, 106. 
 
 — V. Sprigg, 248. 
 
 — t;. Stoughton, 106. 
 
 — V. Sturtevant, 307. 
 
 — V. Wilson, 345. 
 
 — V. Wood, 326. 
 Williamson v. Brown, 236, 238. 
 
 — V. Raney, 104, 356, 367. 
 
 — V. Williamson, 295. 
 Willink V. Vandewear, 93. 
 Willis V. Henderson, 418. 
 
 ~ V. Vallette, 258. 
 Willman's Appeal, 179. 
 Wilson V. Cheshire, 196. 
 
 — V. Fovet, 328. 
 
 — V. Hillyer, 370. 
 
 — V. Houser, 206 
 
 — V. Laffoor, 384. 
 
 — V. McCullough, 239. 
 
 — V. Russell. 197. 
 
 — V. Statfi, 163. 
 — V. Troup, 1 54. 
 
 — V. Wall, 293. 
 
 Wilson V. Watts, 144, 146, ISa. 2^1. 
 
 388, 414. 
 Winchester v. Charter, 207. 
 Winebrenner v. Wersiger, 209. 
 Wingate v. King, 299. 
 Winship v. Jcwett, 447. 
 Winston v. Gwathmey, 73, 4^6. 
 Wintermute v. Snyder, 186, 397 ^00. 
 Wintz V. Morrison, 101. 
 Wiser v. Blackley, 427. 
 Wiserall v. Hall, 358. 
 Wiss V. Tripp, 197. 
 Withers v. Greene, 327. 
 Witters. Ilightower, 244. 
 Wolf V. Luvster, 225. 
 Wood V. Hall, 225. 
 
 — V. Hudson. 173. 
 
 — V. Mann, 318. 
 
 — V. McLellan, 133. 
 
 — V, Patterson, 407. 
 
 — V. White, 449. 
 Wooden v. Haviland, 419. 
 Woodman v. Bodfish, 198, 231. 
 
 — V. Freeman, 47, 340. 
 Woodruflf V. Cook, 370, 371. 
 Woods V. North, 335. 
 Woodworth v. Paige, 239. 
 Wooster v. Sherwood, 315. 
 Wooten V. Hinkle, 324. 
 Worden v. Williams, 258. 
 Worhmd v. Kimberlin, 201. 
 Wormack v. Rogers, 190. 
 Wormley v. Wormley, 157, 241, 31& 
 Wright V. Arnold, 178. 
 
 — V. Brandis, 200. 
 
 — V. Delafield, 420. 
 
 — V. Henderson, 207. 
 
 — V. Stannard, 187. 
 _ V. Wilson, 187. 
 
 — V. Wood, 246. 
 Wyatt V. A5'res, 374. 
 Wyche v. Green, 413, 414. 
 
 Yeates v. Prior, 74. 
 Yoder v. Swope, 234. 
 Young V. Bum pass, 94, 95 
 
 — V. Covell, 325, 326- 
 
 — V. Craig, 65, 66. 
 
 — V. Frost, 364. 
 
 — 8. Hall, 324, 325. 
 
 — V. Harris, 79, 335. 
 
 — V. McClure, 210. 
 
 — V. Hopkins, 103. 
 
 — V. Stevens, 146. 
 
 — j; White, 206. 
 
 Zabriska v. Smith, 108. 
 Zehner v. Kipler, 32B.
 
 FRAUD AND MISTAKE.
 
 THE 
 
 PRINCIPLES AND PRACTICE OF EQUITY 
 
 IN CASES OF 
 
 FRAUD AND MISTAKE. 
 
 CHAPTER I. 
 
 FRAUD. 
 
 SECTION I.— GENERAL CONSIDERATIONS. 
 
 The first province of a court of equity being to enforce 
 truth in the dealings of men, the prevention and correction 
 of fraud is part of the original and proper office of the court.* 
 
 It is not easy to give a definition of what constitutes fraud 
 in the extensive signification in which that term is understood 
 by a court of equity.^ * Courts of equity have always avoided 
 hampering themselves by defining or laying down, as a gen- 
 
 ' Warden v. Jones, 23 Beav. 493 ; ' Green v. Nixon, 23 Beav. 530 ; Rey- 
 
 Green v. Nixon, ib. 530 ; Ayre's Case, nell v. Sprye, 1 D. M. & G. 691 ; per 
 25 Beav. 528. Lord Cranwortli. 
 
 * By tlie term fraud, the legal intent and effect of the act complained 
 of is meant. An illegal act prejudicial to the rights of others, is a fraud 
 upon such rights, although the parties may deny all intention of com- 
 mitting a fraud. Kirby v. Ingersoll, 1 Harring. Ch. 172. 
 
 The mere non-compliance with the terms of a contract, in not paying 
 the stipulated consideration, is not a fraud. Farrar v. Bridges, 3 Humph. 
 566. 
 
 4 41
 
 FRAUD. 
 
 .ral proposition, what shall be held to constitute fraud.' 
 Fraud is so various in form and color that it is difficult, if not 
 impossible, to confine it within the limits of any precise 
 definition. The fertility of man's invention in devising new 
 schemes of fraud is so great, that courts of equity have de- 
 clined the hopeless attempt of embracing in one formula all 
 its varieties of form and color, reserving to themselves the 
 liberty to deal with it under whatever form it may present 
 itself. As new devices of fraud are invented, they will be 
 met by new correctives.^ Fraud, in the contemplation of a 
 court of equity, may be said to include properly all acts, 
 omissions, and concealments which involve a breach of legal 
 or equitable duty, trust, or confidence, justly reposed, and are 
 jnjurio us to anothe r ; or by which an undue or unconscientious 
 advantage is taken of another.^ * Fraud was defined by the 
 Roman lawyers to be omnis calliditas, fallacia, Tnachinatio 
 ad cirGumveniendum, fallendum,, decijpienduin cdterum ad- 
 hibita.^ Ail surprise, trick, cunning, dissembling, and other 
 unfair way that is used to cheat any one is considered as 
 fraud.® Fraud in all cases implie s a willful act on thepartjof. 
 any one, whereby another is sought to be deprived, by illegal 
 or inequitable means, of what he is entitled to, either at law 
 or in equity.® By fraud, said Le Blanc, J.,' he understood an 
 intention to deceive, whether from an expectation of ad- 
 
 ' Lawley ». Hooper, 3 Atk. 279. ' 1 Fonb. Eq. Book 1, c. ii, § 3 ; 
 
 ' Sawj-er v. Vernon, 1 Vern. 387; Story's Eq. Jiir. 187. 
 
 La^vlev \. Hooper, 3 Atk. 279 ; Webb * Di;;. Lib. 4, tit. 3, leg. 1. 
 
 V. Uorke, 2 Sch. <fe Lef. 666. Lord ' Fineh. 439. 
 
 Hardwicke's Letter to Lord Kaimea, ' Green v. Nixon, 23 Beav. 536. 
 
 Life of Lord Knimes. vol. II, p. 341 ; ^ 2 East, 108. 
 Anderson v. Fitzq;erald, 4 H. L. 511, 
 per Lord St. Leonards. 
 
 * Belcher v. Belcher, 10 Yerg. 121; Kennedy v. Kennedy, 2 Ala. 571 
 Gale V. Gale, 19 Barb. 249.
 
 FRAUD. 4o 
 
 vantage to the party himself, or from ill-will toAvards another. 
 Collusion is considered in a court of equity as a fraud.^ 
 
 The variety of forms which fraud may assume would seem 
 to set all systematic classification at defiance, hut Lord Ilard- 
 wicke has done much towards simplifying that branch of the 
 subject which relates to fraud in matters of contract by divid- 
 ing it into four heads. First, actual fraud, or dolus malxis^ 
 arising from facts and circumstances of imposition ; secondly, 
 fraud arising from the intrinsic nature and subject of the bar- 
 gain; thirdly, fraud which may be presumed from the circum- 
 stances and condition of the parties contracting; fourthly, 
 fraud which may be collected and inferred from the matter 
 and circumstances of the transaction as being an imposition 
 and cheat on other persons, not parties to the transaction.^ 
 
 Courts of equity d o not affect to consider fraud in the light 
 of a crime ; it is not their province to punish ;' nor have they 
 any censorial authority ;* they i nterfere in cases of fraud in a 
 civi l and not in a cr iminal point of view. 
 
 Courts of equity have an original, independent, and inher- 
 ent jurisdiction to relieve against every species of fraud,^* not 
 being fraud of a penal nature. Ev^ery transfer or conveyance 
 of property by what means soever it be done is in equity 
 vitiated by fraud. Deeds, obligations, contracts, awards, judg- 
 ments or decrees may be the instruments to which parties may 
 resort to cover fraud, and through which they may obtain the 
 most unrighteous advantages, but none of such devices or 
 
 ' Gfirth V. Cotton, 3 Atk. 757 ; "Brom- * See 2 V. <fe B. 298. 
 
 leyv.Sinith, 20 r;e;iv. 671 ; Spackiiiau's ' C ilt v. Woollaston, 2 P. Wins. 156; 
 
 Ca^e, 34 L. J. Cli. 321. Steel v. Baylis, Hk 219 ; Franks v. 
 
 "Chesterfield v. Jannf5en, 2 Ves. 155, Weaver, 10 Beav. 297; Glasse «. Mar- 
 
 156. shall, 15 Sim. 71. 
 
 ' See Waltham v. Broughton, 2 Atk. 
 43. 
 
 » Jones t'. BoUes, 9 Wal. CG4 ; Phalcii v. Clark, 19 Ct. 421.
 
 44 FRAUD. 
 
 instruments will be permitted by a couii; of equity to. obstruct 
 the requisitions of justice. If a case of fraud be established, 
 a court of equity will set aside all transactions founded upon 
 it by whatever machinery they may have been effected, and not- 
 withstanding any contrivance by which it may have been 
 attempted to protect them. It is immaterial whether such 
 machinery and contrivance consisted of a decree in equity and 
 a purchase under it, or of a judgment at law, or of other 
 transactions between the actors in the fraud. ^* In all cases of 
 fraud, not penal, a court of equity has a concurrent jurisdic- 
 tion with courts of law,^ with the single exception as to fraud 
 in obtaining a will. With respect to fraud used in obtaining 
 the execution or setting up a will, the jurisdiction does not 
 exist. If the will be of real estate it is exclusively cognizable 
 at law ; ^ if of personal estate in the Court of Probate.* The 
 courts of ordinary jurisdiction being competent to deal with 
 the matter, there is no occasion for invoking the aid of a court 
 of equity.^ 
 
 Courts of equity and courts of law have in general a con- 
 current jurisdiction to suppress and relieve against fraud,t 
 but there are many courses of conduct which a court of equity 
 
 " Bowen v. Evans. 2 H. L 281. See Bright v. Eynon, 1 Burr. 396; Adam 
 
 South Sea Co. v. Bumpstead, 3 Vin. son v. Evitt, 2 R. & M. 71. 
 
 Ab. 140; Richmond J'. Ta3'leur, IP. ' Powis f. Andrews, 2 Bro. P. C.5S4 ; 
 
 Wins. 736; Fihuer y. Gott, 4 Br.i. P. C. Bates )•. Graves, 2 Ves. J. 287; Jones 
 
 230 ; White v. Hall, 12 Ves. 324 : Her- v. Gregory, 2 D. J. & S. 87. 
 
 bert r. Bulkelej', Kidg. 300; Brydges ^ Kerrick v. Bransby, 7 Bro. P. C. 
 
 V. BranfiU, 12 Sim. 369; Robinson?/, 437; Alien i/. Macpherson. 1 H. L. 191 ; 
 
 Lord Vernon, 7 C. B. N. S. 231 ; Rogers Jones v. Gregory, 2 D. J. <k S. 87. 
 
 V. Hadley, 32 L. J. Exch. 241. ^ lb. 
 
 " Colt V. WooUaston, 2 P. Wms. 156; 
 
 * Perigue v. Wood, 1 Johns. Ch. 401 ; Niles v. Anderson, 5 How, 
 (Miss.) 365 ; Hoitt v. Ilolcomb, 23 N. H. 535. 
 
 + Smith v. Mclver, 9 Wheat. 532; White v. Jones, 4 Call, 253; Allen 
 V. Ilopson, 1 Freem. 27C; Haden v. Garden, 7 Leigh, 157 ; Poore ®. Price- 
 5 Leigh, 52 ; Crane v. Conklin, Saxton, 346 ; Boreing v. Singery, 4 H. & 
 McH. 308.
 
 FRAUD. 45 
 
 construes to be fraudulent, which cannot be taken notice of by 
 a court of law,^ though it is not easy to define the distinction 
 between that which a court of equity treats as a fraud and that 
 which is considered fraud at law.'' •' There is a very great dis- 
 tinction," said Kiudersley, Y.-C, in Stewart v. Great Western 
 Railway Company,^ " between fraud as regarded by a court of 
 equity and fraud as regarded by a court of law. To draw the 
 line between them, and to give such a definition of the one 
 and of the other as should meet all possible cases would be 
 a very difficult, if not impossible, task. In order to constitute 
 fraud at common law, it is not enough to show that fraud in 
 the sense of misrepresentation and undue advantage of the 
 position of the parties said to be imposed on has been commit 
 ted, but the extent of the fraud must be brought home to 
 the party to the action who is charged with it. In the case 
 of fraud in the sense of a court of equity, a court of equity will 
 take into account all the circumstances of the case — not only 
 the act and intention of the party, but the circumstances under 
 which the act was done ; the position of the party who is said 
 to be imposed upon; his being inops consilii i his being in a 
 state of bodily, and, therefore, mental weakness, and so on. 
 Won constat these are sufficient to constitute legal fraud." 
 
 If there is a full, perfect, and complete remedy at law, it is 
 not tlie course of the court to interfere.** But the eircum- 
 
 ' Trenchard v. Wanley, 2 P. Wma. * 2 Dr. & Sm. 438. 11 Jur. N. S. 627. 
 
 166; Butclier v. Butcher, 1 V. <fc B. 98; * Nuwham v. May. 13 Pri. 752; Deere 
 
 Clarke v. Manning, 7 Heav. 167. v. Guest, 1 M. <fe U. 516. 
 
 * Traill v. Baring, 33 L. J. Ch. 521. 
 
 * Russell V. Clark's Executors, 7 Cranch, G9. 
 
 Before a creditor can obtain the aid of a court of chancery to set aside 
 a fraudulent conveyance, he must obtain judgment, issue an execution 
 and procure a return of nulla bona. Hendricks v. Robinson, 2 Johns. Ch. 
 283 : Brinkcrhof v. Brown. 4 Johns. Ch. G71; s. c. 6 Johns. Ch. 139; Hal- 
 bert c. Grant i Mon. 581 ; Poague v. Boyce, 6 J. J. Marsh. 70 ; Chamber-
 
 46 FRAUD. 
 
 Stance that relief may be bad at law does not exelnde the joris- 
 dietion of the court.* The role of the eonit is to interfere !n 
 all cases where the interests of justice call for and reqnire its 
 interference.** Although a man may have a good defence to 
 an action at law, he is not precluded firom proceeding in eqnitj 
 to restrain the action. It is enough if he can show an equit- 
 able case.* If th3re be an equitable case stated bj the bUl, 
 there is jurisdiction to interfere bj wa j of injunction, if neces- 
 
 * Evans v. BicttieB, 6 Yes. 183 ; Ad- SI ; Chesterfield t. Jaonsen. 2 Vea. 155 ; 
 amsoQ E. Evitt. 2 U. <Sr >I. >>; Wilaoa BartlieJt r. SoJmoo, 6 D. >L A G. 40; 
 V. Short, 6 lia. SioS. 379: Knbcs.)!!! v. SMiaa v. CronEclier, 1 D. F. <t J. 523; 
 Eirl of Devon, 4 Jur. 2*. S 245 ; per Barry r. Croeskey. 2 J. A EL L 
 
 Lord Ci an worth; Slim r. OrtHieha', 1 ' Feraahoagh r. Leader. 15 L. J. Clu 
 
 D. F A J. 523. 45^* ; Loodoa Asoirance Ca v. HosuSt 
 
 • Joimaon r. OgOTy, 2 Eq. Ca. Ab. 11 L T. U± 
 
 layne v. Temple, 2 Hsmd. 384; Griffin r. Mtcher, 57 Me. 270; Jones v. 
 Green, 1 WalL 330. 
 
 After jucigioeat by defamlt agamsfc the debtor who has made a. ftaudnt- 
 lent convevanee, an attaching crediior may proceed in chancery. Dodge 
 r. Griswold, 8 N. H. 425. 
 
 A jattgment need not be obtained when the frandalent grmtor is 
 deceased. OBrien r. Coulter, 2 Blackt 421 ; Birely v, Staley, 5G.&3. 4S2, 
 
 Where tlie claim is purely eqaitable, and sach as a conrt of equity will 
 take cognizance of in the first instance, it will go on and remoTe all 
 obstructioQs to its enforcement. Halbert e. Grant, 4 Mon. 58Q>. 
 
 If a cMm is to be satisfied out of a fnnd which is aoce^bie onty by 
 the aid of a cotnt of equity, appIicatifHS may be made in the first instance 
 to that court. O'Brien v. Conlter, 3 Blaefcf. 42L 
 
 If pjjrties concerned in a partnerdrip hare dissolved, and made a dis- 
 position of the property which is irandolent, as to partnership creditors, a 
 court of eqnity will entertain a bill filed by the latter, although they are 
 simple contract creditors. Lawtcm ?. Levy, 3 Edw. Ch. 195. 
 
 It is not enongh that there is a remedy at law ; it mi^ be plain and 
 adequate — in other words, as practical and efficient to the aids of justice 
 and its prompt administration as the remedy in equity. Boyce «. Gnmdy, 
 3 Pet. 377. 
 
 * Wambaxzee c. Kennedy. 4 Dessau, 474. 
 
 A conrt of eqiity will annul an instrument obtained by fiand, although 
 there may be a good defence at law. Johnson f. Hendley, 5 Mnn£ 219; 
 Henshaw r. Atkins, 2 Root. 7. 
 
 If the grantor is insolvent, a bcmd of conveyance which has been ob.
 
 FRAUD. 47 
 
 saiy, and also by way of ordering the instrument to be deliv- 
 ered up.^ The question for the court to consider always is, 
 whether the fiicts are such as to constitute that kind of fraud, 
 which a court of law would necessarily take cognizance of and 
 treat as a fraud in the same manner and to the same extent as 
 a court of equity would do.^ The superior powers and effi- 
 ciency of a court of equity in molding its decrees so as to 
 meet the exigencies of each particular case and do justice be- 
 tween the parties in the most minute detail, is often of itself a 
 sufficient ground for the exercise of the jurisdiction in cases 
 where there is a clear remedy at law.^ In Colt v. Woollaston* 
 it was held that a person who had been induced by fraud on 
 the part of the promoters of a public company to subscribe 
 for shares might obtain his money back by a bill in equity, 
 although an action at law might have been brought for the- 
 same purpose with success. This doctrine has ever since been 
 recognized as correct, and it has been frequently acted on.^ If 
 a case of fraud be presented to the court, an equity is at once 
 raised to restore the parties deceived, as nearly as possible, to 
 the situation in which but for the fraud they would have stood, 
 
 » Traill v. Baring:, 33 L. J. Ch. 52Y, AVestern Railway Co., 2 Dr. & Sm. 438 
 
 per Turner, L J. bee Lloyd v. Clarke, 11 Jur. N. S. 627. 
 6 Beav. 309; Llewellin v. Pace, 1 W. E. " 2 P. Wms. 154. 
 
 28; Smith v. Reese River Co., L. R. 2 * Green v. Barrett, 1 Sim. 45; Blain 
 
 Eq. 2(U. V. Agar, 2 Sim. 289 ; Stainbnnk r. Fern- 
 
 ^ Ayre's Case. 25 Beav. 528; Stewart ley, 9 >im. 550 ; Cridland v. I)e ilauley, 
 
 t'. Great Western Railway Co., 2 Dr. & 1 Dog. & Sm. 459 ; Beccliing v. Lloyd, 
 
 Sm. 438. 3 Drew. 227 ; Barry v. Crosskey, 2 J. 
 
 "Bright?;. Eynon, 1 1'urr. 390 ; A j-re's <fe IL ]; Henderson v. Lacon, L. R. 5 
 
 Case, 25 Beav. 528; Slim ?'. Croucher, Eq. 250. But see Thompson v. Bar- 
 
 1 D. F. <fc J. 523; Stewart v. Great clay, 9 L. J. Ch. 219,j9c'r Lord Broug- 
 ham. 
 
 tained by fraud will be rescinded for defect of title, although there may 
 be a good defence at law. Ingram v. Morgan et ctl, 4 Humph. 66. 
 
 There is no distinction between cases of relief when damages are occa- 
 Bioned by fiaud and when they are occasioned by breach of contract. If 
 there is an adequate remedy at law, a court of equity has no jurisdiction. 
 Woodman v. Freeman, 25 Me. 531.
 
 4^ FEATJD. 
 
 and for which dcamages in an action might be a very inade- 
 quate remedy. It is no objection to this equity that the facts 
 may also sujjport an action.^ If the amount of damage is ascer- 
 tained, or capable of being easily ascertained, the court will 
 not send the matter to a jury.'' 
 
 In the view of a court of equity, a man who has been 
 induced by fraud to convey an estate remains the owner, sub- 
 ject to the repayment of the moneys which he has received.' 
 
 A contract or other transaction induced or tainted by fraud 
 IS not void, but only voidable at the election of the party de- 
 frauded.** The party defrauded has a right to have it avoided, 
 unless he has by his own act put it out of his power to rein- 
 state the party against whom he seeks relief in the position in 
 which he stood at the time of the transaction,^ or unless some 
 innocent party would be prejudiced thereby.* The transaction 
 being valid until it is avoided, third parties without notice of 
 the fraud may in the meantime acquire rights and interests in 
 the matter which they may enforce against the party de- 
 frauded.' Persons, for instance, who have been induced by the 
 
 'Blnir v. Bromley, 2 Ph. 361, per die, L. R. 1 Sc. App. Ca. 156; Oakes 
 
 Lord Cottenham ; Walsham v. Stainton, v, Turquand, L. R. 2 App. Ca. 346. 
 1 1). J. & S. 678; St. Aubyn v. Smart, " White v. Garden, 10 C. B. 919; De- 
 
 L. R. 5 Eq. 183. See Barry v. Ci'oss- posit and General Life Assurance Co, w. 
 
 key, 2 J. tfe H. \, infra. Ayscough, 6 E. & B. 761; Clarke v. 
 
 Mngram v. Thorp, 7 Ha. 76. See Dickson, El. Bl. <fe El. 148; NicoU's 
 
 Henderson v. Lacon, L. R. 5 Eq. 250; Case, 3 D. & J. 387; Mixer's Case, 4 D. 
 
 conip. Whitmore «, Mackeson, 16 Beav. & J. 586. 
 128. " Scholfield v. Templer, 4 D. <fe J. 429. 
 
 ^ Slump V. Gaby, 2 D. M. cfe G. 630. ' Oakes v. Turquand, L. R. 2 App. 
 
 * Clarke v. Dickson, El. Bl. & El. Ca. 375. See Kiugsford v. ilerry, 11 
 
 148; Rawlins v. Wickham, 3 D. & J. Exch. 579. 
 3:i2. Western Bank of Scotland v. Ad- 
 
 * Bank of Georgia v. Higginbottam, 9 Pet. 48 ; Lockbridge v. Foster 
 et al. 4 Scam. 5G9. 
 
 That is absolutely void which the law or the nature of things forbids 
 to be enforced at all, and that is relatively void which the law condemns 
 as a wrong to individuals, and refuses to enforce as to them. Acts tainted 
 with infirmity may well be called by some void and by others voidable, 
 because, regarded in different aspects, they are both. A contract may for
 
 FRAUD. 40 
 
 fraud of the directors of a company to become shareholders of 
 the company, cannot, as against creditors of the company, repu- 
 diate their liability as shareholders after discovering the fraud.^ 
 
 The case of goods, or personal property, obtained by felony, 
 or by a trick, must be distinguished from the case of goods 
 obtained by fraud. In the one case, the owner has no mind or 
 intent to part with his property in the goods. In the other 
 case, he acts with the intention of parting wdth the property, 
 though the intention has been induced by undue means.^ 
 Goods obtained by felony, or by a trick, may be reclaimed by 
 the true owner even from a bond fide pui-chaser,^ unless they 
 have been purchased in market overt. 
 
 A distinction must also be taken between cases where a 
 man executes an instrument with the mind and intention to 
 
 • Oakes v. Turquand, L. R. 2 App. Ca. Talfourcl, JJ. ; Ilardman v. Booth, 1 II. 
 325. & C. 808. 
 
 ■' 10 C. B. 924, 927, per Williams and ' Hardman v. Booth, 1 II. & C. 803. 
 
 a time be voidable as against one, and void as against the others whom it 
 is intended to affect: voidable as against the parties doing wrong and void 
 as against the persons wronged ; or, vice versa, voidable in favor of the 
 persons wronged, and void in favor of the wrong-doer; void as not bind- 
 ing to fulfill, and voidable after fulfillment ; voidable in fact because void 
 or not binding in right. Persons intended to be wronged by a transac- 
 tion are not bound by it, nor are they bound to reject it. They may 
 adopt, or confirm, or agree to be bound by it. Their consent, which, be- 
 cause of the wrong, the law considers as not given, may be given after the 
 wrong becomes known, and then, if given with the freedom, intelligence 
 and deliberation that the law of ratification requires, and in a form ade- 
 quate to the particular kind of contract, they become willing parties to 
 the contract, bound equally with others. PearsoU v. Chapin, 44 Penn. 9. 
 
 A party who affirms a voidable contract, is bound by it in all its par- 
 ticulars. Gallovvay v. Holmes, 1 Doug. 330. 
 
 Fraud in a conveyance can only be set up by the i)arties to a deed and 
 those who hiive succeeded to their rights, and not by third parties. Love 
 V. Belk, 1 Ired. Ch. 163. 
 
 The assignee of a contract cannot take advantage of any fraud prac- 
 ticed upon his grantor in making it. Carroll v. Potter, Walk. Ch. 355.
 
 50 FRAUD. 
 
 execute it, thongli bis assent may have been obtained b}- fraud, 
 and cases where a man is by fraudulent contrivance induced to 
 put liis hand and seal to an instrument which he never in- 
 tended and had no mind to execute. If a man having no mind 
 or intention to execute a particular instrument does what he 
 does with the mind and intention to execute a deed of a diifer- 
 ent kind, and for a different purpose from that which by fraud 
 and deceit was substituted, the deed is not voidable but void, 
 and no estate passes, at least as between the parties to the in- 
 strument and parties taking with notice.'^* Thus, where a man 
 intending to execute a covenant to produce title deeds, put his 
 hand and seal to a deed which was falsely and fraudulently 
 read over to him, and represented as being a covenant to pro- 
 duce, when in fact it was a mortgage, the deed was held void 
 as being a cheat and trick.^ So also, where a broker fraudu- 
 lently obtained from his emploj^er the cancellation of his signa- 
 ture to a transfer of shares which he had bought for him, and 
 by means of the cancelled transfer and certificates induced the 
 vendor to execute a fresh transfer to himself, and thereupon 
 got the shares registered in his own name, and then mortgaged 
 them to the defendant, it was held that the effect of the first 
 transfer was not destroyed by the cancellation fraudulently ob- 
 
 > Vorley v. Cooke, 1 Giff. 234 ; Ogll- ^ Voiley v. Cooke, 1 Giff. 234; Lee v. 
 
 vie V. JeaOVeson, 2 Giff. 353. See lur- Angas, 15 W, R. 119. 
 ther, injra. 
 
 * A person wlio lias obtained an absolute deed under a promise to exe- 
 cute a defeasance, may be compelled to i^crform his promise. Peck v. 
 •Baldwin, 1 Root, 455. 
 
 The payee of a note who has been induced by fraud to destroy it, may 
 have relief in equity. Richards r. Pridley Wright, 1G7. 
 
 A mortgage which has been released through fraud may be reinstated. 
 Poore V. Price, 5 Leigh, 52 ; Trenton Banking Co. r. Woodruff, 1 Grcen- 
 Ch. 137; Barnes v. Carmack, 1 Barb. 392; Lynch v. Tibbits. 24 Barb. 51. 
 
 A fraudulent release, obtained from one partner, does not extingiush 
 the lien of the other partners. Canal Co. v. Gordon, 6 Wall. 561.
 
 FRAUD. 51 
 
 tained, and the registration was set a»ide.^ So also, in a ease 
 where the persons named as grantor and grantee in a deed had 
 no mind or intention that any estate should pass from the one 
 to the other, and were merely cheated into the execution of 
 deeds without a knowledge of their contents, no estate was 
 held to pass.^ 
 
 Similar considerations apply to the case of forged instru- 
 ments. 'No estate can pass under a forged instrument,' but in 
 special cases an innocent party whose title to property is de- 
 rived under a forged instrument may, as against the party on 
 whom the forgery has been practiced, have a better equity to 
 the retention of the property.* 
 
 If a transaction has been originally founded on fraud, the 
 original vice will continue to taint it, however long the nego- 
 tiation may continue, or into whatever ramifications it may ex- 
 tend.® ]S"ot only is the person who lias committed the fraud 
 precluded from deriving any benefit under it, but an innocent 
 person is so likewise, unless there has been some consideration 
 moving from himself.* 
 
 In equity, no length of time will run to protect or screen 
 fraud.' " Those," said Lord Cottenham in Trevelyan v. Char- 
 ter,^ "who may be disposed fraudulently to appropriate to 
 themselves the property of others, may be assured that no time 
 will secure them in the enjoyment of their plunder ; but that 
 their children's i^hildren will be compelled by this court to 
 
 ' Donalilson v. Gillott, L. R. 3 Eq. Lord Eldon ; Goddard v. Carlisle, 9 Pii. 
 
 277, 169; Daubeney v. Cocldnirn, 1 Met-. 
 
 **Ogilvie w. Jeaffreson, 2 Giff. 353. 643; I^owen v. Evans, 2 II. L. 250; 
 
 ' Esdaile v. La Nauze, 1 Y. cfe ('. 391; Russell v. Jackson, 10 Ha. 212 ; Scliol- 
 
 Boursot /'. Savage, L. R. 2 Eq. 134. field v. Templur, Johns. 105 ; 4 D. <fe 
 
 ♦ Jonesf. I'ow^es, 3M. <kK. 581. See J. 429; Topham v. Duke of Portland, 
 
 further, mfm. 1 f). J. & S. 569, per Turner, L. J. 
 
 ^ Bri'dgiiian v. Green, 2 Yes. 626; ' Cotlerell v. rurchase, Forrest, 61 ; 
 
 RevncU". Sprye, 1 1). M. & G. 600, Irvine v. Kirkpatrick, 7 Beli's So. App. 
 
 697; Boweii v. Evans, 2 II. L. 281; Ca. 186; AUfrey v. Alllrey, 1 Mac. & 
 
 Smith V. Ka3% 1 II. L. 750, 775. G. 89; Bowen v. Evans, 2 II. L. 257; 
 
 ° Bridgrnan v. Green, 2 Yes. 626; Walsham v. Stainton. 1 1). J. <t S. C78. 
 
 Iluguciiiu V. Basley, 14 Yes. 289 ; per * 4 L. J. Ch. N. S. 214.
 
 52 
 
 FRAUD. 
 
 restore it to those from whom it has been fraudulently ab- 
 stracted," * The right of the party defrauded to have the trans- 
 action set aside, is not affected by lapse of time, so long as he 
 remains without any fault of his own in ignorance of the fraud 
 which has been committed.^ The equity is not confined to the 
 party defrauded, but extends to heirs at law in respect of 
 frauds committed on their ancestor.' 
 
 A man cannot repudiate a transaction as far as it is 
 onerous to himself, and adopt it as far as it is beneficial. He 
 must be able to deal with the whole either by adopting or 
 rejecting it in toto} ^ There may, however, be cases in which 
 the same transaction may be good as to part and for certain 
 purposes, although voidable as to other parts and for other 
 purposes.' If a transaction is fair as between the parties to 
 it, it is not invalid merely because it may have been concocted 
 and brought about by a third party with a fraudulent intention 
 of benefiting himself. In such a case, so far as regards the 
 third party, the whole may be looked upon as one transaction 
 
 ' See Alden v. Gregory, 2 Ed. 280; 
 WliJilley V. Whalley, 1 Mei*. 436 ; Chen- 
 nell V. Martin, 9 L. J. Cli. 208. 
 
 '' Blair v. Bromley, 2 Ph. 361 ; Rolfe 
 V. Gregory, 34 L. J." Ch. 275. 
 
 " Falkner v. O'Brien, 2 Ba. & Be. 221. 
 
 ♦ Bennett v. "Wade, 1 Dick. 84 ; Bel- 
 lamy ''. Sabine, 2 Ph. 4.50; Hanson v. 
 Renting, 4 IJa. 1; Great Luxemburg 
 liiiilwav Co. V. Magnay, 25 Beav. 594. 
 
 * Bellamy v. Sabine, 2 Ph. 425, 437. 
 
 * Farmers' Bank of Va. v. Groves, 13 How. 51 ; Kinney v. Kieman, 2 
 Lans. 492 ; Voorhies v. Earl, 2 Hill, 288 ; Jankins v. Simpson, 2 Shep. 364 • 
 Fay V. Oliver, 20 Vt. 118 ; Jennings v. Gaze, 13 111. 610 ; Masson ». Bovet, 
 1 Denio, 74 ; Clarkson v. Mitchell, 3 E. D. Smith. 269 ; Jewett v. Petit, 4 
 Jlich. 508 ; Kimball v. Cunningham, 4 Mass. 504 ; Stevens v. Hyde, 33 
 Barb. 171 ; McGuire v. Callahan, 19 Ind. 128. 
 
 The proper application of the rule in case of a sale is to the property 
 sold when that consists of several particulars : The contract cannot be 
 rescinded, as to a part of the property, and left in force as to the rest. 
 But if the vendor has been induced through imposition effected by the 
 vendee to accept that in payment which proves to be no such payment as 
 he had the right to expect, he is permitted to renounce it, and prosecute 
 his claim for the property sold as if no such payment had been attempted. 
 Loomis f). Wainwright, 21 Vt. 520 ; Martin v. Roberts, 5 Cash. 120.
 
 MISRErKESENTATION. 53 
 
 in order to judge of liis motives, and to put a construction 
 upon liis acts ; but, as regards the other two, who, though 
 affected by one part of the transaction, may be total strangers 
 to the other part, it is not only not necessary, but it would be 
 unjust to consider every part of the transaction affected by 
 objections, which, in fact, apply only to particular portions of 
 it. ^ If, for instance, a man brings about an arrangement 
 between father and son, in order that he might afterwards deal 
 with the son, the motive might be most improper, but the 
 arrangement between father and son must be judged of upon 
 its own merits.^ l^or is an instrument which has been entered 
 into between parties for a purpose which may be considered 
 fraudulent as against a third party necessarily invalid as 
 between themselves.^ 
 
 SECTION II.— MISREPRESENTATION— CONCEALMENT. 
 
 The largest class of cases in which courts of justice are 
 called upon to give relief against frand, is where there has 
 been a misrepresentation, or suggestio falsi} If a man rep- 
 resents, as true, that which he knows to be false, and makes 
 the representation in such a way, or under such circumstances 
 as to induce a reasonable man to believe that it is true, and is 
 meant to be acted on, and the person to whom the representa- 
 tion has been made, believing it to be true, acts upon the 
 faith of it, and by so acting ^sustains damage, there j sjraud to 
 support an action of deceit at law, and to be a ground for the 
 rescission of the transaction in equity.' * It is not, however, 
 
 ' lb. 438. ■* Broderick v. Broderick, 1 P. Wms. 
 
 2 lb. 240; Jarvis v. Duke, 1 Vern. 20. 
 
 » Shaw «;. Jeffery, 13 Moo. P. C. 432. 'Evans v. Bicknell, 6 Ves. 174; 
 
 * Where a party misrepresents a material fact by which another is 
 milled or imposed upon, to obtain an undue advantage of him, it is
 
 54 MISREPRESENTATION. 
 
 necessary, in order to constitute fraud, tliat a man who makes 
 a false representation should know it to be false. It' is enough 
 that it he ftilse, if it he made recklessly without an honest 
 belief in its truth, or witliout reasonable grounds for believing 
 it to be true, and he made deliberately and in such a way as to 
 give the person to whom it is made reasonable ground for 
 supposing that it was meant to he acted on, and has been acted 
 on by him accordingly.^ If a man makes a representation as 
 of his own knowledge, not knowing whether it be true or 
 false, and it is in fact untrue, he is guilty of fraud, as much as 
 if he knew it to be untrue. It is in law a willful falsehood for 
 a man to assert as of his own knowledge a matter of which he 
 has no knowledge.^ It is a wrong to state as true what the 
 person making such statement does not know to be true, even 
 though he does not know it to he false, but believes without 
 
 Edwards w. MTleay, 2 Rw. 287 ; Adnm- v. Edmonds, 13 C. B. 786; Thorn v. 
 
 son V. Evitt, 2 H. & M. 71; AttwooJ v. Bi-land, 8 Excli. 725; Ilutton v. llos- 
 
 Small, 6 CI. <fe Fin. 233; Gerhard v. siter, 7 D. M. & G. 23; liawlins v. 
 
 Bates, 2 E. & B. 47-5; Jennings v. Wickhnm, 3 D. <fr J. 304 ; Swan y. North 
 
 Bronsh'on, 6 D. M. & G. 126; IJawlina Britisli Australian Co., 2 II. & C. 182. 
 
 V. Wickham, 3 D. ife J. 304; Slim v. See Western Bunk of Scotland w. Addie, 
 
 Crouclier, 1 D. F. cfe J. 518. L. R. 1 So. App. Ca. 162. 
 
 M'ickard v. Sears, G A. & E. 469; " Hazard v. Irwin, 18 P'ok. (Amer.) 
 
 Taylor v. Aslnvorth, 11 M. <fc W. 413; 96; Stune v. Denny, 4 Mete. (Anier.) 
 
 West V. Jones, 1 Sim. N. S. 207; Evans 151. 
 
 fraud. Donelson v. Clements, Meigs, 155. Tlie representation must have 
 been delibsrately made. Representations of a fugitive sort uttered 
 casually in a mixed conversation from impulse rather than reflection 
 .should be cr.utiously received •when they are to be made the basis of 
 lialulity. It is the deliberate Tvill and intention of the person uttering 
 the words, and fairly to be inferred therefrom, and not their naked 
 import that ought to make him liable. The person making the 
 representations should be apprised by the jjsrson to whom they are 
 made of the purpose for which they are required. They must be made 
 deliberately, with the consciousness, on the purt of the person making 
 them, that they will be confided in by the person to whom they are made 
 Casey v. Allen, 1 A. K. Marah. 465.
 
 MISEEPKESENTATIOX. 55 
 
 sufficient grounds that the statement will ultimately turn out 
 to be correct.^ * 
 
 An intention to deceive being a necessary element or 
 ingredient of fraud, a ftilse representation does not amount to 
 a fraud at law, unj^ess i t be made with a fr audulent intent. 
 There is a fraudulent intent if a man, either with the view of 
 benefiting himself, or misleading another into a course of 
 action which may be injm*ious to him, makes a representation 
 which he knows to be false, or wdiich he does not believe to be 
 true.'^ The legal definition of fraud does not, however, include 
 necessarily any degree of moral turpitude.^ There is f raud in 
 law, if a man ma kes a representa tionwhicb^ he knows^ta-l>e 
 false^or does not honestly believe to be true, with the view to 
 induce another_t o act on the faith, who does so accordingly, 
 and by so doin£_sustains^^amage, although he may h ave had 
 DO dishonest purpo se in mak mg'The representation. If a man 
 knowingly and willfully makes a false representation, whereby 
 another is misled to his prejudice.J t is immatcria Hliat there 
 may have been no intention on his part to benefit himself, or 
 to injure the person to whom the representation was made. 
 If a man says what is false within his knowledge, or w^hat he 
 has no reasonable ground for believing to be true, and makes 
 
 ' 1 Smout V. Ilbery, 10 M. & W. 10. ' 6 M. & W. S11 ; 10 M. & W. 155, 
 
 ^Tavlor v. Ashworth, 11 M. & \V. pe/- Lord Abinger. 
 413 ; Evans v. Edmoiuls, 13 C. B. 786 ; 
 Thorn v. Biglahd, 8 Exch. 725. 
 
 * Bennett v. Judson, 21 N. Y. 238; Harding v. Eandall, 15 Me. 332; 
 Stone V. Denny, 4 Met. 151 ; Buford v. Caldwell, 3 Mo. 477. 
 
 When a party to a contract places a known trust and confidence in 
 the other party, and acts upon his opinion, any misrepresentation by the 
 party so trusted in a material matter, constituting an inducement or 
 motive to the act of the other party, and by which an undue advantage is 
 taken of him, is regarded as a fraud. Laidlaw v. Organ, 2 Wheat. 178; 
 Jouzin », Toulmin, 9 Ala. 662 ; Shaeffer v. Sleadc, 7 Blackf. 17S; Hunt v. 
 Moore, 2 Barr. 105.
 
 56 MISREPRESENTATION. 
 
 the repi'esentation with the view to induce another to act upon 
 it, who does so accordingly to his prejudice, tlie law imputes 
 to him a fraudulent intent, although he may not have been in 
 fact instigated by a morally bad motive. An intention to 
 deceive or a fraudulent intent in the legal acceptation of the 
 term, depends upon the knowledge or belief respecting the 
 falsehood of the statement, and not upon the actual dishonesty 
 of purpose in making the statement.-' * "Where, for instance, 
 the defendant had accepted a bill of exchange in the name of 
 the drawee, purporting to do so by procuration, knowing that 
 in fact he had no such authority, but fully believing that the 
 acceptance would be sanctioned and the bill paid by the 
 drawee, and the drawee repudiated the acceptance, it was held, 
 though the jury negatived a fraudulent intention in fact, that 
 the defendant had committed a fraud in law by making a 
 representation which he knew to be untrue, and which he 
 intended others to act upon.^ 
 
 The presence or absence of a corrupt motive or dishonest 
 pui-pose distinguishes moral from legal fraud. A misrepresen- 
 tation made without a corrupt motive or dishonest purpose is 
 called legal fraud. If there be pi'esent a corrupt motive or 
 dishonest purpose in making a misrepresentation, there is 
 moral fraud.* 
 
 In Wilde v. Gibson,^ a fraudulent intention was not im- 
 puted to a man by reason merely of his having constructive 
 notice that a representation made by him was untrue, when he 
 
 » Foster v. Cliarles, 1 Bing. 107 ; Pol- * Moens v. Heyworth, 10 M. &, W. 
 
 hill V. Walter, 3 B. <fe Ad. 114; Murray 517, per Lord Weiisleydale ; Wilde v. 
 
 V. Mann, 2 Exch. 541, per Lord V\ens- Gibson, 1 H. L. 633, per Lord Camp- 
 
 leydale ; Wilde v. Gibson, 1 H. L. 633, bell. 
 
 per Lord Campbell. 
 " Polhill V. Walter, 
 
 3 B. <& Ad. 114. 
 
 M H. L. 605. 
 
 * Page «. Bent, 3 Met. 371 ; Collins v. Dennison, 13 Met. 549; Elliott 
 V. Boaz, 9 Ala. 772.
 
 MISREPRESEXTATIOX. 57 
 
 had no actual knowledge that it was untrue. But the judg- 
 ment in this ease has been expressly disapproved of by Lord 
 St. Leonards/ * and cannot, though it was the decision of 
 the highest tribunal, be considered as founded on sound prin- 
 ciples. 
 
 If a man makes a representation in the honest belief that 
 it is true, and there be reasonable ground for such belief, a 
 fraudulent intent will not be imputed to him, althougb it may 
 turn out to be fal^e,^ unless there be a duty cast on him to 
 know the truth.^ A misrepresentation made through honest 
 mistake is not a ground for rescinding a transaction at law,'* 
 unless the subject-matter be different in substance from what 
 it was represented to be. In cases where a contract is sought 
 to be rescinded on the ground of fraud, it is enough to show 
 a fraudulent representation as to any part of that which 
 induced the party to enter into the contract which he seeks 
 to rescind ; but where there has been an innocent misrepresen- 
 tation or misapprehension, it does not authorize a rescission, 
 unless it be sucli as to show that there is a complete difference 
 between what was represented and what w^as taken, so as to 
 constitute a failure of consideration. For example, where a 
 horse is bought under a belief that it is sound, if the purchaser 
 was induced by a fraudulent representation as to the horse's 
 soundness, the contract may be rescinded. If it was induced 
 by an honest misrepresentation as to its soundness, though it 
 may be clear that both vendor and purchaser thought they 
 
 ' Sus;. L. Prop. 660. ' Tliom ?). Bin^land, ih., infra. 
 
 "" Haycral't v. Creasy, 2 East, 92 ; Col- " Oniirod v. HuLli, 14 M. &, W. 651. 
 
 lins V. Evans, 5 Q. B. 820; Thorn v. 
 Bigland, 8 Exch. 726. 
 
 * A person who represents an article to be good as far as he knows, 
 and yet conceals facts that would tend materially to diminish its value 
 in the estimation of the purchaser, is guilty of affirmative misrepresenta- 
 tion Wheelock v. Wheeler, 34 Vt. 533. 
 5
 
 58 MISREPRESENTATION. 
 
 were dealing about a sound horse, and were in error, jet the 
 purchaser must pay the whole pi'ice, unless there was a 
 warranty ; and even if there was a warranty, he cannot return 
 the horse and claim back the whole of the price, unless there 
 was a condition to that etiect in the contract. The princij^le 
 is well illustrated by the civil law as stated in the Digest.^ 
 There, after laying down the general rule that where tlie 
 parties are not at one as to the subject of the contract tliere is 
 no agreement, and that this applies where the parties have 
 misapprehended each other as to the co7'])us, as where an 
 absent slave was sold, and the buyer thought he was buying 
 Pamphilus, and the vendor thouglit he was selling Stichus ; 
 and pronouncing the judgment that in such a case thei'e was 
 no bargain because there was error in corpore, the framers of 
 the Digest meet the point thus : " Inde quceritur si in ipso 
 corpore non erretur sed in substantia error sit ut puta si 
 acetuin pro vino veneat, aes pro aiiro, vel quid aliud argento 
 simile ^ an emptio et venditio sit ^ " and the answers given by 
 the great jurists quoted are to the effect that if there be a 
 misapprehension as to the substance of the thing, there is no 
 contract ; but if it be only a difference in some quality or 
 accident, even though the misapprehension may have been the 
 actuating motive to the purchaser, yet the contract remains 
 binding. Paulus says, " si aes pro auro veneat, non valet ^ 
 aliter atque si aurum quidem fuerit^ deterius autem quam 
 emptor estimaret / tunc enim emptio valets ^ 
 
 The principle of our law is the same as that of the civil 
 law. If the thing sold differs in substance from what the pur- 
 chaser was led by the vendor to believe he was buying, there 
 is no contract. In Gompertz v. Bartlett,^ and Gurney v. 
 Womersley,* a man who honestly sold what he thought was a 
 
 ' Lib. 18, De contrahenda emplione, * 2 E. <fe B. 849. 
 
 Tit. 1, leg. 9, 10, 11. * iE. & B. 133. 
 
 ' Kennedy v. Panama, &c. Co., L. R. 
 2 Q. B. 5«7.
 
 MISREPRESEXTATIO:^. HO 
 
 bill witlioii*^^ recourse to liim, v.as held nevertheless bouud to 
 return the price, on its turning out that the supposed bill was 
 void under the stamp laws in the one ease, and was a forgery 
 in the other.^ So also where cotton was sold by sample, and 
 the sample was long stapled cotton, but the cotton delivered 
 was short stapled cotton, the cotton was held to be different in 
 kind from what the purchaser had contracted to buy, and that 
 he was entitled to reject it.^ If, on the other hand, the pur- 
 chaser receives what answers the description of the article 
 sold, and there is no difference in substance between tlie article 
 delivered and the article sold, but only a difference in some 
 quality or accident, the contract remains binding in the absence 
 of a warranty, even though a misapprehension caused by the 
 incorrect representation of the vendor may have been the 
 actuating motive to the purchaser.^ In such a case the rule 
 caveat emptor will apply.* In a case, accordingly, where a 
 steam-packet company issued a prospectus stating in effect that 
 they had entered into a contract with a colonial government 
 for the carrying of mails between certain places, and a man 
 induced by the terms of the prospectus applied for and ob- 
 tained some of the shares, but the contract, not being binding 
 on the colonial government, was repudiated, it was held that 
 the representation did not affect the substance of the matter, 
 the applicant having actually got shares in the very company, 
 for sliares in wliich he had applied, and the shares being a 
 property of considerable value in the market, though perhaps 
 not so valuable as they would have been had the statement in 
 the prospectus been strictly accurate.^ The difficulty in every 
 case is to determine whether the mistake or misapprehension 
 
 ' See Flight v. Bootli, 1 Bin- N. C. ■* lb. 2 E. & B. 850, j^n- Lord Camp- 
 
 877. bell. 
 
 » Azemar v. CiisiUa, L. U. 2 C. V. * Konnotly v. Panama, (fee. Co., L. R. 
 
 677. 2 Q, B. 5yu. 
 
 '^ Kenne<ly v. P.iuama, tfec. Co., L. R, 
 2 Q. li. 687.
 
 GO MISRErRESENTATIOX. 
 
 is as to the substance of the whole consideration, going, as it 
 were, to the root of the matter, or only as to some point, even 
 though a material point, an error as to which does not affect 
 the substance of the whole consideration. There may be mis- 
 apprehension as to that which is a material part of the motive 
 inducing the transaction, but not so as to prevent the subject- 
 matter of the transaction from being in substance what it was 
 represented to be.^ 
 
 The same principles apply in equity. A man who makes 
 a representation which he honestly and upon reasonable 
 grounds believes to be true, or believes himself entitled to 
 assert, is not, independently of a duty cast on him to know 
 the truth, bound in equity, if the representation turns out to 
 be untrue, to make good what lie has so represented.^ " There 
 is no case in equity," said Lord Thurlow, in Merewether v. 
 Shaw,® " where a man making an honest representation when 
 called uj)on to give an account of the circumstances of another, 
 has been held liable in this respect to make good what he has 
 so represented." From certain dicta to be found in the re- 
 ports, it may appear doubtful whether the same principles 
 apply in equity where a claim is made for the restitution of 
 property acquired through incorrect representations made by 
 honest mistake. In Kawlins v. Wickham,'* Turner, L. J., said 
 that if, upon a treaty for purchase, one of the parties to the 
 contract makes a representation materially affecting the sub- 
 ject-matter of the contract, he cannot be allowed to retain any 
 benefit which he has derived, if the representation proves to 
 be untrue, and tliat no man can be held to what he has done 
 under circumstances which have been erroneously represented 
 to him by the other party to the transaction, however inno- 
 
 ' Kennedy v. Panama, &c. Co., L. R. Ainslie v. Medlycott, 9 Ves. 21 ; Evana 
 2 Q. B. 588. t. Wyatt, 31 Beav. 21Y. 
 
 ' Merewether v. Shaw, 2 Cox, 134 ; • 2' Cox, 134. " 3 D. <fe J. 317.
 
 I^nSREPRESENTATION. GL 
 
 centlj the representation may Lave been made ; tliat a contrarj' 
 doctrine wonld strike at the root of fair dealing, and would 
 open a door of escape in all cases of representation as to credit, 
 and indeed in all other cases of false representation. The 
 words of Mr. Justice Story, in Daniel v. Mitchell,^ are much 
 to the same effect. " Nothing," he said, " is clearer in equity 
 than the doctrine that a bargain founded upon false representa- 
 tions made by the seller, although made by innocent mistake, 
 will be avoided. Mistake as well as fraud in any representa- 
 tion of a fact material to the contract is a sufficient ground to 
 set it aside." ^* There is, however, good reason to doubt 
 whether on principle or authority, the equitable rule with 
 respect to the restitution of property acquired through folse 
 representations can be carried so far as the words of these 
 learned judges would warrant. In Rav.'lins v. Wickham, there 
 was, in tact, a duty cast upon the party making the representa- 
 tion to know the truth, so that it is probable that the words of 
 Turner, L. J., though general in terms, should be taken with 
 
 ' 1 Story (Amer.), na. (Amer.), C91 ; Doggett v. Emerson, lb. 
 
 * Hou"h V. llicliardson, 3 Story 7o3. 
 
 I 
 
 * The gist of tlie inquiry is not whether the party making the statement 
 knew it to be false, hut whether the statement made as true was believed 
 to be true, and, therefore, if false, deceived the party to whom it was 
 made. Joyce v. Taylor, 6 G. & J. 54 ; Lewis v. McLcmon, 10 Yerg. 206 ; 
 Donelson v. Clements, Meigs, 155; Bailey v. Jordan, 32 Ala. 50 ; Oswold v. 
 McGehee, 28 Miss. 340 ; ]\Iitchell v. Zimmerman, 4 Tex. 75 ; Belknap v. 
 Sealey, 2 Duer, 570; Smith v. Mitchell, 6 Geo. 458; Lockbridge v. Foster 
 et al, 4 Scam. 5(>9; David^on v. Moss, 5 How. (Miss) 673; Shackelfoid v. 
 Handley, 1 A. K. Marsh, 495; McFerran v. Taylor, 3 Cranch, 270; Hazard 
 V. Iiwin, 18 Pick. 95; Bacon v. Johnson, 7 Johns. Ch. 194; Henderson r. 
 Railroad Co., 17 Tex. 560 ; Roosevelt r. Fulton, 2 Cow. 129; Smiths. 
 Richards, 13 Pet. 20. An innocent misrepresentation by mistake will only 
 vitiate a contract when the error between the parties is of such a nature 
 and character as to destroy the consent necessary to its validity; and the 
 rule is further qualified, so that it does not embrace cases to fl^hich the rule 
 caveat emptor applies. Brooks c. Hamilton, 15 Minn. 26.
 
 62 MISREPEESEl!lTATI0:5r. 
 
 reference to tlie particular circumstances of the case. The 
 rule at law being reasonable and fully adequate for the purposes 
 of justice, there is no reason for extending the rule in equity, 
 60 far as the words of Turner, L. J., would, if taken generally, 
 warrant. There is no ground for contending that the rule 
 caveat emjytor does not apply in equity as well as at law,^ or 
 that a representation amounts any more in equity to a warranty 
 than it does at law. The sound doctrine would seem to be 
 that the rule in equity is the same as the rule at law, and that 
 if, accordingly, a representation be honestly and upon fair and 
 reasonable grounds believed to be true by the party making it, 
 and there be no duty cast on him to know the truth, no claim 
 for the restitution of property acquired through the representa- 
 tion can be maintained in equity, although the representation 
 proves to be untrue,^ unless the subject-matter be so different 
 in substance from what it was represented to be, as to amount 
 to a failure of consideration.' 
 
 There is a difference in substance amounting to a failure of 
 consideration, if the property is not of the same nature or 
 description as it was represented to be in the particulars of 
 sale,* as where leasehold or copyhold property is described as 
 freehold;^ or, perhaps, where an under lease is sold as an 
 original lease;' or as where upon the sale of an estate let at 
 lease on a rack-rent, such rent is described as a ground-rent;' 
 or where there is a misdescription of the quantity of land in 
 regard to acres being statute acres or customary acres ; ' or as 
 
 > Gorsiich V. Cree, 29 L. J. C. P. 309. » Drewe v. Corp, 9 Ves. SOS; Puls- 
 
 ' t^ee Leg2:e v. Croker, 1 Ba. <fe He. ford )•. llicliards, 17 Beav. 90, per Lord 
 
 514; Jiartlctt v. Salmon, 6 D. M. &. G. r.onully. 
 
 33. « Madeley v. Booth, 2 Des;. & S. 718 , 
 
 * See Ilowland v. Norris, 1 Cox. 50; Henderson v. Hudson, 15 W. R. 800. 
 Leslie 7'. Thompson, 9 lla. 208; Burt- See Dariinffton r\ Hamilton, Kay, 550." 
 le:t 1'. Salnum, D. M. <fe G. 41. ^ Stewart v. Alliston, 1 Mcr. 20. See 
 
 * See Taylor v. jMartin.l.de, 1 Y. & Bartlett v. Salmon, D. M. & G. 33. 
 C. C. C. 058 ; Madeley r. Bootfi, 2 Dcg. " Price v. Xorth, 2 Y. <fe C. 020 ; Earl 
 & S. 722; Stanton v. Tattersall. 1 Sin. of Durham!'. Le^.ird, 34 Beav. 612. 
 
 & G. 530 ; Price v. Macaulay, 2 D. M. 
 & G. 340.
 
 MISEEPEESENTATIOX. 63 
 
 where a house composed externally partly of brick, and partly 
 of timber, and lath and plaster, is described as a brick-built 
 house.* 
 
 So, also, there is a difference in substance amounting to a 
 failure of consideration, if there be misrepresentation upon 
 a point material to the due enjoyment of the property; as 
 where a vendor describes land as situated within one mile of 
 a particular town, when it is, in fact, several miles distant 
 therefrom;^ or where, upon the sale of a lease of a house or 
 shop, the particulars merely stated that the lease contained a 
 restriction against certain specified trades being carried on 
 upon the premises, whereas, in fact, several other trades were 
 forbidden ; ^ or where, upon the sale of a piece of laud de- 
 scribed as "a first-rate building plot of ground," no notice 
 was taken of a right of way passing over it,* or of an under- 
 ground watercourse which third parties had liberty to open, 
 cleanse, and repair, making satisfaction for damage therebj' 
 occasioned;® or as where a house described to be situated 
 in a fashionable street, was not actually in that street, but 
 merely communicated with it by a passage.^ 
 
 So, also, there is a difference in substance amounting to a 
 failure of consideration, w^here the property-, as described, is 
 not identical with that intended to be sold ; '' or where a mate- 
 rial part of the property described has no existence, or cannot 
 be found;® or where no title can be shown to it, as where 
 upon the sale of a leasehold house and small yard adjoining, 
 the yard was not included in the lease, but was held from year 
 
 ' Powell V. Doubble, Sug. V. <t ?. 29 Sec Gibson v. D'Este, 2 Y <fe C C C 
 
 Dart, V. & P. 90. 542. 
 
 " Duke ol'Norrdlki). Wortliv, 1 Camp. * >liacldeton v. Sutdifle, I De"- <fe S 
 
 337; I'ulsford v. Richards, 17 lieav. 96. G09. ° 
 
 per Lord Koinilly. ° Stanton v. Tattersall, 1 Sm. & G. 
 
 ' Fli-iit r. Booth, 1 Binc^. K C. 370. 529; cump, White v. Bradshaw, 16 
 
 See Viguo.les v. Brown, 12 Ir. Eq. 194, Jur. 738. See Dart, V. & I". 88, 89. 
 
 196. ' Leach V. Wullctt, 3 C. (fc P. 115. 
 
 * Pykes V. Blake, 4 Biug. N. C. 403. * Uobinson v. Mus-rove, 2 Moo. (fe R. 
 
 92.
 
 64 MISREPRESENTATION. 
 
 to year at a separate rent ; ^ or wliei'c land was described in 
 tlie particulars of sale as held nuder a lease tliat Avould expire 
 on a certain day, but it turned out that tbe tenant of part of 
 the land was entitled under an equitable article to a reversion- 
 ary term for four lives ;^ or where an annuity was granted, to 
 be calculated on a certain footing by the agent of the grantee, 
 and the calculation proved very inaccurate ; ^ or where a man 
 agreed to purchase a share in a partnership businesss, on the 
 footing of a balance-sheet prepared by an accountant employed 
 by the vendor, which turned out to be very inaccurate in certain 
 particulars ; ^ or where there was a material variance between 
 the prospectus of a company, on the basis of which a man 
 took shares in the concern, and the memorandum of association 
 by which it was. governed ; ' or where a man was released 
 from an obligation, in which he was bound, on a representa- 
 tion that a certain security deposited with the creditor (which ' 
 proved to be an imaginary one) was a good security.^ 
 
 So, also, it may be laid down, as a general rule, that there 
 is a difference in substance amounting to a failure of consider- 
 ation, if the misrepresentation or misdescription is of such a 
 nature that the amount of compensation cannot be estimated ;' 
 as where on the sale of a reversion expectant on the decease of 
 A in case he should have no childreUj his age was described 
 as sixty-six, instead of sixty-four;^ or as where On the sale of 
 a wood, the particulars erroneously stated that the average size 
 of the timber approached fifty feet, the number of trees not 
 
 ' Dobell V. TTutchinson, 3 A. A A. ' Sliip's Case, 2 J). J. & S. 544 ; 
 
 355. See KnalclibuU v. Gnieber, 1 Stewart's Case. L. R. 1 Cli. Avp. 586; 
 
 Madd. 153; M'Cullock v. Gregory, 1 K. Lawrence's Case, 2, ib. 425 : Hallows v 
 
 & J. 286. Fcrnie, L. 11. 3 Eq. 534. 
 
 "Linehan v. Cotter, 7 Ir. Eq. 177. ' «c-lio!field v. Teinpler, 4 D. & J. 
 
 See Collier ». Jcukius, You. 2".)S ; Sii;^. 4:M. 
 
 V. cfe 1'. 3U4. " ^00 Maeldey v. Booth, 2 .T)o£^. ct S. 
 
 ' Carpinacl v. Powis, 10 Beav. 4A. 722. 
 
 * Chavlcswortli v. Jennings, 34 Ik-av. ° Sherwood v. Rohblns. Moo. dc M. 
 
 96. 194. See 8 CI. & F. 7'.»2.
 
 MISREPRESENTATION. 05 
 
 being stated ; * or as where tlie particulars stated tlie premises to 
 be in tlie joint occupation of A & B as lessees, wlicn in fact 
 A was only assignee of tlie lease, and B was a mere joint 
 occupier ; ^ or as where the right to coal mider the estate was 
 shown to be in other parties, and no means existed of deter- 
 mining its value.^ 
 
 The presence of the words " more or less " in a contract 
 for the sale of a deed of conveyance of laud after a statement 
 of the Cjuantitj of acres comprised therein does not import a 
 special engagement that the purchaser takes the risk of the 
 quantity. The words must be taken merely to cover a reason- 
 able excess or deficiency. If it turn out that the quantity falls 
 considerably short of what it was represented to be, the com't 
 will relieve the purchaser from payment for the deficiency; 
 but a slight variation does not afford a ground for relief,* * 
 
 ' Lord Brooke v. Roundtliwaite, 5 v. Wincli ester, 1 V. tfe B. 375 ; Port- 
 
 Ha. 298. man v. Mill, 2 Paiss. 570, Sug. V. & P. 
 
 ' Kidgway v. Gray, 1 Mac. & G. 109. 324. See Charlcsworth v. Jennings, 3-t 
 
 See Grisseli v. Peto, 2 Sm. & (} 39. Beav. 9d ; L)avi3 v. Shepherd, L. R. 1 
 
 « Sniithson v. Powell, 20 L. T. 105. Cb. App. 410. 
 
 * UilJ V. Bulkley, 17 Yes. 398 ; Winch 
 
 * Pollock V. Wilson, 3 Dana, 25 ; Quesncl r. Woodlief, 2 Hen. & ]Munf. 
 173; S. C. 6 Call. 218; Read v. Cramer, 1 Green, Ch. 277; Belknap v. 
 Sealey, 14 K Y. 143 ; Smith r. Fly, 24 Tex. 345 ; Harrell v Hill, 19 Ark. 
 102; Uarrisou v. Talbot, 2 Dana, 258; Bailey v. Snyder, 13 S. & R. K'.O ; 
 Tliomas v. Perry, 1 Pet. C. C. 49 ; Noble v. Googins, 99 Mass. 231 ; Tarbell 
 r. Bowman, 103 Mass. 341. 
 
 Where land is sold in gross, for a sum certain, upon a statement of the 
 number of acres, quantity must be regarded as a material consideration 
 with the vendee. Marbury v. Stonestreet, 1 j\Id. 147. 
 
 The use of the words " more or less," does not preclude an inquiry 
 into a fraud that may have been committed by either party to a contract, 
 M'Coun V. Dclaney, 3 Bibb. 4G ; Harrell v Hill, 19 Ark. 102. 
 
 The words " more or less," import that quantity did not enter into the 
 essence of the contract, and, in the absence of fraud, neither party can 
 claim relief either for a deficiency or a surplus. Tysou v. Hardcsty 20 Md. 
 305 ; Slothower v. Gordon, 23 Md. 1 ; Hall v. Mayhew, 15 Md. 551 ; Hart v. 
 Stull, 3 Md. Ch. 20 ; S. C. 9 Gill. 451 ; McCrea v. Leonstrelh, 17 Peun. 
 316 ; Marvin v Bennett, 8 P?-'ge, 312 ; S. C. 26 Wend. 160 ; Young v.
 
 66 MISREPRESENTATION. 
 
 Nor will the court interfere, although the deiiciency be con- 
 sidei-able, if the risk as to the quantity constituted one of the 
 elements of the agreement, or if the sale was of a thing in 
 
 Craig, 2 Bi1)b. 372 ; Weaver v. Carter, 10 Lsigli, 37 : Cleaveland v. Rogers, 
 1 A. K. Marsh, 193 ; Williford v. Galbraith, 6 Watts, 117 ; Perkins v. 
 Webster, 2 N. H. 287 ; Wicker v. Creas, 1 Ired. Eq. 351 ; Pedeus v. Owens, 
 Rice's Eq. 55 ; Ketchum v. Sloat, 20 Ohio, 453 ; Cliipman v. Briggs, 8 Cal. 
 76 ; Powell v. Clark, 5 Mass. 355. 
 
 The Tvords " more or less," or other equivalent words, should be con- 
 strued to qualify representations of quantity in such a manner that, if 
 made in good faith, neither party should be entitled to any relief on 
 account of deficiency or surplus. Stcbbins v. Eddy, 4 Mason, 414 ; Jones 
 ©.Plater, 2 Gill. 128. 
 
 A parol contract of sale, at a certain price per acre, is so fiir varied and 
 modified by a subsequent acceptance of a deed with the words " more or 
 less," that the number of acres does not form the basis of the ultimate 
 conveyance, but tlTe land is purchased upon an assumed estimate, and at a 
 gross sum. Smith v. Evans, 6 Binn. 182 ; Stebbins v. Eddy, 4 Mason, 414. 
 
 Far too much significance has been sometimes allowed to these and 
 similar words. Their primaiy use is to show that all the land embraced 
 within the description, is intended to pass, and in that sense they 
 are often important in the construction of an instrument. They may be 
 decisive upon the question of how much consideration is to be paid, or of 
 mere compensation where actual mistake does not appear. And where 
 misrepresentation and mistake are claimed, they certainly qualify the state- 
 ment of quantity, which the instrument otlierw'se imports. A deed which 
 describes the land, and states the number of acres, although with (he 
 words " more or less," clearly imports that there is not a great deficiency 
 or excess. If the deficiency is one half, the instrument carries, on its face, 
 a gross misrepresentation. Such words do not import that there is a 
 special engagement that the purchaser shall take the risk of the quantity. 
 Their presence in a contract or deed may render it more difficult to prove 
 such a mistake as will justify the interference of equity, but they are not 
 equivalent to a stipulation that the mistake, Avhen ascertained, shall not 
 be a ground for relief Belknap «. Sealey', 14 N. Y. 143. 
 
 The deficiency must be such as will naturally raise the presumption of 
 fraud, imposition, or mistake in the very essence of the contract. Stebbins 
 c. Eddy, 4 Mass. 414. 
 
 When the metes and bounds are pointed out, the purchaser takes the 
 risk of the quantity. Grantland v. Wright, 2 Munf 179 ; Dalton i). Rust, 
 22 Tex. 133. 
 
 When the deficiency is considerable, the contract may be set aside for 
 misrepresentation, although the sale is in gross. Pringle v. Samuel, 1 
 Litt. 43 ; Kent v. Carcaud, 17 Md. 291.
 
 MISREPEESENTATIOX. 67 
 
 gross and not hy admeasurement,* or if there was a special 
 stipulation that the quantities shall be taken as stated.'* ^ 
 
 Though a party making a representation may at the time 
 believe it to be true, and have made it innocentl}^, yet if after 
 discovering that it was untrue he suffers the other party to 
 continue in error, and to act on the belief that no mistake has 
 been made, this, from the time of the discovery, becomes, in 
 the contemplation of a court of equity, a fraudulent misrepre- 
 sentation, even though not so originally.^ If, moreover, a man 
 makes a representation by which he induces another to take a 
 particular course, and the circumstances are afterwards altered 
 to the knowledge of the party who made the representation, 
 but not to the knowledge of the party to whom the represent- 
 ation was made, and ai-e so altered that the alteration may 
 affect the course of conduct which may be j^ursued by the 
 party to whom the representation was made, it is tlie duty of 
 the party who has made the representation to communicate to 
 the party to whom he made it, the altej'ation of those circum- 
 stances. The party to whom the representation has been 
 made, will not be held bound in equity, unless such a com- 
 munication has been made.^ 
 
 In considering whether a man has reasonable grounds for 
 believing a representation to be true, the position in which he 
 is placed, and the sources from which he has drawn his 
 information, must be taken into consideration." If a man be 
 asked to give an account as to tlie fortune or circumstances of 
 another, statements appearing in wills, deeds, marriage settle- 
 ments, &c., are reasonable sources of information. lie cannot 
 
 'Anon., 2 Freem. lOY; Twyfor.l v. See Sus;. V. & P. 324, 327; Cordingley 
 
 Warcnp, Finch, 310; Baxendale v, i'. Cliecseboroufrli, 3 Giff. 50(>. 
 Peak, 19 I'.eav. (501 ; Stebl)uis v. Eddy, ' Reynell v. Sprye, 1 D. M. & G. 6G0, 
 
 4 Mas. ( Amer ) 414 ; Marvin r. 15ennett, 709. 
 
 26 Wend. (Anier.) 169 ; Morris L'anal * Trailli'. Baring, 33 L. J. CIi. 521. 
 
 Co. V. Emmett, 9 Taigc (Amcr.) 108. ' Callcn's Trustee v. Jolinston, 3 Dec. 
 
 See Loslio v. Tompson, 9 Ha. 208. of Court of Sesision, 3d series, p. 936, 
 
 ' Nicoll V. Chambers, 11 C. B. 996.
 
 08 MISREPEESE^irTATION. 
 
 be called on if the statements therein appearing turn out to 
 be incorrect, to make good his representation.^ A man, how- 
 ever, mn3t examine into tlie truth of representations made to 
 liim bj others, before putting them forward as true, or as ot 
 his own knowledge. If a man makes a representation in such 
 a manner as to import a knowledge of the facts to which the 
 representation refers, and the representation is not materially 
 qualified by a reference to any other person as the source of 
 information, he cannot be heard to say, on a claim for the 
 rescission of the transaction, if the representation proves to be 
 untrue, that he made the representation on the authority of 
 his agent, and honestly believed it to be true. If a company 
 give credit to, and assume as true the reports which are made 
 to them by their agents, and represent as facts the matters 
 stated in those reports, and pei'sons are induced to enter into 
 contracts on the foundation of the assumption of the repre- 
 sentations which have been made to them, they cannot be 
 heard to say, on a claim for a rescission of the transaction, if 
 the representations prove to be untrue, that they honestly 
 believed them to be true. If the company, instead of stating 
 a thiug as a fact, state merely that they have received reports 
 from their agents, and that they have reason to believe the 
 reports to be true, the case may be difierent.^ It may be 
 material, where proceedings at law are aimed against a man 
 with a view to obtain damages from him personally for false 
 representations, that he may have believed statements made to 
 him by agents to be true, but it is immaterial where the trans- 
 action is sought to be set aside.^ 
 
 A misrepresentatio7i, however, is a fi-aud at law, altliough 
 made innocently, and with an honest belief in its truth, if it 
 
 * Ainslie v. Mecllvcott, 9 Ves. 21 ; L. R. 3 Fq. 138; Henderson v. Lacon, 
 
 Evans v. Wyatt, 31 Beav. 217. L. R. 5 Eq. 261, 
 
 ^ Sniitli's Case. Re Reese River Silvci* ' Smith's Case, Re Reese River Silver 
 
 Milling (.o., L. R. 2 CIi. App. 004, 611, Minin^- Co., L. R. 2 Ch. App. 615j 
 
 615; Rosa v. Estates Invcstincnt Co., Henderson v. Lacon, L. R. 5 Eq. 261.
 
 MISREPKESEI^TATION. 69 
 
 be made bj a man who ought in tlie due discharge of iiis duty 
 to have known the truth, or who formerly knew, and ought to 
 have remembered, the fact which negatives the representation, 
 and be made under sitch circumstances or in such a way as to 
 induce a reasonable man to believe that it was true, and was 
 meant to be acted on, and has been acted on by him accord- 
 ingly to his prejudice. If a duty is cast upon a man to know 
 the truth, and he makes a representation in such a way as to 
 induce a reasonable man to believe that it is true, and is meant 
 to be acted on, he cannot be heard to sa}^, if the representation 
 proves to be untrue, that he believed it to be true, and made 
 the misstatement through mistake, or ignorance, or forget- 
 fulness.^ 
 
 A statement which amounts to a warranty, must be dis- 
 tinguished from a statement which amounts merely to a repre- 
 sentation. A representation is a statement or assertion made 
 by one party to the other before or at the time of the contract 
 of some matter or circumstance relating to it.^ A representa- 
 tion is not a part of the written instrument, but is collateral to 
 it, and entirely independent of it.^ The insertion of the 
 representation in the instrument does not alter its nature. 
 Though a representation is sometimes contained in a written 
 instrument, it is not an integral part of the contract, and con- 
 sequently the contract is not broken, though the representation 
 proves to be untrue.* In order that a statement or representa- 
 tion may amount to a warranty, it must appear that it was 
 
 * Burrowes v. Lock, 10 Ves. 470; misconception, a false representation 
 
 Moens v. Heyworth, 10 ]\I. <fe W. 147; respecting his sister's fortune to a man 
 
 Piilsford V. Kiehiirds, 17 Beav. 95 ; -wlio was about to marry her, and did 
 
 Ayre's Case, 25 Beav. 522; J'rice v. afterwards marrj^ her. See, also, Ainsiie 
 
 Macaulav, 2 D. M. & G. 345 ; Ilutton v. I^Iedlycott, 9 Ves. 21; Evans v. 
 
 V. Rossiter, 7 D. M. & G. 9 ; Rawlins Fowler, '21 Beav. 217. 
 
 V. Wickham, 3 D. «fc J. 304 ; Slim v. ^ Behn v. Burness, 3 B. <fe S. 753. 
 
 Croucher, 1 D. F. <fe J. 523; Swan v, ' Ooram v. Sweeting, 2 Wms. Saund. 
 
 North British Australian Co., 2 H. <fe 201. See Kain v. Old, 2 B. & C. 634, 
 
 C. 183; Henderson v. Lacon, L. R. 5 per Lord Tenterden; Cornfooty. Fowke, 
 
 Eq. 202 ; comp. Merewether v. Shaw, 2 6 M. <fe W. 370, per Lord Cranworth. 
 
 Cox, 134, where a brother made, through * Behn v. Burness, 3 B. tfe S. 763.
 
 70 
 
 MISREPRESENTATION. 
 
 intended tc form a substantive part of the contract.^ * A 
 warranty is an express or implied statement of something 
 which the party making it undertakes shall be a substantive 
 part of the contract, and though part of the contract, yet col- 
 lateral to the express object of it.^ A representation of inten- 
 tion does not amount to a warranty.^ If a representation or 
 statement is not of the essence of the contract, there is no 
 warranty.* The circumstance of a man selling a particular 
 thing by its proper description is not a warranty that the 
 thing is of that description. If the thing does not answer the 
 description, there is not a breach of warranty, but a non- 
 compliance with a contract which he has engaged to fulfil," 
 To constitute a warranty, it is not necessary that the word 
 "warrant" should occur in the bargain.® Nor is it necessary 
 that the statement or representation should be simultaneous 
 with the close of the bargain. If it be part of the contract, it 
 matters not at what period of the negotiation it was made.' 
 If a statement amounts to a warranty, the party making it is 
 bound by his warranty. The fact that he may have made the 
 statement in honest mistake, or that the statement may be not 
 in a material matter, cannot be taken into consideration.^ 
 
 ^ Belm r'. Burness, 3 B. <fe S. lU. 
 
 » Chanter v. Hopkins, 4 M. & W. 
 404, per Lord Abinc^er ; Stucley v. 
 Baily, 1 H. & C. 415, per Mnrtin, B. 
 
 ' JBenliam v. United Guarantee, ifec. 
 Assurance Co., 7 Exch. 744. 
 
 * Cranston v. Marshal, 5 Exch. 402; 
 Taylor v. Bullen, ?6. 779 ; Vernede v. 
 AVeber, 1 H. & N. 311. 
 
 ' Chanter v. Hopkins, 4 M. & W. 
 404, per Lord Abinger ; Stucley v. 
 Baily, 1 H. «fe C. 415, j^er Martin, B. 
 
 * Hopkins v. Tanqneray, 15 C. B. 
 137, per Jervis, C. J.; Stucley v. Bally, 
 1 H. & C. 417. 
 
 ' Hoiikins v. Tanqueray, 15 C. B. 
 137, ■/ cr Jervis, C. J. 
 
 " Attwood V. Small, 6 CI. & Fin. 232; 
 Anderson v. Fitzgerald, 4 II. L. 504, 
 per Lord Cranwortli ; rfinnennan v. 
 White, 10 C. B. N. S. 814; Behn v. 
 Buruess, 3 B. & S. 754, 759. 
 
 * In order to constitute a warranty no particuLar form of words is 
 necessary. The word warrant need not be used. A bare representation 
 or assertion, if so intended and understood by the parties, will amount to 
 a warranty. But no matter how positive the representation of tlie vendor 
 may be, it will be regarded as an expression of his belief or opinion,
 
 MISREFEESEXTxVTION. 71 
 
 The term "warranty" is used in two senses. It is citlicr 
 a condition on the failure or non-performance of which the 
 other party may, if he be so minded, repudiate the contract 
 altogether, and so be released from perfonning his part of it, 
 or it is an independent agreement, a breach of which will not 
 justify a repudiation of the contract, bnt will only be a cause 
 of action for compensation in damages. The question whether 
 a statement, though intended to be a substantive part of the 
 contract, is a condition precedent, or an independent agree- 
 ment, is sometimes raised in the construction of charter-parties, 
 with reference to stipulations that some future thing shall be 
 done or shall happen, and has given rise to very nice distinc- 
 tions. Thus a statement that a vessel is to sail, or be made 
 ready to receive a cargo, on or before a given day, has been 
 held to be a condition, while a stipulation that she shall sail 
 with all convenient speed, or within a reasonable time, has been 
 held to be only an agreement.^ If the statement be a condi- 
 tion, and it be not complied with, the par'iy to whom it is 
 made may, if he be so minded, repudiate the contract, pro- 
 vided it has not been partially executed in his favor. If, 
 indeed, he has received the whole or any substantial part of 
 the consideration for the promise on his part, the warranty 
 ceases to be available as a condition, and becomes a warranty 
 in the narrower sense of the term, that is to say, a stipulation 
 by way of agreement, for the breach of which a compensation 
 may be sought in damages. Accordingly, if a specific thing 
 has been sold, with a warranty of its quality, under such 
 circumstances that the property passes by the sale, the vendee 
 having been thus benefited by the partial execution of the 
 
 • Behn v. Burness, 3 B. & S. 754. 
 
 unless it was intended and received as a stipulation. Barnett v. Stanton. 
 2 Ala. 181 ; Endor v. Scott, 13 IlL 35.
 
 72 . 1MISREPKESENTATI05I. 
 
 contract, and become tlie proprietor of tlie tiling sold, cannot 
 treat the failure of the warranty as a condition broken (unless 
 there is a special condition to that effect in the contract), but 
 must have recourse to an action for damages in respect of the 
 breach of warranty. But in cases where the thing sold is not 
 specific, and the property has not passed by the sale, the 
 vendee may refuse to receive the thing proffered to him in 
 performance of the contract, on the ground that it does not 
 correspond with the descriptive statement, or, in other words, 
 that the condition expressed in the contract has not been per- 
 formed. Still, if he receives the thing as sold, and has the 
 enjoyment of it, he cannot afterwards treat the descriptive 
 statement as a condition, but only as an agreement, for a 
 breach of which he may bring an action for damages.-^ 
 
 Affirmations in policies of insurance are in the nature of 
 warranties. Jn the case of policies of marine insurance, and 
 policies against fire, a warranty is also a condition. It is an 
 implied condition of the validity of the policy, that the party 
 proposing the insurance should make a true and complete 
 representation respecting the property which he seeks to 
 insure. Such policies are therefore vitiated by any material 
 misrepresentations, even though not fraudulently made.^ In 
 the case of life assurances, however, it is not an implied condi- 
 tion of the validity of the policy that the party proposing the 
 insurance should make a true and complete representation 
 respecting the life proposed for insurance. If there be no 
 express warranty or condition on the part of the insured, a 
 policy of life assurance is not vitiated by false representations, 
 unless there be fraud.^ If there be a proviso in a policy of 
 assurance, that any untrue statements shall avoid the policy, 
 
 ' Betn V. Burness, 3 B. & S. 755. Thornton, 3 E. & B. 868 ; Stokes v. Cox, 
 
 'Carter v. Boelim, 3 Burr. 1903; 1 11. & N. 533; Bannerman 2). White, 
 
 Moeu3 V. Heyworth, 10 M. it W. 157, 10 C. B. N. S. 860. 
 
 per Lord Wensleydale ; Anderson v. ^ Wheelton v. Hardisty, 8 E, (fr B, 
 
 Fitzgerald, 4 H. L. 484; Sillem v. 2Z2, infra.
 
 MISREPEESEJfTATION. 73 
 
 the policy is vitiated bj any statement lalse in fact, whether 
 material or not.^ 
 
 In order that a misrepresentation may snpport an action at 
 law, or be of any avail whatever as a ground for relief in 
 equity, it is essential that it should be material in its nature,^* 
 and should be a determining ground of the transaction.^ f 
 The misrepresentation mnst, in the language of the Homan 
 law, be dolus dans locum contractui.^ There must be the 
 assertion of a fact on which the person entering into the trans- 
 action relied, and in the absence of which it is reasonable to 
 infer that he would not have entered into it at all,^ X or at 
 least not on the same terms.® Both facts must concur ; there 
 must be false and material representations, and the party seek- 
 ing relief should have acted upon the faith and credit of such 
 
 * Anderson v. Fitzq^eralrl, 4 H. L. liave contracted. Incidental or acci- 
 484; Gazenove v. British Equitable dental fraud is that by which a man. 
 Assurance Co., 6 C. B N. S. 437 ; otherwise intending to contract, is de- 
 comp. Perrins v. Marine, <fec. Insurance ceived as to sonic accessory or accident 
 Co., 2 El. & El. 317. of tlic contract; for example, as to the 
 
 ' Jennings v. Broughton, 5 D. M. <fe quality of the object of sale or its price. 
 
 G. 12t). See Geddes v. Pennington, 5 The determination of the question as to 
 
 Dow. 159. the character of the dolus rests in each 
 
 ' Merewether v. Shaw, 2 Cox, 134; particular case with the court. Acci- 
 
 De Manneville v. Crompton, 1 V. & B. dental or incidental fraud is not a 
 
 854; Jameson v. Stt-in, 21 Beav. 9; ground for avoiding a transaction, but 
 
 Robson V. Earl of Devon, 4 Jur. N. S. simply subjects the party to an action 
 
 245, 248 ; Goldicutt v. Townsend, 28 for damages, Duranton, vol. X, liv. 3, 
 
 Beav. 445; Jennings v. Broughton, 5 s. 169; Toull. Di-. Civ., liv. 3, tit. 3. c. 
 
 D M. & G. 136; Denne v. Light, 8 D. 2, s. 5, art. 90; Bedarride, sur Dol. p. 
 
 M. & G. 774. 45. This distinction does not obtain in 
 
 * Fraud is divided by the civilians the common law, and is not admitted in 
 into dolu!^ dans, locum contradui and equitj'. 
 
 dolus inc'dcns, or accidental fraud. The ^ Pulsford v. Richards, 17 Beav. 81, 
 
 former is that wliich has been the cause 96. 
 
 or determining motive of the transac- " 6 M. <fe W. 378, per Lord Abingcr. 
 
 tion ; that, in other words, without See Small v. Attwood, You. 461. 
 which the party defrauded would not 
 
 * Smith r. Richards, 13 Pet. 2G ; Coffee v. Newsom, 2 Kelly, 443 ; Mc- 
 Donald V. Trafton, 15 Me. 325 ; Cunningham v. Smith, 10 Graft. 255 ; Gil- 
 lett V. Phelps, 12 Wis. 392 ; Taylor v. Fleet, 1 Barb. 479. 
 
 t Morris Canal Co. v. Eramett, 9 Paige, 168 ; Winston v. Gwathmey, 8 
 B. Mon. 19; Halls «. Thompson, 1 Smed. & Marsh, 443. 
 
 I Daniel v. Mitchell, 1 Story, 172; Hazard v. Irvin, 18 Pick. 95; Brad- 
 ley V. Bosley, 1 Barb. 125. 
 6
 
 74 MISREPRESENTATION. 
 
 representations.^* To say that statements are false is one 
 thing; to say that a man was deceived by them to enter into a 
 transaction is another thing.^f A misrepresentation to be 
 material must be one necessarily influencing and inducing the 
 transaction,'':}: and affecting and going to its very essence and 
 substance.* Misrepresentations which are of such a nature as, 
 if true, to add substantially to the value of property,' or are 
 calculated to increase substantially its apparent value,® are 
 material. A misrepresentation goes for nothing unless it is a 
 proximate and immediate cause of the transaction,''' It is not 
 enough that it may have remotely or indirectly contributed to 
 the ti'ansaction or may have supplied a motive to the other 
 party to enter into it. The representation must be the very 
 ground on which the transaction has taken place. The trans- 
 action must be a necessary and not merely an indirect result of 
 the representation.^ It is not however necessary that the 
 representation should have been the sole cause of the trans- 
 action. It is enough that it may have constituted a material 
 
 * Hough V. Richardson, 3 Story Conybeare, 9 H. L. 711 ; Barrett's Case, 
 (Araer. )rC90, per Story, J. 3 D. J. <fc S. 30. See Geddes v. Penning- 
 
 "Jennings v. Broughton, 5 D. M. <fe ton, 5 Dow. 159. 
 
 G. 126. " Burnes v. Pennell, 2 IT. L. 497, 531 ; 
 
 ' Re Reese River Silver Mining Co.; Nicoll's Case, 3 D. & J. 387. 439; Bar- 
 Smith's Case, L. R. 2 Ch. App. 611. ry v. Crosskey, 2 J. <fe H. 1 ; New Bruns- 
 
 * Hallows V. Fcrnie, L. ]!. 3 Eq. 536. wick &c. Railway Co. v. Conybeare, 9 
 
 * Price w. Macaulay, 2 D. M. k G. 344 ; H. L. 71 1. See Atwood v. Small, 6 CI. 
 Jennings v. Broughton, 5 1). M. »fc G. <fe Fin. 232, 447; Jameson v. Stein, 21 
 126. Beav. 5 ; Robson v. Earl of Devon, 4 
 
 « SmalW'. Attwood, You. 461; Dim- Jur. K S. 245; Wheelton w. Hardisty, 
 
 mock V. Ilallett, L. R. 2 Cii. App. 27. 8 E. <fe B. 232 ; Smith v. Kay, 7 H. L 
 
 'Barry v. Crosskey, 2 J. <fe H. 1; 750,775. 
 New Brunswick, <i:c. Railway Co. v. 
 
 * McDonald v. Trafton, 15 Me. 225. 
 
 The representations need not be the sole inducement. It is sufficient 
 if the party would not have entered into the contract if the false represen- 
 tations had not been made. Shaw «. Stine, 8 Bosw. 157. 
 
 t Clark r. Everhart, C3 Penn. 347; Boyce v. Watson, 20 Geo. 517. 
 
 I Morgan r. Suapp, 7 Ind. 537; Hill v. Bush, 19 Ark. 532; Yeates ». 
 Prior, 6 Eng. 58.
 
 MISREPRESENTATION. 75 
 
 inducement. If any one of several statements, all iu their 
 nature more or less capable of leading the party to whom they 
 are addressed to adopt a particular line of conduct, be untrue, 
 the whole transaction is considered as having been fraudulently 
 obtained, for it is impossible to say that the untrue statement 
 may not have been precisely that which turned the scale in the 
 mind of the party to whom it was addressed.^ A man who 
 has made a false representation in respect of a material matter 
 must, in order to be able to rely on the defence that the trans- 
 action was not entered into on the faith of the representation, 
 be able to prove to demonstration that it was not relied on.^ 
 It is not enough for him to say that there were other represen- 
 tations by which the transaction may have been induced ;3 nor 
 can he be heard to say what the other party would have done, 
 had no misrepresentation been made/ 
 
 A misrepresentation to be of any avail whatever must 
 enure to the date of the transaction in question.' If a man 
 to whom a representation has been made, knows at the time, 
 or discovers before entering into a transaction, that the repre- 
 sentation is false,** or resorts to other means of knowledge 
 open to him, and chooses to judge for himself in the matter, 
 he cannot avail himself of the fact that there has been mis- 
 representation, or say that he has acted on the faith of the 
 representation.^ f Where, accordingly, an iron company had 
 
 ' Rej^ncll J'. Sprve, 1 D. M. & G. 708 ; Smith >'. Kay, 1 H. L. 750, 110; TraiU 
 
 Jennings v. Brou'shton, 6 D. M. & G. v. Baring, 33 L. J. Ch. 521, 527. 
 
 126; ( larlce r. Liekson, 6 C. B. N. S. Mrvine v. Kiikpatrick, 7 Bell, Sc. 
 
 453 ; Pmitli v. Kmv, 7 II. L. 750, 775. Ap. 186. 
 
 2 Rawlins v. Wirkliam. 3 D. <fe J. :^04 ; * lo. ; Yi>j:eva v. Pike, 8 CI & Fin. 
 
 Nic( ill's Case, ib. 337; Smith ?•. Kay, 7 650; Lord Bn oke v. Roundtliwaite, 5 
 
 II L. 7 775; Kisch i'. Central Ven- Ha. 208, 306; Nelson v. Slocker, 4 D. 
 
 ezuel.i Railway Co. 3 D. J. & S. 122. & J. 465. 
 
 * Kicoll's case, 3 D. <fc J. 387. 439. '' Lvsnev v. Sclby, 2 Lord Raj-mcmd, 
 
 Mleynell «. Sprye.lD. M. it G. 660; 1118, 1120; like v. Yigers, 2 Dr. <fe 
 
 * Andereon v. Buniett, 5 How. (3Iiss.) ICo ; Hughes v. Sloan, 2 .Ark 
 
 lie. 
 
 t IJough V. Rich:irdson, 3 Story, 6j:); Ver.sey ». Doton, 3 Allen, 380 —
 
 70 
 
 MISREPRESENTATIOJr. 
 
 sent some of their directors for the express purpose of verify- 
 ing the representations of a man respecting his works, who 
 expressed their satisfaction with the proofs produced, it was 
 held that the company had, by choosing to judge for them- 
 selves in the matter, precluded themselves from being able 
 to say that they had been deceived by the representations of 
 the vendor, and that it was their own fault if they had not 
 availed themselves of all the knowledge, or means of knowl- 
 edge, open to tliem.-^ So, also, where a man had, before 
 purchasing shares in a mine, visited the mine and examined 
 into its condition, it was held that he had not relied on repre- 
 sentations made to him by the vendor, and was not entitled 
 to avoid the contract, on the ground that they were false, the 
 alleged misstatements being such as he was competent to 
 detect,^ " Cases," said Lord Langdale, in Clapham v. Shilleto,^ 
 " frequently occur in wbich, upon entering into contracts, 
 misrepresentations made by one party have not been in any 
 degree relied on by the other. If the party to whom the 
 
 Wal. 261 ; Clarke v. Macintosh, 4 GifF. 
 134. See Farebrother v. Gibson, 1 D. 
 & J. 602. 
 
 'Attwood V. Small, 6 CI. & Fin. 
 232. 
 
 '■' Jennings v. Broughton, 1*7 Beav. 
 234, 5 D. M. & G. 126. See Lowndes 
 V. Lane, 2 Cox, 363 ; Vigers v. Pike, 8 
 
 CI. & Fin. 562, 650; Robson v. Lord 
 Devon, 4 Jui-. N. S. 245 ; Haywood v. 
 Cope, 25 Beav. 148; Kelson v. Stoc-ker, 
 4 1). & J. 465; New Brunswick <fec. 
 Railway Co. v. Conybeare, 9 H. L. 711, 
 730. 
 
 ' 1 Beav. 149. 
 
 The representation must have been honestly confided in. Casey v. Allen, 
 1 A. K. Marsh, 465. 
 
 A person is not bound by a representation so clearly and obviously 
 diifering frorc the fact, that every person having the use of the common 
 organs of sensation must know it to be erroneous ; for reliance is to be 
 jilaced upon the knowledge which these ofier, rather than upon the state- 
 ments of any one. Irving v. Thomas, 18 Me. 418. 
 
 If the misrepresentation renders the examination less perfect and full, 
 or makes the statements of the party to be in part confided in, as in respect 
 to details, extending personal inquiry only to general matters and general 
 appearances, the fraud vitiates the whole contract. Mason v. Crosby, 1 
 Wood & Mir. 342 ; Smith v. Babcock, 2 Wood «fc Min. 246.
 
 MISEEPEESENTATION. 77 
 
 representations were made, himself resorted to the proper 
 means of verification before entering into the contract, it 
 may appear that he relied on the results of his own inves- 
 tigation and inquiry, and not upon the representations made 
 to him by the other party ; ^ * or if the means of investigation 
 and verification be at hand, and the attention of the i)arty 
 receiving the representation be drawn to them, the circum- 
 stances of the case may be such as to make it incumbent on 
 a court of justice to impute to him a knowledge of the result, 
 which, upon due inquiry, he ought to have obtained, and 
 thus the notion of reliance on the representation made to him 
 may be excluded.* f Again, when we are endeavoring to 
 ascertain what reliance has been placed on representations, 
 we must consider them with reference to the subject-matter, 
 
 ' See Lowndes v. Lane, 2 Cox, 363 
 Pickering v. Dowson, 4 Taunt. 779 
 Attwood V. Small, 6 CI. & Fin. 232 
 
 D. M. & G. 126 ; Farebrother v. Gibson, 
 1 D. & J. 602 ; Clark i;. Macintosh, 4 
 Giff. 143 ; New Brunswick &c. llailway 
 
 Jennings v. Broughton, 17 Btav. 234, 5 Co. v. Coiiybeare, 9 II. L. 711 ; Hough 
 
 D. M. & G. 126; Haywood v. Cope, 25 v. Richardson, 3 Story (Amer.), 691 ; 
 
 Beav. 140; Hough v. Richardson, 3 Doggett w. Emerson, »6. 733 ; Mason w. 
 
 Story (Amer.) 691 ; Doggett v. Emer- Crosby, 1 Wood & M. (Aicer.) 342 ; 
 
 son, ib. 733 ; Mason v. Crosby, 1 Wood. Johnson v. Taber, 6 Seld. (Amer.) 319; 
 
 <fe M. (Amer.) 342. Gordon v. Parmelee, 2 Allen (Amer.) 
 
 ^ See Lowndes v. Lane, 2 Cox, 363 ; 214. 
 Jennings v. Broughton, 17 Beav. 231, 5 
 
 * Halls V. Thompson, 1 Smed. & Mar. 443 ; Perkins v. Rice, 6 Litt. 
 218. 
 
 t There is no misrepresentation, if the fact is one of which every man 
 is equally capable of judging for himself. Bell v. Henderson, 6 How. 
 (Miss.) 311 ; Mississippi Uni(m Bank v. Wilkinson, 3 Smed. & Mar. 78. 
 
 A purchaser is bound to exercise ordinary prudence and discretion, 
 and if the means of knowledge are within his power, and he neglects to 
 make the proper inquiry, he loses his remedy against the vendor for any 
 fraudulent representation the latter may make. Bell v. Bycrson, 11 low^a, 
 233 ; Schermerhoru v. George, 13 Abb. Pr. 315 ; White v. Seaver, 25 Barb. 
 235 ; Burton v. Willers, 6 Litt. 32. 
 
 Where a party is, from the circumstances, induced to rely upon the 
 representations of the vendor, he may rescind the contract, although the 
 means of obtaining information were open to him. Mattock v. Todd, 19 
 Ind. 130.
 
 78 MISREPRESENTATION. 
 
 and the relative knowledge of the parties. If the subject is 
 capable of being accurately known, and one party is, or is 
 supposed to be, possessed of accurate knowledge, and the 
 other is entirely ignorant, or has not equal means of knowl- 
 edge, and a contract is entered into, after representations 
 made by the party who knows, or is supposed to know, 
 without any means of verification being resorted to by the 
 other, it may well enough be presumed that the ignorant 
 man relied on the statements made to him by him who was 
 supposed to be better informed ; ^ * but if the subject is in 
 its nature uncertain, if all that is known is matter of infer- 
 ence from something else, and if the parties making and 
 receiving representations on the subject have equal knowledge 
 and means of acquiring knowledge, it is not easy to presume 
 that the representations made by the one would have much, or 
 any, influence on the other," ^ f 
 
 The allegation of misrepresentation may be effectually met 
 by proof that the party complaining was well aware and 
 cognizant of the real facts of the case, but the proof of 
 
 ' See Ly?ney v. Selby, 2 Lord ^ See Lowndes v. Lane, 2 Cox, 363 ; 
 
 Ra^^n. 1118-1120; Lowndes v. Lane, Harris v. Kemble, 1 Sim. Ill, 5 Bligh, 
 
 2 Cox, 363; Edwards v. M'Cleay, 2 Sw. 730; Attwood v. Small, 6 CI. & Fin. 
 
 289; Vernon v. Keys, 12 East'^ 637, 4 232; Knight v. Marjoribanks, 2 H. <fe 
 
 Taunt. 488 ; Martin v. Cotter, 3 J. <fe L. Tw. 316; Jennings v. Broughton, 17 
 
 506 ; Reynell v. Sprye, 1 D. M. & G. Beav. 234, 5D. M. <fe G. 126; Haywood 
 
 660 ; Price v. Macaulay, 2 D. M. <k G. v. Cope, 25 Beav. 140 ; Clai-ke v. Macin- 
 
 339 ; Rawlins v. Wickham, 3 D. <fe J. tosh, 4 Giff. 143 ; National Exchange 
 
 3ii4; Strangways v. Bishop. 29 L. T. Co. v. Drew, 23 Dec. of Ct. of Session, 
 
 120; Higgins v. Saniels, 2 J. <t 11. 460 ; 2d series, p. 1 ; Hough v. Richardson, 3 
 
 Warner v. Daniels, 1 Wood. & M. Story (Amer.) 691 ; Johnson r. Taber, 6 
 
 (Amer.) 90 ; Mason v. Crosby, 2 Wood. Seld. (Amer.) 319. 
 & M. (Amer.) 353. 
 
 * Picard 13. McCorraick, 11 Mich. 68; Harvey v. Smith, 17 Ind. 372 ; 
 Nowlan v. Cain, 3 Allen, 261 ; Beard v. Campbell, 2 A. K. Marsh, 125 ; 
 Karcissa v. Wathan, 2 B. Mon 241 ; Spence v. Whitaker, 3 Port. 297. 
 
 t Halls V. Thompson, 1 Smed. & Mar. 443 ; Strong ». Peters, 2 Root, 
 03 ; Glasscock v. Minor, 11 Mo. 655 ; Fallon v. Hood, 34 Penn. 365 ; Farrar 
 p. Alston, 1 Dev. 69 ; Saunders «. Hatterman, 2 Ired. 32; Moore v. Turbe- 
 ville, 2 Bibb. 602.
 
 MISREPRESENTATION. 79 
 
 knowledge must be clear and conclusive. A man who, by 
 misrepresentation or concealment, has misled another, cannot 
 be heard to say that he might have known the truth by proper 
 inouiry ; but must, in order to be able to rely on the defence 
 that he knew the representation to be untrue, be able to estab- 
 lish the fact upon ineontestible evidence, and beyond the 
 possibility of a doubt.^ * 
 
 If the subject-matter is not property in this country, where 
 probably independent inquiry would be made and inspection 
 might take place, but property at such a distance that any per- 
 son purchasing it is obliged to rely on the statement made with 
 respect to it, the argument is the stronger that reliance has 
 been placed on the representations.^ f If a definite or particu- 
 lar statement be made as to the contents of property, and the 
 statement be untrue, it is not enough that the party to whom 
 the representation was made may have been acquainted with 
 
 ' Dyer v. Hargrave, 10 Ves. 505 ; Venezuela Railway Co. 3 D. J. <fe S. 
 
 Harris v. Kenible, 5 Bligh, 730; Vigers 122 ; Central Railway of Venezuela Co. 
 
 V. rike, 8 CI. <fe. Fin. 562, 050; Wilson v. Kisch, L. R. 2 App. Ca. 114; Law- 
 
 V. Sliort, 6 Ha. 366, 375 ; Sliackleton ^;. Fence's Case, L. II. 2 Cii. App. 422. See 
 
 Sutcliffe, 1 Deg. <fe S. 609 ; Martin v. Nelson v. Stocker, 4 D. <fe J. 465. 
 Cotter, 3 J. & L. 496, 506 ; Reynell v. ' Smith's Case; Re Reese River Sil- 
 
 Sprye, 8 Ha. 257 ; Price v. MacauLiy, ver Mining Co., L. R. 2 Ch. App. 614. 
 2 I>. M. & Q. 339 ; Kisch v. Central 
 
 * Boyce v. Grundy, 3 Pet. 210 ; Young v. Harris, 2 Ala. 108 ; Clapton 
 t, Cogart, 3 Smetl. & Mar. 363 ; Connersville i\ Wadleigli, 7 Blackf. 103 ; 
 Anderson v. Burnett, 5 How. (Miss.) 165. 
 
 The rule that there is no reliance where the means of information are 
 equally open to both parties, does not apply to misreprescntaiions where- 
 by a surety obtains his release from a bond. Hoitt v. Holcomb, 33 N. H. 
 185. 
 
 t Wherever a sale is made of property not present but at a remote diS' 
 tance, which the vendor knows the purchaser has never seen, I.)ut which 
 he buys upon the representation of the vendor, relying on its truth, then 
 the representation in etl'cct amounts to a warranty ; at least that the vendor 
 is bound to make good the representation. Smith «. Richards, 13 Pel. 26 ; 
 Babcock v. Case, 61 Penn. 437 ; Spalding v. Hedges, 2 BaiT, 240 ; Miner v. 
 llcdhuvj, 6 Wis. 205 ; Beau v. Hcrrick, 12 Me. 202 ; Camp v. Camp, 3 
 Ala. 632.
 
 80 MISREPRESENTATION. 
 
 tlie pi'opertj. A very intimate knowledge witli the premises 
 will not necessarily imply knowledge of their exact contents, 
 while the particularity of the statement Avill naturally convey 
 the notion of exact admeasurement.^ The fact that he had the 
 means of knowing or of obtaining information of the truth 
 which he did not use is not sufficient.^ It is not indeed enough 
 that he may have been wanting in caution. A man who has 
 made false representations, by which he has induced another to 
 enter into a transaction, cannot turn round on the person whom 
 he has defrauded and say that he ought to have been more 
 prudent and ought not to have concluded thvi representations 
 to be true in the sense which the language used in the pros- 
 pectus naturally and fairly imports.^ ISTor is it enough that 
 there may be circumstances in the case w^hich, in the absence 
 of the representation, might have been sufficient to put him 
 on inquiry. The doctrine of notice has no application where a 
 distinct representation has been made. A man to whom a 
 particular and distinct representation has been made is entitled 
 to rely on the representation and need not make any further 
 inquiry, although there are circumstances in the case from 
 which an inference inconsistent witli the representation might 
 be drawn.* He is not bound to inquire unless something has 
 happened to excite suspicion,^ or unless there is something in 
 the case or in the terms of the representation to put him on 
 inquiry.^ The party who has made the representation cannot 
 
 » Hill V. Bncldev, 17 Ves. 394. See dale v. Mace, 2 Sm. & G. 225, 230, 5 D. 
 
 Kin;^ V. Wilson, 6 Beav. 124. M. A G. 103 ; Cox v. Midilleton, 2 Drew. 
 
 " Lysncj' v. Selby, 2 Lord Raym. 209; Grosvenor v. Green, 5 Jxir. N. S. 
 
 1118,"ll20; Dobellw. Stevens, 3B. (feC, 117; Rawlins v. Wickliam, 3 D. & J. 
 
 623; Rawlins w. Wickliam, 3 D. & J. 318; Kisch r. Central Venezuela Rail 
 
 319. -way Co., 3 D. J. & S. 122; Smitli i>. 
 
 ' New Brunswick (fee. Railway Co. v. Reese River Silver Mining Co., L. R. 2 
 
 Mutrueridge, 1 Dr. & Sm. 382. Eq 264. 
 
 ^ Grant v. Muiit, Coop. 173 ; Van v. ^ Rawlins v. Wickham, 3 D. <fe J. 304. 
 
 Corpe, 3 M. & K. 269 ; Flight v. Barton, See Farebrother v. Gibson, 1 D. <fe J. 
 
 ib. 282; Dobell v. Stevens, 3 B. cfe C. 602. 
 
 623; Pope v. Garland, 4 Y. & C. 394; « Kent v. Freehold Land and Brick 
 
 Wilson V. Short, 6 Ha. 366, 377 ; Drys- making Co., L. R. 4 Eq. 598.
 
 MISREPRESENTATION. 81 
 
 be allowed to say that he told liim where further information 
 was to be got, or recommended liim to take advice, and even 
 put into his hands the means of discovering the truth. How- 
 ever negligent the party may have been to whom the incorrect 
 statement has been made, yet that is a matter affording no 
 ground of defence to the other. No man can complain that 
 another has relied too implicitly on the truth of what he him- 
 self stated.' If a vendor has stated in his proposals the value 
 of the property, he cannot, except under special circumstances, 
 complain that the purchaser has taken the value of the prop- 
 erty to be such as he represented it to be.^ The effect of what 
 would be otherwise notice may be destroyed not only by actual 
 misrepresentation but by anything calculated to deceive or 
 even to lull suspicion upon a particular point.^ * A vendor of 
 property on lease, for instance, is not justified in parading upon 
 his particulars of sale the existence of covenants beneficial to 
 the estate which he knows or has good reason to believe cau 
 not be enforced.* 
 
 The maxim caveat emptor does not apply where there is a 
 positive misrepresentation, essentially material to the subject 
 in question, provided proper diligence be used by the pur- 
 chaser in the course of the transaction.^ The rule at least of 
 caveat emptor, where there is misrepresentation, if applicable 
 
 ' Rcynpll V. Sprye, 1 D. M. & G. 660, Darlington v. Hamilton, Kay, 550 
 
 710; llinvlins ?>. Wickham, 3 D. & J. Smith v. Harrison, 20 L. J. Cli. 412 
 
 .'^IS; Smith !'. Reese River Silver Min- Sheard i'. Venables, 36 L. J. Ch. 922 
 
 ins; Co., L. R. 2 Eq. 264 ; Colby w. Gads- Dart, V. <fe P. 75. 
 den, 15 W. R. 1185. See Harris v. ■* Flint c. Woodin, 9 Ha. 618. 
 
 Kemble. 5 Bligh, 730. * Lowndes v. Lane, 2 Cox, 363 ; 
 
 ^ Perfect V. Lane, 3 D. F. & J. 309. Robsoa v. Earl of Devon, 4 Jur. N. S. 
 
 3 Dykes v. Blake, 4 Bing. N. C. 403; 245. 
 Bartlett v. Salmon, 6 D. M. »fc G. 41 ; 
 
 * Camp ». Camp, 2 Ala. 633 ; Parham ®. Randolph, 4 How. (Miss.) 435. 
 When the misrepresentation relates to tlie title, the fact that the deed 
 is on record is immaterial. Parham v. Randolph, 4 How. (Miss.) 435
 
 82 MISHEPKESENTATION. 
 
 at all, must be applied with great caution.'* Nor will a con- 
 dition in particulars of sale that misdescriptions or errors in 
 particulars of sale shall not annul the sale cover a fraudulent 
 misrepresentation.' 
 
 A misrepresentation, to be material, should be in respect 
 of an ascertainable fact, as distinguished from a mere mattei 
 of opi:iion.3f A representation which merely amounts to a 
 statement of opinion, judgment, probability, or expectation, or 
 is vague and indefinite in its nature and terms, or is merely a 
 loose, conjectural, or exaggerated statement, goes for nothing, 
 though it may not be true, for a man is not justified in placing 
 reliance on it.** :j: An indefinite representation ought to put 
 the person to whom it is made upon inquiry.^ If he chooses 
 to put faith in such a statement, and abstains from inquiry, he 
 has no ground of complaint.^ Mere exaggeration is a totally 
 
 > Colby V. Gadsden, 15 W. R. 1185. & G. 134; Iliggins v. Samels, 2 J. (fe H. 
 
 " Duke of Norfolk v. Worthy, 1 464 ; Leyland v. Illingwortli, 2 D. F. & 
 
 Camp. 337 ; Fenton v. Brown, 14 Ves. J. 248. 
 
 144; Stewart v. Alliston, 1 Mer. 26; * Ilaycraft v. Creasy, 2 East, 92; 
 
 Trower v. Newconibe, 3 Mer. 704; Drysdale v. Mace, 5 D. M. <fe G. 107; 
 
 Shackleton v. Sutcliffe, 1 Deg. & S. Kisch v. Central Venezuela Railway Co. 
 
 609; Leslie v. Tompson, 9 Ha. 273. 3 D.J. & S. 122; Deuton v. ISlarneil, 
 
 See Edwards v. Wickwar, L. R. 1 Eq. L. R. 2 Eq. 352 ; Dimmock v. Ilallet, 
 
 68. L. R. 2 Ch App. 27. 
 
 ' Lvsney v. Selby, 2 Lord Raym. * Lord Brooke v. Roundtlnva'te, 5 
 
 1118;' Brunton v. Lister, 3 Atk. 386; Ha. 304; Dimmock v. Hallett, L. R. 2 
 
 Vernon v. Keys, 12 East, 632, 4 Taunt. Ch. App. 27. 
 448 ; Jennings v. Broughton, 5 D. M. * Jb. 
 
 * The line 'wbicli seiDarates cases where the rule of caveat emptor 
 applies from others which call for relief, is not defined with entire pre- 
 cision. Each one will rest, in some measure, upon its peculiar circumstances. 
 Bean «. Ileirick, 13 Me. 263; Piingle v. Samuel, 1 Litt. 43. 
 
 t Davis V. Meeker, 5 Johns. 354 ; Manney v. Porter, 3 Humph. 347. 
 
 X Payne t. Smith, 20 Geo. G34; Foley r. Cowgill, 6 Blackf 18; Turner 
 V. Navigation Co. 3 Dev. Ch. 336 ; Halls v. Thompson, 1 Smed. & Mar. 
 443. 
 
 A failure in a speculation does not constitute giound for relief. Tur- 
 ner v. Navigation Co. 3 Dev. Ch. 236. 
 
 A misrepresentation which is calculated to put common prudence oflf 
 its guard, is sufficient. Bean v. Herrick, 13 Me. 363.
 
 MISEEPRESEXTATION". 83 
 
 different thing from misrepresentation of a precise or definite 
 fact.^ * Such statements, for instance, as assertions as to the 
 value of property,^ or representations hy the agent of the ven- 
 dor of land that the title is good,^ or mere general terms of 
 commendation,'* or mere general and exaggerated statements 
 as to the profits and prospects of a company,^ or as to the 
 value of securities,^ or as to the situation of property,' or me)-e 
 loose, conjectural, or exaggerated assertions with respect to a 
 subject matter, which is a matter of speculation, or is essen- 
 tially of an uncertain nature,^ or mere conjectural estimates,' f 
 are only exj)ressions of opinion or judgment, as to which 
 honest men may well differ materially. Mere general asser- 
 
 ' Higgins V. Samels, 2 J. <k H. 464; wood v. Cope, 25 Beav. 140; Higgina 
 
 Ross V. Estates Investment Co. L. R. 3 v. Samels, 2 J. <fe H. 460. 
 
 Eq. 136. * New Brunswick, <fec., Railway Co. 
 
 ^Harvey v. Young, Yelv. 20 ; Baily v. Conybeare, 9 H. L. 711; Kisch v, 
 
 V. Merrell, 3 Bnlst 94 ("ro. Jac. 386 ; Central Venezuela Railway Co. 3 D. J. 
 
 Jendwine v. Slade, 2 Esj). 572; Ingram <fe S. 122; Denton v. Macneil, L. R. 2 
 
 V. Thorp, 7 Ha. 74. Eq. 3.52. 
 
 ' Ilume V. Pocock, L. R. 1 Ch. App, " National Exchange Co. v. Drew, 23 
 
 385. Dec of Ct. of Session, 2d series, p. I. 
 
 * Fenton v. Brown, 14 Ves. 144; ' Colby v. Gadsden, 34 Beav. 416. 
 
 Trower i\ Newconie, 3 Mer. 704 ; Scott * Jennings v. Broun-hton, 5 D. M. & 
 
 «/. Hanson, 1 R. & M. 129; White i;. G. 136; Ste^jhens y. VenableS, 31 Beav. 
 
 Cuddon, 8 C\. & Fin. 766 ; Dimmock v. 124. 
 
 Hallett, L. R. 2 Ch. App. 26. See Jen- " Irvine v. Kirkpatrick, 7 Bell, Sc. 
 
 nings V. Broughton, 5 D. M. & G. 126 ; App. Ca. 186. 
 Johnson v. Smart, 2 Giff. 151; Uay- 
 
 * A fraudulent combination and confederacy, between a lessee and a 
 third person, to ind:;ce the lessor to purchase the leasehold Ihrou-i'h folse 
 representations made by such third person, and an assertion of his desire 
 to purchase in case he can obtain the property, is not a simple commenda- 
 tion. Adams v. Soule, 33 Vt. 538. 
 
 t A gross misrepresentation, as to the boundaries of land, is fraudulent, 
 Griggs V. Woodruff, 14 Ala. 9 ; Elliott v. Boaly, 9 Ala. 773 ; Fisher o. 
 Probart, 5 Hey. 75 ; Camp v. Camp, 3 Ala. 633. 
 
 To ascertain the quantity of land requires greater skill and a larger 
 proportion of science than is acquired by the majority of men, and a mis- 
 representation in that respect is material. Pringle «. Samuel 1 Litt. 43. 
 
 The estimates of quantities, in themselves uncertain and unmeasured, 
 may differ at different times from various circumstances, without any sus- 
 picion of willful misrei^rcocntation. Stebbins v. Eddy, 4 ISIason, 414.
 
 84 MISREPKESENTATION. 
 
 tions of a vendor of property as to its value, or tlie price he 
 has been offered for it, or in regard to its qualities and charac- 
 teristics ; as, for instance, that land is fertile and improvable, 
 or that soil is adapted for a particular mode of culture, or is 
 well watered, or is capable of producing crops, or supporting 
 cattle, or that a house is a desirable residence, &c., are assumed 
 to be so commonly made by persons having property for sale? 
 that a purchaser cannot safely place confidence in them. Af- 
 firmations of the sort are always understood as affording to a 
 pm'chaser no ground for neglecting to examine for himself, 
 and ascertain the real condition of the property. They are, 
 strictly speaking, gratis dicta. A man who relies on such 
 affirmations, made by a person whose interest might so readil_y 
 prompt him to invest the property with exaggerated value, 
 does so at his peril, and must take the consequences of his own 
 imprudence ; emjptor emit quam minimo potest / venditor 
 vendit quam maxhno potest} * Although such affirmations 
 may be erroneous or false, they will not, except in extreme 
 cases, be regarded as evidence of a fraudulent intent.^ A. 
 statement of value may, however, be so plainly false, as to 
 make it impossible for the party to have believed what he 
 stated.^t So, also, statements with respect to the quality or 
 condition of land, will, if erroneous or false, amount in ex- 
 treme cases, to a misrepresentation in law.* So, also, a state- 
 
 ' 1 Roll. Ab. 101, pi. 16; Leakins v. ^ lb. ; Dimmock v. Halfett, L. R. 2 
 
 Clissell, 1 Sid.HG, 1 Lev.102; Harvey?;. Ch. App. 26. 
 
 young, Yclv. 20 ; Trower t). Newcome, 'Wall ;•. Stubbs, 1 Madd. 80; In- 
 
 3 Mer. 704; Scott i'. Hanson, 1 1!. & M. gram ;• Tliorp, 7 Ha. 74. 
 
 129 ; Medburj' v. Watson, 6 Mete. * Dimmock v. Hallett, L. R. 2 Ch. 
 
 (Amer.) 2.'59 ; Gordon v. Parmeloe, 2 App. 26 ; Van Epps «. Harrison, 5 HBl 
 
 Allen (Amer.), 214; Manning v. Albee, (Amer.), 67. 
 11 ib. 522. 
 
 * Anderson v. Hall, 2 Smed. & Mar. 679 ; Evans v. Boiling, 5 Ala. 550 ; 
 Halls V. Thompson 1 Smed. & Mar. 443. 
 
 t Broddus v. McCall, 3 Call. 546; Peyton v. Butler, 3 Hey. 141 ; Pitta 
 V. Cottingbam 9 Port. 675.
 
 MISREPRESENTATION. 85 
 
 nienfc in the prospectus of a company, that the promoters of 
 the company had taken " a large portion " of the shares, 
 though vague in its nature, will amount, in extreme cases, to a 
 misrepi'esentation.' 
 
 An assertion that a third person has offered a specified sum 
 for the property, though false, is, like mere statements of 
 value, an assertion of so vague and loose a character, that a 
 purchaser is not justified in relying on it.^ 
 
 The difference between a false averment in matter of fact, 
 and a like falsehood in matter of judgment, opinion, and esti- 
 mate, is well illustrated by familiar cases in the books. If the 
 owner of an estate affirm that it will let or sell for a given sum, 
 when, in fact, such sum cannot be obtained for it, it is, in its 
 own nature, a matter of judgment and estimate, and so the par- 
 ties must have considered it.^ * But if an owner falsely affirm 
 that an estate is let for a certain sum, when it is, in fact, let for 
 a smaller sum, or that the profits of a business are more than, 
 in fact, they are, and thereby induces a purchaser to give a 
 higher price for the property, it is fraud, because the matter 
 lies within the private knowledge of the owner.^ If, again, 
 
 ' Henderson v. Lacon, L. R. 5 Eq. * Ekins v. Treshani, 1 Lev. 102 
 
 257 Lysney v. Shelby, 2 Lord Raym. 1118 
 
 "Sug. V. <fe P. 3, 1 Roll. Ab. 101,pl. Dobell v. Stevens. 3 B. <fe C. G23 
 
 16 Hutchinson v. Morley, *1 Scott, 341 
 
 ^ Harvey v. Young, Yelv. 20, 1 Roll. Dimmock v. Hallett, L. R. 2 Ch. App, 
 
 Ab, 801, pi. 16 ; Leakins 1^. Clissell, 1 28; Medbury v. Watson, 6 Mete 
 
 Sid. 14ij ; comp. Dimmock v. Hallett, (Amer.) 259. 
 L. R. 2 Ch. App. 28. 
 
 * If a person sells a tract of land, claiming to be the owner, and 
 knowing that he is not so, he is guilty of fraud. But if he professes 
 to sell, not the paramount title, but a claim derived from a jjarticular 
 source he is not guilty of a fraud, merely, because he expresses an opinion 
 as to the legal value or strength of his claim, which the facts do not justify, 
 so lono- as he makes no false statement as to what those facts are. Drake 
 V. Latham, 50 Dl. 270. 
 
 A false representation that land will yield a certain amount of salt- 
 petre, is fraudulent. Perkins v. Rice, G Litt. 218.
 
 86 MISREPRESENTATION. 
 
 tlie owner of land represent that it is well watered, the state- 
 ment will not, although erroneous or false, amount in law to a 
 misrepresentation, except in extreme cases ; ^ bnt, if he repre- 
 sents that land is situated on the banks of a river, whereas it is 
 some miles off from the river, there is misrepresentation, for 
 the false representation is in respect to a precise and definite 
 fact.*^ So, also, is there misrepresentation of a fact, if the 
 representation he calculated to lead the person to whom it is 
 made to believe that there is a natural supply of water on the 
 property, whereas the fact is that the property, though well 
 supplied with water, derives its supply artificially from the 
 waterworks of a town, and by payment of rates.^* 
 
 The representation of an actual state of things as existing, 
 is equivalent to the misrepresentation of a fact.* 
 
 In Yernon v. Keyes,^ the true rule was stated to be that 
 the seller was liable to an action of deceit, if he fraudulently 
 misrepresent the quality of the thing sold in some particulars 
 which the buyer has not equal means of knowledge with him- 
 Belf ; or if he do so in such a manner as to induce the buyer 
 to forbear making the inquiries which, for his own security 
 and advantage, he w^ould otherwise have made. 
 
 The rule that exaggeration, as distinguished from misrep- 
 resentation, goes for nothing, applies with peculiar force to the 
 case of statements in the prospectuses of companies. The 
 promoters of adventures are so prone to form sanguine expec- 
 tations as to the prospects of the schemes which they introduce 
 to the public, that some high coloring and some exaggeration 
 
 * Scott V. Hanson, 1 R. <fe M. 129; = Leyland v. Ulingworth, 2 D. F. A 
 
 Trower v. Newcome, 3 llei\ 7t>4. J. 203. 
 
 ^ Van Epps v. Hanison, 5 Hill ^ Piggott t>. Stratton, John. 359 ; 1 D 
 
 (Amer.), 07. F. <fe J. 49. 
 
 * 12 East, 032. 
 
 * Pitts V. Cottingham, 9 Port. 675 ; Lewis v. McLemon, 10 Yerg. 205; 
 Mouell V. Golden, 1:3 Johns. 395.
 
 MISREPRESENTATION. 87 
 
 in the description of the advantages which are likely to be en- 
 joyed by the subscribers to the undertaking, may generally be 
 expected in such documents. No prudent man can, owing to 
 the well-known prevalence of exaggeration in such documents, 
 accept the prospects which are held out by the originators of 
 every new scheme, without considerable abatement. But, 
 though the representations in the prospectus of a company 
 ought not, perhaps, to be tried by as strict a test as is applied 
 in other cases, they are required to be fair, honest, and bond 
 fide. There must be no misstatement of any material facts or 
 circumstances.-^ 
 
 As, on the one hand, mere assertions of value by the ven- 
 dor of property are not fraudulent in law, though erroneous or 
 false ; so, on the other hand, a disparagement of property by a 
 purchaser is not a frand.^ Kor is a buyer liable for misrepre- 
 senting a seller's chance of sale or probability of his getting a 
 better price. It is a false representation in a matter merely 
 gratis dictum by the bidder, in respect of which he is under 
 no legal duty to the seller for the correctness of his statement, 
 and upon which the seller would be incautious to rely.' So, 
 also, is a representation by a purchaser to a seller, that his 
 partners would not consent to his giving more than a certain 
 sum, though false, merely a gratis dictum.^ But though the 
 value of property is generally a matter of opinion, a vendor 
 may put upon a purchaser the responsibility of informing him 
 correctly as to the market value, or any other fact known to 
 him, affecting the value of property, and if the purchaser an- 
 swers untruly, there is fraud. He is not bound to answer in 
 such cases, but if he does he is bound to speak the truth.^ 
 
 'Kisch V. Central Railway Co. of "Tate V.Williamson, L. R. 2 Ch. 
 
 Venezuela, 3 D. J. & S. 122; Denton App. 65. 
 
 V. Macneil, L. R. 2 Eq. ;?52 ; Central ' Vernon v. Keys, 12 East, 637. 
 
 Railway Co. of Venezuela v. Kisch, L. * Ih. 
 
 R. 2 App Ca. 113. "Smith v. Countryman, 3 Tiff. 
 
 (Amer.) 683, per Miller, J.
 
 88 MISRErEESENTATION. 
 
 The representations of a vendor of real estate to the 
 vendee, as to the price which he lias paid for it, are, in respect 
 of the I'eh'ance to be placed on them, to be regarded generally 
 in the same light as representations respecting its value, or 
 the ofters which have been made for it. A purchaser is not 
 justified in placing confidence on them.' But a false affirma- 
 tion by a vendor as to the actual cost of property,^* or as 
 to the amount spent upon it by him in improvements,^ may 
 amount to a fraudulent misrepresentation. 
 
 A vendor is not bound to disclose to the vendee the true 
 ownership of the property he is engaged in selling, but he is 
 bound to abstain from making any misrepresentations respect- 
 ing the ownership.* 
 
 As distinguished from the false representation of a fact, the 
 false representation as to a matter of intention, not amounting 
 to a matter of fact, though it may have influenced a transac- 
 tion, is not a fraud at law,^ nor does it afi'ord a ground for 
 relief in equity.^ Where a man was induced to grant a lease 
 of certain premises to another, upon a representation that he 
 intended to use the premises for a stated purpose, whereas he 
 intended to use and did use them for a diflPerent and illegal 
 purpose, it was held that the misrepresentation did not entitle 
 the lessor to have the lease avoided.''' So, also, where a man 
 who had given a bond to another, upon which judgment had 
 been entered up, had married upon the declaration of the 
 
 ' Medbury V.Watson, 6 Mete. (Amer.) Fellowes v. Lord Gwydyr, 1 R. <fe M 
 
 259 ; Ilemmer v. Cooper, 8 Allen 83 ; Nelthorpe v. Ilolgate, 1 Coll. 203. 
 
 (Amer.), 334. ^Vernon v. Keys, 12 Enst, 637; 
 
 * Sandford, v. Handy, 23 Wend. Hemmingway v. Hamilton, 4 M. & W. 
 (Amer.) 269 ; Van Epps v. Harrison, 5 122 ; Feret v. Hill, 15 C. B. 22.5. 
 Hill(Amer.), 6V. " Jorden v. Money, 5 H. L. 185; 
 
 ' Ross V. Estates Investment Co., L. Bold v. Hutchinson, 5 D. M. & G. 558; 
 
 R. 3 Eq. 136. Kay v. Crook, 3 Sm. & G. 407. 
 
 * Hill '.'. Gray, 1 Stark, 434 ; Maturin ''Feret v. Hill, 15 C. B. 207. 
 V. Tredennick,'2 N. K. 514; but comp. 
 
 * Bandford v. Handy, 23 Wend. 2C0 ; Pendergast v. Reed, 29 Md. 398.
 
 MISEEPRESEXTATION. 89 
 
 person who lield the bond and warrant of attorney, that she 
 had abandoned the claim, and would never trouble him about 
 it, the court would not restrain her from enforcing at law the 
 judgment on the warrant of attorney. Lord St. Leonards, 
 however, dissented from the opinion of the majority of the 
 court, holding it to be immaterial in equity, whether the mis- 
 representation be of a fact or an intention.-' But if the repre- 
 sentation, though in form a representation as to a matter of 
 intention, amounts in effect to a representation as to a matter 
 of fact, relief may be had in equity. Where, accordingly, a 
 lessor, pending an agreement for a building lease, represented 
 to the intended lessee, that he could not obstruct the sea view 
 from the houses to be built by the lessee, because he himself was 
 a lessee under a lease for 999 years, containing covenants which 
 restricted him from so doing ; but after the building lease had 
 been taken, and the houses built upon the faith of the repre- 
 sentation the lessor surrendered his 999 years' lease, and took 
 a new lease omitting the restrictive years, the court, consider- 
 ing the representation to have been in effect a representation 
 as to a matter of fact, restrained the lessor by injunction from 
 building so as to obstruct the sea view.^ 
 
 A representation which amounts to a mere expression, of 
 intention must be distinguished from a representation which 
 amounts to an engagement. If a representation amounts to an 
 engagement, the party making it is bound in equity to make it 
 good.^ Where, for instance, a man previously to the- marriage 
 of his daughter said he intended to leave her 10,000Z. which 
 was to be settled in a particular way, and that the person about 
 to marry her was for this reason to settle 5,0001. on her, and 
 
 ' Jorden v. Money, 5 H. L. 185. See * Ilammersley v. De Biel, 12 CI. & 
 
 Cross ?i. Sprii^ge, 6 Ha. 553 ; Maunsell Fin. 45; Maunsell ». Hedj^es, 4 11. 1,. 
 
 V. Hedges, 4 H. L. 1039; comp. Yeo- 105H ; Loxley )•. Heath, 1 D. F. <fe J. 
 
 mans v. Williams, L. R. 1 Eq. 185. 492 ; LotfusV Maw, 3 Gitf. 592. 
 
 " Piggott V. Slratton, John. 369, 1 D. 
 F. & J. 49.
 
 90 MISREPEESElfTATION. 
 
 the party did make the settlement and married the lady, the 
 engagement was held binding, for the circumstances amounted 
 to a contract.^ If, on the other hand, a man previously to the 
 marriage of a relation tells him that he has made his will and 
 left him his property, and that he is confident he never would 
 alter his will to his disadvantage, or tells him before his mar- 
 riage to his daughter that he would leave her so much money, 
 this is a mere expression of intention, on which the person to 
 whom it is addressed is not justified in relying.^ A representa- 
 tion which amounts to an eno-ao^ement is enforced not as beino; 
 a representation of an intention, but as amounting to a con- 
 tract.^ There is no middle term, no terthiin quid, between a 
 representation so made to be effective for such a purpose and 
 being effective for it and a contract.* 
 
 A misrepresentation of a matter of law does not constitute 
 fraud at law, because the law is presumed to be equally within 
 the knowledge of all the parties. Thus, the misrepresentation 
 of the legal effects of a written agreement which a party signs 
 with a full knowledge of its contents, is not a sufficient ground 
 at law for avoiding the agreement.^* But if a man dealing 
 with another misleads him, and takes advantage of his ignor- 
 ance respecting his legal position and rights, though there may 
 
 'Hammerslcy v. De Bid, 12 CI. & ' Bold v. Ilutcliinsm, 5 D. M. AG. 
 
 Fin. 45. See Barkworth zj. Young, 4 558; Maunsell )■. Hedges, 4 H. L. 1056; 
 
 Drew. 1; I'role v. Soadv, 2 Giff.' 20; Loxley v. Heath, 1 D. F. & J. 492. 
 
 Loffus V. Maw, 3 Giff. 592 ; Alt v. Alt, * 4 H. L. 1055, per Lnrd Cranwortb. 
 
 4 Giff. 84. * Lewis r. Jones, 4 B. <fc C. 506. See 
 
 » Bold V. ITuteliinson, 5 D. M. <fe G. Blacklnirn's Case, 8 D. M. & G. 177: 
 
 5.^8; Maunsel! c lled-:es, 4 II. L. 1030 ; Raslidall v. Ford, L. R. 2 Eq. 750. 
 Loxk-y V. Heath, 1 1). F. & J. 492 ; 
 Laver v. Gilder, 32 Beav. 4. 
 
 * Russell V. Branham, 8 Blackf. 277 ; Starr v. Bennett, 5 Hill, 303 ; 
 Martin r. Wbarton, 38 Ala. G37 ; Fish r. Clelaud, 33 111. 233 ; Jasper v. 
 Hamilton, 3 Dana, 280 ; Goode v. Hawkins, 2 Dev. Ch. 393 ; Clem v. New 
 & Dan. R. R. Co., 9 Lad. 488.
 
 MISPtEPRESEXTATION. 91 
 
 be no legal fraud, the case may come within the jurisdiction 
 exercised by courts of equity to prevent imposition.^* 
 
 To constitute a fraudulent representation, the representa- 
 tion need not be made in terms expressly stating the existence 
 of some fact which does not exist. If a statement be made by 
 a man in such terms as would naturally lead the person to 
 whom it was made to suppose the existence of a certain state 
 of facts, and if such statement be so made designedly and 
 fraudulently, it is as much a fraudulent misrepresentation as if 
 the statement of an untrue fact were made in express terms.^ 
 
 A representation may be false by reason not only of posi- 
 tive misstatements contained in it, but by reason of intentional 
 suppression whereby the information it gives assumes a false 
 -^olor, giving a false impression, and leading necessarily, or 
 almost necessarily, to erroneous conclusion.^ Fallit et qui ob- 
 scure loquitur et qui dissimulat insidlose vel obscure} Dolum 
 malum a se abesse praestare venditor debet : qui non tantum 
 in eo est qui fallendi causa obscure loquitur ^ sed etiam qui 
 insidiose, obscure dissimulat.^ It is the duty of a vendor of 
 property to make himself acquainted with all the peculiarities 
 and incidents of the property which he is going to sell, and 
 when he describes the property for the information of a pur- 
 chaser, it is his duty to describe everything which it is material 
 for him to know, in order to judge of the nature and value of 
 the property. It is not for him just to tell what is not actually 
 
 ' Infra Mistake. Flint v. Woodin, 9 Ha. 621 ; comp. 
 
 » Lee V. Jones, 17 C. B. N. S 510, jier Bold v. Hutchinson. 5 D. M. <fe G. 558. 
 Crompton, J. ; L<i\viidcs v. Lane, 2 Cox, ^ Cullen's Trustee v. Johnston, 3 Dec. 
 
 363; Wnlker v. Symonds, 3 Sw. 73; of Court of Session, 3d series, p. 936. 
 Drvsdale v. Mace, 5 D. M. k G. 103; * Dig. Lib. 18, tit. 1, leg. 43. 
 
 ^ lb. 
 
 * Town^end v. Coalcs, 31 Ala. 428 ; Drew r. Clarke, Cooke, 374 ; Broad- 
 well B. Broadwell, 1 Gilman, oOo. 
 
 A mi.-;representation as to the li-gal eff ct of an instrument may be 
 fraudulent. Colter «. ^Morgan, 12 B, Mon. 278.
 
 92 MISKEPRESEXTATION. 
 
 untrue, leaving out a great deal that is true, and leaving it to 
 the purchaser to inquire whether there is an j error or omission 
 in the description or not.-' 
 
 There is a misrepresentation, if a statement be so made 
 that the acuteness and industry of the person to whom it is 
 made is set to sleep, and he is induced to believe the contrary 
 of what is the real state of the case.^ If, for instance, there is 
 a misrepresentation as to the terms of a particular covenant, 
 which turned out to be of a much more stringent description, 
 there is fraud.^ So also where conditions of sale are so ob- 
 scurely worded that when taken in connection with the par- 
 ticulars of sale they are likely to mislead an ordinary purchaser 
 as to the nature of the property, there is fraud,* A representa- 
 tion thougli true to the letter, may be in substance a misrepre- 
 sentation.® There is a misrepresentation, if a statement is cal- 
 culated to mislead or throw the person to whom it is made off 
 his guard, though it may be literally true." An assertion, on 
 the other hand, by a man of what he thinks entitled in point 
 of law to assert is not a misrepresentation, though it may not 
 be strictly correct.' 
 
 A misrepresentation is usually by words ; but it may be as 
 well by acts or deeds, as by words ; by artifices to mislead as 
 well as by actual assertions. Even in chaffering about goods 
 there may be such misrepresentation as to avoid a contract. A 
 man, who by act or deed falsely and fraudulently impresses the 
 
 ■ Brandling I'. Plummer, 2 Drew. 430. Investment Co., L. R. 3 Eq. 135. See 
 
 'Pope V. barland, 4 Y. & C. 401; Ilobbs v. Norton, 1 Verm. 135; Crofts 
 
 Spunner v. Walsh, 10 Ir. Eq. 380. v. Middleton, 2 K. & J. 2i0. 
 
 ' Flight V. Bootli, 1 Bing. N. C. 377; ° Edwards v. Wickwar, L. R. 1 Eq. 
 
 Van V. Corpe, 3 M. & C. 209; Flight v. C8 ; Dimraock v. Hallctt, L. R. 2 Cli. 
 
 Barton, ib. 282. ^PP- 28 ; Ross v. Estates Investment 
 
 * Taylor v. Martiudale, 1 Y. <fe C. C. Co., L. R. 3 Eq. 135; Colby v. Gadsden, 
 
 C. 658. 15 W. R. 1185; Chester v. Spargo, 16 
 
 » Lowndes v. Lane, 2 C<)x, 363 ; Flint W. R. 576. 
 
 V. Woodin, 9 Ila. 618; Stanton r. Tat^ ' Legge v. Croker, 1 Ba. & Be. 506; 
 
 tersall, 1 Sm. & G. 529; M'Culloeh i'. New IJrun.swick, <fec. Railwnv Co. v. 
 
 Gregory, 1 K. & J. 286; Clarke c. Dick Conybeare, 9 H. L. 711. See'Wilde v. 
 
 soD°6 C. B. N S. 453 ; Ross v. Estates Gibson. 1 H. L. 626.
 
 MISREPRESENTATIOIJ. 93 
 
 mind of another with a certain belief whereby he is misled to 
 his injury, is as much guilty of a misrepresentation as if he had 
 deliberately asserted a falsehood.* - It is a fraud to impress 
 npon a vendible article the trade-mark of another in order to 
 give it greater currency in the market.^ 
 
 It is not enough that there has been a misrepresentation, 
 and that the misrepresentation has conduced in some way to 
 the transaction in question. It is necessary that the misrepre- 
 sentation should have been made in relation to the transaction 
 in question, and with the direct intent to induce the party to 
 whom it is immediately made, or a third party, to act in the 
 M'ay tliat occasions the injury.^ A representation which has 
 been made some time before the date of the transaction in 
 question is not sufficient, unless it can be clearly shown to have 
 been immediately connected with it."* A representation to be 
 of any avail whatever, must, unless under special circumstances, 
 have been made at the time of the treaty ,5 and should not 
 have any relation to any collateral matter or other relation or 
 dealing between the parties.® 
 
 ' Sibbald v. Hill, 2 Dow. 266 ; Lovell 114; Barry v. Crosskey, 2 J. <fe H. 1 ; 
 
 v. Hicks, 2 Y. & C. 55; Crawshay v. Way v. IJearne, 32 L. J. C. P. 34; 
 
 Thornton, 4 M. <fe G. 387; Barnes v. Queen v. Sadlers' Co., 10 H. L. 404. 
 Pcnnell, 2 H. L. 497. ■* Biirnes v. I'ennell, 2 H. L. 497, 530. 
 
 * Craw>hay v. Thornton, 4 M. & G. See KicoU's Case, 3 D. A J. 439; 
 
 387. See Kerr on Injunctions, p. 474. Wlieilton ?;. Hardist}-, 8 E. <fe B. 232 ; 
 
 ' East India Co. v. Henchman, 1 Ves. Jlaunsell v. Hedges, 4 H. L. 1060, per 
 
 J. 287; Dobell v. Stevens, 3 B. & C. Lord St. Leonards; Barrett's Case, 3 D. 
 
 623; Harris v. Kemble, 5 Bligh, N. S. J. & S. 30; Western Bank of Scotland 
 
 730; Attwood v. Small, 6 CI. & Fin. v. Addie, L. R. 1 So. App. Ca. 155. 
 232, 445; Irvine w. Kirkpatrick, 7 Bell's Mlarris v Kemble, 1 Sim. 122, per 
 
 So. Ap. Ca. 186; Burnes v. I'eniiell, 2 Sir J. Leach, M. II. See W hielton v. 
 
 II. L. 497, 529; Smith v. Kay, 7 H. L. Hardisty, El. Bl. & El. 232; Hotsomt;. 
 
 750, 775; National Exchange Co. v. Browne, 9 C. B. N, S. 445; Smith?;. 
 
 Drew, 2 Macq. 1 20 ; NicoU's Case, 3 D. Kay, 7 H. L. 750. 
 
 & J. 387, 440; Jameson v. Stein, 21 "Harris v. Kemble, 1 Sim. 122, 5 
 
 Beav. 5; Denne v. Light, 8 D. M. & G. Bligh's N S. 730; National Exchange 
 
 Co. V. Drew, 2 Macq. 103. 
 
 * Martin v. Pennoclc, 2 Barr. 3TG ; Graves v. White, 1 Frccra. 57 ; 
 Chisholm v. Gadsden, 1 Strolih. 220; Smith ». Mitchell, G Geo. 458; Reese 
 V. Wvman, 9 Geo. 430 ; Cochran v. Cummings, 4 Dull. 250 ; Willink v. 
 Vaoderwear, 1 Barb. 599.
 
 94 M1SREPEESENTATI02T. 
 
 Misrepresentation, however, goes for notliing either at law 
 or in equity unless a man has been misled thereby to his preju- 
 dice.^^ Fraud without damage is not sufficient to support an 
 action or to be a ground for relief in equity.^ But it is enough 
 if the representation operates to the prejudice of a man to a 
 very small extent.^ Fraud gives a cause of action if it leads 
 to any sort of damage.^ But in order that a false representa- 
 tion should give a cause of action the damage must be the im- 
 mediate and not the remote cause of the representation.'' 
 
 Misrepresentation may consist as well in the concealment 
 of what is true as in the assertion of what is false.^ If a man 
 conceals a fact that is material to the transaction, knowing that 
 the other party acts on the presumption that no such fact exists, 
 it is as much a fraud as if the existence of such fact were 
 expressly denied or the reverse of it expressly stated.® f Con- 
 cealment to be of any avail whatever, either at law or in equity, 
 nmst be dolus clans locum contractui. There must be the sup- 
 
 1 Polhill V. Walter, 3 B. & Ad. 114 ; * Barry v. Crosstey, 2 J. & H. 1. 
 
 Felliiwes v. Lord Gvvydyr, 1 Sim. 63, 1 * Tapp v. Lee, 3 B. cfe P. 3Y1 ; Cen- 
 
 R. <fe M. 83. t^ee Flints. Woodin, 9 tral Railway Co. of Vmezuela d. Kisch, 
 
 Ha. 618; Smith v. Kay, 7 H. L. 750. L. R. 2 App. Ca. 114; Oakes v. Tur- 
 
 ' Cadman v. Homeric 18 Ves. 10. See qunnd, ib. 326. 
 
 Ross V. Estates Investment Co., L. R. 3 ^ Conyers v. Ennis, 2 Mass. (Amer.) 
 
 Eq. 136. 236. 
 
 ^ Smith V. Kay, 7 H. L. 750, 775. 
 
 * Farrar v. Alston, 1 Dev. 69 ; Icle v. Gray, 11 Vt. 615 ; Young v. Bum- 
 pass, 1 Freem. Ch. 241 ; Clark v. White, 12 Pet. 178; Gairow r. Davis, 15 
 How. 272; Abbey v. Dewey, 25 Penn. 413; Morgan v. Bliss, 2 Mass. 112; 
 Fuller r. Hogden, 2h Me. 243. 
 
 The true measure of damages is the difference between the actual value 
 of the property and the value which it would have possessed if it had 
 been as represented. Rawley t. "Woodruff, 2 Lans. 419. 
 
 If a man is procured to do an act even through fraud, yet the act will 
 be valid if it was such as the law would have compelled him to perform. 
 Young 1). Eumpiss, 1 Freem. Ch. 241. 
 
 t Riiwdon r. Blatchford, 1 Sandf. Ch. 344 ; Trigg v. Read, 5 Humph. 
 529; Scott i;. Baraer, 2 Lans. 567; Smith v. Click, 4 Humph. 186; Pren- 
 tiss V. Rus3, 16 Me. 30.
 
 MISREPRESENTATION. 95 
 
 pression of a fact, the knowledge of wliicli it is reasonable to 
 infer would have made the other party to the transaction ab- 
 stain from it altogether. Concealment of a fact is not material 
 if the statement of that fact would not have induced a man 
 (otherwise desirous of entering into the transaction) to abstain 
 from it^ A concealment to be material must be the conceal- 
 ment of something that the party concealing was under some 
 legal or equitable obligation to disclose.^ * 
 
 If the fact is one which ought to have been disclosed, the 
 circumstance that it may not have been disclosed through mis- 
 take, ignorance, or forgetfulness, cannot be taken into consider- 
 ation. It is immaterial that the concealment may not have 
 been wilful or intentional, or with a view to private ad- 
 vantage.^ f It is also essential that the concealment should be 
 
 >Pulsford V. Richards, 17 Beav. 98. ib. 609; Roddy v. Williams, 3 J. <fe L. 
 
 See Diivies v. Cooper, 5 M. & C. 270; 21; Abbott v. Sworder, 4 Beg. & s! 
 
 Bainbngc:e v. Moss, 3 Jur. N. S. 58 ; 448; Pulsford ti. Richards, 17 Beav. 87; 
 
 Vane ". "Cobbold, 1 Exch. 798 ; New Maclure v. Kiplej', 2 Mac. & G. 274 • 
 
 Enins^'ick, &c. liailway Co. v. Mugger- Blike v. Mowatl, 21 Beav. 603 ; Beck 
 
 idge, 1 Dr. & Sim. 363; Kisch y. Cen- v. Kantorowicz, 3 K. <fe J. 247; Vane i'. 
 
 tral Venezuela Railway Co., 3 D. J. <fe Cobbold, 1 Exch. 798; Haywood r 
 
 S. 122. Cope, 25 Beav. 140; Brumfit?;. Morton^ 
 
 'Irvine v. Kirkpatrick, 7 Bell, Sc. 3 Jur. N. S. 1198 ; Evans «;. Canin"-ton' 
 
 Ap. 186; Horsf'all y. Thomas, 1 H. <feC. 1 J. & H. 598, 2 D. F. & J. 481 ; IsTew 
 
 100, pn' Bramwell, B. ; Archbold v. Brunswick, <fec. Railway Co. «;. Mu"-"-er- 
 
 Lord ilowth, L. R. Ir. 2 C. L. 629. See idge, 1 Dr. & Sm. 363; Greenfield v 
 
 Dalbiac v. Dalbiac, 16 Ves. 124; Dalby Edwards, 2 D. J. & S. 582, 598 ; Cen- 
 
 V. I'ldlen, 1 K. & M. 296; Adamson v. tral Venezuela Railway Co, v. Kisch, L 
 
 Evitt, 2 R. <feM. 72; Harris t;. Kemble, R. 2 App. Ca. 112; Re Madrid Hank 
 
 1 Sim. Ill, 5 Bl-gh, 730; Groves v. L. R. 2 Eq. 216; Hallows v. Fernie, L. 
 
 Perkins, 6 Sim. 576 ; Clarke v. '1 ipping, R. 3 Eq. 536 ; Kent v. Freehold Land 
 
 9 Beav. 284; Stikeman v. Dawscm, 1 and Brickmaking Co., L. R. 4 Eq. 598. 
 Deg. & S. 90 ; yhackleton v. Sutcliffe, ' Pusey v. Desbouverie, 3 P. Wms. 
 
 * PeaiTett v. Shawbhut, 5 Miss. 323 ; Jouzin v. Toulmin, 9 Ala. 663 ; 
 Steele ». Kinkle, 3 Ala. 352. 
 
 Concealment which amounts to fraud in the sense of a court of equity, 
 is the non-clisclosurc of those facts and circum?<tances -which one party 
 is under some legal or equitable obligation to communicate, and wliicli 
 the other party has a right not merely inforo conscientice, hnt jurin el dejure, 
 to know. Young v. Bumpass, 1 Froem. Ch. 241. 
 
 t Farnam v. Brooks, 9 Pick. 312 ; Davidson v. Moss, 4 How. (Miss.) 
 673; Smolson & Co. v. Franklin, 6 Munf. 210.
 
 96 MISREPRESENTATION. 
 
 in reference to the particular transaction,^ and should inure to 
 the date of it. If a party to a transaction conceals, however 
 fraudulently, a material fact from another with whom he is 
 treating, but that other, notwithstanding the concealment, gets 
 at the fact concealed before he enters into the transaction, the 
 concealment goes for nothing. It is of no avail, if the party 
 has become in any way acquainted with the truth.^* Scientia 
 utrlnque ])ar ^ares contrahentes facit. The law will not 
 interpose, where both parties to the transaction are equally 
 well informed or are in equal ignorance as to the actual con- 
 dition or value of the subject-matter of the transaction.^ f 
 
 The principles of morals requii-e more scrupulous good 
 faith in the dealings of men with each other than is exacted 
 either at law or in equity. The writers of the moral law hold 
 it to be the duty of the seller to disclose the defects which are 
 witliin his knowledge.* But the common law is not so strict. 
 The law aims at practical good and general convenience rather 
 than at theoretical perfection. It does not profess to vindicate 
 every deflection from propriety, but requires men in their 
 dealings with each other to exercise proper vigilance and 
 apply their attention to those particulars which may be sup- 
 posed to be within the reach of their observation and judg- 
 ment, and not to close their eyes to the means of information 
 
 SI."); Bowles v. Stuart. 1 Scli. <fe Lcf. 'Irvine v. Kirkpatriek, Y Bell, Sc. 
 
 249 ; Brvdi^e? v. Branfil, 12 Sim. 384 ; Ap. 186, 237. 
 
 Willis j-.'Willis, 17 Siin. 218; Kailtoa ^ Su<v. V. <fe P. 1 ; Knio-ht r. Marjori- 
 
 V. iliitthews, 10 rl & Fin. 934. banks,"ll Beav. 348, 2 H. & Tw. 316. 
 
 ' Green v. Gosden, 3 M. & G. 446. " Grot. b. 2, c. 12, s. 9. 
 
 * Clark ». White, 12 Pet. 178; Phettiplace v. Sayles, 4 Mason, 313; 
 Pratt V. Philbrook, 33 Me. 17. 
 
 t Hcbbs V. Parker, 31 Me. 143; Doolcy v. Jinning, 6 Mo. 61; Perkins v. 
 McGavock, Cooke, 415. 
 
 There is no frainlulent concealment where a party entertains suspicions 
 merely, but does not possess actual knowledge. Crawford v. Eertholf, 
 Saxton, 458.
 
 MISREPRESENTATION. 97 
 
 wliicli are accessible to them : vigilantihus, non dormientihus^ 
 jura subveniunt. If parties are at arms' length, either of 
 them may remain silent and avail himself of his superior 
 knowledge as to facts and circumstances equally open to the 
 observation of both, or equally within the reach of their 
 ordinary diligence, and is under no obligation either at law or 
 in equity to draw the attention of the other to circumstances 
 affecting the value of the property in question, although he 
 may know him to be ignorant of them. If, for example, a 
 man treats for the purchase of an estate, knowing that there 
 is a mine under tlie land, and the other party makes no 
 inquiry, the former is not bound to inform him of the fact.* * 
 So also a first mortgagee with power of sale, wlio has made 
 an advantageous contract for the sale of the mortgaged prem- 
 ises, may buy up the interest of a second mortgagee who sup- 
 posed the property was insufficient to pay off both mortgages, 
 without informing him of the contract.^ 
 
 » Fox V. Maoreth, 2 Bro. C. C. 420 ; v. Morgan, 3 D. F. & J. 723 ; Archbold 
 
 Tnrnor v. Ilarvev, Jac. 169, 178; Stike- v. Lord Ilowth, Ir. L. R. 2 C. L. 608; 
 
 man v. Dawson. 1 Deo-. <fe S. 90; Laid- Su^. V. & P. 14th ed. 2, 328, 335. 
 
 law V. Or2;an, 2 Wliwit. ( Amer.) 178 ; * Dolman v. Nokes, 22 Beav. 402. 
 Wilde V. Gibson, 1 H. L. 605 ; Walters 
 
 * Smith ■©. Beatty, 2 Ired Eq. 456 . Livingston v. Peru Iron Co. 3 
 Paige, 3; ; Perkins x. McGavock, Cooke, 415 ; Harris v. Tyson, 24 Penn. 
 347 ; Butler's Appeal, 26 Penn. 63. 
 
 A purchaser is not bound to communicate information concerning ex- 
 trinsic circumstances which might influence the price of a commodity 
 where the means of intelligence are equally accessible to both parties. 
 But, at the same time, each party must take care not to say or do anything 
 tending to impose upon the other. Laidlaw v. Organ, 2 Wbeat. 178; 
 Matthews v. Bliss, 22 Pick. 48; Kintzing v. McElrath, 5 Barr, 4G7; ^Icrri- 
 weather v. Ilerran, 8 B. Mon. 162 ; Bowman v. Bates, 2 Bibb, 47 ; contra, 
 Frazier r. Gcrvai>, Walker, 72. 
 
 The tenants in common of a ve>-sel, who are not engaged jointly in the 
 employment of purchasing or building sliij)s for sale, do not stand in such 
 a relation of mutual trust and confidence to each other in respect of the 
 Bale of such vessel, that each is bound to communicate all the information 
 of facts within his knowledge, which may affect the price. Matthews v. 
 Bliss, 22 Pick. 48.
 
 98 MISREPRESENTATION. 
 
 A very little, however, is sufficient to aiFect the application 
 of the principle. If a single word be dropped by a purchaser 
 which tends to mislead the vendor, the principle will not be 
 allowed to operate.^ " A single word," said Lord Campbell, 
 in "Walters v. Morgan,^ " or even a nod, or a wink, or a shake 
 of the head, or a smile from the purchaser, intended to induce 
 the vendor to believe the existence of a non-existing fact which 
 might influence the price of the subject to be sold, is a fraud 
 at law. So a fortiori would a contrivance on the part of the 
 purchaser better informed than the vendor of the real value of 
 the subject to be sold, to hurry the vendor into an agreement 
 without giving him the opportunity of being fully informed of 
 its real value, or time to deliberate and take advice respecting 
 the conditions of the bargain." If a purchaser conceal the fact 
 of the death or dangerous illness of a person of which the 
 seller is ignorant, and by which the value of the property is 
 materially increased, there is fraud.^ 
 
 A vendor may not, on the other hand, use any art or prac- 
 tise any artifice to conceal defects, or make any representation 
 for the purpose of throwing the buyer off his guard. If he 
 says or does anything whatever with an intention to divert the 
 eye or obscure the observation of the buyer even in relation to 
 open defects, there is fraud.** As, for example, where a man 
 havino- a loir of mahosranv to sell, turned it over so as to con- 
 ceal a hole in the underneath side.® So also where a man sold 
 
 * Turner v. Harvey, Jac. 169, 1T8; Keene, 2 Moo. <fe Rob. 349. See Pop- 
 Dolman i\ Nokes, 22 lieav. 4i)2. See Lam v. Brooke, 5 Ru-s. 9. 
 Davies .•. Co>i) r, 5 M. &. C. 270; Blake ' Hill v. Gray, 1 >tark. 434 ; Pillmore 
 V. Mowatt, 21 Beav. 603; I'aunock v. v. Hood, 5 Bing. N. C. 97; Dob'll v. 
 Jauncey, 27 L. J. Ch. 57. Stevens, 3 B. <fe G. 623; Edwards v. 
 
 ' 3 D. F. & J. 724. Wickwar, L R. 1 Eq. 68. 
 
 » Turner v. Harvey, Jac. 169 ; Ellard * Udell v. Atherton, 7 H. A N. 172. 
 V. Llaudaff, 1 Ba. & Be. 241; Jones v. 
 
 * Hough r. Richardson, 3 Story, 690 ; Doggett v. Emerson, 3 Story, 732 ; 
 Daniel v. Mitchell, 1 Story, 173.
 
 MISREPRESEI5TATI0N. 99 
 
 a vessel " with all faults," and, before tlie sale, took lier from the 
 ways on which she lay and kept her afloat in a dock in order 
 to prevent an examination of her bottom, which he knew to be 
 unsound, the purchaser was held entitled to avoid the sale on 
 account of fraud .^ 
 
 So also if a vendor were to describe the property as let 
 upon lease under certain specified covenants, beneficial to the 
 reversion, which however he knew could not be enforced, this 
 would probably be considered delusive,^ So also if a vendor 
 knowing of an incumbrance on an estate sells without dis- 
 closing the fact, and with knowledge that the purchaser is a 
 stranger to it, and under representations inducing him to buy, 
 he acts fraudulently and violates integrity and fair dealing.^ 
 The same rule applies to the case where a party pays money in 
 ignorance of circumstances with which the receiver is ac- 
 quainted, and does not disclose, and which, if disclosed, would 
 have prevented the payment. In that case the parties do not 
 deal on equal terms, and the money is held to be unfairly ob- 
 tained and may be recovered back.* 
 
 So also, and upon the same principle, there is fraud, if a 
 man wishing to advance an undertaking, in which he was inter- 
 ested, determines to purchase shares in it, and another person, 
 also interested in the undertaking, takes advantage of the 
 knowledge he possesses of the intention of the former to defeat 
 the particular act, whereby he sought to accomplish his object, 
 and to substitute in the place of it a mode of disposing of a 
 portion of his own interest in the undertaking.^ 
 
 Mere reticence does not amount to a legal fraud, however 
 
 ' Baslehole v. Walters, 3 Camp. 154 ; ' 1 Ves. 96, per Lord ITartlwicke. 
 
 Schneider v. Heath, ih. 506. See Pick- ■* Martin v. iMorgan, 1 Bro*l. & Bing. 
 
 erino- ,.. Dowson, 4 Taunt. 784; Kain i'. 289. See Ileane v. Rogers, 9 B. «fc C. 
 
 Okl,''2 B. & C. 634 ; Taylor i'. Bulien, 5 677, per Bayley, J. 
 
 Exch. 779. * Blake v. Mowatt, 21 Beav. 614 
 
 » Flint V. Woodin, 9 Ha. 621.
 
 100 MISREPEESENTATTON. 
 
 it ma} be viewed by moralists. Either party may be innocently 
 silent as to ground open to both to exercise tbeir judgment 
 upon. If the parties are at arms' length neither of them is 
 under any obligation to call the attention of the opposite party 
 to facts or circumstances which lie properly within his knowl- 
 edge, although he may see that they are not actually within his 
 knowledge.^ But a man may by mere silence, without active 
 concealment, produce a false impression on the mind of another. 
 Aliiid est celarfi, aliud tacere ; neque enim id est celare, quio- 
 quid reticeas ; sed cum, quod tu scias, id ignorare, emolu- 
 menti tui causa, velis eos quorum intersit id scire J^ Silence 
 implies assent when there is a duty to speak. Qui tacet con- 
 sentire videtur ; qui ])otest et debet vetare, jubet? If a man 
 by his silence produces a false impression on the mind of 
 another, there is a fraud.* In Hill v. Gray,^ where a man 
 bought a picture under a delusion as to the ownership of it, 
 and the agent of the vendor encouraged the delusion and took 
 advantage of it in effecting a sale. Lord Ellenborough held the 
 contract might be avoided on the ground of fraud.* 
 
 If a man interested is present and hears any false or imper- 
 fect representation made, and does not set it right, he is fixed 
 by the representation.' 
 
 A vendor is by the civil law bound to warrant the thing he 
 sells or conveys, albeit there be no express warranty ; but the 
 common law binds him not, unless there be a warranty either 
 in deed or law. Co/veat emptor is the ordinary rule of the 
 
 ' ArchbolO V. Lord Howth, L. R. Ir. ■• See infra. 
 
 2 C. L. 60S. See Walters i'. Morgan, 3 * 1 Stark. 434. 
 
 D. F. <fc J. 723. ^ See Keates v. Lord Cadogan, 10 0. 
 
 « Ciceri) ile Offic. lib. 3, chap. 12, per B. 600. 
 
 Lord Mansfield. 3 Burr. 1910, ;)€»• Lord ' Shepherd v. Sharpe, 4 L. T. 270; 
 
 Abinger, 6 M. & W. 381 ; Kelthorpe v. Davies v. Davies, 6 Jur. N. S. 1322. 
 
 Holgate, 1 Coll. 221, ^jer Knight Bruce, See Smith v. Bank of Scotland, 1 Dow. 
 
 L. J. 272; Warner v. Daniels, 1 Wood & 
 
 ' Morgan v. Evans, 3 CI. &. Fin. 205; Min. (Amer.) 90. 
 Burke v. Trior, 15 Ir. Ch, 106.
 
 MISEEPKESENTATION. 101 
 
 common law.^* If tlie defects in the subject-matter of sale 
 are patent, or such as might and should be discovered by the 
 exercise of ordinary vigilance, and the buyer has an opportunity 
 of inspecting it, the law does not require the seller to aid and 
 assist the observation of the purchaser, f Even a warranty 
 will not cover defects that are plainly the objects of sense.^ 
 Defects, however, wliich are latent,^ or circumstances materially 
 the subject-matter of sale of which the purchaser has no means, 
 or at least has not equal means of obtaining knowledge, must, 
 if known to the seller, be disclosed. "Where, for instance, 
 particulars of sale described the subject of sale as a certain 
 interest, if any, the vendor knowing at the time that it was of 
 no value, whereas the purchaser had no means of ascertaining 
 whether it was of any value or not, the transaction was held 
 fraudulent! So also on the sale of a ship, which had a latent 
 defect known to the seller, and which the buyer could not by 
 any attention possibly discover, the seller was held bound to 
 disclose it.^ So also where a man sold an estate to another 
 knowing or having reason to know at the time, but concealing 
 the fact that part of the land was an encroachment upon a com- 
 mon to which he had no title, the sale was set aside as having 
 been effected by fraud.** So also if one of the parties to a 
 transaction knows that the solicitor of the other party has not 
 
 * Co. Litt. 102 a, Hob. 99, Broom's ' Mellish v. Motteux, Peake, 156. 
 
 Lejj. Max. 730. * Smith v. Harrison, 26 L. J. CIi. 41 i 
 
 '•' Dyer v. Hirgrave, 10 Ves. 507; ^ Mellish v. Motteux, Peake, 156. 
 
 Grant v. Munt, ( oop. 1Y3; Jennings v. ® Edwards v. M'Cleay, 2 Sw. 287. 
 Broughton, 5 D. M. & G. 131 ; Horsfall 
 V. Thomas, 1 U. & C. 100. 
 
 * Salem India Rubber Co. v. Adams, 23 Pick. 256 ; Wintz ii. Morrison, 
 17 Tex. 372; Cecil v. Spurger, 32 Mo. 462; Turner v Huggins, 14 Ark 
 
 21. 
 
 t Buck V. McCaugbtry, 5 Mon. 216 ; Barnett v. Stanton, 2 Ala. 181 ; 
 McKinney v. Fort, 10 Tex. 2i?0; Lawnson v. Baer, 7 Jones, 401 ; Kcading 
 e. Price, 3 J. J. Marsb. Gl; Cardwell v. McClelland, 3 Sneed, 150; Barron 
 V. Alexander, 27 Mo. 530.
 
 102 MISREPKESEI?TATION. 
 
 disclosed lo liim some matter of a material nature, tlie conceal- 
 ment may be fraudulent.^ So also if a creditor compounds 
 with liis debtor under a false impression in which the debtor 
 knowingly leaves him as to the extent of the debtor's estate, 
 there is a fraud.^ 
 
 A vendor, however, is not bound to state that the property 
 has been recently valued at a sum greatly less than the in- 
 tended purchaser's money, or that the tenant iias complained 
 of the rent as being excessive.^ 
 
 A vendor may, on the sale of chattels, expressly stipulate 
 that the buyer is to take the chattels " with all faults." In 
 such case it is immaterial how many faults there are within his 
 knowledge ; but he may not use any artifice to disguise them, 
 or to prevent the buyer from discovering them.^ * Upon the 
 same principle it would appear that if the defects are of such a 
 nature that they cannot be discovered by any attention what- 
 ever on the part of the purchaser, the insertion of the condition 
 will not excuse the vendor from disclosing those within his 
 
 knowledge.' 
 
 The maxim caveat emptor applies with certain specific 
 restrictions and qualifications, both to the title and quality of 
 the subject-matter of sale. In the case of real estate the 
 vendor must produce to the purchaser all documents of title in 
 his possession or power, and give information of all material 
 facts not apparent thereon.® Any charge upon the estate, or 
 
 » Solomon v. nonywood, 12 W. R. ■• Eagleliole v. Walters, 3 Camp. 154; 
 
 51^2. Sclmeider v. Heath, ib. 5u6, supra, p. 
 
 2^ Vine V. Mitchell, 1 Mood. <fe Rob. 98. 
 
 337. " Siig. V. h P. 14th ed. p. 333. 
 
 ' Abbott «. Sworder, 4 Deg. <fc S. 448, Mulwards v. M'Cleay, Coop. 308; 
 
 4C0. Dart's V. & W 51. 
 
 * These terms put upon the purchaser no risk or hazard but those which 
 are consistent with the property being such as it is described. Smith 
 V. Richards, 13 Pet. 26; Pcarce v. Blackwell, 13 Ired. 49; Terry v. Buck, 
 1 Green's Ch 0C6.
 
 MISREPRESENTATION. 103 
 
 right restrictive of the purchaser's absohite enjoyment of it, 
 and the release of which cannot be procured by the vendoi's, 
 ghould be stated ; or the omission may, in many cases, render 
 the sale voidable by the purchaser ; ^ * e, g. a right of sporting 
 over the estate,^ a right of common every third year,^ a right 
 to dig for mines,* a liability to repair the church chancel,^ or 
 any other riglit or liability which cannot fairly admit of com- 
 pensation,^ or would render the estate different in substance 
 from what the purchaser was justified in believing it to be,' 
 would, if undisclosed, have that effect.^ 
 
 A vendor need not, however, direct attention to defects, 
 &c., apparent on the title-deeds,^ f or to any matter of which 
 the purchaser has actual or constructive notice.^** But if the 
 seller be informed by the purchaser of his object in buying, 
 and the lease contains covenants which defeat that object, mere 
 silence is fraudulent concealment.^^ If there has been no fraud- 
 ulent concealment on the part of the seller, but the title turns 
 out to be defective, the rule caveat eiriptor applies, and the pur- 
 chaser has no remedy, unless he take a special covenant or war- 
 
 » Dart's V. & P. 73. ' Dart's V. & P. 74. 
 
 " Burnell v. I'-rown, 1 J. & W. 172. ' Supra, pp. 58, C3, 64. 
 
 3 Gibson v. Spurrier, Te.a. Ad. c. 50. * See, further, D.nrt's V. & P. 74, 75. 
 
 * Seaman v. Vawdrey, IG Yes. 390. ' Siig. V. & P. 8. 
 
 » Forteblow v. Sliirley, cited 2 Sw. "• 1 'art's V. & P. 57. 74. 
 
 223 " Flight V. Barton, 3 M. <t K. 282. 
 
 * Prout V. Roberts, 32 Ala. 427 ; Ilalbcrt v. Grant, 4 Mon. 580 ; Ingram 
 V. Morgan, 4 Humph. G6 ; Steele v. Kiiikle, 3 Ala. 353; Carr v. Cal- 
 la£?lian, 3 Litt. 216 ; Kennedy v. Johnson, 2 Bibb, 12; Campbell v. Whit- 
 tingham, 5 J. J. Marsh. 96 ; Pollard v. Rogers, 4 Call, 239 ; Snelsou & Co. 
 V. Franklin, 6 Munf. 210; Davidson?). Moss, 4 How. (Miss.) 673. 
 
 If a previous incumbrance is concealed, the fact that it is recorded is 
 immaterial. Napier v. Elam, 6 Yerg. 108 ; Young «. Hopkins, 6 Mon. 23; 
 Campbell v. Whittingham, 5 .J. J. Marsh. 96; Steele r. Kiuklc, 3 Ala. 352; 
 Kennedy v. Johnson, 2 Bibb, 12. 
 
 t Ward V. Packard, 18 Cal. 391; Alston t?. Outerbridge, 1 Dcv. Ch. 18.
 
 104 
 
 MISEErRESEXTATIOliJ'. 
 
 ranty.^ * A seller selling in good faith, is not responsible for the 
 goodness of the title bej'^ond the extent of his covenants.^ 
 
 There is no implied warranty on a demise of real or lease- 
 hold property, that it is fit for the purposes for which it is 
 taken.^ The purchaser takes the risk of its quality and condi- 
 tion, unless he protects himself by an express agreement on 
 the subject/ There is no implied duty cast on the owner of a 
 house in a ruinous and unsafe condition to inform a proposed 
 tenant, that it is unfit for habitation, nor will an action of 
 deceit lie aijainst him for omittino^ to disclose the fact :^ but a 
 seller must not, during a treaty for, or while intending a sale, 
 endeavor to conceal a defect, or to divert a purchaser's atten- 
 tion from it.' 
 
 In the case of a sale of goods and chattels, the rule caveat 
 emptor applies to the title, unless the seller knows that he has 
 
 • Parkinson v. Lee, 2 East, 323, per 
 Lawrence, J. ; Stephens v. Medina, 4 
 Q. B. 428, Broi.m's Leg. Max. '743. 
 
 ■^ See Bree c. Holbech, Dou<il. 655. 
 
 ' Sutton V. Temple, 1 2 M. it W. 52 ; 
 Hart V. Windsor, 12 M. & W. 68; 
 Keates v. Cadogan, 10 C. B. 591 ; Chap- 
 
 pell V. Gregory, 34 Beav. 250 ; but see 
 Smith V. Marrable, 11 M. & W. 6. See 
 Broom's Leg. Max. 744-Y46. 
 
 * Izon V. Gorton, 5 Bing. N. C. 501 ; 
 Surplice v. Farnsworth, 7 M. & G. 576. 
 
 ' Keates v. Cadogan, 10 C. B. 691. 
 
 = Dart's V. & P. "56. 
 
 * Abbott V. Allen, 2 Johns. Ch. 519; Chcsterman n. Gardner, 5 Johns. 
 Ch. 29; Wallace v. Barlow, 3 Bibb, 171 ; Jasper «. Hamilton, 3 Dana, 280; 
 Manney «. Porter, 3 Humpli. 347; Frost i3. Raymond, 2 Caines, 188 ; Wil- 
 liamson V. Raney, 1 Freem. 112. 
 
 When the vendor knows that the property has no existence, he com- 
 mits a fraud by selling. Wardell v. Fosdick, 13 Johns. 325; Terry v. 
 Buck, 1 Green's Ch. 366. 
 
 If the vendor knows that he has no title, and conceals that fact, the 
 sale is fraudulent. Clark v. Baird, 9 N. Y. 183; Johnsons. Pryor, 5 Hey, 
 243; Beardsley -c. Bennett, 1 Day, 107. 
 
 If the property is known to the vendor to be worthless, he cannot pro- 
 tect himself by telling the vendee to inquire for himself. (Terry v. Buck, 
 1 Green's Ch. 360 
 
 A man who buys a defective title knowing it to be so, must abide the 
 consequences. Williamson v. Raney, 1 Freem. 112; Aliens). Hopson, 1 
 Freem. 276.
 
 MISEEPRESENTATIO:sr. 105 
 
 no title and conceals the fact, or unless the surrounding cir- 
 cumstances of the case are such that a warranty may be im- 
 plied.^* In the ordinary case, for instance, of the sale of 
 goods in a shop, there is a warranty of title, for the seller, by 
 the very act of selling, holds himself out to the buyer that he 
 is the owner of the articles he offers for sale.'^ If, however, 
 the surrounding circumstances are such that the seller must be 
 taken to be merely selling such a title as he has himself in the 
 goods, the maxim applies, and there is no warranty of title.^ 
 
 The question as to the application of the maxim caveat 
 emptor on the sale of goods in respect to the quality of the 
 goods, was elaborately considered by the Court of Queen's 
 Bench in a very late case/ The cases on the subject were dis- 
 tinguished as falling under five different heads : 
 
 ' Marley v. Attenborough, 3 Exch. Chapman v. Speller, 14 Q. B. 621 ; 
 
 500 • Hall V. Conder, 2 C. B. N. S. 40 ; Sims v. Marry at t, 17 Q. B. 291 ; Bague- 
 
 Eichholtz V. Bannister, 17 C. B. N. S. ley v. Hawley, L. R. 2 C. P. 629. See 
 
 (708. Eichholtz V. Bannister, 17 C. B. N. S. 
 
 « Eichholtz V. Bannister, 17 C B. N. 708. 
 
 S. 708. ■• Jones v. Just, L. R. 3 Q. B. 197, 
 
 ^ Marley v. Attenborough, 3 Exch. 202. 
 600; HaU v. Conder, 2 C. B. N. S. 22; 
 
 * It is a general and familiar principle that there exists in every sale of 
 personal property an implied warranty of title. Mockbee v. Gardner, 2 
 H. & G. 177 ; Boyd v. Bopst, 2 Dall. 91 ; Coolidge v. Brigham, 1 Met. 551 ; 
 Lamis v. Auld, 7 Murph. 138; Dean «. Mason, 4 Ct. 428 ; Payne tj. Rodden, 
 4 Bibb, 304 ; Hermance v. Vernoy, 6 Johns. 8 ; Case v. Hall, 29 Wend. 
 103; Colcock 0. Reed, 3 McCord, 513; Dorsey v. Jackman, 1 S. & R. 42; 
 Strong V. Barnes, 11 Vt. 221 ; Chandler v. Wiggins, 4 B. Mon. 201. 
 
 When the vendor i? in possession of the property sold, there is an im- 
 plied warranty of title. Long v. Hickingbottom, 28 Miss. 772 ; Robinson 
 «. Rives, 20 Mo. 229 ; Huntington v. Hall, 36 Me. 501 ; McCoy v. Artcher, 
 3 Barb. 323; Colcock «. Reed, 3 McCord, 513; Reed ?;. Barber, 5 Cow. 
 272 ; Norton v. Hooten, 17 Ind. 365 ; Sherman v. Champlain Trans. Co. 31 
 Vt. 162 ; Scranton v. Clark, 39 Barb. 273. 
 
 This implied warranty extends to a prior lien or incumbrance. Maine 
 V. King, 8 Barb. 535. 
 
 When the vendor is not in possession of the goods, the purchaser buys 
 at his peril, unless there is an express warranty of title. Edick v. Crim. 
 10 Barb. 445 ; Lackey v. Stouder, 2 Ind. 376 ; Scott v. Uix, 2 Snecd. 192. 
 8
 
 106 
 
 MISREPRESENTATION. 
 
 " 1st. AVhere floods are in esse, and may be inspocted by 
 the buyer, and there is no fraud on the part of the seller, the 
 maxim caveat emptor applies, even though the defect is latent, 
 and not discoverable on examination, at least where the seller 
 is neither the manufacturer nor the grower.^ The buyer, in 
 such case, has the opportunity of exercising his judgment 
 upon the matter ; and if the result of the inspection be un- 
 satisfactory, or if lie distrusts his own judgment, he may, if he 
 chooses, requi]-e a warranty. In such a case it is not an im- 
 plied term of the contract of sale that the goods are of any 
 particular quality, or are merchantable.^* 
 
 " 2ndly. Where there is a sale of a definite existing chattel 
 specifically described, the actual condition of which is capable 
 of being ascertained by either party, there is no implied 
 warranty.^ f 
 
 " 3rdly. Where a known, described and defined article is 
 ordered of a manufacturer, although it is stated to be required 
 by the purchaser for a particular purpose, still if the known, 
 described and defined thing be actually supplied, there is no 
 
 * Parkinson v. Lee, 2 East, 314. 
 » Emmerton v. Matthews, 7 IL <fe N. 
 586, 31 L. J. Exch. 139. 
 
 » Barr v. Gibson, 3 M. & W. 390. 
 
 * Stevens v. Smith, 21 Vt. 90 ; Osgood v. Lewis, 2 H. & G. 49G ; Jolm- 
 ston 'V. Cope, 2 H. «& J. 89 ; Williams v. Stougbton, 3 Miss. 347; Kings- 
 bury V. Taylor, 29 Me. 508; Scott v. Renick, 1 B. Mon. 63; Mixer v. Co- 
 burn, 11 Met. 559; Ricbardsonv. Johnson, 1 La. An. 389. 
 
 The exception only applies to those cases where the inspection is im- 
 practicable, as where goods are sold before their arrival or landing. The 
 mere fact tbat inspection is attended with inconvenience or labor, is not 
 equivalent to impracticability. Hyatt v. Boyle, 5 G. & J. 110. 
 
 In every executory contract for the future sale and delivery of articles 
 of merchandise, the law clearly implies an agreement tbat the goods sball 
 be of a merchantable value. Hamilton v. Ganyard, 34 Barb. 204. 
 
 t AVilliams v. Slaughter, 3 AYis. C47 ; Deming v. Foster, 42 N. H. 1G5 ; 
 Dickens r. Jordan, 11 Iretl. 106; Gihon v. Levy, 2 Ducr, 176; Carson v. 
 Bailie, 19 Penn. 375.
 
 MISREPRESENTATlOir. 107 
 
 warranty tliat it shall answer the particular purpose intended 
 by the buyer.^ 
 
 " ttthly. Where a manufacturer or dealer contracts to sup- 
 ply an article which lie manufactures or produces, or in which 
 he deals, to be applied to a particular purpose, so that the 
 buyer necessarily trusts to the judgment or skill of the manu- 
 factm*er or dealer, there is in that case an implied term or war- 
 ranty that it shall be reasonably fit for the purpose to which it 
 is to be applied.^ * In such a case, the buyer trusts to the 
 manufacturer or dealer, and relies upon his judgment and not 
 upon his own. 
 
 " 5th]y. "Where a manufacturer undertakes to supply goods 
 manufactured by himself, or in which he deals, but which the 
 vendee has not had the opportunity of inspecting, it is an im- 
 plied term in the contract that he shall supply a merchantable 
 article.^ So, also, on a sale by a tnerchant to a merchant or 
 dealer, who has had no opportunity of inspection, tliere is an 
 implied warranty that tbe article shall be reasonably fit for the 
 pui'pose for which it is supplied."* In every contract to supply 
 goods of a specified description, which the buyer has no op- 
 portunity of inspecting, the goods must not only in fact 
 answer the specific description, but must also be saleable and 
 merchantable under that description."' 
 
 > Chanter v. Hopkins, 4 M. <k W. 399 ; Taunt. 108 ; Shepherd v. Pybus, 3 M. 
 
 Ollivant V. Baylcy, 5 Q. 3. 288. d: G. 868. 
 
 ^ Brown v. Edgington, 2 M. & G. ■• Eigge v. Parkinson, 7 H. «fe N. 955; 
 
 279; Jones v. Wright, 5 Bing. 53 i. 31 L. J! Exch. 301. 
 
 ' Laing v. Fidgeon, 4 Camp. 1C9, 6 ^ Jones v. Just, L. R. 3 Q. B. 191. 
 
 * Brenton v. Davis, 8 Bluckf. 508 ; Beers r. Williams, 16 111. 69; Wal- 
 ton V. Cod3% 1 Wis. 420 ; Brown v. Murphtc, 31 Miss. 91 ; Cunnini^^liain v. 
 Hull, Sprague, 404; Hoe v. Sanborn, 21 N. Y. 552; Rodgers v. Niles, 11 
 Ohio St. R. 48 ; Page v. Ford, 42 Ind. 46 ; Howard v. Hoey, 23 Wend. 
 350 ; Miner v. Granger, 4 Gilinan, 69 ; Taylor v. Sands, 5 Johns. 493 ; 
 Overton v. Phelau, 3 Head, 445; Fisk v. Tank, 13 Wis. 376; Penss v. 
 Sabin, 38 Vt. 433 ; Freeman v. Clute, 3 Barb. 431 ; Gallagher v. Waring, 9 
 Wend. 20 ; Getty v. Rountree, 3 Chaud. 28.
 
 108 MISEEPEESEKTATION. 
 
 The rule caveat emjytor renders it lawful for a man holding 
 shares in an insolvent companj^ to sell them to any one willing 
 to buy them, and in the absence of misrepresentation by the 
 seller, the buyer is apparently without any remedy against 
 
 him.^ 
 
 The mere omission of a purchaser of property to disclose 
 his insolvency to the vendor, is not a fraud for which the sale 
 may be avoided. If no inquiries are made, and the vendee 
 makes no false statements, nor resorts to any artifice or con- 
 trivance for the purpose of misleading the vendor, it is not 
 in general fraudulent in him to remain silent as to his pecun- 
 iary condition. An honest though abortive purpose to con- 
 tinue in business, and pay for the goods, is consistent with the 
 vendee's knowledge of his own insolvency.* But there may 
 
 » See Remfrey v. Butler, El. Bl. & El. 887 ; Stray v. Russell, 1 El. & El. 888. 
 
 * Cross v. Peters, 1 Greenl. 378; Nicliols v. Pinner, 18 K Y. 295 ; 
 Bidault V. Wales, 19 Mo. 36 ; s. c. 20 Mo. 546 ; Mitcliell v. Worden, 20 
 Barb. 253 ; Henstaw v. Bryant, 4 Scam. 97. 
 
 Wlien a person, who knows liimself to be insolvent, by means of fraud- 
 ulent pretences or representations, obtains possession of goods under a 
 pretence of purchase with the intention not to pay for them, but with the 
 design to cheat the vendor out of them, a court of chancery will set aside 
 the sale if they have not passed into the hands of a hona fide purchaser ; 
 or the vendor may bring replevin or trover for them. Durell v. Haley, 1 
 Paio'e, 492 ; Lupin v. Marie, 2 Paige, 172 ; Lloyd v. Brewster, 4 Paige, 541 ; 
 Van Cliff ■y. Fleet, 15 Johns. 147; Allison v. Matthieu, 3 Johns. 235; 
 Rowley V. Bigclow, 12 Pick. 312; Hitchcock v. Covill, 20 Wend. 167; Ask 
 V Putnam 1 Hill, 302 ; Eoot v. French, 18 Wend. 570 ; Zabriskie » Smith, 
 13 N. Y. 330 ; Hunter v. Hudson River Iron Co., 20 Baib. 493. 
 
 In order to render a sale void on account of misrepresentations as to 
 solvency, such a case must be made out as would authorize a jury to con- 
 vict the purchaser of obtaining goods under false pretences. The means 
 used to defraud must be such that a man of ordinary prudence would be- 
 come the dupe of the deception. Henshaw v. Bryant, 4 Scam. 37. 
 
 A purchase by a person who knows himself to be insolvent, and has no 
 reasonable expectation to pay for the goods, is fraudulent. Powell v. 
 Bradlee 9 G. «& J. 220 ; Chaffee v. Fort, 2 Lans. 81 ; Seligman v. Kalkman,
 
 MISEEPRESENTATIOIT. 109 
 
 be circumstances under whicli the concealment of a material 
 and sudden change in the circumstances of a purchaser which 
 he has reason to suppose to be unknown to a vendor, may 
 amount to a fraud.^ A dealer, for instance, who has been of 
 known standing, but has suddenly failed in business, cannot 
 go to those who were acquainted with his former position, but 
 have not heard of his failure, and innocently purchase prop- 
 erty on credit.^ So, also, there is fraud if a vendee obtain 
 goods upon credit, with a preconceived fraudulent design not 
 to pay for them.^ * 
 
 * Nichols V. Pinner, 4 Smith (Amer.) * Brown v. Montgomery, 6 Smith 
 
 295 ; Brown v. Montgomery, 6 Smith (Amer.) 287. 
 
 (Amer.) 287. ^ Hennequia v. Naylor, 10 Smith 
 
 (Amer.) 140. 
 
 8 Cal. 207 ; Conyers v. Ennis, 2 Mason, 236 ; Rowley v. Bigelow, 12 Pick. 
 307 ; contra. Biggs v BaiTy, 2 Curt. 259 ; Hall v. Naylor, 6 Duer, 71. 
 
 A contract is not invalidated because one party is mistaken in regard 
 to the solvency of the other; nor is a mutual mistake as to the solvency 
 of the vendee, sufficient. Lupin v. Marie, 6 Wend. 77. 
 
 The sale is void if the i)urcliaser is insolvent at the time of receiving 
 tte goods Pike v. Wieting, 49 Barb. 314. 
 
 There is a veiy broad line of distinction, both in morals and law, be- 
 tween the conduct of one who gets property into his possession with a 
 preconceived design never to pay for it under color of a formal sale 
 induced by a sham promise to pay, which the party never intends to com- 
 ply with, and the conduct of a man deeply involved in debt, far, perhaps, 
 bevond his means of payment, and who struggles, it may be, and fre- 
 quently is, against all rational hope to sustain his credit, buys jjroperty on 
 a promise to pay for it on short time in order to raise money from day to 
 day, to meet immediate and more pressing demands. Bidault v. Wales, 
 20 Mo 546. 
 
 When a person has committed an open and notorious act of insolvency, 
 it is his duty to communicate that fact to parties with whom he has pre- 
 viously dealt before he makes a new ])urchase, and the violation of such 
 duty is a fraud. Mitchell v. Worden, 20 Barb. 253 ; Pequeuo v. Taylor, 38 
 Barb. 375 ; Chaffee v. Fort, 2 Lans. 81. 
 
 * Heuncquin v. Naylor, 24 N. Y. 139 ; Durell v, Haley, 1 Paige, 492 
 Harris v. Alcock, 10 G. & J. 226 ; Lane v. Robinson, 18 B. Mon. 623 
 Buckley c. Artcher, 21 Barb. 585; Mackinley v. McGregor, 3 Whart. 369
 
 110 MISRBPRBSENTATION. 
 
 Tne same rules as to false and deceptive statements, which 
 are applicable to contracts between individuals, are also appli- 
 cable to contracts between an individual and a company. ]^o 
 misstatement or concealment of any material fact or circum- 
 stances ought to be permitted in a prospectus to invite persons 
 to become shareholders in a projected company. The public, 
 who are invited by a prospectus to join in any new adventure, 
 ought to have the same opportunity of judging of everything 
 which has a material bearing on its true character, as the pro- 
 moters themselves possess. The promoters of companies, who 
 invite persons to take shares on the fliith of representations 
 contained in prospectuses, are bound to state everything with 
 strict and scrupulous accuracy, and not only to abstain from 
 stating as a fact that which is not so, but to omit no one fact 
 within their knowledge, the existence of which might in any 
 way affect the nature, or extent, or quality of the privilege or 
 advantage which the prospectus holds out as an inducement to 
 take shares. It cannot be too strongly pressed upon those 
 who, having projected an undertaking, are desirous of obtain- 
 ing the co-operation of persons who have no other information 
 on the subject than that which they choose to convey, that the 
 utmost candor and honesty ought to characterize their pub- 
 lished statements.^ It is not merely by one or two statements 
 in the prospectus which are not borne out by the facts, that 
 
 ' New Eriinswick, <fec., Railway Co. Kisch, L. R. 2 App. Ca. 113, 114. See 
 
 «. Mii^n-ei-idge, 1 Dr. <fc Sm 381, 382; Kent v. Freehold Laud and Erick- 
 
 Re Reese faver Silver Mining- Co., makine; Co., L. R. 4 Eq. 599; Hender- 
 
 Smiih's Case, L. R. 2 Ch. App. 009 ; son v. "Lacon, L. R. 5 Eq. 262 ; Chester 
 
 Central Railway Co. of Venzuela v. v. Spargo, 16 W. R. 576. 
 
 contra, Backcntoss v. Spdcber 31 Penn. 324 ; Smith v. Smith, 21 Penn. 
 
 367. 
 
 The intention never to pay for goods may be evidenced by a resale of 
 them at a sacrifice, an assignment in insolvency, or to a favored creditor, 
 or other circumstances. Eidault v. Walos, 19 Mo. 36; H^uaeqaiu v. Nay- 
 lor, 34 N. Y. 139 ; Mackinley v. McGregor, 3 Whart. 369.
 
 MISREPRBSENTATIOIf. IH 
 
 the matter ought to be tried, but by the combined effect of 
 them all, producing a result which would have misled any per- 
 son who took shares on the faith of the prospectus.^ Though 
 certain statements or suppressions standing alone, might not 
 be sujfficient ground to give a man a right to have a transac- 
 tion set aside, yet another part of the case may lead to a 
 diiferent conclusion, and reflect upon the general fairness of 
 the prospectus, even in those particulars.^ That a man, who 
 was induced to take shares by misrepresentation or conceal- 
 ment, was actually a member of the company at the time, is 
 immaterial ; but it is material that to relieve him from the 
 transaction would prejudice the interests of an innocent share- 
 holder who had acquired them after he had become a share- 
 holder.^ 
 
 Those w^lio, having a duty to perform, represent to those 
 who are interested in the performance of it, that it has been 
 performed, make themselves responsible for all the conse- 
 quences of the non-performance.^ 
 
 The false and fraudulent representations of an agent, when 
 acting within the scope of his authority, bind the principal.' 
 A man cannot take any benefit under false and fi-audulent rep- 
 resentation made by his agent, although he may have been no 
 party .to the representations, and may not have distinctly 
 authorized them.^ * In respect of the liability of a principal 
 
 'Central Railway Co. of Venezuelan. Riches, 16 C. B. 104; Wlicplton v 
 
 Kisch, L. K. 2 App. Ca. 125. Ilardisty 8 E. A B. 232, 260; Udell v 
 
 2 Jli. 117. Atherton, 7 II. & N. 173. 
 
 MVestern Bank of Scotland V. Afldie, " MeoU's Case, 3 D. cfe J. 387, 437 
 
 L R 1 ^c. App. Ca. 1C3. per Turner, L. J.; Udell ;-. Atlierton' 
 
 * Blair v. Bromley, 2 Ph. 360, per 7 II. & N. 172, ;w Pollnck. (;. B., <& 
 
 Lord Cotteiiham. Wilde, J. ; New Brunswick, etc., Rail- 
 
 <* Wil.'on V. Fuller, 3 Q. B. 77 ; Blair way Co. v. Conylieare, 9 H. L. 714, 726, 
 
 V. Bromley, 2 Ph. 350; Coleman v. per Lord West'bury, i6. 739 ; jwerLord 
 
 * Elwcll V. Chamberlain, 31 K Y. Gil; Mitchell v. Mims, 8 Tex. 6- 
 Muiulorf r. Wickcrshaiii, (1:! Penn. 87;. Bennett v. Judson 21 N. Y. 233- 
 Lobdcll V. Baker, 1 Met. 193; Lawrence v. Hand, 23 Miss. 103; Concord
 
 112 
 
 MISRBPEESENTATIOlif. 
 
 for the acts of bis agent, done in tlie course of his master's 
 business, and for bis master's benefit, no sensible distinction 
 can be drawn between the case of fraud and any other wrong.'- 
 A man cannot adopt and take the benefit of a contract 
 entered into by his agent, and repudiate the fraud on which it 
 was built. If the agent, at the time of the contract, makes 
 any representation or declaration touching the subject-matter, 
 it is the representation and declaration of the principal. The 
 statements of the agent which are involved in the contract, as 
 its foundation or inducement, are in law the statements of the 
 princii)al. The principal cannot separate the contract itself 
 from that by which it was induced. lie must adopt the whole 
 contract, including the statements and representations wdiich 
 induced it, or must repudiate the contract altogether.^ It 
 would be inconsistent with natural justice, to permit a man to 
 retain property acquired through the medium of false repre- 
 sentations made by his agent, although he was no party to 
 them, or did not authorize them.^* If an agent employs 
 
 Cran worth. See Archbold v. Lord 
 Howth, L. R. Ir. 2 C. L. 608; but see 
 Wilde V. Gibson, 1 H. L. G03. See, 
 however, Sug. L. P. 641 ; Reynell v. 
 Sprye, 1 D. M. & G. 684, per Knight 
 Bruce, L. J., commenting on Wilde v. 
 Gibson. 
 
 * Barwick v. English Joint Stock 
 Bank, 1.. K. 2 Exch. 265. See Hern v. 
 Kicliolls, 1 SMlk. 289. 
 
 « Udell V. Atherton, 7 II. & N. 184, 
 
 per Pollock, C. B., <fe Wilde, B. ; ex-par te 
 Ginger, .5 Ir. Cb. 174 ; Barwick v. Eng- 
 lish Joint Stock Bank, L. P. 2 Exch. 
 265. See Archbold v. Lord Howth, L. 
 K. Ir. 2 C. L. 608; comp. Solomon v. 
 H(mywood, 12 W. R. 572. 
 
 ' New Brunswick, tfec., Co. v. Cony- 
 beare, 9 11. L. 711 ; Western Bank of 
 SeoUaiul V. Addie, L. R. 1 Sc. App. Ca. 
 159 ; Cakes v. Turquand, L. R. 2 App. 
 Ca. 325. 
 
 Bank v. Gregg, 14 N. H. 331 ; Bowers ■». Johnson, 10 Smed. & Mar. 1G9; 
 Mason v. Crosby, 1 Wood & Min. 342 ; Morton v. Scull, 23 Ark. 289; Gris- 
 wold V. Haven, 25 K Y. 595. Graves v. Spier, 58 Barb. 349. 
 
 A representation by an agent that a certain fact is not known to liini, 
 is not a denial of the existence of the fact or of the knowledge of Ms 
 principal concerning it. Coddington v Goddard, 16 Gray, 436. 
 
 * Fitzsimmons v. Joslin, 21 Vt. 129; Veozie v. Wiriams, 8 How. 134; 
 Crocker v. Lewis, 3 Sumner, 8; Bowers v. Johnson, 10 Smed, & Mar. 1G9;
 
 MISREPRESENTATION. 113 
 
 another person to make representations, it is the same as if the 
 representations had been made by hini.^ 
 
 In Cornfoot v. Fowke,^ a man had employed an agent for 
 the sale of property, who in the course of the treaty for sale 
 made material representations respecting the property, which 
 he honestly believed to be true, though they were false in fact 
 and false to the knowledge of the principal; there being, 
 however, no evidence to show a fraudulent purpose on the 
 part of the principal, it was held that fraud and covin could 
 not be pleaded in bar to an action by him on the contract. It 
 was admitted, however, in the judgment that if a principal 
 with knowledge of a fact material to the enjoyment of prop- 
 erty employs an agent, whom he knows to be ignorant of 
 that fact for the purpose of concealing it, he could not 
 be permitted to avail himself of that concealment. Lord 
 Abinger, C. B., differed from the majority of the court, being 
 of opinion that if a principal employs an agent to sell prop- 
 erty, and such agent in the course of his employment makes 
 false representations respecting the property, he cannot take 
 advantage of a contract induced by such representations, 
 whether the agent was authorized by him or not to make the 
 representations. 
 
 Cornfoot V. Fowke has been the subject of much comment. 
 It has been explained by Lord Cranworth, in National Ex- 
 change Company v. Drew,^ and Bartlett v. Salmon,* and by 
 "Willes, J,, in Barwick v. English Joint Stock Bank,^ as hav- 
 ing turned on a point of pleading. Lord St. Leonards ac- 
 
 ' Western Bank of Scotland v. Addie, ' 2 Macq. 108. 
 
 L. R. 1 Sc, Ap. 150. * 6 D. iM. <fe G. 39. 
 
 « 6 M, & W. 358. * L. R. 2 Excb. 2432, 
 
 Hiiut V. Moore, 2 Barr, 105 ; Iluntcr v. Hudson Riv. Iron Co. 20 Barb. 493 ; 
 Franklin v. Elzell, 1 Sneed, 497.
 
 114 MISREPRESENTATION. 
 
 cepted die explanation, but apparently with reluctance, in 
 National Exchange Company t\ T>rew} He stated it to be 
 his opinion that the law will reach the case of a person so 
 availing himself of the misrepresentations of his own agent, 
 who might be ignorant of a fact material to the enjoyment of 
 the property, although the principal himself knew it, and em- 
 ployed the agent in order to avoid making a direct representa- 
 tion to the contrary. He said that he would go farther, and 
 would hold that although the representation was not fraudulent, 
 the ao-ent not knowing it was false, yet that as it in fact was false, 
 and false to the knowledge of the principal, although the agent 
 did not know it, it ought to vitiate the contract.^ So also in 
 Wheelton v. Hardisty,^ Lord Campbell said that Westminster 
 Hall was in favor of the opinion of Lord Abinger. In a care- 
 fully considered American case, Fitzsimmons v. Joslin,* Corufoot 
 V. Fowke was pronounced to be bad law.^ The latest author- 
 ity on the subject is a dictum of Lord Kingsdown, in Bristow 
 V. Whitmore;^ "If an agent," he said,' "makes a contract on 
 behalf of his principal, whether with or without authority, the 
 principal cannot at once approbate and reprobate it. He must 
 adopt it altogether or not at all. He cannot at the same time 
 take the benefits which it confers and repudiate the obligations 
 which it imposes."^ * 
 
 > 2 Macq. 144. ' 9 H. L. 418. 
 
 ^ lb. 14ij. * ^ee Ex-pnrte Ginger, 5 Ir. Cli. 1'74. 
 
 ' 8 i:. <fe B. SVO. See, also, Sug. L. P. 641 ; Reynell v. 
 
 * 21 Verm. (Amer.) 129. Sprye, 1 D. M. &. G. 683, i>er Knight 
 
 ^ ^^ee Bennett v. Judson, 7 Smith Bmice, L. J. ; but see Wilde v. Gibson, 
 
 (Amer.) 238. 1 H. L. 605. 
 » 9 II. L. 418. 
 
 * Hougli V. Richardson, 3 Story, 689; Henderson v. Railroad Co. 17 Tex. 
 560 ; Crump v. U. S. Mining Co. 7 Gratt. 353. 
 
 A party can not avail himself of an advantage that has been obtained 
 throu"h the misrepresentation of a third person, although such third per- 
 son is not his agent. Hunt v. Moore, 2 Barr, 103 ; Fitzsimmons v. Joslin, 
 21 Vt. 129.
 
 MISEEPRESEi!JTATION. 115 
 
 A partnership firm is bound by false and fraudulent rep- 
 resentations made by any of its members whilst acting within 
 the scope and limits of his authority and having reference to 
 the proper business of the firm,^ but is not bound by state- 
 ments made by him as to his authority to do that which 
 the nature of the business of the firm does not impliedly 
 warrant.^ 
 
 A company or corporation is as much bound by the false 
 and fraudident rej)resentations of its authorized agents as an 
 individual. If the directors of a company in the course of 
 managing its affairs, or in the course of the business which it 
 is their duty to transact induce a man by false or fraudulent 
 misrepresentations to enter into a contract for the benefit of 
 the company, the company is bound, and can no more re- 
 pudiate the fraudulent conduct of its agents than an individual 
 can.^ * A company cannot retain any benefit which it may 
 have obtained through the fraudulent representations of its 
 
 ' Rapp V. Latham, 2 B. <fe Aid. 795; 5 H. L. 86 ; Xational Exchange Co. v. 
 
 Lovell V. Hicks, 2 Y. <fe C. 46, 481; Dicw, 2 Macq 125, per Lord Craa- 
 
 Blair v Bromley, 5 Ha. 557, 2 Ph. 354; worth; Mfiix Executors' Case, 2 I». M. 
 
 Wickham v. Wickham, 2 K. & J. 478. & G. 522 ; NicoU's Case, 3 I>. & J. 387. 
 
 * Ex-iiiirte Agace, 2 Cox, 312. 437 ; y^e^y Brunswick, <fcc.. Railway Co. 
 
 Miurnes ?\*l'en'nell, 2 H. L. 497; v. Conybeare, 9 H. L. 737, per Lord 
 
 Ranger v. Great We^tera Railway Co. Cranworth. 
 
 * Henderson v. Railroad Co. 17 Tex. 560 ; Litchfield Bauk r. Peck, 29 
 Ct. 384 ; Crump v. U. S. Mining Co. 7 Gratt. 353 ; East Tenn. R. R. Co. v. 
 Gammon, 5 Sneed, oG7 ; Hester v. Mempliis, &c., R. R. Co. 32 Miss. 378; 
 River v. Plankroad Co. 30 Ala. 92; New Orleans, &c., R. R. Co. v. Wil- 
 liams, 16 La. Ann. 315. 
 
 Where representations made by an agent to obtain subscriptions are a 
 part of a scheme of fraud participated in by the officers authorized to 
 manage its affairs; or where they are such as the agent may reasonably be 
 presumed by the subscri!)er to have the authority of the corporation to 
 make, his represL'utations are relevant to show the fraud by means of 
 which the subscription was procured. But where there is no rer.sonaljle 
 presumption of authority, and no actual authority, the corporation will not 
 be prejudiced by the unauthorized acts of the agent. Custar v. Tiiusvillo 
 Water 6c Gas Co. 03 Penn. 381.
 
 116 MISEEPEESENTATION. 
 
 agents, but is responsible to the extent to wbicb it may have 
 prolited from such representations.* 
 
 The rule that a company cannot retain any benefit which it 
 may have obtained through the false and fraudulent represen- 
 tations of its agents, applies to the case of a member of the 
 company, who was induced by such representations to take 
 additional shares.^ 
 
 A principal, however, is not bound by the false and fraud- 
 ulent representations of his agent, unless the agent be acting 
 within the scope of his authority.^ A joint-stock company, 
 for instance, is not bound by the statements of one of its mem- 
 bers, unless he is also the agent of the company, and unless 
 his business be to make statements on its behalf.* Kor is a 
 company bound by the statements of one of the directors, or 
 of its manager, or secretary, or of a clerk, if he is not singly 
 an agent of the company .^ The rule that companies are bound 
 by the misrepresentations of the directors applies only to the 
 case of directors acting as a body.^ 
 
 Referees for information respecting a life to be assured are 
 not thereby constituted the agents of the insured. If their 
 information is false and fi-audulent, but not to the knowledge 
 of the assured, the insurer is not entitled to avoid the policy 
 on the ground that it was induced by the fraud of the agent 
 of the insured.' 
 
 > Western Bank of Scotland v. Addie, Railway Co. v. Conybeare, 9 H. L.711. 
 
 L. R. 1 Sc. App. Ca. 157; Oakes v. See Barry v. Crosskey, 2 J. <fe H. 27. 
 
 Turqiiand, L. 11. 2 App. Ca. 325 ; lien- * Bunies v. Pennell, 2 II. L. 497. 
 
 derson i'. Lncon, L. R. 5 Eq 261. See ^ PIoK's Case, 22 Beav. 48; Ayre'a 
 
 Barrv v Crosskey, 2 J. <fe H. 1. Case. 25 Beav. 513 ; Gibson's Case, 2 
 
 ' Western Bank of Scotland v. Addle, D. <fe J. 275 ; NieoU's Case, 3 D. <fe J. 
 
 L R. 1 Sc. App. Ca. 163. 387; Ex-parie Frowd, 30 L. J. Ch. 822; 
 
 ' Bernard's Case, 5 Deg. & S. 283; WolListoii's Case, 4 D. <fe J. 437. 
 
 Ayres Case, 25 Beav. 513; Burnes v. " Nicoll's Case, 3 D. & J. 387, 440. 
 
 Pennell, 2 II. L. 497 ; Nicoll's Case, 3 See National Exchange Co. v. Drew, 24 
 
 D <fe J.'387, 437 ; Wollastou's Case, 4 Dec. of Court of Session, 2d series, p. 1. 
 
 d! & J. 437; Att.-Gen. v. Briggs, 1 ' Wheeltoa v. Hardisty, 8 E. «& B. . 
 
 Jiir. N. S. 10^4; New Brunswick, Ac, 232.
 
 MISREPRESENTATION. 117 
 
 An agent whose authority is unknown cannot bind his 
 principal by misrepresenting the authority conferred.^ 
 
 Although a principal is not bound by the statements of an 
 agent when not acting within the scope of his authority, the 
 case is different if a principal knows that a man is dealing with 
 his agent under the belief that all statements made by the 
 agent are warranted by the principal, and so knowing, allows 
 him to expend moneys in that behalf. A court of equity will 
 not afterwards allow the principal to set up the want of author- 
 ity of the agent. The knowledge must, however, be brought 
 home to the principal.^ 
 
 In Brockwell's Case,^ Kindersley, Y.-C, held that if the 
 directors of a company in the exercise of their ordinary func- 
 tions make a false report to the company, who adopt it, and 
 the report finds its way into the hands of a man who takes 
 shares on the faitli of it, he could not he held liable.* The 
 authority of the case has been, on two occasions,^ questioned 
 by Lord Chelmsford.® He has expressed himself as of opinion 
 that a company is not bound by false statements contained in 
 reports of the directors of the company, which have been 
 adopted at a general meeting but do not affect to give any 
 more knowledge than what was contained in the directors' 
 report ; and which, although they have been published and 
 have got into the hands of the public, have not been indus- 
 triously circulated by the company. The distinction, however, 
 suggested and taken by his Lordship does not seem sound law. 
 In two late cases,' Kindersley, Y.-C, said that he adhered to 
 the opinion he had expressed in Brockwell's Case ; and the 
 weight of authoi-ities is in favor of the opinion of his Honor.^ 
 
 ' story on Agency. Brunswick, &c., Railway Co. v. Cony- 
 
 * Riimsden v. Dyson, L. R. 1 App. beaie, 9 H. L. 749. 
 
 Ca. 129, per Lord Cran worth. * See, also. Mixer's Case,4 D. & J. 583. 
 
 ' 4 Drew, 205. ' Worth's Case, 4 Drew, 5;52 ; Bari 
 
 * See National Exchange Co. i). Drew, rett's Case, 2 Dr. & Sm. 415, 5 N. R. 
 2 Macq 103. 460. 
 
 * JS'icoll's Case, 3 D. «fe J. 427 ; New * See National Exchange Co. v. Drew,
 
 118 MISREPRESENTATION. 
 
 The general interests of society demand that, as between an 
 innocent company on the one hand and an innocent individual 
 defrauded by the company on tlie other, misrepresentations by 
 the directors of a company shall bind the company, although 
 the shareholders may be ignorant of the representations and of 
 their ftilsehood.^ It may be said that the reports of directors 
 are not made hy the company, but to the company ; but the 
 argument though plausible is not sound. The reports of 
 directors though addressed to the shareholders are made under 
 such circumstances that what they so report is known, and in- 
 tended to be known, not only to the shareholders, but to all 
 persons who may be minded to be shareholders just the same 
 as if they were published to the world : and the exigencies of 
 mankind require that reports so made and circulated should 
 be deemed to be the reports of the company.^ The case be- 
 comes all the stronger, if the reports of directors have been 
 adopted at a general meeting of the shareholders. After 
 adoption a report is the act of the company and not simply of 
 the directors.^ If after adoption a report is industriously cir- 
 culated, misstatements contained in it must be taken to be 
 made with the authority of tlie company.* 
 
 The principle which treats non-disclosure as equivalent to 
 fraud, when the circumstances impose a duty that disclosure 
 should be made, obtains specially in respect to policies of 
 assurance. The contract of assurance being essentially a con- 
 tract of good faith, inasmuch as the risk which the insurer un- 
 dertakes can only be learnt from the representations of the 
 party proposing the insurance, courts of justice proceed upon 
 a doctrine strictly analogous to that of the Roman law, and 
 
 125, per Lord Cran worth, ?'6. 143, per * National Exchange Co. v. Drew, 2 
 
 Lord St. Leonards; Nicoll's Case, 3 D. Macq. Vlo, per Lord Cranworth. 
 & J. 387, per Turner, L. J. ^ lb. 143, per Lord St. Leonards. 
 
 ' National Exchange Co. v. Drew, 2 * New Brunswiclf, &c.. Railway v. 
 
 Macq. 125. Conybeare, 9 H. L. 711. ISee Earrett'a 
 
 Case, 2 Dr. & Sm. 415.
 
 MISREPRESENTATION. 119 
 
 regard non- disclosure as fatal to the validity of the transac- 
 tion.^ * 
 
 The rule with respect to the duty of disclosure applies with 
 peculiar force in the case of policies of marine insurance. 
 The validity of a contract of marine insurance being condi- 
 tional upon the completeness, the tnith, and the accuracy of 
 the representations of the party proposing the insurance as to 
 the risk, he is bound to make known to the underwriter every- 
 thing within his knowledge which is of a nature to increase 
 the risk which he is asked to undertake. There are many 
 matters as to which he may be innocently silent. He is not 
 bound to mention facts and circumstances which are within 
 the ordinary professional knowledge of an underwriter : nor 
 is he bound to communicate things which are well known to 
 both parties, or which he is warranted in assuming to be 
 within the knowledge of the party who is asked to undertake 
 the risk ; as, for instance, where a fact is one of public noto- 
 riet}', as of war, or where it is a matter of inference and the 
 materials for forming a judgment are common to both parties. 
 But he is bound to communicate every fact which he is not 
 entitled to assume to be in the knowledge of the underwriter. 
 He may not, however, speculate as to what may or may not be 
 in the mind of the underwriter, or as to what may or may not 
 be brought to his mind by the particulars disclosed to him. 
 It is not enough that the underwriter be furnished with mate- 
 rials from which he may, by a course of reasoning and effort 
 of memory, see the extent of the risk. The matter must not 
 
 ^Carter v. Boehm, 3 Burr. 190.5; Lindenau v. Desborougli, 8 B. d: C. 686. 
 
 * Clark V. Man. Ins. Co. 8 How. 235 ; Fletcher v. Commonwealth Ins. 
 Co. 18 Pick. 419 ; Walden v. Louisiana Ins. Co. 12 La. 134 ; N. Y. Bowery 
 Ins. Co V. N. Y. Ins. Co. 17 Wend. 3.5S).
 
 120 MISREPRESENTATION. 
 
 be left to speculation or perad venture. If the particulars fur- 
 nished to the underwriter fall short of what the partj propos- 
 ing the insurance is bound to communicate, the contract is 
 vitiated. It is immaterial whether the omission to communi- 
 cate a material fact has arisen from intention, or indiiFerence, 
 or mistake, or from it not being present to the mind of the 
 party proj)osiiig the insurance that the fact was one which 
 ought to have been disclosed.^ The insurer is bound to com- 
 municate not only every material fact of which he has actual 
 knowledge, but every material fact of which he ought in the 
 ordinary course of business to have knowledge, and must take 
 all necessary measures by the employment of competent and 
 honest agents to obtain through the ordinary channels of intel- 
 ligence in use in the mercantile world all due information as to 
 the subject-matter of the insurance. If by the fraud or negli- 
 gence of his agent the party proposing the insurance is kept in 
 ignorance of a fact material to the risk, and through such neg- 
 ligence fails to disclose it, the contract is vitiated.'^ An under- 
 writer may, however, in any particular case limit the right of 
 full disclosure wliich he has by law to that of being informed 
 of what is in the knowledge of the party proposing the insur- 
 ance, not only as to its existence in point of fact, but also to its 
 materiality.^ 
 
 It was formerly considered that policies of assurance on 
 lives, like policies of insurance on ships, were made condition- 
 ally upon the truth or completeness of the representations 
 respecting the risk, and that misrepresentation or concealment 
 of a material fact, although not fraudulent, vitiated the policy.* 
 But it is now determined that such is not the case. The assured 
 is always bound not only to make a true answer to the ques- 
 
 ' Carter v. Boehm, 5 Burr. 1905; ^ Jones i>. Provincial Insurance Co. 3 
 
 Bates V. Hewitt, L. R. 2 Q. B. 595, 605, C. B. K S. 8fi. 
 
 606, 010. " Lindenau v. Desborough, 8 B. & C. 
 
 ^ Proudfoot V. Montefiore, L. R. 2 Q. 586 ; Jones v. Provincial lusurance Co, 
 
 B. 511. 3 C. B. N. S. 86.
 
 MISREPRESENTATION. 121 
 
 tions put to him, but to disclose spontaneously any fact exclu- 
 sively within his knowledge, which it is material for the 
 insurer to know. But it is not an implied condition of the 
 validity of the policy that the insured should make a complete 
 and true representation respecting the life proposed for insur- 
 ance. Such condition, if intended, must be made a matter for 
 express stipulation. If there be no warranty or condition on 
 the part of the party proposing the insurance, the insurer is 
 subject to all risks, unless he can show a fraudulent conceal- 
 ment or misrepresentation, or a non-communication of mate- 
 rial facts known to the assured.^ It is. however, an implied 
 condition that the person whose life is assured is alive at the 
 time of making the policy. The policy is void if the persoa 
 whose life is assured was dead at the date of the policy, though 
 neither party to tlie policy was aware of his death.^ If there 
 is a proviso that the policy shall not be disputed on the ground 
 of merely untrue statements, not fraudulently made, a misrep- 
 resentation or concealment undesignedly made does not avoid 
 the policy.' An insurer may limit his right to that of being 
 informed of what is in the knowledge of the party proposing 
 the insurance, not only as to its existence in point of fact, but 
 also as to its materiality.^ 
 
 Policies of insurance against fire are made upon the im- 
 plied condition that the description of the property inserted in 
 the policy is true at the time of making the policy;^ and there 
 is an implied condition that the property shall not be altered 
 during the term for which it is insured, so as to increase the 
 risk.^ In efiecting an insurance against fire, it is the duty of 
 
 ' Wbeclton v. Hardisty, 8 E. <fe B. v. Scottish Equitable Life Assurance 
 
 232. Co. 2 U. & N. 19; Wheelton v. Har- 
 
 ^ Pritchard v. Merchants' Life Assur- disty, 8 E. & B. 232. 
 ance Society, 3 C. B. N. S. C22. * Jones v. rrovincial Insurance Co. ^ 
 
 ^ Fowkes V. Manchester and London C. B. N. S. 80. 
 Life Assurance Co. 3 B. & S. 91'7. See * Sillem ?;. Thornton, 3 E. & B. 868. 
 
 Wood V. Dwarris, 11 Exch. 493 ; Reis " lb.; Stokes v. Cox, 1 H. it N. 533. 
 
 9
 
 122 MISEEPEESENTATIOK. 
 
 the party proposing the insurance to communicate to the 
 insurer all material facts within his knowledge touching the 
 property.^ But the insurer may limit his right to that of 
 being informed of what is in the knowledge of the party pro- 
 posing the insurance, not only as to its existence in point of 
 fact, but also as to its materiality.^ 
 
 The strict rule with respect to non-disclosure, which ob- 
 tains in the case of policies of insurance, does not extend to 
 contracts of suretyship or guarantee.^ If the creditor be spe- 
 cially communicated with on the subject, he is bound to make 
 a full, fair, and honest communication of every circumstance 
 within his knowledge, calculated in any way to influence the 
 discretion of the surety, on entering into the required obliga- 
 tion.* But he is not under any duty to disclose to the intended 
 surety voluntarily and without being asked to do so, any cir- 
 cumstances unconnected with the particular transaction in 
 which he is about to engage, which will render his position 
 more hazardous, or to inform him of any matter afiecting the 
 general credit of the debtor, or to call his attention to the 
 transaction, unless there be something in it which might not 
 naturally be expected to take place between the parties.® If 
 the intended surety desires to know any particular matter of 
 which the creditor may be informed, he must make it the sub- 
 ject of a distinct inquiry." But if there be anything in the 
 transaction that might not naturally be expected to take place 
 between the parties concerned in it, the knowledge of which it 
 
 ' Lindenau v. DesLorough, 8 B. & C. 598. See Smith v. Bank of Scotland, 1 
 
 592 ; Bule v. Turner, 6 Taunt. 338. Dow, 272. 
 
 ' Jones V. Provincial Insurance Co. 3 * Hamilton v. TVatson, 12 CI & Fin. 
 
 C. B. N. S. 86. 119; t^niiiU v. Currie, 2 Drew. 102; 
 
 ' North British Insurance Co. v. Wythes r. Laboucbere, 3 D. (fe J. 593, 
 
 Lloyd, 10 Exch. 523 ; Wythes v. La- 609. See Greenfield v. EdwarJs, 2 D. 
 
 bouchere, 3 D. <fe J. 609; Lee v. Jones, J. & S. 582. 
 
 11 C. B. N. S. 482. See Greenfield v. " Ilainilton v. Watson, 12 C. L. <fe 
 
 Edwards, 2 D. J. <fe S. 582. Fin. 109 ; Wythes v. Laboucbere, 3 D. 
 
 * Owen V. Hoiuan, 3 ilac. & G. 378 ; & J. 009. See Greenfield v. Edwards, 
 
 Blest V. iJrown, 8 Jur. N. S. 602; 2 D. J. <fc S. 582, 
 Greenfield v. Edwards, 2 D. J. AS. 582,
 
 miseepeese:station. 123 
 
 is reasonable to infer would have prevented the surety from 
 entering into the transaction, the creditor is under an obliga- 
 tion to make the disclosure.^ If, for instance, there be any 
 private arrangement, or secret miderstanding, between the 
 creditor and the debtor connected with the particular transac- 
 tion, in which he is about to engage, whereby the risk of the 
 surety is increased,^ or his position is so materially varied, that 
 he is not in the position, in which he might reasonably have 
 contemplated to be ; ^ or if a party having reason to suspect 
 the fidelity of his clerk requires security in such a way as to 
 hold him out as one whom he considers a trustworthy per- 
 son,* * or if the creditor has notice that the circumstances un- 
 der which the debtor has obtained the concurrence of the 
 surety lead to the suspicion of fraud ;^ concealment is fraudu- 
 lent and will vitiate the transaction.^ " It must in every case," 
 said Blackburn, J., in Lee v. Jones,' " depend on the nature of 
 
 » Hamilton v. Watson, 12 CI. & Fin. 8 D. M. & G 100; Spaight v. Cowne, 1 
 
 109, 110 ; Lee v. Jones, 17 C. B. N. S. H. & M. 359. 
 
 503; Burke v. Rogerson, 12 Jur. N. S. ■" t>mitli v. Bank of Scotland, 1 Dow, 
 
 635. See Squire r. Whitton, 1 II. L. 272. 
 
 333 ; Greenfield v. Edwards, 2 D. J. & " Owen v. Homan, 4 II. L. 997 ; Lee 
 
 S. 582; Rhodes r. Bate, L. li, 1 Ch. v. Jones, 17 C. B. N. 503; Rhodes v. 
 
 App. 252; Barwick v. English Joint Bate, L. R. 1 Ch. Ap. 252. See Guar- 
 
 Stock Bank, 2 L. R. Exch. 2r>9. dians of Stokesley Union v. Strother, 
 
 ' Pidcock V. Bishop, 3 B. <fe C. 605. \ See Squire v. Whitton, 1 H. L. 333. 
 
 » Evans v. Bremridge, 2 K. <fe J. 174 ; ' 17 C. B. N. S. 606. 
 
 * A person can not be considered as guilty of fraud in law by omitting 
 to make known facts of an important character affecting the risk of the 
 surety when it does not appear that he had an opportunity to do so. On 
 the contrary, when he does know such facts, and has reason to believe that 
 they arc not known to the proposed surety, if information be sought from 
 him, or if he have a sui able opportunity, and the facts are of such a char- 
 acter that they are not found in tlie uaual course of that kind of business, 
 and are such as materially to increase the risk, it is his duty to make them 
 known. To receive a surety known to be acting upon the belief that there 
 are no unusual circumstances by which hi-! risk will be materially increased, 
 well knowing that there are such circumstances, and having reasonable 
 opportunity to make them known, is a legal fraud i)y which the surety 
 will be relieved from the contract. Franklin Bank v. Cooper, 36 Me. 179 ; 
 s. c. 37 Me. 543.
 
 124 miseepkese:j:tatiok. 
 
 the transaction, whether the fact not disclosed is such that it 
 is impliedly represented not to exist, and that fact must be 
 generally a question of fact for the jury." 
 
 In order that a compromise may be supported in equity, 
 it is essential that the parties should have acted with equal 
 knowledge, or at least equal means of knowledge in the mat- 
 ter. If one of the parties has knowledge of a material tact, 
 which he withholds from the others, and which they have not 
 reasonable means of knowing, the transaction cannot stand. 
 A compromise cannot be approved of where one party knows 
 only so much of his rights as the opposite party chooses to 
 apprise him of. To constitute a fair compromise of a doubtful 
 right, the facts creating the doubt should be equally known 
 by all the parties. There must be a full and fair communica- 
 tion of all material circumstances affecting the question, which 
 forms the subject-matter of the agreement, which are within 
 the knowledge of the several parties, and which the others 
 have not reasonable means of knowing, whether such informa- 
 tion be asked for by them or not. There must not only be 
 good faith and honest intention, but full disclosure, and with- 
 out full disclosure honest intention is not sufficient.* A party 
 to a compromise who has knowledge of a fact, must not take 
 upon himself to decide that the suppressed fact is immaterial, 
 if it could by any possibility have had any influence on the 
 decision of the other party .^ If the compromise is a transac- 
 
 ' Gibbons v. Caunt, 4 Ves. 840 ; Wal- don, ih. 471 ; Leonard -y. Leonard, 2 B. dt 
 keru. Symonds, 3 Sw. 1 ; Gordon v. Gor- B. 180 ; Hotclikiss v. Dickson, 2 Bligh, 
 
 * Trigg V. Read, 5 Humph. 529 ; Carr v. Callaghan, 3 Litt. 365. 
 
 Concealment will not invalidate a compromise unless a loss lias been 
 occasioned thereby. Currie v. Steele, 2 Sandf. 542. 
 
 A compromise with knowledge of all the fiicts is valid although the 
 adverse party has expressed an unfounded opinion upon his rights. Blake 
 v. Pick, 11 Vt. 483 ; Saltonstall v. Gordon, 33 Ala. 49 ; Birdsong v. Bii-d- 
 song, 2 Head. 289.
 
 MISREPRESENTATION. 125 
 
 tion in the nature of a family arrangement, or if, under the 
 circumstances of the case, it was the duty of the one party to 
 see that the nature of the transaction was fully explained to 
 the other, these principles apply with peculiar force.^ But if 
 the parties to a family arrangement are not on good terms, and 
 are really at arms' length, the ordinary rules as to disclosure in 
 family arrangements have no place.^ 
 
 The rule with respect to compromises, which applies be- 
 tween private individuals, is not less applicable to compro- 
 mises by the courts on behalf of infants. The orders of the 
 court cannot be set aside on grounds less strong than those 
 which would be required to set aside transactions between 
 competent parties.^ 
 
 • The most comprehensive class of cases in which equitable 
 relief is sought on the ground of concealment, is in the case of 
 transactions between persons standing in a fiduciary relation 
 to each other. In all such cases the party who fills the posi- 
 tion of active confidence, is under an equitable obligation to 
 disclose to the party towards whom he stands in such relation, 
 every material fact which he himself knows calculated to influ- 
 ence his conduct on entering into the transaction. The sup- 
 pression of any material fact renders the transaction impeach- 
 able in equity.* This subject will come into review in a 
 
 348; Stewart v, Stewart, 6 CI. & Fin. Cooke, 4 Russ. 58; Pickering v. Pieker- 
 
 911; Harvey ■». Coke, 4 Kuss. 34, ing, 2 Beav. 56, 3 Jur. 743; Smitii v. 
 
 Pickering v. Pickering, 2 Boav. 56; Pinconibe, 3 Mao. <feG. 653; Davis;;. 
 
 Sc itt V. Scott, 11 Ir. Eq. 75; Goymoiir Chanter, 3 W. R. 321 ; Greenwood v. 
 
 V. Pigge, 13 L. J. rh. 322; Bainbri:;ge Greenwood, 2 D.J. & S. 28. See Breut 
 
 V. Moss. 3 Jur. N. S. 58 ; Davis v. Chan- v. Brent, 10 L J. Ch. 84. 
 
 ter, 3 W. R. 321 ; Greenwood v. Green- ° Irvine v. Kirkpatrick, 7 Bell's Sc. 
 
 wood, 2 D. J. <fe S. 2S ; Brooke r. Lord App. I'a. 180, 209. 
 
 Mostvn. ib. 373. See Lloyd ii. Passing- ^ Hrooke v. Lord Mostvn, 2 D. J. <fe 
 
 liam,'Coop. 152; M'Kelhir?.'. \Vallacc\8 S. 416. 
 
 Moo. P. C. 378 ; Triage v. Lavalit'e, 15 * Walker v. Symonds, 3 Sw. 1 ; Wood 
 
 Moo. P. C. 270; Cooke v. Greves, 30 v. Downes, 18 Ves. 120; Bulidey v. 
 
 Beav. 378. Wiif.rd, 2 CI. & Fin. 1(12,177-181; 
 
 'Dunnage v. White, 1 Sw. 137; iladdeford v. Austwick, 1 Sim. 80; 
 
 Gordon v. Gordon, 3 Sw. 400; Leonard Lloyd v. Attwood, 3 D. <fe J. 014 ; Toin- 
 
 V. Leonard, 2 B. <fe B. 18U; Harvey v. sonV Judge, 3 Drew. 306,
 
 126 MISKEPRESENTATIOlir. 
 
 subsequent page, where the peculiar equities between persons 
 standing in these predicaments come into consideration. 
 
 The principle of law, that a man who makes a representa- 
 tion to another in such a way, or under such circumstances, as 
 to induce him to believe that it is meant to be acted on, is 
 liable as for a fraud, in the event of the representation proving 
 to be false, and damage thereby accruing to the party to whom 
 it was made, though common to both law and equity,^ is not 
 so general in its application at law as in equity. It is not 
 necessarj', nor, perhaps, would it be easy to define the limits of 
 its application at law, but in equity the principle is of very 
 general application, and is the foundation of a very compre- 
 hensive and most salutary part of the jurisdiction. A man 
 who has so conducted himself as to cause a reasonable man. to 
 believe in the existence of a particular fact, or state of facts, 
 or things, and to believe that the representation, as conveyed 
 to his mind, was meant to be acted on, will not be permitted 
 by a court of equity to derogate from interests which have 
 been created, or rights which have been acquired on the faith 
 of the existence of such a fact, or state of facts or things, by 
 showing that the fact, or state of facts or things, was not such 
 as he represented it to be, or by determining the actual state 
 of thino-s which he has so held forth as the consideration for 
 the change of his condition by the other, or to enforce his 
 leo-al right, if any, against him, unless the latter has received 
 the benefit which he contemplated at the time he was induced 
 to alter his condition.^ * 
 
 ' Supra, p. 53. 609 ; riscott v. Ptratton, John. 369, 1 D. 
 
 ' W e.t V. Jones, 1 Sim. K S. 207 ; F. <k J. 49; Cooper v. Joel, 1 D. F. <fe J. 
 
 M:ijor V. Major, 1 Drew. 165 ; Somerset- 240; Dendy v. Cary, 9 Jur. N. S. 845 . 
 
 shire Canal Co. v. Ilarcourt, 2 D. <fe J. Youmans v. Williams, L. R. 1 Eq. 185,' 
 
 * If a party so conducts himself as -wittingly and -willingly to lead 
 another isto the belief of a fact -nhereby he -would be injured if the fact
 
 MISREPIIESENTATI02T. 127 
 
 Tlie principle is not limited to cases where a distinct repre- 
 sentation has been made, but applies equally to cases where a 
 man, by his silence, produces a false impression on the mind of 
 another.^ If a man has been silent, when in conscience he 
 ought to have spoken, he is debarred in equity from speaking 
 when conscience requires him to be silent,^ If a party has an 
 interest to prevent an act being done, and he acquiesces in it 
 60 as to induce a reasonable belief that he consents to it, and 
 the position of others is altered by their giving credit to his 
 sincerity, he has no more right to challenge the acts to their 
 prejudice, than he would have, had it been done by his pre- 
 vious license.^ Parties who stand by without asserting their 
 rights, and allow others to incur liabilities which they might 
 not have incurred if those rights had been asserted, cannot 
 set up those rights in a court of equity as against those by 
 whom such liabilities have been incurred/ "When, for in- 
 stancy, a man builds or lays out moneys upon land, supposing 
 it to be his own, and believing he has a good title, and the 
 real owner, perceiving his mistake, abstains from setting him 
 
 ' Sxpra, p. 94. * Olliver v. King, 8 D. M. & G. 118, 
 
 * Nivcn'c. Belknap, 2 Johns. (Amer), j^cr Turner, L. J. ; Lindsay v. Gibbs, 3 
 
 573, per Thompson, C. J. D. &■ J. 697. 
 
 ^ I'airncross v. Lorimer, 7 Jur. N. S. 
 
 150, per Lord Campbell. 
 
 were not as so apprdi ended, the person inducing the belief will he estop- 
 ped from denying it to the injury of such person. Crockett v. Lashbrock, 
 5 Mon. 530; "Watson v. McLaren, 19 Wend. 557 ; Petere v. Foster, 21 
 Wend. 172; Davis v. Thomas, 5 Leigh, 1 ; Bank t. Wollaston, 3 Harring. 
 90- Hicks V. Cram, 17 Vt. 449; Clements v. Loggins, 2 Ala. 514; Roe v. 
 Jerome, 18 Ct. 138 ; Croat v. De Wolf, 1 R. I. 393 ; Robinson v. Ju&tice, 2 
 Penn. 19 ; Cowles v. Baco, 21 Ct. 451, 
 
 The fact tliat his conduct arose from carelessness or negligence is no 
 excuse. Cady v. Owens, 34 Vt. 598. . 
 
 The doctrine has no application where a mistake as to title is mutual, 
 and the person having no title has not expended any money. Stuart t. 
 Luddinglon, 1 Rand. 403.
 
 128 MISREPRESENTATION. 
 
 rio-lit, and leaves him to persevere in liis error ; * or where a 
 man, under an expectation created or encouraged by the owner 
 
 * Mere silence and the making of improvements by others, is not sufB- 
 cient. TJiere must be some ingredient in the transaction which would 
 make it a fraud in the owner to insist upon his legal light. Silence will 
 postpone only where silence is a fraud. Folk d. Birdelmar, 6 Watts, 339 ; 
 Crest i\ Jack, 3 Watts, 238 ; Devereux v. BurgwjTi, 5 Ired. Eq. 351 ; Nevin 
 V. Belknap, 3 Johns. 373 ; Clabaugh v. Byerly, 7 Gill. 354. 
 
 Several things are essential to be made out in order to the operation of 
 the rule. Ist. The act or declaration of the person must be wilful, that is 
 ■with knowledge of the facts upon which any right he may have must de- 
 pend, or with an intention to daeeive the other party. 2d. He must at 
 least be aware that he is giving countenance to the alteration of the con- 
 duct of the other party. 3d. And it mu^t appear that the other party has 
 changed his position by reason of such inducement. Copaland v. Cope- 
 land, 23 Me. 535 ; Morton v. Hogdon, 33 Me. 127 ; Morris v. Moore, 11 
 Humph. 433 ; Taylor ®. Zipp, 14 Mo. 482; Carpenter v. Stillwell, 13 Barb. 
 128 ; Eidred v. Hazlett, 33 Penn. 307. 
 
 The word " wilfully," as used in this connection, is not to be taken in 
 the limited sense of the term " maliciously," or of the term " fraudulently ; " 
 nordoesit necessarily imply an active desire to produce a particular im- 
 pression, or to induce a particular line of conduct. Whatever the motive 
 may be, if one so acts or speaks that the natural consequence of his words 
 and conduct will be to influence another to change his condition, he is 
 leo-dly chargeable with an intent, a wilful design to induce the other to 
 believe him and to act upon that belief, if such proves to be the actual 
 result. Preston v. Mann, 3} Ct. 118. 
 
 If a party has misled another under such circumstances that he had no 
 reasonable ground for supposing that the person whom he was misleading 
 was to act upon what he was saying, he will not be bound by his represen- 
 tations. If a stranger hears and acts upon his representations the doctrine 
 does not apply. Morgan v. Spangler, 4 Ohio St. R. 103. 
 
 A refusal to speak with a reason given for it is not the same thing as 
 silent acquiescence in what another is saying. Taylor v. Ely, 25 Ct. 250. 
 
 The rule does not apply where the means and opportunity of tracing 
 title are equally open to both parties. It can only be held to apply 
 against one wha claims under some trust lien or other right not equally 
 open and apparent to both parties. Tongue v. Nutwell, 17 Md. 213. 
 
 The improvements must be of such a character as to show that the 
 party placed them there in confidence of his being the owner of the land. 
 Caldwell v. Williams, 1 Bailey's Ch. 175. 
 
 Although the right of the party who thus misleads third persons by 
 his silence is merely a reversionary interest, and subject to a life estate in
 
 MISREPRESENTATION. 129 
 
 of land that lie shall have a certain interest, takes possession of 
 such land, with the consent of the owner, and upon the faith 
 of such promise or expectation, with the knowledge of the for- 
 mer, and without objection by him, lays out moneys upon the 
 land ; in such cases a court of equity will not afterwards allow 
 the real owner or the landlord, as the case may be, to assert his 
 legal right against the other, without at least making him a 
 proper compensation for the expenditure which he has in- 
 curred.^ * If the works on which moneys have been laid out 
 are of a permanent character, or are works which point to per- 
 manence, the court will not allow them to be interfered with, 
 even upon the payment of a proper compensation. A man 
 who by his conduct has encouraged another to spend moneys 
 on his land, in erecting works of a permanent character, cannot 
 be permitted to put an end to the very thing which he has ap- 
 proved. All that he is entitled to is a proper compensation in 
 
 ' East India Co. v. Vincent, 2 Atk. Beav. 20 ; Laird v. Birkenhead Railway 
 
 83; Dann /'. Spurrier, 7 Ves. 235 ; Shan- Co. Jolin. 514; llarrourt v. Vv'hite, 28 
 
 non V. Bradstreet, 1 Sob. & Lef. 52; Beav. 30.S ; Arcliboldv. Scully, 9 II. L. 
 
 Gre,a:ory«;. Miglieil, 18 Ves. 328; Caw- SCO; O'Fay v. Burke, 8 Ir. 'Ch. 225; 
 
 dor?'. Lewis. 1 Y. & C. 427; Garrard Burke v. I'rior, 15 Ir. Cli. 106. Seo 
 
 n. O'lU-illy, 3 Dr. <fe War. 414; Clare y. Kamsden ji. Dyson, L. K. 1 App. Ca. 
 
 Harding, 6 Ha. 273; Powell v. Thomas, 129; Nuna v. Fabian, L. R. 1 (Jli. App.' 
 
 ib. 305 ; Duke of Leeds v. Lord Am- 35. 
 hurst, 2 i'h. 117; White v. Wakley, 26 
 
 the very person whom he suffers to deal with the prop3rty as absolute 
 o\vner, the rule of equity still applies. Higginbothum v. Barnett, 5 Johns. 
 Ch. 184; Barclay v. Davidson, 63 Penn. 406. 
 
 A party who encourages another to buy up a piece of property, can not 
 after\yard-i buy up a better title and assert it. Beaupland r. McKeen, 28 
 Penn. 124 ; Davis v. Handy, 37 N. H. 63. 
 
 At law neither concealment nor misrepresentation are an estoppel, and 
 there is no rule which precludes a p irty from showing his title. Jones v. 
 Sasser, 1 Dev. & Bat. 402 ; West v. Tilghman, 9 Ired. 163 ; MePhcrson v. 
 Walters. 16 Ala. 714 ; Miller v. Piatt, 5 Duer, 273 ; eo7itra, Corbett v. Nor- 
 cross, 35 N. H. 99 ; Corkhill v. Landers, 44 Barb. 218. 
 
 * Swain v. Seamens, 9 Wall. 254 ; Town v. Needham, 3 Paige, 543 ; Hall 
 V. Fisher, 9 Barb. 17; Carr v. Wallace, 7 Watts, 394; Eply v. Witherow, 7 
 Watts, 163.
 
 130 MISKEPRESEXTATION. 
 
 respect of the land wliicli has been taken.^ The principle ap- 
 plies to companies as well as individuals.^ The case in which 
 the principle has been carried to the farthest extent is Claver- 
 ins: V. Thomas.^ It was there held that a man who has stood 
 by and allowed moneys to be spent in opening a mine, which 
 he knew conld only be worked by a wayleave over his own 
 land, was bound in equity to give the wayleave. 
 
 Another illustration of the principle that a man who re- 
 mains silent when there is a duty to speak is bound in equity, 
 is where a man claiming a title in himself to property is privy 
 to the fact of another, with color of title, or pretending to title, 
 dealing with the property, as being his own, or as being unin- 
 cumbered, and conceals his claim. A man who claims an in- 
 terest in property need not voluntarily communicate the exist- 
 ence of his claim to a person whom he knows to be about 
 purchasing the property,* but the suppression or concealment 
 of his claim is a fraud in the sense of a court of equity, if a 
 man is privy to the fact that the apparent owner or party in 
 possession is about to deal with the property as his own, and as 
 unincumbered, and he does not give the party, with whom he 
 is about to deal, notice of his right. He will not be permitted 
 by a court of equity to set up afterwards his own interest 
 against a title created by the other.^* In a case where a 
 
 •Du1<e of Beaufort v. Patrick, lY 554; SavaGje v. Foster, 9 Mod. 36 ; Rer- 
 
 Beav. 60; Somer-etshire Canal Co. v. risford r. Milward, 2 Atk. 40; Beckett 
 
 Harcourt, 2 D. & J 596 ; Mold ?;. Wheat- v. Cordley, 1 Bro. C. C. 357 ; Govett v. 
 
 croft, 27 Beav. 516. See Bell v. Mid- Ricbmond, 7 Sim. 1 ; Brown ?'. Thorpe, 
 
 land Railway Co , 3 D. <fe J. 673. 11 L. J. Ch. 73 ; Boyd v. Bolton, 1 J. 
 
 ■•' Hill >: South Staffordshire Railway & L. 730 ; Tliompsou v. Simpson, 2 J. 
 
 Co., 11 Jiir. N. S. 192. & L. 110; Muholson v. Hooper, 4 M. 
 
 »Cit. 5 Ves. 689, 6 Ha. 304. & G. 179; Zulueta v. Tyrie, 15 Beav. 
 
 * See Hooper v. Harrison, 2 K. & J. 591; Mangles v. Dixon, 3 ILL. 739; 
 
 103; lilan-les v. Dixon, 3 H. L. 739. Olliver v. King, 8 D. M. <fe G. 110; 
 
 ' Teas lale i'. Teasdale, Sel. Ca. Ch. Davies v. Davies, 6. Jur. N. S. 1322; 
 
 69; Hunsden t'. Ci eyney, 2 Vern. 150; LTpton v. Vanner, 1 Dr. & Sm. 594; 
 
 Raw I'. Pole, ib. 239; Draper v. Bor- Hooper ?;. Gumm, L. R. 2 Ch. App. 282. 
 lase, ib. 370 ; Ibbotson v. Rhodes, ib. 
 
 * Wendell v. Y;in Eensslcr, 1 Johns. Ch. 344; Lee ®. Porter, 6 .Johns. 
 Cb. 268; Eagle f. Burns, 5 Call. 403; Harrison v. Edwards, 8 Litt. 340 j
 
 MISREPRESENTATION. 131 
 
 mother heard lier son before liis marriage declare that a certain 
 term was to come to him at her death, and was witness to a 
 deed, whereby the reversion was settled on the issue of the 
 marriage, she was lield compellable in equity to make good the 
 settlement.-^ So, also, in a case where a man having a claim 
 upon property, which was the subject of a reference, knew that 
 the arbitration was o-oino- on but did not brino; forward his 
 claim, he was held bound by the award.^ In Mocatta v. Mur- 
 gatroyd,^ the principle was applied in the case of a first mort- 
 gagee, from the mere circumstance of his being a witness to a 
 second mortgage, but the case goes too far. In order to post- 
 pone a prior mortgage, it is necessary to prove against him 
 fraud or actual notice of the subsequent mortgage.* 
 
 ' Hunsden v. Clipyney, 2 Vern. 150. ^ 1 P. W. 303. 
 
 ' Govett V. Ilichuioud, Y Sim. 1. ■• Eeckett v. Cordley, 1 Bro. C. C. 353 
 
 Storrs n. Barker, G Johns. Ch. 166 ; Ten Eick v. Simpson, 1 Sandf. Ch. 244 ; 
 Allen V. Winston, 1 Rand. 65 ; Skirving v. Neufville, 2 Dessau. 194; Las- 
 selle v. Bamett, 1 Blackf. 139; Dickenson v. Davis, 2 Leigh, 401; Howland 
 V. Scott, 2 Paige, 406; Raugley v. Spring, 8 Shep. 130; Bird v. Benton, 
 2 Dev. 179 ; Governor v. Freeman, 4 Dev. 472 ; Dewey v. Fiehl, 4 Met. 381 ; 
 Thompson v. Sanborn, 11 JST. H. 201 ; Tomlin v. Den, 4 Harris, 76; Ivers 
 r. Chandler, 1 Chipnian, 48 ; Skinner v. Strousa, 4 Mo. 93 ; Brothers v. 
 Porter, B. Men. 106 ; Cox ». Buck, 3 Strobh. 367 ; March v. Weekerly, 13 
 Penn. 250; Danley v. Rector, 5 Eng. 211. 
 
 The assent is as much to be inferred from the encouragement to pay a 
 small sum as the whole purchase money, for the purchaser, inferring such 
 assent fiom such payment, may reasonably go on thereafter to complete his 
 purchase. Eagle v. Burns, 5 Call. 463. 
 
 The fact that the title is a matter of record is no defence to the owner, 
 Carr «, Wallace, 7 Watts, 394 ; Epley t. Witherow, 7 Watts, 163, 
 
 If the truth is known to both parties, or if both parties have equal 
 means of information, the rule does not apply. Catlin v. Grote, 4 E, D. 
 Smith, 296 ; Tongue v. Nutwell, 17 Md. 212. 
 
 A party who stands by at a sale under an execution, may by his con- 
 duct preclude himself from afterwards setting up title to the property 
 sold. M'Donald v. Lindall, 3 Rawle, 492 ; Epley v. Witherow, 7 Watts, 
 163; Keeler v. Vantuyle, 6 Barr, 250; Whittington v. Wright, 9 Geo. 23; 
 Moriand v. Bliss, 12 B. Men. 255; Gottschalk v. De Santos, 12 La, An. 
 473.
 
 132 MISREPRESENTATION. 
 
 The equitable rule that a man claiming an interest in prop- 
 erty may not stand by and conceal his claim, when he sees 
 another dealing with the property as his own, or as unincum- 
 bered, applies with peculiar force, if the person claiming title 
 has in any way actively encouraged the parties to deal with 
 each other,^ * or has confirmed the party in the error into which 
 he has fallen, or if he derives any benefit from the delusion so 
 caused.^ 
 
 In order to justify the application of the principle, it is in 
 dispensable that the party standing by should be fully apprised 
 of his rights, and should by his conduct encourage the other 
 party to alter his condition, and that the latter should act on 
 the faith of the encouragement so held out.^ f The principle 
 
 > Dyer v. Dyer, 2 Ch. Ca. 108; Dra- ' Dann v. Spurrier, 1 Ves. 230; Bar- 
 
 per V. liorlase, 2 Vera. 370 ; Ibbotson nard v. W.illis, Cr, & Ph. 85 ; Marker 
 
 V. Rhodes, ib. 553; Brown v. Thorpe, v. Marker, 9 Ha. 16; Hooper ?'. Clark, 
 
 11 L. J. Ch. 73; Davies v. Davies, 6 25 L. J. Ch. 467; Eamsden y. Dyson, L. 
 
 J(ir. N. B. 1322. R. 1 App. Ca. 129. 
 
 " Nicholson v. Hooper, 4 M. & C. 179. 
 
 * Folk V. Beidelman, 6 Watts, 339 ; Aills v. Graham, 6 Litt. 440 ; Black- 
 •wood V. Joues, 4 Jones' Eq. 54. 
 
 t Snelgrove x. SuelgTove, 4 Des=sau. 274 ; Buckingham v. Smith, 10 
 Ohio, 288; Ringrow v. Warder, 6 B. Mon. 514; Whitaker v. Williams, 20 
 Ct. 98; Lewis v. San Antonio, 7 Tex. 288; Tilghman v. West, 8 Ired. Eq. 
 183 ; Dixfield «. Newton, 41 Me, 231 ; McAfferty v. Conover, 7 Ohio St. R. 
 99 ; Boggs V. Merced et al. 14 Cal. 279 ; Newman v. Edwards, 34 Penn. 32 ; 
 Danforth v. Adams, 29 Ct. 107 ; Junction R. R, Co. v. Harpold, 19 Ind. 
 347; Tongue v. Nutwell, 17 Md. 212; Robinson v. Justice, 2 Pc^n. 19, 
 
 Where a party acting under a mistake of law or of facts, does acts 
 which mislead the adverse party, he is estopped as well as if he was not 
 acting under <-uch mistake. Garner t\ Bird, 57 Barb. 277; Barnes x. Mc- 
 Kay, 7 Ind, 301 ; Tilton v. Nelson, 27 Barb. 595 ; Aills v. Graham, 6 Litt. 
 440 ; Skinning v. NeufYille, 2 Dessau. 194 ; Strong v. Elsworth, 2fl Vt. 3G6; 
 Wells V. Pierce, 27 N. H. 503 ; Storrs v. Barker, 6 Johns. Ch. 160 ; M'Kel- 
 vey V. Truby, 4 W. & S. 323 ; Jackson v. Inabit, 2 Hill's Ch, 411 ; s. c. 
 Riley's Ch. 9. 
 
 Pos'tive acts stand upon a different footing from mere concealment; 
 for there, a title may be postponed even without fraud, in accordance with 
 an equitable principle of universal application, that where a loss must
 
 MISEEPEESENTATION. 133 
 
 does not apply in favor of a stranger who builds on land, know- 
 ing it to be the property of another, nor in favor of a lessee 
 who expends moneys with the knowledge of his landlord on the 
 improvement of the estate. If a stranger builds on land know- 
 ing it to be the property of another, equity will not jDrevent 
 the real owner from afterwards claiming the land, with the 
 benefit of all the expenditures upon it. So, also, if a tenant 
 being in possession of land, and knowing the nature and extent 
 of his interest, lays out money upon it in the hope and expec- 
 tation of an extended term or an allowance for it, then if such 
 hope or expectation has not been created or encouraged by the 
 landlord, the tenant has no equity to prevent the landlord from 
 taking possession of the land and buildings when the tenancy 
 is determined.^ * l^or does the principle apply in favor of a 
 man who is conscious of a defect in his title, and with such 
 conviction in his mind expends money in improvements on the 
 estate.' f 
 
 ' Pillinn: V. Armitage, 12 Ves. 78 ; son, L. R. 1 App. Ca. 129, per Lord 
 
 Clare Hall v. Ilardinii:, 6 Ha. 273; Duke Kingsdown. See Rennie v. Young, 2 
 
 of Beaufort v. Patrick, 17 Eeav. 60; D. <fe J. 142. 
 
 Hamer v. Tilsley, John. 487; O'Fay v. * Kenney v. Brown, 3 Ridg. 518. 
 Burke, 8 Ir Ch. 226 ; Ramsdcn v. Dj- 
 
 necessariiy fall upon one of two innocent persons, it shall be borne by him 
 whose act has occasioned it. Beaupland v. McKeen, 28 Penn. 124. 
 
 The excuse of ignorance does not apply where the misrepresentations 
 that mislead another are made by a party who is consciously ignorant of 
 the matter to which they relate at the very time that he professes a full 
 knowledge of it. Preston v. Mann, 25 Ct. 118. 
 
 An express agreement recognizing an erroneous boundary will conclude 
 a party where the other party, acting upon the faith of such agreement, 
 has made expensive improvements, the benefit of which will be lost to him 
 if the line is disturbed. Corkhill v. Landers, 44 Barb, 218 ; Wood v. Mc- 
 Lellan. 48 Me 375 ; Combs v. Cooper, 5 Minn. 254. 
 
 * Ferris v. Coover, 10 Cal. 589 ; Odlin v. Gove, 41 K H. 465 ; Baldwin 
 V. Eichnian, 1 Stockt. 894 ; Patton v. McClare, 1 Mart. & Yerg. 333 ; Gray 
 V. Bartlett, 20 Pick. 180. 
 
 t McCormick v. McMurtrie, 4 Watts, 193; Buckingham v. Smith, 10
 
 134 MISREPRESENTATION. 
 
 A man who, with full knowledge of the real circumstancea 
 of the case, permits another, under a mistake, to execute a 
 deed, whereby he incurs a liability, cannot be heard to say that 
 he has contracted liability on the faith of the other being sub- 
 ject to the liability.^ 
 
 The rule at law as to leave and license not being counter- 
 mandable cannot, perhaps, as far as it goes, be distinguished 
 from the equitable doctrine of acquiescence,^ but leave and 
 license executed may be set up at law, as giving a right and 
 title, only in cases where moneys have been expended by a man 
 upon his own land.^ No right or title can be acquired to an 
 easement, or other right over the land of another, although the 
 license may have been executed, and moneys may have been 
 expended upon the land of the licensee by his express permis- 
 sion. The license may be at any time countermanded at the 
 will of the owner of the soil.* But in equity the doctrine of 
 acquiescence applies as well where a man has been induced to 
 
 » Bron"-hton v. Hiitt, 3 D. & J. 501. Marshall, 10 C. B. K S. Til ; Blood v. 
 
 ^ Daviesr. Marshall, 10 C. B. N. S. Keller, 11 Ir. C. L. 124. 
 711 per VVilles, J.^ but see Swaine v. " Wallis w. Harrison, 4 M. & W. 538 
 
 Great Northern Railway Co, 9 Jur. N. Wood v. Leadbitter, 13 M. & W. 838 
 
 g 119G Davies <•. Marshall, 10 C. B. N. S. 711 
 
 "» Winter v. Brocljwell, 8 East, 309; See Fisher v. Moon, 11 L. T. N. S. 623; 
 
 Hewlins v. Shiphain, 5 B. <fe C. 221; but see Blood v. Keller, 11 Ir. C. li. 
 
 Liggius V. Inge, 7 Bing. 682 ; Davies v. 124. 
 
 Ohio, 288; Hepburn «, McDowell, 17 S. &R. 383; Crest v. Jack, 3 Watts, 
 
 ■ 238. 
 
 One joint tenant cannot make improvements on the common property 
 without the consent of the rest, and then claim to hold it until reimbursed 
 a proportion of the moneys expended. Crest i>. Jack, 3 Watts, 238. 
 
 The law imputes knowledge of every fact of which the exercise of 
 ordinary diligence would have put a party in possession, and such an im- 
 putation of knowledge is sufficient to rebut the inference of u merely con- 
 istructive fraud, which might otherwise ba implied from the silence of the 
 owner. Alexander ®. Kerr, 2 Rawle, 83; Chew «. Caloitt, 1 Walk. 84, 
 KnoufF V. Thompson, IG Peun. 357.
 
 MISREPRESENTATION. 135 
 
 expend moneys on tlie land of anotlier, as wliere tlie expendi- 
 ture has been on his own land.-^ 
 
 The equitable doctrine with respect to the part perform- 
 ance of parol agreements is founded on the general doctrine of 
 law as to misrepresentation. At law the express language of 
 the Statute of Frauds prevails, and the doctrine as to the part 
 performance of parol agreements has no place. But in equity 
 it is a fraud in the eye of the court to set up the absence of an 
 agreement, where possession has been given on the faith of an 
 agreement. If a man has been permitted to take possession 
 on the faith of an agreement, it is against equity that he should 
 be treated as a trespasser, and turned out of possession, on the 
 ground that there is no agreement. Where possession has 
 been given on the faith of an agreement, a court of equity will, 
 as far as possible, ascertain the terms of the agreement, and 
 give effect to it.^ IsTothing, however, is part performance that 
 does not put the party into a situation that it is a fraud upon 
 him, if the agreement be not jDerformed.'" In order, too, that 
 an act of part performance may have any operation whatso- 
 ever, it must be shown plainly what the terms of the agree- 
 ment are, and it must clearly appear that the act of part per- 
 formance relied on is properly referable to an agreement such 
 as the one alleged and is not referable to another title.* The 
 expenditure, for instance, by a tenant in possession on repairs, 
 is referable to the title which he has in the estate, and cannot 
 
 * Duke of Devonshire v. E2:lin, 14 Powell v. Love^rove, 8 D. M. <fe G 
 Beav. 530; Duke of Beaufort w. Patrick, 857; Pain «. Co'ombs, 1 D. & J. Si- 
 ll lieav. CO ; White?;. Wakley, 26 Beav. Lillie v. Legh, 3 D. <fe. J. 2(14 ; Lincoln 
 20 ; Laird v. Birkenhead Railway Co., v. Wright, 4 D. <fe J. 16; Stcevens' 
 John. 500; Fislier v. Moon, 11 L. T. N. Hospital v. Dyas, 15 Ir. Ch.'403. 
 S. 623. ' ( linan v. Cooke, 1 Sch. & Lef. 41 
 
 ' Mundy v. Jolliflfe, 5 M. <fe C. Ill; * Fry on Specific rerforriiance, 174. 
 Wilson V. West Hartlepool Railway See Dale ;■. Hamilton, 5 Ha. 381 ;' Lin- 
 Co., 2 D. J. & S. 475. See Bond v. coin >: Wright, 4 1). <fe J. 16; I'l'ice v. 
 Hopkins, 1 Sch. & Lef. 413, 433; Mor- Sal;i.sbiu-g, 32 Buav. 446; 'Lord v. 
 phett V. Jones, 1 Sw. 172 ; Surcouibe v. Underdoiick, 1 Sandf. Ch. (Amcr.), 46 • 
 Pinnigcr, 3 I). M. tfe G. 571; Great Smith v. Uiulordonck, ih. 579; Wolfe 
 Northern Railway Co. v. Lancashire, v. Frost, 4 Sandf. Ch. (Amer.), 72. 
 &c., Railway Co., 1 Sm. «fe G. 81 ;
 
 136 MISREPRESENTATION. 
 
 be deemed an act of part performance.^ But the laying out of 
 money by a tenant in possession, in pursuance of a parol agree- 
 ment for a lease, or upon the faith of a specific engagement 
 that possession should not be disturbed, is an act of part per- 
 formance.2 So, also, and upon the same principle, the posses- 
 sion of a tenant after the expiration of a lease, is not a part 
 performance, for it is referable to the title he has ; ^ but it is 
 otherwise if the possession be referable to an agreement for 
 renewal.* The mere payment of money is not part perform- 
 ance,^ nor is marriage an act of part performance, but if one of 
 the contracting parties agrees, as the consideration for a mar- 
 riage, to do something more than marry, as to settle an estate, 
 and in consideration of that promise the other party contracts 
 to make a settlement, the settlement made by the one con- 
 tracting party is a good act of part performance.® 
 
 The o-eneral doctrine of law with respect to misrepresenta- 
 tion applies to cases where a man, by his negligent conduct, 
 puts it in the power of a third party to commit a fraud upon 
 another. If a man, by neglect of some doty that is owing to 
 another, or to the general public, of which he is one, leads him 
 to believe in the existence of a certain state of facts, and the 
 belief so induced is the proximate cause of leading him to do a 
 certain act, whereby he is prejudiced, the former cannot be 
 afterwards heard as against the latter to show at law that that 
 state of facts did not exist.' The same principle obtains in 
 
 •Wills V Stradling, 3 Ves. 378; 'Wills v. Stradling, 3 Ves. 318; 
 
 Pillin"- V. Armilage, 12 Ves. IS; Sav- Lincoln v. Wriglit, 4 D. & J- 20. 
 ao-e »■ Carroll, 1 B. & B. 265; Brennan * Dowell v. Dew, 1 1. <fe C. C. C. 
 
 v° Bolton, 2 Dr. & War. 349. See 345. 
 
 Ramsden v. Dyson, L. R. 1 App. Ca. ' Clinan v. Cooke, 1 Sch. <& Lef 41 
 
 ,29 Hammersley v. De Biel, 12 CI. & 
 
 ' Wills V Stradling. 3 Ves. 378 ; Fin. 45. See Warden v. Jones, 2 D. & 
 
 Mimdv V JoUitle, 5 M. & C. 167; J. 76; Caton v. Caton, L. R. 1 Ch. Ap. 
 
 Sutherland v. Briggs, 1 Ha. 26 ; Shilli- 137, 2 L. R. Ap Ca. 127. See further 
 
 beer v Jarvis 8 D. M. .fe G. 79; L^ird on the subject of part performance, Fry 
 
 ,. Birkenhe;id Railway Co., John 500; on Speciiic Performance, 174—190; 
 
 mmn. Fabian, L. R. 1 Ch. Ap. os! .^ug. V. & F. 150-157 ; Dart. V. & P. 
 
 See Rarasdea v. Dyson, L. R. 1 App. 655—661. ^, ,, . , . . ^ 
 p, ^29 Swan v. North Australasian Co.,
 
 misiiepeese:ntatiok. 137 
 
 equity. If a man, although he may be acting in the most en- 
 tire good faith, is guilty of such a degree of neglect as to 
 enable another so to deal with that which is his right, as to 
 lead an innocent party to assume that he is dealing with his 
 own, he creates an equity against himself in favor of the inno- 
 cent party who has been so misled, and must bear the loss.^ 
 " It is a general principle of equity," said Turner, L. J., in 
 Tayler v. Great Indian Peninsular Railway Company,' " that 
 wherever one of two innocent parties must suiFer by the acts 
 of a third, he who has enabled the third party to occasion the 
 loss must sustain it." ^ But to bring a case within the prin- 
 ciple, it is necessary that the representation allowed to be con- 
 veyed to the mind of one of the two innocent parties, by the 
 negligent conduct of the other, should be false, and that he 
 should believe it to be true, and should not have the means 
 which would enable a reasonable man to discover the false- 
 hood,* and that the negligence should be in respect of some 
 duty cast upon the person who is guilty of it, and should be in 
 the transaction itself, and should be a proximate and necessary 
 cause of the transaction. It is not sufficient that it should be 
 only remotely connected with it.^ 
 
 The application of the princij)le, and the determination of 
 the better equity, as between two innocent parties, who have 
 been defrauded by a third party, is often a matter of much 
 nicety.** If there be anything in the transaction calculated to 
 
 2 H. <fe C. 182. See Bank of Ireland * Yandelenr v. Blagrave, \1 L. J. 
 
 V. Trustees of Evans' Charities, 5 H. L. Ch. 45. See Kennedy v. Green, 8 M 
 
 409. <fe K. 699. 
 
 * Teasdale v. Teasdale, Sel. Ca. Ch. ' Swan v. North British Anstrala- 
 59; Evans v Eicknell, G Ves. 181 ; Van- sian Co., 2 II. &, C. 182. See Trustees 
 deleur v. Blasjrave, 17 L. J. Ch. 45; of Evans' Charity v. Bank of Ireland 
 "West V. Jones^, 1 Sim. N. S. 205 ; Wal- 5 II. L. 389 ; NicoU's Case, 3 D. <fe j! 
 dron V. Sloper, 1 Drew, 193 ; Perry 38*7. 
 
 Ilerrick v. Attwood, 2 D. <fe J. 21; " See Frazer v. Jones, 5 ITa. 475, IT 
 
 Layard v. Maud, L. R. 4 Eq. 404. L. J. Ch. 353; Jones v. Thomas ll'w 
 
 " 4 I), .fe J. 559, 574. R. 50. 
 
 * See Greenfield v. Edwards, 2 D. 
 J. &. S. 582. 
 
 10
 
 138 MISEEPEESENTATIOlir. 
 
 excite suspicion, or to put one of the parties upon inquiry, and 
 he abstains from inquiry, the consequences of his own neglect 
 must fall upon him.^ Where, for instance, an innocent party 
 had accepted an instrument which, upon its very face, was 
 devoid of legal validity, the court held that as between him 
 and another innocent party, the loss must fall upon him.' 
 
 In cases where there is nothing to put either of the 
 parties upon inquiry, the court, in determining the question 
 upon which of two innocent parties the loss must fall, has 
 regard to the relation, if any, between the parties, and to 
 their respective rights and omissions. Any negligence or 
 indiscretion on the part of the one, may give the other a 
 better equity.^ "Where, for instance, a man having dealings 
 with another, duly and formally executed a deed in respect of 
 the dealings, and delivered the deed to the agent of the other 
 party, without receiving the purchase-moneys, and the agent 
 received the moneys from his principal and misappropriated 
 them, it was held that the loss must fall on the former, 
 inasmuch as he had, by his negligence in delivering the deed 
 to the agent, put it into his power to commit the fraud.* A 
 man who has permitted himself to be made a tool of by 
 another, in whose hands he has left the deed, cannot set up 
 as against a third party, who has acted fairly and honestly in 
 the transaction, that he has been deceived.^ Where, on the 
 other hand, a man having dealings with another, in respect 
 
 ' Kennedy v. Green, 3 M. <fe K 699. H. & M. 359 ; Dowle v. Saunders. 2 H. 
 
 See infra. Notice. <fe M. 250. 
 
 ' Taylor v. Great Indian Peninsular * West v. Jones, 1 Sim. N. S. 208. 
 
 Co., 4 D. &. J. 559. See Cottam v. See Young v. White, 7 Beav. 508; 
 
 Eastern Counties Railway Co., 1 J. <fe Young v. Guy, 8 Beav. 147; Griffin v. 
 
 H. 243; Donaldson i-. GiUott, L. R. 3 Clowes, 20 Beav. 61; Ru^houti-. Turner, 
 
 E.r. 277. 5 W. R. 670 ; Wrout v. Dawes, 25 Beav. 
 
 '' Vandeleur r-. Blagrave, 6 Beav. 565, 369; Smith v. Evans, 28 Beav. 62; 
 
 IT L. J. Ch. 45 ; Hiorns v. Houlton, 16 W all v. Cockerell, 3 D. F. <fe J. 737; 10 
 
 Beav. 259; Waldron r. Sloper, 1 Drew, H. L. 229; Adsetts v. Hives, 33 Beav. 
 
 193; Cottam r. Eastern Counties Uail- 52. 
 
 way Co. 1 J. A Ha. 243 ; Case v. James, ' Greenfield v. Edwards, 2 D. J. <Sc S. 
 
 8 D. F. <fe J. 264 ; Spaight v. Cowne, 1 696.
 
 MISREPEESENTATIOir. 139 
 
 of wliieh the same person acted as agent for both parties, 
 delivered to the agent an instrument, reciting the payment of 
 the purchase-moneys, but without the receipt for the moneys 
 being signed, and the agent received the moneys in payment 
 from the other party, but did not pay them over to the 
 former, or inform him that they were in his hands, it was 
 held that the latter, who had paid the moneys into the hands 
 of the agent, must bear the loss.^ 
 
 The question as to whic^ of two innocent parties must 
 bear the loss occasioned by the fraud of a third party, 
 sometimes arises in cases where a banker has paid moneys 
 upon a forged cheque. Payment on a forged cheque is not 
 any payment at all as between the party paying and the 
 person whose name is forged.^ But cases may exist in which 
 such payment may be made valid by reason of collateral 
 matters. Where there has been negligence or want of due 
 caution in the circumstances that were the immediate cause 
 of the payment, on the part of the person whose name is 
 forged, he cannot set up the invalidity of the document as 
 against his bankers, who have been induced thereby to pay 
 moneys upon it, if it appears that they have acted in the 
 matter with reasonable caution.^ In Young v. Grote,* for 
 instance, the customer of a bank signed a cheque in blank, 
 to be filled up by his wife, with whom he left it, and she 
 filled it up with a sum of £50, written so inartificially that a 
 servant was able to insert the words " three hundred '' before 
 the word " fifty," so as to deceive the bank without blame 
 on their part. It was held that the loss must fall on the 
 customer. 
 
 ' Vandcleur ?•. Elapravo, 6 Bcav. 505, * Orr v. Union Bank of Scotland, 1 
 
 17 L. J. ( h 45. Ste raislioiit v/\ inner, Macq. 513. 
 
 5 W. i;. 070; Ogilvie v. JcafriH.n, 2 ' lb. f,23; British Linen Co. v. Cale- 
 
 Gin ::r)3 ; Sjiaiiilit v. Cowne, 1 II. & M. donian In-uranie Co. 4 Macq. 114. 
 3511; Wi.U V. Cockerfll, 10 11. L. 229; « 4 Bing. 263. 
 
 Adsntts V. Hives. 33 Bejiy. 52.
 
 140 
 
 MI SREPRE SENT ATION. 
 
 Ill oases arising between the owner of tlie legal estate, 
 or a first mortgagee, and a person who claims an equity 
 upon the estate, or the title deeds, the application of the 
 principle differs from the rule which applies in ordinary 
 cases. In order that the owner of the legal estate, or first 
 mortgagee, should be postponed to a subsequent incumbrancer, 
 it is not suflicient to make out a case of mere negligence. To 
 have that effect, a case of gross negligence must be made out.^ 
 If a man, in taking the legal estate, makes no inquiry for 
 the title deeds, but allows them to remain in the hands of 
 the vendor or mortgagor, his conduct affords evidence of an 
 amount of negligence sufiicient to justify the court in im- 
 puting to him a knowledge of those facts which, by the use 
 
 ' Peter n. Paissell, 2 Vern. '726 ; Evans 
 V. Bicknell, 6 Yes. 174, 191; Colyer v. 
 Finch, 5 H. L. 905 ; Carter v. Carter, 3 
 K <fe J. 646 ; Perry Herrick v. Attwood, 
 2 D. <fe J. 21. The distinction between 
 mere negligence and gross negligence 
 was recognized by the Roman lawyers. 
 Culpa levis, in the language of the Rom- 
 an law, is the want of that diligence 
 which is taken by prudent, careful 
 persons ; culpa lata is the want of that 
 diligence wliich might be expected even 
 of a person of less than ordinary pru- 
 dence. Lindl. on Jur. 131, Culpa lata 
 was considered generally equivalent to 
 dolus. Lata culpa dolo comparatur. Dig. 
 11, tit. 6, lei:. 1, ^ 1. "Lata culpa est 
 nimia negligentia, id est non intelligere 
 quod omnes intelliffunt." Dig. Lib. 50, 
 tit. 16, leg. 213. "Si quis non aleum 
 modum qucm nominum natura desiJerat 
 diligeuH ed, fraude no)i caret.'" Dig. 
 Lib. 16, tit. 3, leg. 32. " Sensus est," 
 adds a commentator, ib., "latam culpam 
 duobus indiciis deprchendi. Primo si 
 quis non ad eum modum facial, quo 
 omnea homiucs faciunl : altera, si quis 
 non eodem modo in re aliena ac in suis 
 rebus versetur ; ntrumqw: dolo proximum, 
 est. Levis est quotiis eaiulem. iu alienis 
 qunm in su's rebus dilif/enliam etfdem 
 prcestat, non tamen earn qnam circum- 
 spectiores homines el diligentissimv adhi- 
 bent: et, ut p lucis dicam, levis culpa est 
 con'^veta in rebus suis et alienis negligen- 
 
 tia ; lata est in suis diligcnfia, in alienis 
 ner/ligentia." If the fault is one yhich 
 any man in his senses would have 
 scrupled to commit, tliere is lata culpa: 
 if the fault consists in falling short of 
 the highest standard of carefulness to 
 avoid injury that could be found ; such, 
 for instance, as the carefulness em- 
 ployed in the management of afFiiirs by 
 a person who would deserve to be called 
 bonus priterfamiliaf., the culpa was levis 
 or levisnima. Or, again, it might consist 
 in falling short of the care which the 
 person guilty of the culpa was accus- 
 tomed to bestow on his own affairs. 
 Lata culpa was treated very mucii on 
 the same fooling as dolus, as there al- 
 ways seems something wilful in the ex- 
 treme negligence, the crassa negligeutia 
 wliich characterized the lata culpa. — 
 Bandars' Inst, p 477. When it is said 
 by the Roman lawyers that negligence, 
 heedlessness, or rashness is equivalent, 
 in certain cases, to dolus, the Ejeaning 
 is, that, judging from the conduct of 
 the party, it is impossible to determine 
 wliether he intended, or whether lie 
 was negligent, heedless, or rash ; and 
 that, such being the case, it shall be 
 presumed that he intended, and his 
 liability shall be adjudged accordingly', 
 provided that the question arise in a 
 civil action. — Austin's Lect. on Jur. vol, 
 II, p. 107.
 
 MISREPRESENTATION. 141 
 
 of ordinary diligence lie must have discovered. So, also, 
 gross negligence will be imputed to a man vi^lio, liaving 
 parted with the title deeds for a reasonable purpose, allows 
 them to remain out of his possession for an unreasonable 
 time. But if a man, on taking the legal estate land fide, 
 inquires for the title deeds, and a reasonable explanation or 
 excuse is given for their non-deli\'ery, or if he parts with 
 them for a reasonable purpose, and does not allow them to 
 remain out of his hands without making reasonable inquiries 
 for them, or using reasonable endeavors to get them back, 
 gross negligence will not be imputed to him, although a 
 fraud may be practised by means of them upon an innocent 
 party.i 
 
 In cases, however, where the contest lies between parties 
 having merely equitable interests, unaccompanied by the legal 
 estate, an equitable mortgagee who either omits to get, or 
 who having got the deeds, gives them up, and thereby arms 
 the mortgagor with the means of dealing with the estate, as 
 the absolute legal or equitable owner, free from any shadow of 
 incumbrance or adverse equity, will be postponed to another 
 equitable incumbrancer who has got possession of the deeds, 
 and whose equity in other respects is of the same nature and 
 quality.^ In examining into the relative merits or equities 
 of two parties having adverse equitable interests, the court 
 directs its attention not only to the nature and conditions of 
 their respective equitable interests, but to the circumstances of 
 
 ' Peter v. Russell, 2 Vern. 726 ; Mar- Ernest, 3 D. J. <fe S. 116. See Allen v. 
 
 tincz V. Cooper, 2 lUiss. 198 ; Farrow v. Kni^lit, 11 Jur. 527; Dowle v. SaunckTS, 
 
 Rees, 4 Beav. 18 ; Stevens v. Stevens, 2 211. it M. 242 ; but see Lnyard v. Maud, 
 
 Coll. 20; Wortliington »;. Morgan, 16 L. R. 4 Kq. 4(Hi, ;>«• Miiliiis, V.-C. 
 Sim. 547; Hewitt v. Loospiuore, 9 11a. ^ Allen /'. Knighr, 5 11a. 272, 11 Jur. 
 
 449; Rayne v. Baker, 1 Gift". 246; Col- 527; Waldron v. Slopur, 1 Drew. 193; 
 
 yer v. Finch, 5 II. L. 905; Carters. Rice v. Rice, 2 Drew. 83; Dowle v. 
 
 Carter. 3 K. tfe J. 646; Perry Herrick Saunders, 2 II. <fe M. 242; Layard v, 
 
 V. Attwoail, 2 D. & J. 21 ; Hunt i'. Maud, L. R. 4 Eq. 397. 
 Elmes, 2 1). F. «fc J. 578 ; Hop^ood v.
 
 142 MISEEPEESENTATION. 
 
 their acquisition, and the whole conduct of each party with 
 respect thereto.* 
 
 No priority can be acquired through the medium of a 
 breach of duty.' JSTegligence will not be imputed to a man 
 for leaving his title deeds in the hands of his solicitor^, or 
 deliveriDs: a transfer of shares and certificates to a broker for 
 the purj)ose of registration * ; nor will negligence be imputed 
 to trustees for leaving documents of title in the hands of one 
 of their number", or a corporation seal in the hands of their 
 secretary.^ 
 
 In the case of equitable interests in personal estate, or 
 choses in action, a purchaser or other incumbrancer, who fails 
 to give notice of his interest to the person in possession of the 
 fund, will be postponed to an incumbrancer, though subse- 
 quent in date, who gives notice.' But this rule has no ap- 
 plication whatever to real estate. As between equitable 
 incumbrancers of real estate, he whose security is prior in 
 date, has the better equity. He who takes the first security 
 is entitled to priority over a person who takes a subsequent 
 security, notwithstanding that the latter may have been be- 
 forehand in giving the party in possession of the estate notice 
 of his security.^ An equitable incumbrancer on real estate is 
 not as against another equitable incumbrancer postponed by 
 any absence of activity in asserting his legal right, except 
 guch as amounts to fraud.® 
 
 ' Rice V. Rice, 2 Drew. 80. * Bank of Ireland v. Trustees of 
 
 " Cory r. Eyre, 1 I). J. <fe S. 149. Evans' Charities. 5 H. L. 409. 
 
 ^ Jb., Bozon V. Williams, 3 Y. & J. ' Dearie v. Hall, 3 Russ. 1; Love- 
 
 150. ridge v. Cooper, ib. 30 ; Foster v. Black- 
 
 ♦ Donaldson v. Gillott, L. R. 3 Eq. stone, 1 M. & K. 297 ; Martin r. Sedg- 
 
 277. wick, 9 Beav. 333 ; Etty v. Bridges, 2 
 
 ' Cottam V. Eastern Counties Rail- Y. & C. C. 0. 486; Thompson v. Tom- 
 way Co. 1 J. & II. 243. See Carter v. kins, 2 Dr. <fe Sm. 8. 
 Carter, 3 K. & J. 647; Stackliouse v. * Jones r. Jones, 8 Sim. 642; Wilt- 
 Countess of Jersey, 1 J. <t H. 721; shire i). Rabbits, 14 Sim. 76. 
 Dodds V. Hills, 2 ll. <fe M. 424. ' Rooper v. Harrison, 2 K. «fc J. 103.
 
 FEAUD PEBSUMED. 143 
 
 SECTION III.— FRAUD TO BE PRESUMED FROM THE 
 INEQUALITY OF FOOTING OF THE PARTIES.— IN- 
 ADEQUACY OF CONSIDERATION. 
 
 Besides that kind of fraud wliich consists in misrepresenta- 
 tion, express or implied, there is another which will be pre- 
 sumed, when parties to a transaction do not stand upon the 
 equal footing on which parties to a transaction should stand.^ 
 The general theory of the law, in regard to acts done and con- 
 tracts made by parties affecting their rights and interests 
 being that, in order to bind them there must be a free and 
 full consent, and consent being an act of reason accompanied 
 with deliberation, transactions, in which one of the parties ia 
 not as free and voluntary an agent as the other, or does not 
 apprehend the meaning and effect of what he is doing, want 
 the very qualities which are essential to the validity of all 
 transactions.'^ In order that there should be consent, it is 
 essential that the consent should be given with reflection and 
 with knowledge, freely, without restraint or surprise. Fraud, 
 therefore, whether consisting in misrepresentation, conceal- 
 ment, violence, duress, or constraint, will nullify consent.^ It 
 is upon this principle that when a person, who from his state of 
 mind, age, weakness, or other peculiar circumstances, is inca- 
 pable of exercising a free discretion, is induced by another to 
 do any act, which may tend to the injury of himself or his 
 representatives, that other shall not be allowed to derive any 
 benefit from his improper conduct. The equitable rule is of 
 universal application that where a man is not a free agent. 
 
 • Edwards v. Meyrick, 2 Ila. 68. * Toull. Cod. Civ. Ut. 3, tit. 8, 
 
 » Story's Eq. Jur. § 222. n, 38.
 
 144 FRAUD PEESUMED. 
 
 or is not equal to protecting liimself, tlie court will protect 
 him.^ * 
 
 It is upon the general ground that there is a want of 
 rational and deliberate consent that the contracts of idiots, 
 lunatics, and other persons no7i compotes mentis, are generally 
 deemed invalid by a court of equity. The mere fact, however, 
 that a man is in a state of lunacy, or is even in confinement, 
 will not jMr se induce the court to interfere, if it be distinctly 
 
 'Evnns v. Llewellj-n, 1 Cox, 340; Monk, 10 Jnr. N. S. 091; Williams v. 
 Cro'sve v. nallard, 1 Yes, Jr. 215; Cas- Bay ley, L. R. 1 App. Ca. 200. 
 borne v. Barsham, 2 Beav. 76; Baker v. 
 
 * Butler V. Haskell, 4 Dessau. 651 ; McCormick v. Malin, 5 Blackf. 503; 
 Higliljergcr v. Stiffler, 21 Md. 338; Hallett v. Collins, 10 How. 174; Bunch 
 v. Hurst, 3 Dessau. 273 ; Brogden «. Walker, 3 H. & J. 285 ; Whelan v. 
 Whelan, 3 Cow. 537; Keeble v. Cummins, 5 Hey. 43; King v. Cohen, 6 
 Yerg. 75 ; Mason r. Williams, 3 Munf. 126 ; Whipple v. McClure, 2 Root, 
 216 ; McDaniel v. Moorman, 1 Harp. Ch. 108 ; Rutherford v. Ruif, 4 Dessau. 
 350; James v. Langdon, 7 B. Mon. 193; Brice v. Biice, 5 Barb 533 ; Tracey 
 V. Sackett, 1 Ohio St. R. 54; Cook v. Cole, 2 Halst. Ch. 522, 677; Crud- 
 dock V. Cabiness, 1 Swan, 474 ; Kelly v. McGuii-e, 15 Ark. 555 ; Freeland 
 V. Eldridge, 19 Mo. 325 ; Freeman v. Durggin, 2 Jones' Eq. 163 ; Hill v. 
 McLaurin, 38 Miss. 288 ; Marshall v. Billingslea, 7 Ind. 250 ; Martin v. 
 Martin, 35 Ala. 560 ; Franklin i\ Ridenour, 5 Jones' Eq. 430. 
 
 By weakness of mind is meant a sort of mental imbecility approaching 
 to the condition of one who is actually non compos me:,tis and analogous 
 to childishness and dotage. Owing's case, 1 Bland, 370. 
 
 The only point of inquiry is in regard to the condition of the grantor's 
 mind at the time of executing the instrument. Beckwith v. Butler, 1 
 Wash. (Va.) 224. 
 
 A court of equity will not impute fraud merely because one party is 
 more intelligent than the other, although the bargain may turn out advan- 
 tageously to the wiser party. Faniam v. Brooks, 9 Pick. 213; Arman v. 
 Stout, 43 Penn 114; Thomas v. Shepperd, 2 McCord's Ch. 30; Mann ». 
 Betterly, 21 Vt. 330. 
 
 Courts will not measure the degree of a man's understanding, but they 
 will scrutinize all the transactions of persons of weak minds. Coucant v, 
 Jackson, 16 Vt. 335 ; Hadley v. Latimer, 3 Yerg. 537. 
 
 Great distress of mind and a proffer of assistance are circumstances 
 that will 1)6 considered in dt termining whether a transaction is fraudulent. 
 Dismukes v. Terry, Walk. 197 ; Wilson v. Watts, 9 Md. 350.
 
 fKAUD PRESUMED. 145 
 
 shown that the transaction was for his own benefit, that no 
 coercion or imposition was used, and that he knew clearly 
 what he was doing;* and so an executed contract, where par- 
 ties have been dealing fairly and in ignorance of the lunacy, 
 will not be set aside, if injustice would be done to the other 
 side and the parties cannot be placed in statu quo, or in the 
 position in which they stood before the transaction.^ But this 
 rule is not applicable to a case where the question is whether 
 the deed of a lunatic altering the provisions of a settlement is 
 invalid.' 
 
 The same rule prevails at law. To prove lunacy is not 
 enough to avoid a contract. A contract eutered into honci fide 
 and in the ordinary course of business, is not void by reason 
 of one of the parties having been at the time a Imiatic* To 
 vitiate the contract, it must appear that the other party was 
 aware of the fact of lunacy and took advantage of it.^ 
 
 A party claiming under a deed, is not bound to prove the 
 sanity of the person executing it. The burden of proof lies on 
 the other side.^ 
 
 Independently of that degree of imbecility which will 
 render a man legally non compos, a conveyance may be 
 impeached lor mere weakness of intellect, provided it be 
 coupled with other circumstances to show that the weakness, 
 such as it is, has been taken advantage of by the other party ; 
 but the mere fact that a man is of weak understanding or is in 
 intellectual capacity below the average of mankind, if there be 
 no fraud, or no undue advantage be taken, is not of itself an 
 
 • Selby w. Jackson, 6 Beav. 192, i». Periington, 3 IVfac. <t G. 486 ; Camp 
 
 204. See Towart v. Sellers, 5 Dow, bell r. Hooper, 3 Sin. &. G. 153. 
 23l'; Xelrtii /.. Duiieombe, 9 Beav. 211; ' Elliott v. Ince, V D. M. k G. 475. 
 
 Snook I'. Watis, 11 Beav. 105; Sted- '' Molton z). Carnroux, 4 Excli. 17. 
 
 man I' Hart, Kay, 6i»7. ^ Bcavan v. McDonnell, 10 Excli. 
 
 ''Nidi V. MiVley, 9 Ves. 478,482; 184. 
 Williams v. Wentworth, 5 Beav. 325; ° Jacobs t» Richards, IS Beav. 305. 
 
 Jacobs V. llicburda, 18 Beav. 300; Price
 
 146 FRAUD PRESUMED. 
 
 adequate ground to set aside a transaction. * * Till a man be 
 declared legally non comj^os, a deed executed by bim is good.** 
 Tbe common law bas not drawn any discriminating line by 
 whicb to determine bow great must be tbe imbecility of mind 
 to render a transaction void and bow mucb intellect is neces- 
 sary to support it.' Tbe boundaries between actual insanity 
 and great mental weakness are so very narrow tbat tbe court 
 must judge of tbis in eacb case upon facts and circumstances.^f 
 Witb regard to wbat sball constitute mental capacity, tbe 
 rule in equity is tbe same as tbe rule at law. " Tbere cannot," 
 said Lord Hardwicke, in Bennett v. Wade,'* " be two rules of 
 judging in law and in equity upon tbe point of insanity ;" and 
 in Osmond v. Fitzroy,® tbe Master of tbe Kolls said tbere was 
 
 » Blachford v. Cbristian, 1 Knapp, champ, 3 Bligh, 20 n.; Addis r.Campbell, 
 
 1Z ; B;dl i: Mannin, 3 liligh, N. S. 1, 1 4 Beav. 401 ; llarrod v. Harrod, 1 K. & 
 
 Dow, & CI. 381. J. 1 ; Longmate i-. Ledger, 2 Giff. Ui3 ; 
 
 =" Osmond c. Fitzroy, 3 P. Wms. 129. Clarke v. Sawyer, 3 Sandf. (Anier.), 
 
 See Garrside v. Ishorwood, 1 Bro. C. 0. 357. See, as to want of assent arising 
 
 559 ■ Jacobs v. Riclurds, 18 Beav. 300. from pirtial insanity, monomania, de- 
 
 Corap Evans v. Blood, 3 Bro P. C. lusion, <fec., <fec., Dew «j. Clarke, 5 ilus3. 
 
 6S2. 167; Waring v. Waring, 6 Moo. P. C. 
 
 ^Jackson v. King, 4 Cow. (Araer.), 341 ; Creagh v. Blood, 2 J. & L. 509. 
 
 207 ■ JSIanby v. Bewicke, 3 K. <fe J. See also Steed v. Calley, 1 Keen, 620. 
 
 342 ' 2 Atk. 327. 
 
 * Bennett «-. Wade, 9 Mod. 315. See "3 P. Wins. 130. 
 White V. Small, 2 Ch. Ca. 103 ; Bell v. 
 Uoward, 9 Mod. ii02 ; Hudson v. Beau- 
 
 * "Wilson V. Watts, 9 Md. 356 ; Smith v. Beatty, 2 Ired. Eq. 456 ; Far- 
 nam v. Brooks, 9 Pick. 213 ; Simeon v. Wilson, 3 Edw. Ch. 36 ; O wing's 
 Ca33, 1 Bland. 370 ; Clark o. Clark, 3 Hey, 23 ; Day v. Seeley, 17 Vt. 542 ; 
 Whitehorn v. Hlnes, 1 Munf. 557 ; McCraw v. Davis, 2 Ired. Eq. 618 ; 
 Buffalow V. Bullalow, 2 Djv. & liat. Eq. 241 ; Yoiiug v. Stevens, 4S N. H. 
 133;Rip;)y v. Grant, 4 Ired. Eq. 443; Sprague u. Duel, 11 Paige, 480 ; 
 Mace «. lioyer, 30 Penn. 99; Gass v. Mason, 4 Sneed, 497 ; Waltou ij. 
 Wbrthington, 5 Sneed, 282 ; Davis v McNalley, 5 Sneed, 383. 
 
 A po.:^ition in a court of justice founded upon what is in effect the stulti- 
 fication of the person who assumes that position is one to be considered 
 with much ditiidence. Eyre v Potter, 15 How. 43. 
 
 t Owuig's Case, 1 Bland, 370; Harding v. Handy, 11 Wheat. 103; 
 Young V. Stevens, 48 K H. 133.
 
 FEAUD PRESUMED. 147 
 
 no such thing as an equitable incapacity, where there was a 
 legal capacity.* 
 
 If a man be drunk to the extent of complete intoxication, 
 so as to be no longer under the guidance of reason, or is in a 
 state of excitement from excessive drinkinoj, almost amountino: 
 to madness, any transaction which he may enter into while he 
 is in that state is invalid.* If, however, the degree of intoxi- 
 cation falls short of such complete intoxication, he cannot have 
 relief, unless it appear that he was drawn in to drink by the 
 contrivance of the other party, and that an unfair advantage 
 was taken of his situation.^ f The rule at law on tiie subject 
 agrees with the rule in equity.^ 
 
 The rule is the same both at law and in equity with respect 
 to the general incapacity of infants to enter into a binding con- 
 tract. A man who enters into a contract during his minority 
 is not either at law or in equity bound thereby after his 
 majority on the mere ground that without any false assertion 
 
 ' See Manby v. Bewicke, 3 K. &,. J. 539 ; Wiltshire v. Marshall, 14 W. R. 
 
 342. 602. See Addis v. Canipbt-ll, 4 Hcav! 
 
 * Cory V. Cory, 1 Ves. 19; Cooke v. 401; Maitin v. Pycroft, 2 D M. <fe G. 
 
 Clayworth. 18 Ves. 16 ; Say v. Barwick, 800; Gardner v. Gardner, 22 Wend 
 
 1 V. <fcB. 195; Butler w. Mulvihill, 1 (Anier.), 526. 
 
 Bligh, 137; Linhtfoot v. Ilcron, 3 Y. cfc ' Gore v. Gibson, 13 M. & W. 623, 
 
 C. 586 ; Na-le v. Baylor, 3 Dr. & War. 626 ; Molton v. Camroux, 4 Exch. 17,' 
 
 60; Shaw v. Thackeray, 1 Sm. & G. 19; Hawkins «;. Bone, 4 Y. &, F. 313. 
 
 * Prentice v. Achom, 2 Paige, 30 ; Wiggleswortli v. Steers, 1 H. & M. 
 70; Hutchinson t. Brown, 1 Clark, 408; Crane v. Conklin, Saxton, 346- 
 Morrison I'. McLeod, 2Dev. & Pat Ch. 221 ; Hutchinson v. Tindal, 2 Green's 
 Ch. 357 ; Cruise v. Christopher, 5 Dana, 181 ; French v. French, 8 Ohio 
 214 ; Galloway v. Witherspoon, 5 Ireil. Eq. 128 ; Phillips v. Moore, 11 Mo. 
 600. 
 
 Habitual drunkenness, in the absence of undue advantage, is not suffi- 
 cient ground for setting aside an iustrument. Reinicker v. Smith 2 H. & 
 J. 421. 
 
 t White V. Cox, 3 Hey. 79 ; Belcher v. Belcher, 10 Terg. 121 ; Hotchkisa 
 e. Fortson, 7 Yerg. 67 ; Maxwell v. Pettinger, 2 Green's Ch. 150 ; Hodman r. 
 Gilley, Saxton, 320 ; Wliitc.ddes v. Greenlee, 2 Dev. Ch. 152 ; Griffith v. 
 Frederick Co. Bank, 6 G. & J. 424 ; Dunn v. Amoss, 14 Wis. lOG.
 
 148 FRAUD PRESUMED. 
 
 on his part tlie other party believed him to be of age.* But if 
 an infant by a false and fraudulent representation that he is of 
 full age induces a man to enter into a contract with him, he is 
 bound in equity,'^ although he is not liable at law.^ * Infancy 
 is not in equity an excuse for fraud. An infant who is old 
 and cunning enough to contrive or carry on a fraud is bound 
 in the same manner as if he were an adult.^ It is not neces- 
 sary that he should actively encourage fraud. It is enough if 
 he be privy to it. If an infant knowing his rights stands by 
 and seeing another in treaty for the purchase of his estate gives 
 no notice of his title, he will not be permitted afterwards to 
 avoid the purchase.^ f An infant cannot be allo.ved by a 
 court of equity to take advantage of his own fraud.^ Where 
 an infant had obtained from a creditor of his wife two promis- 
 sory notes, in which he was indebted to him before marriage, 
 on giving his bond to the creditor, he was ordered to give 
 back the notes on his pleading infancy when sued on the 
 bond.' 
 
 At law a married woman is under an absolute incapacity to 
 bind herself by any engagement. Her separate existence is 
 not contemplated, but is merged by the coverture in that of 
 the husband. But in equity the case is wholly different. Her 
 
 > Stikeman v. Dawson, 1 Dcg. & Sm. Fairhnrst, 9 Exch. 422 ; Bartlett v. 
 
 105. Wells, 1 B. <fe S. 836. 
 
 « Cory V. Gertckcn, 2 Madd. 40; MVatts »j. Cresswell, 9 Vin. Ab. 415 : 
 
 Wri"-ht )'. Snowe, 2 Deg. & Sm. 321 ; Evroy v. Micholas, 2 Eq. Ca. Ab. 489; 
 
 Ex-partc Unity Bank, 3 D. <fe J. 63 ; Arnot v. Hiscoe, 1 Ve-^. 95 ; j9t'j- Lord 
 
 Ilanuiih r. Ilodgson, 30 Beav. 23. Ilardwicke, Beckett v. Cordley, 1 Bro. 
 
 ("omp. Ex-parte Taylor, 8 D. M. tfe G. C. C. 358 ; but see Saunderson v. Marr, 
 
 254 ; isclson v. tttocker, 4 D. & J. 45S ; 1 II. Bl. 75. 
 
 but see Bartlett v. Wells, 1 B. <fe S. ^ Savage v. Foster, 9 Mod. 37. 
 
 836. * Clarke v. Cobley, 2 Cox, 173. 
 
 » Johnson v. Pye, 1 Sid. 258, 1 Keb. ' lb. See Jones V Kearney, 1 Dr. & 
 
 913 i Liverpool Adelphi Association v. War. 166. 
 
 * Brown v. McCune, 5 Sandf. 234; Conroe v. Birdsall, 1 Johns. 127; 
 Burlcy v. Russell, 10 K 11. 181 ; Stooltbos v. Jenkins, 12 S. & R. 399. 
 
 t Hunter v. Foster, 4 Humph. 211 ; Hall v. Timmons, 2 Rich. Eq. 120; 
 Whi'.tington v. Wright, 9 Geo. 23; Barbara v. Tuberville, 1 Swan, 437.
 
 FRAUD PRESUMED. 149 
 
 separate existence, botli as regards her liabilities and her 
 rights, is achnowledged in equity to the extent of the property 
 which she enjoys for her separate use. In respect of such 
 property she is capable of disposition and of doing other acts, 
 as if she were difeme sole} In respect of property not settled 
 to her separate use, a married woman cannot bind herself in 
 equity in matter of contract any more than she can at law, but 
 CO vert ui-e is no excuse in equity for a fraud,^* The acquies- 
 
 ' Murray v. Barlee, 3 M. & K. 220 ; " Savage v. Foster, 9 Mod. 37 ; Evana 
 
 Vaughan v. Vanderstegcn, 2 Drew. v. iJicknell, 6 Ves. 181; per Lord 
 
 379 ; Johnson v. Gallagher, 3 D. F. & Eklon, Vaughaa a. Vauderstegen, 2 
 
 J. 494. Drew. 379. 
 
 * Sexton ». Wheaton, 8 Wheat. 229 : Hunter v. Foster, 4 Humph. 211 : 
 Cravens v. Booth, 8 Tex. 243 ; Bailey v. Trammel, 27 Tex. 317 ; Bern ». 
 Heath, 6 How. (Miss.) 288 ; Couch v. Sutton, 1 Grant, 114. 
 
 A married vpoman can not be made personally liable for a fraud com- 
 mitted by her, even in respect to the sale of her sejoarate estate. Curd v. 
 Docld, 6 Bush, G81. 
 
 The contract of a married woman is not made valid by the fact that 
 she represented herself to be single at the time she gave it, and thereby 
 obtained the consideration upon which it was given. Keen v. Coleman, 
 39 Penn. 299. 
 
 An action will not lie against a husband and his wife for her false 
 representation that she was a. feme sole at the time of executing a contract, 
 and obtaining the consideration therefor. Keen v. Hartman, 48 Penn. 
 497. 
 
 Although a married woman may know that her husband is obtaining 
 credit on the faith of her property, she will not be made responsible be- 
 cause of her silence. Bank of United States v. Lee, 13 Pet. 107 ; Hunter v. 
 Foster, 4 Humph. 211. 
 
 A married woman is not estopped from asserting her claim to property 
 on account of a fraud committed by her husband, unless it is further 
 shown that she participated in his deceitful conduct. Galling v. Rodman, 
 6 Ind. 289. 
 
 The doctrine of estoppel by mere omission to assert one's rights does 
 not apply to the wife when her husband makes an unauthorized use of 
 her property in her presence. Drake v. Glover, 80 Ala. 382; Mcintosh ». 
 Smith, 2 La. An. 756 ; Palmer v. Cross, 1 Smed. & Mar. 48. 
 
 Positive acts of encouragement that sometimes operate to estop one 
 sui generis, will not aifect one under a legal disability. Gliddcn ». Strip- 
 pier, 52 Penn. 400.
 
 150 FRAUD PRESUMED. 
 
 cence liowever of a married woman in a transaction will not 
 bind her, if the person with whom the transaction was entered 
 into knew that she was a married woman.* * 
 
 The principle which vitiates a contract with an incapaci- 
 tated person has been extended in equity to cases where from 
 the peculiar relation which subsists between the parties, or 
 from the influence which the one party has acquired over the 
 other, the freedom of action which is essential to the validity 
 of all transactions is overcome, and the equal footing on which 
 parties to a transaction should stand is destroyed.'' 
 
 If the relation between the parties is one of a fiduciary na- 
 ture, transactions between them are watched by a court of 
 equity with more than ordinary jealousy. The duty of a per- 
 son who fills a fiduciary position being to protect the interests 
 which are confided to his care, he may not avail himself of the 
 influence which his position gives him for the purposes of his 
 own benefit, and to the prejudice of those interests which he is 
 bound to protect. It is a rule of equity that no man can be 
 permitted to take a benefit where he has a duty to perform 
 which is inconsistent with his acceptance of the benefit.* 
 "Wherever two persons stand in such a relation that, while it 
 continues, confidence is necessarily reposed by the one and the 
 influence which naturally grows out of that confidence is pos- 
 sessed by the other, and this confidence is abused or the influ- 
 ence is exerted to obtain an advantage at the expense of the 
 confiding party, the person so availing himself of his position 
 will not be permitted to retain the advantage, although tho 
 
 * Nicholl V. Jone3, 36 L. J. Ch. 554. Longmate v. Ledger, 2 Giff. 157; Bar- 
 
 " See C'asborne v. Barsham, 2 Beav. reiCv. Hartle}-, L. R 2 Eq. 789. 
 •76- Edwards v. Meyrick, 2 Ha, 60; = Robinson V Pett, 3 P. Wms. 249. 
 
 * Wilks V. Fitzpatrick, 1 Humpli, 54 ; Glidden v. Strippler, 53 Penn. 
 400.
 
 FEAUB PKESUMED. 151 
 
 transaction could not have been impeached if no such confiden- 
 tial relation had subsisted.* 
 
 The rule of equity which prohibits a man, who fills a 
 position of a fiduciary character, from taking a benefit from 
 the person towards whom he stands in such a relation, stands 
 upon a motive of general public policy, irrespective of the 
 particular circumstances of the case. The rule is founded on 
 considerations as to the diflficulty which must, from the con- 
 dition of the parties, generally exist, of obtaining positive 
 evidence as to the fairness of transactions which are peculiarly 
 open to fraud and undue influence. The policy of the rule is 
 to shut the door against temptation.^ 
 
 The rule does not, however, go the length of avoiding all 
 transactions between parties standing in a fiduciary relation, 
 and those toward whom they stand in such relation. All that 
 a court of equity requires is, that the confidence which has 
 been reposed be not betrayed. A transaction between them 
 will be supported, if it can be shown to the satisfaction of the 
 court that the parties were, notwithstanding the relation, 
 substantially at arms' length and on an equal footing, and that 
 nothing has happened which might not have happened, had 
 no such relation existed. The burden of proof lies, in all 
 cases, upon the party who fills the position of active con- 
 fidence, to show that the transaction has been fair. If it can 
 be shown to the satisfaction of the court that the other party 
 had competent and disinterested or independent advice, or 
 ihat he performed the act or entered into the transaction 
 voluntarily, deliberately and advisedly, knowing its nature 
 and efiect, and that his consent was not obtained by reason of 
 
 • Tate V. Williamson, L. R. 2 Ch. thorn, 1 V. A C. C. C. 342 ; Van Epps 
 
 App. 01. "• Van Eiii)s, 9 Paige (Amer.), 241 ; 
 
 ^ Ilcriie V. Meeres, 1 Vorn. 405 ; Ay- Aberdeen Railway Co. v. Jilaikie, 1 
 
 liflfe V. Murray, 2 Atk. 50 ; Itobinson ?». Macq. 461. 
 Pelt, 3 P. Wms. 25 i ; Benson v. Hea-
 
 152 FRAUD PRESUMED. 
 
 the power of influence to wliicli the relation gave rise, the 
 transaction will be supported.^ A man standing in a fiduciary 
 relation, if dealing with the confiding party, is bound to 
 communicate all the information he has acquired respecting 
 the property, the subject of the transaction, which it was 
 material for him to know, in order to enable him to judge of 
 the value of the property.'' 
 
 The principles which govern the case of dealings of 
 persons standing in a fiduciary relation apply to the case of 
 persons who clothe themselves with a character which brings 
 them within the range of the principle,^ or who take instru- 
 ments, securities or moneys with notice that they have been 
 obtained by a person filling a position of a fiduciary character 
 from a person towards whom he stands in such relation.* 
 
 In judging of the validity of transactions between persons 
 standing in a confidential relation to each other, the material 
 point to be considered is, whether the person conferring a 
 benefit had competent and independent advice. The age or 
 capacity of the person conferring the benefit, and the nature 
 of the benefit, are of little importance in such cases. They 
 are important only where no such confidential relation exists." 
 The general principle, however, as to the incapacity of a 
 person who stands in a fiduciary relation to take a benefit 
 from the party towards whom he stands in such a relation, 
 
 » Gibson «. Jeyes. 6 Ves. 278; Gid- 252; Tate t). "WiHiamson, L. R. 2 Ch. 
 
 dings V. Giddiiigs, 3 Kuss. 241 ; Naylor App. 55. 
 
 V. Winch, 2 L. J. Ch. 135, 1 L. J. Ch. 6; ^ Ih. 
 
 Hunter v. Atkins, 3 M. «fe K. 113; Cas- ' Tate v. "Williamson, L. R. 2 Ch. App. 
 
 borne v. Barsham, 2 Beav. 79 ; Tanner 55. 
 
 V. Elworthy, 4 Beav. 487 ; Greenlaw v. * Ardglasse v. Pitt, 1 Vern. 238 ; Mo- 
 
 King, 10 L. J. Ch. 129; Edwards v. lony i;. Kernan, 2 Dr, <fe War. 31 ; Espey 
 
 Meyrick, 2 Ha. CO ; Waters v. Bailey, 2 v. Lake, 10 Ha. 260 ; Bardoe v. Dawson, 
 
 Y. & C. C. C. 219 ; Knio-ht v. Marjori- 34 Beav. 603 ; Rolfe v. Gregory, 34 L. 
 
 banks, 2 H. >-fe Tw. 316; Billage v. J. Ch. 275 ; "VYyse v. Lambert, 16 Ir. 
 
 Southee, 9 Ha. 540; Ilogliton v. Hogh- Ch. 379. Comp. Rhodes v. Bate, L R. 
 
 ton, 15 Beav. 288; Allfrey v. Allfrey, 1 1 Ch. App. 260. 
 
 Mac. &.G. 99 ; Smith v. Kay, 7 H. L. ^ Rhodes v. Bate, L, R. 1 Ch. App. 
 
 750; llliudes v. Bate, L. K. 1 Ch. App. 252.
 
 FRAUD PRESUMED. 153 
 
 admits of some limitation. A mere trifling gift to a person 
 standing in a confidential relation, or a mere trifling liability 
 incurred in favor of such person, cannot stand in tlie same 
 position as a gift of a man's whole property, or a liability 
 involving it, would stand in. In such cases the court will 
 not interfere to set them aside upon the mere fact of a con- 
 fidential relation, and the absence of proof of competent and 
 independent advice. The court requires, before it will undo 
 the benefit conferred, some proof not merely of influence 
 derived from the relation, but of mala fides, or of undue or 
 unfair exercise of the influence.* 
 
 After the termination of the fiduciary relation, it is open 
 to the parties to deal on the same terms as strangers ; ' but if 
 a relation of confidence be once established, either some 
 positive act or some complete act of abandonment must be 
 shown in order to determine it. The mere fact that the 
 relation is not called into existence is not sufficient of itself 
 to determine it.^ If the confidential relation between the 
 parties has not terminated at the commencement of the 
 negotiation, the principles which govern the case of dealings 
 between parties standing in a fiduciary relation continue to 
 operate.* Although, indeed, the confidential employment 
 may have ceased, the disability will continue so long as the 
 reasons on which it is founded continue to operate.' A man, 
 for instance, who has in the course of a fiduciary emj^loyment 
 acquired some peculiar knowledge as to the property of his 
 employer, cannot, after the cessation of the relation, use the 
 knowledge so acquired for his own benefit, and to the 
 prejudice of the other.'' Bat although a person may have 
 
 » Rhodes v. Bate, L. R. 1 Ch. App. 252. * Tate v. Williamson, L. R. 2 Ch App 
 
 SeeBeasley*;. Magrnth, 2Seh.<fcLef. 35. 65, 
 
 ' Tate v'. Williamson, L. R 2 Ch. App. " Carter v. Palmer, 8 CI. & Fia. 657. 
 
 65 ; see Deaden v. King, 9 Ha. 5:52. " lb. ; Uolmaa v. LovQes, 4 D. M <fc 
 
 ' Rhodea v. Bate, L. R. 1 Ch. App. G. 270. 
 260. 
 
 11
 
 154 FKAUD PRESUIMED. 
 
 been employed or consulted on one occasion, tliis will not of 
 itself constitute a confidential relation in respect of a subse- 
 quent transaction, occurring at a future and somewhat distant 
 time.* 
 
 A common instance of the application of the rule that a 
 man who fills a position of a fiduciary character cannot derive 
 a benefit from the person towards whom he stands in such 
 relation, is in the case of actual trustees. It is the duty of 
 a trustee to use his best exertions for the advantage of the 
 cestui que trust. He may not place himself in a situation 
 in which his interests will come into conflict with that which 
 his duty requires him to do. Any personal benefit which 
 he may gain by availing himself of his fiduciary character 
 must be acquired by a dereliction of duty, and will enure for 
 the benefit of the trust estate.^ * There is no more sacred 
 
 ' Rhodes v. Bate, L. R. 1 Ch. App. 86. A lease obtained by a trnstee or 
 
 259. executor in his own name, even in the 
 
 '^ Ilolt V. Holt, 1 Ch. Ca. 190; Ex^ absence of fraud, and upon the refusal 
 
 parte Lacey, 6 Ves. 625 ; Ex-parte James, of the lessor to grant a new lease to the 
 
 8 Ves. 337, 344 ; D'Albiac v. D'Albiac, cestui que trust, shaW be held uj)on trust 
 
 16 Ves. 123 ; Hamilton v. Wright, 9 CI. for the person entitled to the old lease. 
 
 <fe Fin. Ill; Broughton i'. Broughton, 5 Keech v. Sandford, Sel. Ca. Ch. 61; 
 
 D. M. & G. 164 ; Vaughton v. Koble, 30 White v. Tudor, L. C. vol. I, p. 40. 
 Beav. 34; Crosskill v. Bower, 32 Beav. 
 
 * Barney ». Sannders, 16 How. 535; Mitchell v. Moore, 6 Bush, 659; 
 Van Epps v. Van Epps, 9 Paige, 237 ; Brinkerhof v. Brown, 4 Johns. Ch. 
 693; Matter of Oaklcj', 2 Edw. Ch. 478 ; Myers «. Myers, 2 McCord's Ch. 
 214 ; Jamison v. Glascock, 29 Me. 191. 
 
 All transactions relating to the trust estate enure to the benefit of the 
 cestui que trust. Freeman v. Harwood, 49 Me. 195 ; Jewett v. Miller, 10 
 N. Y. 402; Brantly v. Key, 5 Jones' Eq. 332 ; Paige v. Naglee, 6 Cal. 241 ; 
 Lennox v. Noterebe, 1 Hemp. 251 ; Spindler v. Atkinson, 3 Md. 409 ; Bill 
 V. Webb, 2 Gill, 163 ; Callis v. Eidout, 7 G. & J. 1 ; Crutchfield v. Haynes, 
 14 Ala. 49 ; Green v. Winter, 1 Johns. Ch. 27 ; Hauley v. Marcius, 7 Johns. 
 Ch. 174 ; Keaton «. Cobbs, 1 Dev, Ch. 439 ; Boyd v. Hawkins, 2 Dev. Ch. 
 195 ; M'Clanahan v. Henderson, 2 A. K. Marsh. 388; Chapin v. Weed, 1 
 Clarke, 464 ; Slade v. Van Vechten, 11 Paige, 21. 
 
 A purchase of the trust property is valid as to all persons except the 
 cestui que trust. Wilson t). Troup, 2 Cow. 195 ; Painter v. Henderson, 7
 
 FRAUD PRESUMED. 155 
 
 rule of equity than that a trustee cannot so execute a trust as 
 
 Barr, 48 ; McKinley «. Irvine, 13 Ala. 631 ; Baldwin v. Allison, 4 Minn. 25 ; 
 Rice V. Clighorn, 20 Ind. 80, 
 
 A trustee can not avoid his purchase when the cestui que trust is satis- 
 fied. He can only file a bill calling upon the cestui que trust to confirm or 
 avoid the sale. McClure v. Miller, Bailey's Ch. 107 ; Williams v. ]\Iarshall. 
 4 G. & J. 376 ; Huff v. Earl, 3 Ind. 306. 
 
 The option of the cestui que trust to follow the trust fund into a new 
 investment, or to hold the trustee personally liable for a breach of the 
 trust, belongs to him exclusively, and it is not in the power of the trustee 
 to deprive him of it by a repurchase of the trust property. Oliver v. Piatt, 
 3 How. 333. 
 
 A sale of the trust property to a corporation, in which the trustee has 
 a large interest, is voidable. Robbing v. Butler, 24 111. 387. 
 
 By claiming the proceeds, the cestui que trust confirms the sale. Pierce 
 p. Nesbit, 1 Hill's Ch. 445. 
 
 In considering the capacity of a trustee to purchase the property of 
 his cestui que trust, the authorities may be regarded under two classifica- 
 tions : Ist. Where a trustee buys or contracts with himself, or several 
 trustees of which he is one, or a board of trustees. 2d. Where the deal- 
 ing of the trustee is with a ceslui que trust, who is st/i juris and competent 
 to deal independently of the trustee in respect to the trust estate. The 
 distinction between the two classes of cases consists in this : that, in the 
 first, the contract is voidable J^bsolutely at the instance of the cestui que 
 trust, without regard to its fairness; whilst, in the second, although the 
 presumptions of law are against the contract, yet permission is given to 
 the trustee to show the perfect hond Jidcs of the transaction, and circum- 
 stances relieving it from the censure of the law. This is a distinction 
 recognized generally, but not univer^allJ^ Some of the cases insist, with 
 great earnestness, that the goveming principle ought to be, and is, the 
 same in both classes. Hoffman v. Steam Coal Co. v. Cumberland Coal & 
 Iron Co. 16 Md. 456 ; Cumberland Coal Co. v. Sherman, 30 Barb. 533. 
 
 The doctrine does not apply to the relation of principal and surety. 
 Blow -v. Maynard, 2 Leigh, 29. 
 
 While, in cases of pure trust, where exclusive jurisdiction is in equity, 
 resort must be had to that tribunal for relief; and sometimes, in cases of 
 quasi trust, that court will grant relief where there are special circum- 
 stances requiring it ; yet, where the relation is a legal relation, and its 
 rights and duties are defined by law, the remedies for the violation of 
 sucli duties are ordinarily at law. McL Fire Ins. Co. v. Dalrymple, 25 Md. 
 242.
 
 156 FRAUD PEESUMED. 
 
 to have the least benefit from it himself.* * The restraint on 
 any personal benefit to the trustee is not confined to his 
 dealings with the estate, but extends to remuneration for 
 services, and prevents him from receiving anything beyond 
 the payment of his expenses, unless there be an express 
 stipulation to the contrary.^ There may be cases in which 
 the court will establish an agreement made with a trustee 
 for a certain allowance beyond the term of his trust, but the 
 court will be extremely cautious and wary in doing so. The 
 court looks upon trusts as honorary, and a burden on the 
 honor and conscience of the party, and not as taken with 
 mercenary motives.^ f 
 
 But there is no rule which incapacitates a trustee from 
 dealing with the cestui que trust in respect of the trust estate. 
 A trustee for sale may purchase the trust estate, if the cestui 
 que trust fully and clearly understands with whom he is deal- 
 ing, and makes no objection to the transaction, and the trustee 
 fairly and honestly discloses all that he knows respecting the 
 property, and gives a just and fair price, and does not seek to 
 
 » Forbes V. Ross, 2 Cox. 116. v. Darby, 28 Beav. 325 ; CrossMU v. 
 
 " Robinson v. Rett, 3 P. Wms. 249; Bower, 32 Beav. 86; Barrett v. Hart- 
 Moore V. Frowd, 3 M. <fe C. 46 ; Bain- ley, L. R. 2 Eq. 789. 
 brigge v. Blair, 8 Beav. 588 ; Broughton ^ Ayliffe v. Murray, 2 Atk. 59. 
 V. Br'ougliton, 5 D. M. & G. IGO ; Harbin 
 
 * Michoud «. Girocl, 4 How. 503 ; Bank of Orleans v. Torrey, 7 Hill, 260 ; 
 Conyer v. Ring, 11 Barb. 356 ; Murray v. Vanderbilt, 39 Barb. 140 ; Sloo v. 
 Law, 3 Blatch. 459. 
 
 t A different rule prevails generally, if not universally, in this country. 
 Here it is considered just and reasonable that a trustee should receive a 
 fair compensation for his services, and, in most cases, it is gauged by a 
 certain percentage on the amount of the estate. But a trustee who has- 
 acted fraudulently and dishonestly is not entitled to the same compensa- 
 tion as he who has acted uprightly ; and there may be cases where negli- 
 gence and want of care may amount to want of good faith. Barney «. 
 Saunders, 16 How. 535.
 
 FRAUD PRESUMED. 157 
 
 secure surreptitiously any advantage for himself.^* But the 
 transaction becomes impeacliable, if there is any secret or 
 underhand dealing on the part of the trustee. However fair 
 it may be in other respects, the transaction cannot be suj)- 
 ported, if the cestui que trust does not clearly and distinctly 
 understand that he is dealing with the trustee. A trustee 
 cannot, under any circumstances, be allowed to deal with 
 himself on behalf of the cestui que trust surreptitiously and 
 without his knowledge and assent. It is immaterial that he 
 may take no advantage from the bargain. It may be that the 
 terms on which he attempts to deal with the trust estate are as 
 good as could have been obtained from any other quarter. 
 They may even be better, but so inflexible is the rule, that no 
 inquiry can be made as to the fairness or unfairness of the trans- 
 action. It is enough that the act has a tendency to interfere 
 
 ' Ayliffe v. Murray, 2 Atk 59; Royal, 12 Vcs. 355; Downes ?j. Graze- 
 Clarke V. Swaile, 2 ed. 134; Ex-parte brook, 3 Mer. 208; Kiii<,^ht v. Marjori- 
 Lacey, (1 Ves. 626; Ex-parte James, 8 banks, 2 Mac. & G. 10; re M'Kenna, 18 
 Ves. 348; Coles v. Trecothick, 9 Ves. Ir. Ch. 239; Luff >-. Lord, 11 Jur, N. S. 
 246; Ex-parte Benueit, \0 Ncs. 381; 50; Dover y. Buck, «6. 580 
 Randall v. Errington, ib. 422 ; Morse v. 
 
 * Ricbardson v. Spencer, 18 B. Mon. 450 ; Sallee v. Chandler, 26 Mo. 
 124; Baxter v. Coston, 1 Busbee's Eq. 262; Kennedy w. Kennedy, 2 Ala. 
 571 ; Field v. Arrowsiuitb, 3 Humph 442 ; Villiues v. Norfleet, 2 Dev. Ch. 
 167; Marshall v. Stephens, 8 Humph. 159; Biyan v. Dmican, 11 Geo. 67. 
 
 A trustee cannot become a purchaser of the trust estate. He cannot 
 be both vendor and vendee. He cannot represent in himself two opposite 
 and conflicting interests. Wormley v. Wormley, 8 Wheat. 421 ; Caldwell 
 V. Taggart, 4 Pet. 190; Hunt v. Bass. 2 Dev. Eq. 292; Quarles v. Lacey, 4 
 Munf 251 ; De Cater v. Lee Roy de Cliaumont, 3 Paige, 178 ; Child v. 
 Brener, 4 Paige, 309 ; Campbell v. Johnson, 1 Sandf Ch. 148 ; Johnson v. 
 Bennett, 89 Barb. 237 ; Charles v. Dubose, 29 Ala. 307 ; Mason v. Martin, 4 
 Md. 124; Wasson v. English, 13 Md. 176; Armstrong v. Campbell, 3 Yerg. 
 201 ; McGinn v. Shaeffer, 7 Watts, 412 ; Mattheus v. Dezaud, 3 Dessau. 24; 
 Thorp V. McCullum, 1 Gilman, 614. 
 
 A sale by a trustee to his cestui que trust stands on the same footing as 
 a purchase by a trustee from his cestui que trust. McCarty v. Bee, 1 
 McCord's Ch. 383.
 
 158 FBAUD PRESUMED. 
 
 witli the duty of protecting the trust estate wliicli the trustee 
 has taken upon himself to perform. The policy of the rule is 
 to shut the door against temptation. It makes no matter 
 whether the transaction relates to real estate, or personalty, or 
 mercantile matters, for the disability arises not from the sub- 
 ject matter, but from the obligation imder which a trustee 
 lies to do his utmost for the cestui que trust} * It makes no 
 difference in the application of the principle that the sale was 
 by public auction,^ f or that the purchase was made through 
 another person,' X ^^ ^^^^ *^^ purchase vas made from a co- 
 trustee,^ § or that the trustee may have purchased as agent for 
 another person,^ I or that a third person may, by previous 
 
 * Fox V. Macreth, 2 Bro. C. C. 400, 463 ; Franks v. BoUans, 37 L. J. Ch. 
 
 2 Cox, 320, 4 Bro. P. C. 258 ; Ex-parte 155. 
 
 Lacey. 6 Ves. 627; Ex-parte James, 8 "Campbell v. "Walker, r> Ves. 678; 
 
 Ves. 348; Ex-parte Bennett, 10 Ves. Ex-parte James, 8 Ves. 348; Ex-parte 
 
 394; Rmdill v. Errington, ib. 423 
 Att.-Gen. v. Earl of Clarendon, 1 7 Ves, 
 500; Gregory v. Gregory', Coop. 201 
 Woodhouse v. Meredith, 1 J. <fe W. 222 
 
 Bennett, 10 Ves. 393; Sanderson v. 
 W^alker, 13 Ves. 602; York Buildings 
 Co. V. M'Kenzie, 8 Bro. P. C. 42, 3 Pat. 
 Sc. Ap. 378 ; Bailey v. Watkins, cit. 6 
 
 Baker i\ Carter. 1 Y. & C. 250; Grover Bligh, 273; Downes v. Grazebrook, 3 
 
 t). Huuell, 3 Ptuss. 428; Bailey j^. Wat- Mer. 207; Grover v. Hngell, 3 Russ. 
 
 kins, eit. 6 Bligh, 273 ; re Bloye's Trust, 428 ; Lawrence v. Galsworthy, 3 Jur. N. 
 
 1 Mac. & G. 490. afFd. as Lewis v. Hill- S. 1049; Adams v. Sworder, 2 D. J. & 
 
 man, 3 H. L. 607 ; Knight v. Marjori- S. 44. 
 
 banks, 2 Mac. <fe G. 12; Hamilton v. ' Sanderson v. Walker, 13 Ves. 602 ; 
 
 Wright, 9 CI. & Fin. Ill; Ingle v. Adams d. Sworder, 2 D. J. & S. 44, 
 Ricirards, 6 Jur. X. S. 1178; Popham ^ Hall v. Xoyes, cit. 3 Ves. 748, 3 
 
 V. Exham, 10 Ir. Ch. 410; Aberdeen Bro. C. C. 483; Whicbcote v. Law- 
 
 Railwav Co. v. Blaikie, 1 Macq. 461 ; rence, 3 Ves. 740. 
 
 Parkinson v. Hanbury, 2 D. J. & S. * Ex-parte Bennett, 10 Ves. 381, 
 
 45u: Ridley v. Ridley, 34 L. J. Ch. 400; Gregory v. Gregory, Coop. 201; 
 
 Ex-parte Grylls, 2 Dea. & Ch. 290. 
 
 * Michoud V. Girod, 4 How. 503; Narcissa ». Wathan, 2 B. Mod. 241 ; 
 Ringgold V. Ringgold, 1 H. «& J. 11 ; Schwartz v. Wendell, Walk. Ch. 2(37. 
 
 t Michoud V. Girod, 4 How. 503; Davoe v. Fanning, 2 Johns. Ch. 253; 
 Bellamy t. Bellaray, G Fla. 62. 
 
 X ]\Iic-boud V. Girod, 4 How, 503; Davoe v. Fanning, 2 Johns. Ch. 252; 
 Beeson v. Beeson, 9 Barr, 279 ; Dorsey v. Dorsey, 3 H. & J. 410. 
 
 § Cumberland Coal Co. v. Sbciman, 30 Barb. 533; Ringgold t. Ring- 
 gold, 1 H. & J. 11. 
 
 II Hawley v. Cramer, 4 Cow. 717 ; North Balto Btuldiug Association v, 
 Caldvdl, 25 Md. 4i0.
 
 FRAUD PRESUMED. 159 
 
 arrangement witli the trustee, have been the purchaser in 
 trust for the separate use and benefit of the wife of the 
 trustee.* 
 
 The application of the principle is, however, limited to 
 dealings with the trust estate. In all matters unconnected 
 with the subject of the trust, the parties are fully competent 
 with each other as strangers.^ 
 
 Nor will the principle operate after the relation of trustee 
 and cestui que trust is clearly dissolved, but a man who has 
 been a trustee cannot, after the termination of the relation, be 
 allowed to avail himself for his own benefit, and to the preju- 
 dice of the party for whom he has been trustee, of any infor- 
 mation which he may have acquired during the existence of 
 the relation.' Subject to this limitation, a man who has acted 
 in a fiduciary character may, on divesting or discharging him- 
 self of the trust, purchase the property in respect of which he 
 has filled a fiduciary position.* * If a man cannot by an act 
 of his own discharge himself of the trust so as to enable him 
 to purchase, the court will, under particular circumstances, 
 divest him of the character and enable him to purchase.'' If 
 
 'Daroe v. Fannin"-, 2 Johns. Ch. than that the transaction takes place 
 
 (Amcr) 252." ° '^^'f'^ the consent of the parties bene- 
 
 * Ku'iffht 'v. Marjoribanks, 2 Mac. & ficially interested. Ex-parte James, 8 
 
 G 12 "^ 11 <fe Tw 308. Ves. 352; Coles v. Trecothick, 9 Ves. 
 
 ' ' Ex-parte Lac'ey, 6 Ves. 627; Coles 234, 246; Morse v. Royal, 12 Ves. 373 ; 
 
 V Trecothick, 9 Ves. 246; Ex-parle Downes v. Grazebrook, 3 Mer. 208; 
 Bennett, 10 Ves. 394; IMorse v. Royal, Chalmer v. Bradley, 1 J. & W. 68. In 
 12 Ves. 373. See Hamilton «'. Wright, Austin )'. Chambers, 6 CI. <fe Y\n. 1, 
 9 CI. & Finn. Ill ; Holman v. Loynes, where it was said that a man min-lit,on 
 4D.'m. & G. 270.' shaking off the character of a trustee, 
 
 '* Ex-p<irte James, 8 Ves. 337; San- purchase the trust estate, the solicitor 
 
 ders-.n v. Walker, 13'Ves. 601 ; Downes was not employed in the sale by his 
 
 V Grazei)rook, s' Mer. 200; I'.arthole- client, and was himself a judgment 
 mew V. Leech, 7 Watts (Amcr.), 472. creditor. A trustee cannot be allowed 
 See Stacey y. 'Elph. 1 M. ct K. 195; to purchase the trust estate by his re- 
 Austin V. Chambers, 6 CI. it Fin. 1. tirement from the trust with that ob- 
 Theexjiression "shaking off" the char- ject in view. Spring v. Pride, 12 W. 
 acter of trustee, or "dissolving the re- R. 510. 
 
 lation" of trustee, used in some of the " Camphell r. Walker, 5 Ves. 681. 
 
 cases, does not seem to amount to more See Ex-parte James, 8 Ves. 348 ; San- 
 
 * Kearney v. Taylor, 15 IIow. 494; Pries v. Evans, 26 Mo. 30.
 
 IGO FRAUD PRESUMED. 
 
 the trust property is taken entirely out of a man's hands, and 
 all his authority over it put an end to by the interposition and 
 act of law, as in the case of a sale by execution, there is no 
 reason why he should not be able to purchase. The prin- 
 ciple upon which a trustee is debarred from purchasing the 
 trust estate does not apply to such a case.^ The assignee of 
 an insolvent debtor, for instance, may purchase the debtor's 
 estate when sold by the sheriff.^ So also a creditor taking out 
 execution may purchase the property upon a sale by the 
 sheriff.^ But a man standing in a fiduciary character with 
 respect to property cannot be allowed to purchase the prop- 
 erty at a judicial sale, unless the entire responsibility of 
 obtaining the highest price has been taken out of his hands.* 
 If he continues under any duty in respect of the subject- 
 matter of the sale, he is incapacitated from purchasing.^ Nor 
 will the transaction be allowed to stand, if there appears to 
 have been any unfairness in his conduct with regard to the 
 sale.' 
 
 The principle which affects dealings between trustee and 
 cestui que trust is not confined to trustees properly so called, 
 but extends to other persons invested with a like fiduciary 
 
 derson v. Walker, 13 Ves. 602; Mul- See Hawley i'. Cramer, 4 Cow. (Amer.), 
 
 vany t'. Dillon, 1 Ba. <fe Be. 418; Ex- 111. Comp. Lord Cranstown v. John- 
 
 parte Jlarrison, Buck, 1*7; Ex-parte stone, 3 Ves. 182, 5 Ves. 277. 
 
 Ba"-e, 4 Madd. 460; Anon. 2 Russ. 350; ^ Van Epps v. Van Epps, 9 Paige's 
 
 Ex-pnrte Morland, Mont. &, M. 76. Ch. (Amer.), 237; Jewett v. Miller, 6 
 
 ' Prevost V. Gratz, Peters' C. C. Seld. (Amer.), 402. See York Build. 
 
 (Amer.), 378; Fisk v. Sarber, 6 Watts ings Co. v. M'Kenzie. 3 Pat. iSc. Ap. 
 
 & Serg'. (Amer.), 18. See Ex-parte 398 ; i'.r-jo.(?-<e Morland, Mont, tk M. 76; 
 
 Farleyr3 Dea. and Ch. 110; Austin v. Ex-parte Farley, 3 Dea. & Ch. 110. 
 
 Chambers, 6 CI. & Fin. 1 ; Beaden v. ^ Fisk v. Sarber, 6 Watts & Serg. 
 
 King, 9 Ha. 499. Comp. York Build- (Amer.), 18. See Ex-parte Morland, 
 
 in"-s''co. V. M'Kenzie, 3 Pat. Sc. App. Wont. & M. 76 ; Ex-parte Bennett, 10 
 
 398 Ves. 393; Ex-parte Farley, 3 Dea. <fe 
 
 » Fisk V. Sarber, 6 Watts & Serg. Ch. 110. 
 
 (Amer.), 18. See Ex-parte Morland, "Lord Cranstown v. Johnstone, 3 
 
 Mont. & M. 76. Ves, 182, 5 Ves. 277; Perena v. John- 
 
 ' Stratford v. Twynam, Jac. 418; son, 3 Sm. k G. 419. 
 Cliambcrs v. Waters, 3 Sim. 42 ; S. C. 
 Waters v. Groom, 11 CI. & Fin. 684.
 
 FRAUD PRESUMED. 
 
 ICl 
 
 character : such as executors and administrators ; * * assignees 
 of a bankrupt ; ^ commissioners of bankrupts and other judicial 
 ofiicers;^ committees of lunatics;* governors of a charity;^ 
 receivers ;® directors of a railway or other company ;'f to ar- 
 
 ' H?.ll V. Ha'Jctt, 1 Cox, 134; Killick 
 V. Flexaey, 4 Bro. C. C. 161; Watson 
 u. Toone/6 MadJ. 153 ; Baker v. Carter, 
 1 Y. <fe C. 250; Groves v. Perkins, 6 
 Sim. 576 ; Pickering v. Pickering, 2 
 Beav*. 31 ; Wedilerl)iirn v. Wedderburn, 
 4 M. d: C. 41 ; Burton v. Ilassard, 3 Dr. 
 & War. 461 ; Allfrey v. AlltVey, 1 Mac. 
 <fe G. 87 ; Smedley v. Vavley, 23 Beav. 
 359 ; I'rideaux v. Lonsdale, 1 D. J. & 
 S. 433. 
 
 * Ex-pnrte Reynolds, 5 Ves. 707 ; ex- 
 purte Hughes, 6 Ves. 617; ex-parte 
 Lacey, il>. 625 ; cr-p irte Jatnes, 8 Ves. 
 337 ; ex-i>niie Bennett, lU Ves. 381 ; re 
 Browne, 7 Ir. Ch. 274; Pooley v. Qiiil- 
 ter, 2 D. <fe J. 327. See Adams »-. 
 8worder, 2 1). J. & S. 44. Leave may 
 be given by the court to the assignee to 
 purchase the bankrupt's estate. Ex- 
 par/e .James, 8 Ves. 348 ; cx-parte Har- 
 rison, Buck, 17; ex-pai-te Bage, 4 Madd. 
 460; Anon., 2 Russ. 350; ex-pnrte 
 Serle, 1 Gl. <fe Ja. 187; ex-par le Beau- 
 mont, 1 M;)nt. <fc A. 304. In one case 
 an assignee was removed in order that 
 be might bid at a sale of the bankrupt's 
 estate. Er-parle Peiks, 3 M. I), cfc Deg. 
 385. The leave must be previously ob- 
 tained. Bt'lbre the court will entertain 
 any such ap[)lic.ition on the part of the 
 assignee, he must first obtain tlje con- 
 
 sent of the creditors, at a mec-ling 
 called for lh3 purpose of enabling them 
 to assent to or dis.sent f"om the proposed 
 purchase. Ex-parte Molineux, 4 D. & 
 C. 401 ; Anon., 2 Russ. 350; and even 
 then the court will not make the order, 
 except under ver}- special circumstances. 
 Ex-parte Hodgson, 1 Gl. &. J. 14 ; ex- 
 parte Towne, 4 D. <fe C. 519. In a case 
 where the com-t refused to allow an as- 
 signee to bid, he was allowed to name 
 the i)rice he would give, if the property 
 was nfit sold by auction, and afterwards 
 to buy at that price. Ex-parte Holy- 
 man, 8 Jur. 156. If a purc'.iase by an 
 assi^-nee be found beneficial, it may be 
 confirmed by the court. Ex-parie Gore, 
 6 Jur. 1118," 7 Jur. 136. 
 
 ' Ex-pnrte James, 8 Ves. 338 ; fx- 
 jpnrtc Bennett, 10 Ves. 381. See Camp- 
 bell ('. I'ennsylvania Life Insurance Ca., 
 2 Whart. (Amer.) 53. 
 
 * Wright V. Proud, 13 Ves. 136. 
 
 ' Att.-Gen. v. Lord Clarendon, 17 
 Ves. 5110. 
 
 « Alven w. Bond, 1 FI. & Kel. 196; 
 Eyre y. McDonnell, 15 Ir. Cli. 534 ; Bod- 
 dington v. Langford, ib. 558. 
 
 ' Benson v. Jleathorn, 1 Y &. C. C. 
 C. 326; York and Korlh Midland Rail- 
 waj- Co. v. Hud-son, 16 Beav. 485 ; Great 
 Luxembourg Railway Co. v. Magnay, 
 
 * Davoe v. Fanning, 2 Jolins. Ch. 252 ; Mulford o. Minels, 3 Stock. 16 ; 
 Meaiior v. Hamilton, 27 Penu. I;j7; Swayzei). Burk, 12 Pet. 11 ; Cannon v. 
 Jenkins, 1 Dev. Cb. 122. 
 
 t Hoffman Steam Coal Co. v. Camberland. Coal & Iron Co., 16 Md. 456* 
 Cumberland Coal & Iron Co. v. Sherman, 30 Barb. 553; Spence v. Whit- 
 taker, 3 Port. 297. 
 
 Ajyrocheiii ami, Collins v. Smith, 1 Head, 251. 
 
 A pledgee, Md. Fire Ins. Co. v Dalrymple, 25 Md. 242 ; Baltimore Mar. 
 Ins. Co. V. Dalrymple, 25 Md. 302. 
 
 A p; rson who enters under a contract to purchase, Hallet v. Collins, 10 
 How. 174. 
 
 But not to a sale to the sheriff, Mark v. Lawrence, 5 H. «fc J. 64 ; Isaac 
 V. Clarii, 2 Gill, 1.
 
 .102 FRAUD PRESUMED. 
 
 bitrators ;* to a member of a corporation taking a lease of the 
 corporate property,^ and many other cases.^ The disability 
 extends in general to all persons who being employed or con- 
 cerned in the affairs of another acquire a knowledge of his 
 property/ Partners in business of an assignee in bankruptcy 
 are equally disqualified from purchasing as the assignee him- 
 self.' 
 
 The principle does not, however, apply to the case of a 
 mortgages dealing with the mortgagor,^ nor to the case of a 
 puisne mortgagee buying the mortgaged property from a prior 
 mortgagee under the exercise of his power of sale;' nor to 
 the case of a tenant for life purchasing from trustees for sale 
 under a power to be exercised with his consent ; ^ nor to the 
 case of a tenant for life or mortgagor with power to sell or lease 
 selling or leasing to a trustee for himself ; ® nor does the prin- 
 ciple apply to the case of merely nominal trustees, such as 
 trustees who have disclaimed,^" or trustees to preserve contingent 
 remainders.-^^ 
 
 If the tenant of charity lands happens to be a trustee, that 
 is a circumstauce to excite suspicion, if the land be of an inad- 
 equate value. At the same time it must be remembered that 
 the case of a charity estate is one in which of all others the 
 security of the rent is the first object to be regarded. In such 
 
 25 Beav. 587 ; Gaskell v. Chambers, 26 * Sug. V. & P. 587, 14th ed. supra, p. 
 
 Beav. 360; Aberdeen Railway Co. v. 151. 
 
 Blaikie, 1 Wacq. 4G1 ; ex-pnrie Hill, 32 * Ez-parte Burnell, 7 Jur. 116. 
 
 L. J. Ch. 154; Spacktnau's Case, 34 L. * Knight v. Marjoribanks, 2 Mac. <feG. 
 
 J. Ch. 321. 10, 2 H. & Tw. 308 ; Dobson v. Land, 8 
 
 * lilennerhassett v Day, 2 Ba. &, Be. Ila. 220; but comp. Hickes v. Cooke, 4 
 
 116. Dow. 16; Downes v. Grazebrook, 3 
 
 ^ Att.-Gen. v. Corporation of Casliel, Mer. 200; re Bloye's Trust, 1 Mac. & 
 
 3 Dr. & War. 294. G. 490; Robertson v. Norris, 1 Gifi. 
 
 See ex-jxtrte Morgan, 12 Ves. 6 
 Grover v. Hugell, 3 lUiss. 428 ; Green. 
 law V. Hugell, 3 Beav. 49; IJeaden v. 
 
 King,-9 Ila. 499; Dimes v. Proprietors " Howard v. Ducane, T. & R. 81 
 
 of Grand Junction Railway Co., 3 H. L 
 759; Denton v. Donnor, 23 Beav. 285; 
 
 421 ; Ford v. Olden, L. R. 3 Eq. 461. 
 
 ' Sliaw V. Eunny, 2D J. A S. 468; 
 Kirkwood v. Thompson, ib. ()]3. 
 
 Bevan v. Hahgood, \ 3. & H. 222. 
 Stacey v. Elph, 1 M. & K. 195; 
 
 re Ronayne's Estate, 13 Ir. Ch. 444. Chambers v. Waters, 3 Sim. 42. 
 
 " J'arkes v. White, 11 Ves. 20S, 22ft.
 
 FRAUD PRESUMED. 1G3 
 
 cases, tlierefore, the inadequacy of tlie rent reserved is less a 
 badge of fraud than it would be in almost any other case.-^ 
 
 Considerations of a similar character apply to the case of 
 transactions between persons standing to each other in the rela- 
 tion of solicitor and client.^ * It is the duty of a solicitor to 
 protect the interests of his client. The client is entitled to the 
 full benefit of the best exertions of the solicitor. A solicitor 
 may not bring his own personal interest in any way into con- 
 flict with that which his duty requires him to do,^ f or make a 
 gain for himself in any manner whatever at the expense of his 
 client in respect of the subject of any transactions, connected 
 with or arising out of the relation of solicitor and client, beyond 
 the amount of just and fair professional remuneration to which 
 he is entitled.^:}: A solicitor may not even enter into an agree- 
 
 ' ^a;-/)«/-fe PMnner, 2 Mer. 457, * Wood v. Downes, 18 Ves. 120; 
 
 ' See Walmsley i;. Booth, 2 xUb. 29; Rhodes v. Eeauvoir, 6 Blio-h, 195; 
 
 Newman v. Payne, 2 Ves. Jr. 201; Champion y. Rii;-bv, Taml. 421, 9 L. J. 
 
 Rhodes V. Beauvoir, 6 Bligli, 195; Cas- Ch. N. S. 211 ; Lyddon )'. Moss, 4 D. & 
 
 borne j;. Barsham, 2 Beav! 70; Ilohuan J. 104; Proctor v. Robnison, 35 Beav. 
 V Loynes, 4 I). INI. & O. 270. * 335 ; Tj'rrell v. Bank of London, 10 H, 
 
 ' = Lawless v. Mansfield, 1 Dr. & War. L. 26, 44. 
 557, 631. 
 
 * De Rose v. Fay, 3 Edw. Ch. 3G9 ; s. c. 4 Edw. Ch. 40 ; Gray ». Em- 
 mons, 7 Mich. 533. 
 
 t Valentine ?\ Stuart, 15 Cal. 387; Cox v. Sullivan, 7 Geo. 144 ; Hoopea 
 V. Burnett, 26 Miss. 428. 
 
 I Cleavinger v. Reimar, 4 W. »& S. 486 ; Brock v. Barnes, 40 Barb. 521 ; 
 Giddings v. Eastmm, 5 Paige, 561 ; Barry v. Whitney, 8 Sandf. 090. 
 
 An attorney is bound to disclose to his client every adverse retainer, 
 and even every prior retainer, which may afiect the discretion of the latter. 
 Williams «. Reed, 3 Mason, 455. 
 
 An attorney can not abandon his client, and go over to the adverse 
 party. Valentine v. Steward, 15 Cal. 387; Wilson v. State, 10 lud. 392; 
 Price t\ Grand Rapids & Ind. R. R. Co. 18Ind. 137. 
 
 The mere fact that he has obtained knowledge of the matters con- 
 nected with the suit in the course of other business does not prevent him 
 from acting adversely to his former client. Price v. Grand Rapids & Ind. 
 R. R. Co. 18 Ind. 137. 
 
 An attorney may make the measure of his compensation a part of the 
 contract by which he agrees to per-Ibrm the services needed, and such a
 
 164 FRAUD PRESUMED. 
 
 ment with a man to be liis solicitor in a particular transaction 
 upon the terms of getting a greater benefit than be would ob- 
 tain by the costs which he is entitled to charge according to 
 the rules of law.^ If, indeed, a solicitor be a trustee, he is not 
 entitled to charge for professional services in respect of the 
 trust estate.'^ 
 
 A solicitor is not under any incapacity to purchase from or 
 sell to a client. A solicitor may deal with a client or purchase 
 a client's property even during the continuance of the relation, 
 but the bartben of proof lies on him to show that the transac- 
 tion has been perfectly fair.^* A prudent man would not deal 
 with his client without the intervention of another solicitor, 
 but there is no rule that a solicitor may not take such a 
 course.* He must, however, be prepared to show that he gave 
 his client the same protection as he would have given him, if 
 
 > Stran'^-e v. Brennan, 15 L. J. Ch. » Stanes v. Parker, 9 Bear. 385; 
 
 389 ; rincv v. Beattie, 32 L. J. Ch. 734 ; Todd v. Wilson, ib. 486. 
 
 see i^ve Whitcombe, 8 Beav. 140 ; comp. ^ ^ Supra, ix Ul. ^ , ^, ^ 
 
 Lyddon v. Moss, 4 D. & J. 104; Gallo- ■* Cutts v. Salmon, 21 L. J. Ch. 750, 
 
 way V Corporation of London, L. R. 4 per Lord St. Leonards ; Jones v. Price, 
 
 Eqf 90; see further as to accounts be- 20 L. T. 49 ; see Watt v. Grove, 2 Sch. 
 
 tween solicitor and client, Nokes v. & Lef. 503. 
 Warton, 5 Beav. 448. 
 
 contract will be as binding upon the client as any one into which he can 
 enter. Legatt v. Sallee, 3 Port. 115; Wallis y. Loubat, 10 Paige, 352; 
 Balsdbangh v. Fraser, 19 Penn. 95 ; Mills v. Mills, 26 Ct. 213. Contra, ex- 
 parte Plitt, 2 Wallace, Jr. 453. 
 
 A judgment by confession to an attorney wUl only stand as security for 
 -what is actually due. Starr v. Vandersheyden, 9 Johns. 253. 
 
 A security taken during the pendency of a suit can not be enforced for 
 anything beyond the sum actually due. Mott v. Harrington, 12 Vt. 199. 
 
 An attorney who holds a judgment for himself and a judgment for his 
 client against a common debtor, and collects his own by the use of dili- 
 gence, beyond the obligations of his trust can not be compelled to pay the 
 money to his client. Cox v. Sullivan, 7 Geo. 144. 
 
 The doctrine applies to suits before magistrates as well as in court. 
 Buifalow r. Buffalow, 2 Dev. tt Bat. Eq. 241. 
 
 * Evans v. Ellis, 5 Dcnio, 640 ; Mills v. Ervin, 1 McCord's Ch. 524 ; Mat- 
 ter of Post, 3 Edw. Ch. 369.
 
 FRAUD PRESUMED. 165 
 
 dealing witli a F.tranger, and must satisfy tlie court tliat he has 
 taken no advantage of his professional position, but has duly 
 and honestly advised his client as an independent and disinter- 
 ested adviser would have done, and has brought to his knowl- 
 edge everything which he himself knew necessary to enable 
 him to form a judgment in the matter, and he must in particu- 
 lar be able to show that a just and fair price has been given.^* 
 He should, indeed, be prepared to show how the contract was 
 entered into, who made the first offer, and what were the cir- 
 cumstances attending the transaction.^ The possibility of a 
 speculative or contingent advantage does not fall within those 
 communications which a solicitor is bound to disclose to his 
 client, if the transaction has been in other respects fair, and 
 the point was as much open to the observation of the one 
 party as the other.' If a solicitor be employed as an agent for 
 sale or purchase, he may not purchase from or sell to himself 
 surreptitiously without the knowledge or consent of his client.* 
 
 » Gibson v. Jeves, 6 Ves. 277 ; Mont- gins, 1 Giff. 270 ; Crowdy v. Day, ib 
 
 esquieu v. Sandj-s, 18 Ves. 302; Cane 316; Pearson v. Benson, 28 Bcav. 599; 
 
 V. Lord Allen, 2 Dow. 294; Morgan v. Marquis of Clanricardo v. Ilenning, 30 
 
 Lewes, 4 Dow. ao, 47; Molony v. Beav. 175; Beale w. Billing, 13 Ir. Ch. 
 
 L'Estrange, Beat. 406 ; Champion v. 250 ; Gibbs v. Daniel, 4 Giff. 1 ; Adams 
 
 Kigby,Taml.421, 9 L. J. Ch. N. S 211 ; v. Sworder, 2 D. J. & S. 44 ; Rhodes v. 
 
 Up^pington V. Bullen, 2 Dr. & War. Bate, L. R. 1 Cii. Ap. 252. 
 
 185; iEdwards v. Meyrick, 2 Ila. GO ; ^ Jones v. Price, 20 L. T. 49; sea 
 
 Higgins V. Joyce, 2 J. &. L. 282; Spen- Rhodes v. Bate, L. R. 1 Ch. Ap. 252; 
 
 cer"^. Tophain, 22 Beav. 573 ; Holinan see also Moore v, Prance, 9 Ha. 299, 
 
 V. Loynes, 4 D. M. & G. 270 ; Hesse v. where a deed was set aside tliougli the 
 
 Briant, 6 D. M. & G. 623 ; Savery v. solicitor derived no benefit from it. 
 
 King, 5 H. L. 627 ; Tomson v. Judge, 3 ' Edwards v. Meyrick, 2 IL 60 ; see 
 
 Drew. 306 ; Barnard c. Hunter, 2 Jur. Montesquieu v. Sandys, 18 Ves. 302; 
 
 N. S. 1213; Knight ti. Bowyer, 2 D. <fe Ramsbottom v. Parker, 6 Madd. 6; 
 
 J. 421, 445; Gresley v. Mousley, 4 D. Holman v. Loynes, 4 D. M. & G. 270; 
 
 & J. 78, 3 1). F. & J. 433 ; Lyddon v. Wentwortli v. Lloyd, 32 Beav. 467. 
 
 Moss, 4 D. it J. 104; Morgan «;. Hig- * Ex-parte James, 8 Ves. 352; Exr 
 
 * ]\Iills V. Ervin, 1 McCorcVs Ch. 524 ; Bibb v. Smith, 1 Dana, 582 ; 
 Downing «. Major, 2 Dana, 228 ; Rose v. Mynatt, 7 Yerg. 30 ; Phelps v. 
 Overton, 4 Hayw. 292; Lecutt v. Bailee, 3 Port. 115; Marshall i-. Joy, 17 
 Vt. 54G ; Howell v. Ransom, 11 Paige, 538 ; Smith v. Thompson, 7 B. Mon. 
 C05 ; Lewis «. A. J . 4 Edw. Ch. 599.
 
 1G6 FEAUD PEESUMED. 
 
 If the sale be under a decree of tlie court, a solicitor employed in 
 the ca\ise, who wislies to purchase, should first obtain leave of 
 the court.^ A solicitor employed in the sale of an estate 
 should not bid for the estate though it may be merely for the 
 purpose of preventing it going at an undervalue, unless he first 
 obtain the leave of the court to do so. If he do so without the 
 leave of the court and there is no higher bidder, he may, if the 
 court thinks proper, be held to the purcliase.^ 
 
 The rule that a solicitor who deals with a client is bound 
 to prove tlie fairness of the transaction applies with peculiar 
 force where the client is placed at a disadvantage from his 
 being indebted to the solicitor, and gives him a security for 
 the debt.^ If, however, the court is satisfied that the transac- 
 tion has been on the whole fair and reasonable, and that no un- 
 due advantage has been taken, it will be supported, although 
 there may have been some irregularities attending it.* A 
 solicitor who advances money to or lias dealings with a client 
 must be able to prove the advance of the money by some 
 other evidence than the instrument creating the security.^ A 
 
 parte Bennett, 10 Ves. 381; Cane v. Shaw v. Neale, 20 Bear. 157; Coleman 
 
 Lord Allen, 2 Dow. 294; llhodes i;. iJ. Mellersli, 2 Mac. <fe G. 309 ; Holman 
 
 Beauvoir, 6 Bligh, 195; Sidney ». v. Loynes, 4 D. M. tfe G. 270; Lyddoa 
 
 Ranger, 12 Sim. 118; Bio ve'.s Trust, 1 v. Moss, 28 Beav. 598; see Jones v. 
 
 Mac. & G. 488 ; Lewis v. liillman, 3 H. Thomas, 2 Y. & C. 498 ; Morgan v. 
 
 & L. (507; Tyrrell v. Bank of London, Higgins, 1 Giff. 270; Re Foster, 2 D. F. 
 
 10 H. L. 2f), 44; Adams v. Sworder, 2 cfe J. 110; Re Pugh, 1 D. J. & S. 673. 
 
 D. J. »b S. 44. ' Jones v. Koberts, 9 Beav. 419; Bla- 
 
 > Siilney v. Ranger, 12 Sim. 118. grave v. Routh, 8 D. M. cfe G. 621 ; see 
 
 '' Nelthorpe v. "Pennyman, 14 Ves. Cooke v. Setree, 1 V. <feB. 12G; Plen- 
 
 517. derleati) v. Frazer, 3 V. & B. 174 ; Law- 
 
 ' Proof V. Hines, ca. t. Talb. 115; less v. Mansfield, 1 Dr. cfe War. 557; 
 
 Walmslcy v. Booth, 2 Atk. 29; Draper's Stedman v. Collett, 17 Beav. 608 ; Mos3 
 
 Co. V. Davis, ib. 295 ; Ward v. Hartpole, v. Bainbrigge, 6 D. M. & G. 292 ; see 
 
 cit. 3 Bli- h, 470 ; Newman v. Payne, 2 Clieslyn v. Dalby, 2 Y. & C. 170; comp. 
 
 Ves. Jr. 200; Cooke v. Setree, 1 Y. <fe Lyddon v. Moss, 4 D. &. J. 104. 
 
 B. 126; Daly v. Kelly, 4 Dow. 417, Mlorgan *'. L«wes, 4 Dow. 46; Mor- 
 
 430; Casborne v. Barsham, 2 Beav. 76; gan v. Evans, 3 CI. &, Fin. 195 ; Lawless 
 
 Champion v. Rigbv, Taml. 421, 9 L. J. v. Mansfield, 1 Dr. & War 557; Gres- 
 
 Ch. N. S. 211; Bellamy v. Sabine, 2 Ph. ley v. Mousley, 3 D. F. «fe J. 4:53; see 
 
 425 ; Lawless ;•. Jlanslield, 1 Dr. &. War. Jones )'. Thomas, 2 Y. & C. 498 ; Stain- 
 
 557 ;Upi>ington v. Hullen, 2 Dr. & War. ton v. Carron Co. 24 Beav. 352. 
 185; Edwards v. Meyrick, 2 Ha. 60;
 
 PEAUD PRESUMED. 1G7 
 
 Bolieitor cannot, under any circumstances, take security from 
 liis client for future costs,^ or for moneys to be advanced 
 for the pm-poses of a cause ;^ but tlie security given by a client 
 to his solicitor for past costs or for moneys actually due will be 
 supported xitond fide? 
 
 The statement of an untrue consideration in a deed of pur- 
 chase or sale between attorney and client is fatal to the deed. 
 The court will never support a deed where an attorney is pur- 
 chaser and the consideration is untruly stated.* 
 
 The rule which throws upon a solicitor dealing with his 
 client the burthen of proving the fairness of the transaction is 
 not confined to cases where the solicitor is actually employed 
 at the time, but may extend to cases where a solicitor has in 
 the course of his employment on a previous occasion acquired 
 or had tlie means of acquii-ing any peculiar knowledge as to 
 the property.^ * As a general rule, however, it no longer ap- 
 
 * Jones V. Tripp, Jac. 322 ; Williams * Uppinfjton v. Bullen, 2 Dr. «fe War. 
 
 V. Piggott, ih. 598 ; Buoth v. Creswicke, 184; see llolman v. Loynes, 4 D. M. & 
 
 13 L.J. Ch. 217; Coleman ?», Mellersh, G. 270. 
 
 2 Mac. & G. 309 ; see Pitcher v. Rigby, ^ Holman v. Lovnes, 4 D. M. <fe G. 
 
 9 Pri. 79. 270; Gibbs v. Daniel, 4 Giff. 1; see 
 
 ' Uppington v. Bullen, 2 Dr. <fe War. Carter v. Palmer, 8 CI. <fe Fiu. 667 
 
 184. 707. 
 
 = Cheslyn v. Dalbj', 2 Y. & C. 170; 
 Edwards v. Meyrick, 2 Ha. 60. 
 
 * Galbraith v. Elder, 8 "Watts, 81 ; Reid v. Stanley, 6 W. & S. 326 ; 
 Eockcnburg v. Carlisle, 5 W. & S. 348. 
 
 As the necessities of litigutio i compel confidence on one side the 
 policy of the law requires fidelity on the other. The jJolicy which enjoins 
 good faith requires that it should never be violated. The reasons for re- 
 quiring it, all demand that it should be pei-petual. Occasions may arise 
 when an upright counsellor may feel himself bound to withdraw from his 
 client's cause, but no circumstances whatever can justify him in betraying 
 the trust reposed under the highest obligation of professional honor. 
 Where fidelity is required, the law prohibits everything which presents a 
 temptation to betray the trust. The orison which deprecates temptation 
 is the offspring of infinite wisdom, and the rule of law in accordance with 
 it, rests upon the most substantial foundations. The purchase by an at-
 
 1G8 FRAUD PRESUMED. 
 
 plies after there has been an entire cessation of the relation ; ' 
 nor will it apply in cases where the transaction is entirely nn- 
 connected witli the duty of the attorney.^* Nor will it apply 
 with the same force where the relation though not terminated 
 has been loosened and the influence consequent on the relation 
 which formerly existed between the parties is not subsisting in 
 its full and perfect force.^ The solicitor of a plaintiff out of 
 whose hands the property is entirely taken by act of law, as 
 upon a sale by execution, is not debarred from purchasing the 
 property in execution. Neither the defendant in the execu- 
 tion nor a third person can object to the validity of the trans- 
 action/f But as between him and his client, the transaction 
 
 ' Gibson v. Jeyes, 6 Ves. 211 ; Wood ' See Jones v. Thomas, 2 T. <fe C. 
 
 V. Downes, 18 Ves. 120; Montesquieu 519. 
 
 V. Sandys, ib. 313 ; Cane r. Lord Allen, ^ Moss v. Bainbrigge, 6 D. M. & G. 
 
 2 Dow. "^289 ; Moss v. Bainbrigge. 6 D. 292. 
 
 M. & G. 292 ; see Dent v. Bennett, 4 M. * Howell v. Baker, 4 Johns. Ch. 
 
 <fe C. 269, 211; Carter v. Palmer, 8 CI. (Amer.), 121; Hawley v. Cramer, 4 
 
 & Fin. 657 ; Blagrave v. Routh, 8 D. M, Cow. (Amer.), Ill ; see Austin v. Cham- 
 
 & G. 620. bers, 6 CI. & Fin. 1, S2ipra, p. 159. 
 
 tomey of an interest in tlie thing in controvery in opposition to the title 
 of his client, is forbidden because it places him under temptation to be 
 unfaithful to his trust. Such a pm-chase, therefore, enures to the benefit 
 of his client. Where the confidence has relation to the title to land, the 
 fidelity of the counsel must necessarily follow the title of his client wher- 
 ever it goes. Any other rule would defeat the object of the trust by de- 
 stroying the market value of the title. K the client's vendee, and even his 
 orphan children may be ruined by means of violating the trust reposed by 
 their vendor or ancestor, and such breaches of trust are sanctioned by the 
 courts, all land titles would be in jeopardy, the bar would cease to en- 
 joy the confidence of the people and the courts of justice, instead of being 
 the bulwarks of public and private security, would become the most in- 
 tolerable engines of disturbance and oppression. Henry v. Raiman, 25 
 Penn. 354. 
 
 An attorney may buy other property in good faith, even though it ad- 
 joins the property owned by his client. Smith v. Brotherline, 63 Penn. 
 
 461. 
 
 * Wendell v. Van Renssler, 1 Johns. Ch. 344. 
 
 t Leach v. Fowler, 22 Ark. 143. 
 
 In order to relieve an attorney from the obligation to which the pre-
 
 FRAUD PRESUMED. 169 
 
 is not valid, if the siira given by him is insufficient to satisfy 
 the debt, unless the client assents to the purchase. If, how- 
 ever, the purchase-money is sufficient to pay the debt of tlie 
 client, the latter cannot object to the transaction.^* 
 
 The rule which throws upon a solicitor dealing witli his 
 client the burthen of proving the fairness of the transaction, 
 applies to the case of voluntary agreements, and not to a case 
 where the solicitor is in the hostile attitude of an urgent and 
 pressing creditor.^ Nor does the rule apply, where the trans- 
 action is totally disconnected with the relation and concerns, 
 objects, and things not embraced in, or affected by, or dependent 
 
 • Hawley v. Cramer, 4 Cow. (Amer.), 13 ; Pearson v. Benson, 28 Beav. 599; 
 71Y. see Moss v. Bainbrigge, 6 D. M. <fc Gr. 
 
 ' Johnson v. Fesenineyer, 3 D. <fe J. 292. 
 
 sumption of law gives rise, it must appear affirmatively that, before the 
 transuctiou or dealing took place, the relation was completely at an end, 
 so that no influence could rationally be supposed any longer to exist. 
 Lewis V. A. J. 4 Edw. Ch. 599. 
 
 * Case V. Carroll, 35 N Y. 385 ; Moore v. Bracken, 27 111. 23 ; Howell v. 
 Baker, 4 Johns. Ch. 118 ; Leisinring v. Black, 5 Watts, 303 ; "Wade v. Pette- 
 bonc, 11 Ohio, 557,- Smith v. Thompson, 7 B. Mon. 305 ; Stockton©. Ford, 
 11 How. 233. 
 
 If there are two plaintiffs in an execution, an attorney can not purchase 
 the property levied upon for the benefit of one without the consent of the 
 other for less than the whole sum due on the judgments. Leisinring v. 
 Black, 5 "Watts, 303; Hawley v. Cramer, 4 Cow. 717; "Webb «. "White, 18 
 Tex. 573. 
 
 A purchase alone does not make an attorney a trustee. He is a trustee 
 only at the instance of his principal. Downey v. Garrard, 13 Harris, 52 ; 
 s. c. 3 Grant, 64. 
 
 An attorney is bound to perfect fairness, and can not take advantage 
 of untoward circumstances to force a sale to the ruin of a debtor, and to 
 his own profit. Byers v. Surget, 19 How. 303 ; s. c. 1 Hemp. 715. 
 
 The rule does not apply between the attorney and grantees of tenants 
 ]n common with his client. Cowan «. Barrett, 18 Mo. 2r)7. 
 
 An attorney for the defendant may purchase i)roperty sold under an 
 execution. Devinney v. Norris, 8 "Watts, 314 ; Cleavinger v. lieimar, 3 W. 
 & S. 486.
 
 170 FEAUD PRESUMED. 
 
 ui^on that relation.^ The fact that the purchaser may be a 
 solicitor, and that the vendor had no legal adviser, there having 
 been no previous relation of solicitor and client between them, 
 does not bring the case within the ordinary rule of the court 
 in such cases.^ 
 
 The rule with regard to gifts by a client to his solicitor is 
 much stricter than the rule with regard to other dealings 
 between them. Gifts from a client to a solicitor durino- the 
 existence of the relation appear, upon the balance of author- 
 ities, to be absolutely invalid upon grounds of public policy ; 
 nor can a gift by a client to a solicitor, after the cessation of 
 the relation, be supported, unless the influence arising from 
 the relation may be rationally supposed to have ceased also.* * 
 There is no difference in principle between a gift to a man's 
 wife and a gift immediately to himself, if the gift to the wife 
 be affected by undue means on the part of the husband.* The 
 rule in respect to benefits conferred by will is different. A 
 solicitor may take a benefit under the will of a client, although 
 he may himself have prepared it, if no undue influence was 
 
 ' Montesquieu »j. Sandj-s, 18 Ves. 313; 470; Walsh v. Studdert, 2 Con. <fe L. 
 
 Jones V. Thomas, 2 Y. & C. 498; Ed- 423; Tomson v. Judge, 3 Drew, 306; 
 
 wards v. Meyrick, 2 Ha. 60, 68. Holman v. Loynes, 4 D. M. & G. 270, 
 
 ^Edwards v. Williams, 11 W. R. 283; Be Holmes's Estate, 3 Giff. 337 ; 
 
 561. Gibbs v. Daniel, 4 Giff. 1 ; O'Brien v. 
 
 " Welles V. Midd!eton, 1 Cox, 112, 4 Lewis, 4 Giff. 221 ; but see Oldham v. 
 
 Bro. P. C. 245; Newman v. Payne, 2 Hand, 2 Ves. 259 ; Harris v. Tremen- 
 
 Ves. Jr. 200 ; Wright v. Proud 13 Ves. heere, 15 A''es. 34 ; Hunter v. Atkins, 2 
 
 137, /ver Lord Kldon ; Wood ?'. Downes, M. & K. 113; Walker v. Smith, 29 
 
 18 Ves. 120 ; Goddard v. Carlisle, 9 i'ri. Beav. 394. 
 
 169; Ward v. Uartpole, cit. 3 Bligh, * Goddard i). Carlisle, 9 PrL 169. 
 
 * The presumption is against the propriety of gifts, but it is not in- 
 vincible. I^esbit V. Lockmau, 34 N. Y. 167; Brock ■y. Barnes, 40 Barb. 
 521. 
 
 The moment that it is ascertained that the relation is finally closed, 
 gratitude may be munificent, or even prodigal. But it must be clearly 
 seen that the bounty springs from unfettered gratitude, not from pre- 
 vious entanglements ; that it is a free-will offering for difficulties over- 
 come, not the fulfillment of a vow extorted in peril. Berrien v. McLane, 1 
 BoS. Ch. 43 ; Legatt v. SaUe, 3 Port. 115.
 
 FRAUD PRESUMED. 171 
 
 exerted by Lim over the testator,^ and the will was not exe- 
 cuted under any mistake or misapprehension caused by him- 
 self.^ But a solicitor cannot be allowed to take any benefit 
 from his own professional ignorance. A solicitor is bound to 
 have full professional knowledge, and to give the information 
 to his client. If a solicitor is employed to prepare a deed, or 
 to make a will, the law imputes to him a knowledge of all the 
 legal consequences to result therefrom, and requires that he 
 should distinctly and clearly point out to his client all those 
 consequences from which a benefit may arise to himself from 
 the instrument so prepared. If he fail to do so, he cannot, as 
 against his client or any one claiming under him, derive any 
 benefit under the instrument.^ 
 
 The principles which apply in the case of dealings between 
 solicitor and client, are also applicable to the case of a counsel 
 employed by a man as his confidential adviser;^ to the case of 
 a man who has constituted himself the legal adviser of an- 
 other,^ or has ofi*ered him legal advice in the matter ; * and to 
 the case of the clerk of a solicitor who has acquired the con- 
 fidence of a client of his master.'' * In Parnell v. Tvler,' 
 where, on a sale by a mortgagee, the purchaser had employed 
 a clerk of the solicitor of the mortgagee to bid for him, the 
 transaction was set aside. 
 
 1 Walker v. Smith, 29 Beav. 394. M'Cabe v. Hussey, 2 Dow & 01. 440, 5 
 
 MTindson v. Weatherill, 5 D. M. & Bligh's N. S.. 715; Carter v. Palmer, 8 
 
 G. 301 ; see Raworth v. Marriott, 1 M. CI. &. Fin. 657, 707 ; Brown v. Kennedy, 
 
 & K. 643. 33 Beav. 133. 
 
 ' Se;?rave v. Kirwan, Beat. 157 ; Mac- * Tate v. Williamson, L. R. 1 Eq. 528 ; 
 
 donald v. Lillie, 1 Blii^h, 315 ; Bulkley 2 Ch. App. 65 ; see Wyse v. Lambert, 
 
 V. Wilford, 2 CI. & Fin. 102, 8 Bligh's 16 Ir. Ch. 379. 
 
 N. S. Ill ; Bayly v. Wilkins, 3 J. & L. " Davis v. Abraham. 5 W. R. 465. 
 
 6S0; Nanney?'. Williams, 22 Beav. 452; ^Hobday v. Peters, 28 Beav. 349; 
 
 Corley v. Stafford, 1 D. & J. 238; Nesbitt v. Berridge, 32 Beav. 284; 
 
 Greenfield v. Bates, 5 Ir. Ch. 219 ; see Poillou v. Martm, 1 Sandf. Ch. (Amer ) 
 
 Laiiglcv V. Fisher, 9 Beav. 100 ; Waters 569. 
 
 V. Thorn, 22 Beav. 547. " 2 L. J. Ch. N. S. 195. 
 
 * Purcell V. Macnamara, 14 Ves. 91 ; 
 
 * Poillon V. Martin, 1 Saudf. Ch. 569.
 
 172 FRAUD PRESUMED. 
 
 Considerations of a like nature apply to the case of persons 
 standing in the relation of principal and agent. A person 
 who is an agent for another undertakes a duty in which there 
 is a confidence reposed, and which he is hound to execute to 
 the utmost advantage of the person who employs him. The 
 principal is entitled to the full Leuefit of the best exertions of 
 the agent. An agent cannot be allowed to place himself in a 
 situation which, under ordinary circumstances, might tempt 
 him not to do that which is the best for his principal. He 
 may not derive any profit or advantage from the business in 
 which he is employed, beyond the compensation to which he 
 is entitled for his services.^ * 
 
 1 Enst India Co. V. Henchman, 1 Ves. orowicz, 3 K & J. 230; Maxwell v. 
 
 Jr. 289 ; Massey v. Davis, 2 Ves. Jr. Port Tenant Patent Steam Fufl Co , 24 
 
 3lV; Ex-parte Hughes, 6 Ves. 617; Beav. 495 ; Tja-rell *■. Bank of London, 
 
 Yorii Buildings Co. v. M'Kenzie, 3 Pat. 10 H. L. 26, 39 ; Attwool v. Merry- 
 
 Sc. Ap. 398, 3 Ross's L. C. Sc. 305; weather, 37 L. J. Cli. 35; see Benson 
 
 Ilothschild I'.Brockman, 2 Dow ife CI. v. Heathorn, 1 Y. <fe C. C. C. 326; 
 
 188, 5 Bligh's N. S. 165; Benson v. Ritchie v. Couper, 28 Beav. 344; 
 
 Heathorn, 1 Y. <fe C. C. C 342 ; Bentley Walsliam v. Stainton, 1 D. J. <fc S. 
 
 V. Craven, 18 Beav. 75; Beck v. Kant- 678. 
 
 * Read t. Warner, 5 Paige, 650 ; Banker v. Miles, 30 Me. 431 ; Knabe 
 «. Pemot, 16 La. An. 13 ; Meeker v. York, 13 La. An. 18; Bruce v. Daven- 
 port, 36 Barb. 349 ; Grant v. Seitzinger, 2 Penna. 525 ; Massie v. Watts, 6 
 Cranch, 148 ; Churcb v. Sterling, 16 Ct. 388 ; Myers' Appeal, 2 Barr, 463; 
 McDonald r. Fitliian, 1 Oilman, 269; Kanada v. North, 14 Mo. 615. 
 
 The paramount and vital principle of the law governing the relation 
 of principal and agent, is good faith ; and so sedulously is this principle 
 o-uarded, that all departures from it are esteemed frauds upon the confi- 
 dence bestowed. Keighler v. Savage Manuf. Co., 12 Md. 383. 
 
 An agent who purchases property for himself, which he is employed to 
 purchase for another, becomes a trustee for his principal. Massie v. Watts, 
 6 Cranch, 148; Church ■». Sterling, 16 Ct, 388 ; Parkhurst v. Alexander, 1 
 Johns. Ch. 394 ; James v. M'Keman, 6 Johns. 543 ; McKinley v. Irvine, 13 
 Ala. 381; Wcllford r. Chancellor, 5 Gratt. 39; Matthews v. Light, 32 Me. 
 305 • Schedda v. Sawyer, 4 McLean, 181 ; Blount v. Robeson, 3 Jones' Eq. 
 73 ; Gardner v. Ogden, 22 N. Y. 327; Moore v. Mandelbaum, 8 Mich. 433 ; 
 Pil'lsbury v. Pillsbury, 17 Me. 107; Burrill v. Bull, 3 Sandf. Ch. 15; Har- 
 graves v. King, 5 Ired. Eq. 491. 
 
 An ao-ent who is employed to sell property, can not make himself agent
 
 FRAUD PRESUMED. 173 
 
 There is no rule to prevent an agent from dealing with his 
 principal in respect of the matter in which he is employed 
 as agent. But an agent who seeks to uphold a transaction 
 between himself and his principal, must be able to show to 
 the satifaction of the court that he gave his principal the same 
 advice in the matter as an independent and disinterested 
 adviser would have done, and made a full disclosure of all he 
 knew respecting the property, and that the principal knew 
 with whom he was dealing, and made no objection to the 
 transaction, and that the price was just and fair.^ * However 
 
 ' York Buildings Co. v. M'Kenzie. 3 v. Keman, 2 Dr. (feWar. 31 ; TrevelyaD 
 
 Pat. Sc. Ap. 398, 3 Ross' L. C. Sc. 305 ; v. Charter, 4 L. J Ch. K S. 209 ; Char- 
 
 Lowtlier v. Lowlher, 13 Ves. 103; VVatt ter v. Trevelvan, 11 CI. & Fin. 714, 732; 
 
 V. Grove, 2 Sch. & Lef. 492; Wood- Mulhallen I'.'Marum, 3 Dr. & War. 317; 
 
 house V. Meredith, 1 J. & W. 204 ; Lord Murphy v. O'.-hea, 2 J. <fe L. 422, 425 ; 
 
 Selsev V. Pvhoades, 2 Sim. &. St. 41, 1 Chirlie v. Tippins:. 9 Beav. 284 ; Bloye's 
 
 Bli-ii'-s N. S. 1; Cane v. Lord Allen, 2 Trust, 1 Mac. <fe "G?. 488; Lewis v. liill- 
 
 Dow. 294; Rothschild v. Brockman, 2 man, 3 H. L. 607; Rhodes v. Bate, L. R. 
 
 Dow A CI. 188, 5 Bligli's N. S. 165; 1 Cii. Ap. 252. 
 Barker v. Ilarrison, 2 Coll. 546 ; Molony 
 
 for other parties for the purchase thereof. Moore t\ Mandclbaum, 8 'SUch. 
 433. 
 
 An auctioneer can not purchase at a sale made by himself. Kearney v. 
 Taylor, 15 How. 494; Veazie v. Williams, 8 How. 134; lugerson v. Stark- 
 weather, Walk. Ch. 346. 
 
 If an agent converts property, the principal may, at his election, ratify 
 the transaction, and claim whatever profits are made by it. Motley v. 
 Motley, 7Ired.Eq. 211. 
 
 If a person at a judicial sale represents that he is bidding in the in- 
 terest of the owner, and thereby prevents competition, he becomes a mere 
 trustee for the owner. Cocks v. Izard, 7 Wall. 559 ; Brewer v. Lynch, 1 
 Paige, 147 ; Denton v. McKenzie, 1 Dessau. 289 ; Martin v. Blight, 4 J. J. 
 Marsh. 491 ; Wood v. Hudson, 5 Munf. 433. 
 
 An agent buying property under the judgment of his principal, becomes 
 a mere trustee for his principal if he buys for less than the claim. Smith 
 t. Lan.^ing, 23 N. Y. 520 ; Eishleman v. Lewis, 49 Penn. 410. 
 
 * Brooke v. Berry, 2 Gill. 83 ; Teackle v. Bailey, 3 Brock. 43 ; Torrey 
 V. Bank of Orleans, 9 Paige. 649 ; s. c. 7 Hill, 360 ; Dobson v. Racey, 7 N. 
 Y. 216 ; Moseley ». Buck, 3 Munf 233 ; Butler v. Haskell, 4 Dessau. 651 ; 
 Taylor r. Knox, 1 Dana, 391 ; s. c. 5 Dana, 466 ; Marshall v. Joy, 17 Vt. 
 546 ; Casey v. Casey, 14 111. 113 ; Fisher's Appeal, 34 Penn. 29 ; Moore v.
 
 174 FRAUD PRESUMED. 
 
 fair the transaction may be in otlier respects, any underhand 
 dealing on the part of an agent will render it impeachable at 
 the election of the principal. It is immaterial that the agent 
 may have taken no advantage by the bargain. It is sufficient 
 that he has not acted with that good faith which the court 
 requires, and has placed himself in a situation which might 
 tempt an agent to allow his own interest to come into conflict 
 with that which his duty requires him to do.^ * 
 
 An a^ent who is emploved to sell, cannot become the pur- 
 chaser surreptitiously and without the knowledge or assent of 
 his employer ; ^ f ^^r can an agent, who is employed to pur- 
 chase, purchase secretly from himself, or from his own trustee,^:}: 
 
 1 Gillett V. Peppercorne, 3 Beav. 18; Fx-parte Hughes, 6 Ves. 617; Wood- 
 
 Murphv »'. O'Shea, 2 J. & L. 422; Char- house v. Meredith, 1 J. <fe W. 204; 
 
 ter V. Trevelyan, 11 CI. & Fin. 714; Trevelyan v. Charter, 4 L. J. Ch. N. S. 
 
 Clarke u Tippino;, 9 Beav. 284 ; Wilsoa 209; Charter v. Trevelyan, 11 01. & 
 
 V Short, 11a. 383 ; Hobday v. Peters, Fin. 714 ; Edgecumbe v. Stranger, 1 
 
 2*8 Beav. 349 ; Tyrrell v. Bank of Lon- Jur. 400 ; Murphy v. O'Shea, 2 J. & L. 
 
 don, 10 H. J. 26; Wentworth v. Lloyd, 422; Lewis v. Hillman, 3 H. L. 607; 
 
 32 Beav. 467. Bentley v. Craven, 18 Beav. 75. 
 
 "" York Buildings Co. v. M'Kenzie, 3 ' East India Co. /'. Henchman, 1 Ves. 
 
 Pat. Sc. Ap. 398/ 3 Ross's L. C. Sc. 305; Jr. 289; ISIassey v Davies, 3 Ves. 317 ; 
 
 Mandelbaum, 8 Mich. 433 ; Farnam v. Brooks, 9 Pick. 212 ; Comstock v. 
 Comstock, 57 Barb. 453 
 
 If a party entering into a contract has the full means of knowledge 
 committed to him by the other party, and does not choose or neglects to 
 avail him?elf of them, it is his own fault if the bargain turns out unfavor- 
 able. Farnam v. Brooks, 9 Pick. 212. 
 
 * Moore v. Moore, 5 N. Y. 256 ; s. c. 4 Sandf. Ch. 37 ; Gould v. Gould, 
 36 Barb. 270 ; Segar v. Edwards, 11 Leigh, 218 ; Shannon v. Marmaduke, 
 14 Tex. 217; Barton v. Moss, 32 111. 50; Cram «. Mitchell, 1 Sandf Ch. 
 251 ; Cumberland Coal Co. v. Sherman, 30 Barb. 553. 
 
 t Dobson V. Racey, 3 Sandf. Ch. 60 ; Torrey v. Bank of New Orleans, 9 
 Paige, G49 ; Banks v. Judah, 8 Ct. 145. 
 
 Such a purchase is not void, but voidable. Gaines v. Acre, Minor, 
 
 141. 
 
 There is no distinction between a judicial and a private sale, where the 
 ao-ent controls, and the oflBcer acts under his instructions. Moore ». Moore, 
 5 N. Y. 256 ; Bridgen v. Atkins, 25 Tex. 388 
 
 ^ I Conkcy v. Bond, 36 N. Y. 427 ; s. c. 13 Abb. Pr. (N. S.) 415 ; Marshall 
 e. Joy, 17 Vt 546. 
 
 The rule applies only to agents who are relied upon for counsel and
 
 FRAUD PRESUMED. 175 
 
 or for his own benefit.^ Tlie rule applies whether the ao-ent 
 employed to purchase was actually in the position of a vendor 
 or intended to place himself in that position,^ So also an 
 agent who is employed to settle a debt, or to make an arrange- 
 ment, cannot purchase up the debt, or any charge upon the 
 property which is the subject of the arrangement, for his own 
 benefit.' The disability extends to the clerk of an agent who, 
 in the course of his employment, has acquired a knowledge of 
 the property of the principal.* 
 
 The rule that an agent dealing with his principal must 
 impart knowledge acquired in his office, does not apply where 
 the relation has ceased, and there is another agent with equal 
 means of knowledge, to guard the interest of the principal in 
 the transaction.^ After the relation of principal and agent 
 has wholly ceased, or the agent has divested himself of that 
 character, the parties are restored to their competency to deal 
 with each other.^ But an agent who has, in the course of his 
 employment, acquired some peculiar knowledge as to the 
 property, cannot, after the cessation of the relation, use the 
 knowledge so acquired for his own benefit, and to the preju- 
 dice of his former client.' 
 
 Rothschild v. Brockman, 2 Dow <fe CI. ' Cane v: Lord Allen, 2 Dow. 294 ; 
 
 188; Driscoll v. Bromley, 1 Jur. 238; Reed v. Norris, 2 M. <fe C. 361 ; Carter 
 
 Gillett V. Peppercorne, 3 Beav. 78; t). Palmer, 8 CI. <fe Fin. 657, 11 Bligli's 
 
 Barker ('. Harrison, 2 Coll. 546; Bent- N. S. 397; Hobday v. Peters, 28 Beav. 
 
 ley i\ Craven, 18 Beav. 75 ; Maturin v. 349. 
 
 Tredinnick, 9 L. T. N. S. 82 ; Tyrrell v. * Gardner v. Ogden, 8 Smith (Amer.) 
 
 Bank of London, 10 H. L. 26. 327. 
 
 ' Lees V. Nuttall, 2 M. & K. 819 ; ' Scott v. Dunbar, 1 Moll. 442. 
 
 Tavlor v. Salmon, 4 M. & C. 134 ; see » Charter v. Trcvelyan, 4 L. J. Ch. N. 
 
 Ciii-ter »\ Palmer, 8 01. & Fin. 657 ; S. 2ii9 , see York Buildings Co. v. 
 
 Bec>k V. Kantorowicz. 3 K. <fe J. 230; M'Kenzie, 3 Pat. So. Ap. 379,s?</jra, pp. 
 
 Ilobdav ('. Peters, 28 Beav. 319. 153, 159, 167. 
 
 " Beck V. Kautorowicz, 3 K. <fe J. ' Carter 7>. Palmer, 8 CI. <fe Fin. 657 : 
 
 242. Ilolman v. Loynes, 4 D. M. & G. 27a 
 
 direction, and wliose emploj'ment is rather a trust than a service, and not 
 to those who are employed merely as instruii^ents in the performance of 
 some appointed service. Deep River Gold Mining Co. v. Fox, 4 Ired. 
 Eq. 01.
 
 176 FRAUD PRESUMED. 
 
 An agent, for instance, wlio in the course of his employ- 
 ment as such has discovered a defect in the title of his em- 
 ployer, cannot after the relation has ceased use his knowledge 
 60 gained to acquire a title for himself.^ ^ Nor can a man 
 who is employed as a confidential agent escape from liability 
 under the pretence that the business has been entrusted to an 
 agent and not to him, unless it can be shown that the agent 
 was intended to act, and in fact acted independently of Inm.^ 
 
 There is no rule preventing the same agent from acting 
 for the opposing parties, but he must be able to satisfy the 
 court that the parties were substantially at arms' length in 
 the transaction, and that there has been the utmost fairness 
 throughout.^ f 
 
 A gift by a man to a person who has been for many years 
 his confidential agent and adviser is valid, unless the party 
 who seeks to set it aside can show that some advantage was 
 taken by the agent of the relation in which he stood to the 
 donor. If the conduct of the agent in the matter appears 
 to have been fair, honest, and lond fide, it is immaterial that 
 the deed of gift may have been drawn up by his solicitor 
 without the intervention of a disinterested third party.* The 
 rule with respect to the capacity of an agent to accept a gift 
 from his principal is not so strict as it is in the case of 
 
 269 
 
 ' Rin"-o V. Binns, 10 Peters (Amer,), 195 ; Mattbie v. Edwards, 16 L. J. Ch. 
 
 405. 
 
 ^Rhodes v. Bates, L. R. 1 Ch. Ap. ■* Hunter v. Atkins, 3 M. & K. 113 
 
 252 ' Nicol V. Vaughan, 1 CI. & Fin. 495 
 
 ^Hesse v. Briant, 6 D. M. & G. 623; see Wyse v. Lambert, 16 Ir. Ch. 379 
 
 Garvey y. McMinn, 9 Ir. Eq. 526 ; see Rhodes v. Bate, L. R. 1 Ch. Ap. 252. 
 Rhodes v. Beauvoir, 6 Bligh's N. S, 
 
 * Ringo V. Binns, 10 Pet. 2G9. 
 
 t Greenwood v. Spring, 54 Barb. 375. A person can not be agent for 
 both parties when judgment or discretion is to be exercised. Vanderpoel 
 V. Kearney, 2 E. D. Smi(h, 170 ; Dunlob v. Richards, 2 E. D. Smith, 181; 
 Central Ins. Co. v. Protective Ins. Co., 14 K Y. 85.
 
 FRAUD PRESUMED. 177 
 
 attorney and client, trustee and cestui qxie trust, and guardian 
 and ward. The relation in wliicli the parties stand to each 
 other being of a sort less known and definite than in those 
 other cases, the jealousj is diminished.'^ 
 
 The rule of equity with respect to dealings between 
 guardian and ward is extremely strict,^ '•'" and imposes a gen- 
 eral inability on the parties to deal with, each other.^ f Where 
 the relation of guardian and ward is subsisting between two 
 parties, if a gift or anything in the nature of a gift proceeds 
 from the ward towards the guardian, when the ward has just 
 come of full age, such transactions are subject to be viewed 
 with the utmost jealousy by courts of equity. It is almost 
 impossible that transactions of such a nature can be sustained, 
 unless the party claiming the benefit of the gift can show to 
 the satisfaction of the court that his influence has not been 
 misapplied in the particular transaction. Unless it appears 
 to be a spontaneous act on the part of the ward, or unless he 
 was informed in all the particulars of the nature, character, 
 and probable consequence of his jDroceeding, such a transaction 
 cannot stand.^ X Transactions between guardian and ward 
 cannot be allowed to stand, even although they may have 
 taken place after the guardianship has come to a close, unless 
 
 •Hunter v. Atkins, 3 M, AK. 113; 22G. Tutor rem pnpilU emcre non potest. 
 
 but see llobilay v. Tcters, 28 Beav. Dig, xviii, tit. 1, leg. Ml. 
 
 349. * Archer v. Hudson, 15 L. J. Ch. 211 • 
 
 = Hvlton « Hylton, 2 Ves. 548, 549 ; Mulhallen v. Maruni, 3 Dr <fe War' 
 
 Hatch i'. Hatch, '9 Ves. 292. 317; see Oldin v. Samborn, 2 Atk. u\ 
 
 ^ See Dawson v. Massey, 1 B. & B. Beasley v. Magrath, 2 Sch. & Let. 35. ' 
 
 * Hanna v. Spotts, 5 B. Mon. 3G2 ; Wliilt •». Parker, 8 Barb. 48; Vau- 
 nickle v. Malta, 16 La. An. 325. 
 
 t Galatian v. Erwin, 1 Hopk. 48; Lee v. Pox, 6 Dana, 171 • Walker v. 
 Walker, 101 Mass. 1G9 ; Scott v. Freelaud, 7 S. & M. 401) ; Meek v. Perry 36 
 Miss. 190. 
 
 X Waller v. Armistoad, 2 Leigh, 11: Love v. Lea, 2 Ired. Eq. 637. 
 There is no distinction between a deed given as a gratuity, and a deed of 
 release, acquittance, or discharge. Waller v. Armistead, 2 Leio-h 11.
 
 178 FEAUD PRESUMED. 
 
 tlie influence wliicli is presumed to arise from the relation 
 lias ceased to exist.^ * The influence may continue to exist 
 for a -considerable time after the actual relation has ceased to 
 exist.* As long as the accounts between the parties have not 
 been fully settled, or the estate still remains in some sort 
 under the control of the guardian, the influence '*rill be pre- 
 sumed to exist.^t The influence will indeed be presumed 
 to exist, unless there is distinct evidence of its determination.* 
 After the relation has entirely ceased not merely in name 
 but in fact, and a full and fair settlement of all transactions 
 arising out of the relation has been made, and suflicient time 
 has elapsed to put the parties in a position of complete 
 independence to each other, there is no objection to any 
 bounty or grant conferred by the ward on his former guardian.^ 
 It is not necessary for the application of the principle that 
 
 ' Hylton V. Hj-lton, 2 Ves. 548, 549 ; son, 15 L. J. Ch. 211 ; Mnifland v. Back- 
 
 Hatcli V. Hatch, 9 Ves. 292; Carey?;. house, 17 L. J. Ch. 121; Davies v. 
 
 Carey, 2 Sch. & Lef. 113 ; Dawson v. Davies, 9 Jur. N. S. 1002. 
 
 Massey, 1 B. <fe B. 219; Aylward v. ^ Hylton t'. Hylton, 2 Ves. 547; Daw- 
 
 Kearney, 2 B. <fe B. 478; O'Neill v. son v. Massey, 1 B. <fe B. 229; see 
 
 Hammi'll, Beat. 618; Maitland v. Ivv- Stead man i;. Palling, 3 Atk. 423; MeiU 
 
 iug, 15 Sim. 437; Archer v. Hudson, ish v. Mellish, 1 Sim. & St. 138; Revett 
 
 15 L. J. Ch. 211; Maitland t'. Back- v. Haryey, ib. 502; Matthew r. Brise, 
 
 house, 17 L. J. Ch. 121 ; Espey v. Lake, 14 Beav. 345 ; Espey v. Lake, 10 Ha. 
 
 10 Ha. 260 ; see Rhodes v. Bate, L. R. 260. 
 
 1 Ch. Ap. 252. ' Rhodes v. Bate, L. R. 1 Ch. Ap. 
 
 - Hatch )■. Hatch, 9 Yes. 292 ; Ayl- 252 ; see Archer v'. Hudson, 15 L. J. 
 
 ward V. Kearney, 2 B. & B. 463; Ch. 211. 
 
 O'Neill V. Iliimnnll, Beat. 618 ; Revett * Hylton v. Hylton, 2 Ves. 547, 549 ; 
 
 V. llarvcy, 1 Sim. & St. 502; Maitland see Beasley v. Magrath, 2 >ch. & Lef. 
 
 V. Irving, 15 Sim. 437; Archer v. Hud- 35; Ross v. Steele, 1 Ir. Eq. 171. 
 
 * Lee v. Fox, 6 Dana, 71; Johnson v. Johnson, 5 Ala. 90; Fish©. 
 Miller, 1 noff. Ch. 267 ; Riipalie v. Moreworthy, 1 Sandf. Ch. 399 ; Brewer 
 V. Vanarsdale, C Dana, 204 ; Richardson v. Linney, 7 B. Men. 571 ; Sherry 
 V Stansbnry, 3 Md. 320. 
 
 t Williams v. Powell, 1 Ired. Eq. 460; Gale v. Wells, 12 Barb. 84; 
 Waller v. Armistead, 2 Leigh, 11 ; Wright v. Arnold, 14 B. Mon. 038. A 
 release freely and fairly given without misrepresentation, or undue influ- 
 ences is valid. Kirby v. Taylor, 6 Johns. Ch. 342 ; Kirby e. Turner, 1 
 Hopk 309; Southall v. Clark, 3 Stew. & Port. 338; Myers v. Rives, 11 
 Ala. 7«0.
 
 FRAUD PEESUMED. 179 
 
 the relation of guardian and ward should exist in perfect 
 strictness of terms, or that the guardian should be a guardian 
 appointed bj the Court of Chancery, or nominated by the 
 father. If the young person lives with, and is brought up or 
 under the care, influence, and control of a near relative of 
 mature age — if the relation of guardian and ward thus subsist 
 between them — the princij^le is equally applicable.^ * 
 
 The p]-inciple applies to tlie case of a third party who 
 makes himself a party with the guardian who obtains a secm'- 
 ity from his ward.^ 
 
 The case of parent and child comes within the same prin- 
 ciple.^ Tlie influence which a parent has naturally over a 
 child makes it the duty of the court to watch over and protect 
 the interests of the child. A child may deal with or make a 
 gift to a parent, and such dealing or gift is good, if it be not 
 tainted with parental influence, operating on the hopes or 
 fears or necessities of the child. A child is presumed to be 
 under parental influence, as long as the dominion of the 
 parent lasts. "Whilst that dominion lasts, it lies on the parent 
 upholding the transaction or maintaining the gift to disprove 
 the exercise of parental influence by showing that the child 
 was really a free agent, and had competent independent ad- 
 vice, or had at least competent means of forming an inde- 
 pendent judgment, and fully understood what he was doing 
 and was desirous of doing it.* f The principle applies for at 
 
 > Beasley v. Magrath, 2 Sch. <fe Lef. Llewellin v. Cobboltl, 1 Sm. <fe G. 376; 
 
 31 ; Revftt v. Harvey, 1 Sim. & St. I'rideaux v. Lonsdale, 1 J). J. & S. 
 
 502; Mulhallen v. Maruin, 3 Dr. <fe 433. 
 
 War. 317 ; Arclier v. Hudson, 15 L. J. " Espey v. Lake, 10 Ha. 200. 
 
 Ch. 211 ; Alllrey v. AUfrey, 1 JIac. & ' Casborne v. Eursliam, 2 Boav. 76. 
 
 G. 98; Espey i;. Lake, 10 lia. 260,202; * Carpenter v. Heriot, 1 Ed, 338; 
 
 * ■Waller v. Armistcad, 2 Leigh, 11 ; Hanna v. Spotts, 5 B, Mon. 362; 
 Willman ct al. Appeal, 28 Penn. 37G. 
 
 t The presumption is that the advancement of the interest of the 
 child was the object in view, and the deed is not prima facie void. It is
 
 180 FRAUD PEBSUMED. 
 
 least a year after the coming of age of the child, and will ex- 
 tend beyond the year, if the dominion lasts.^ The court will 
 indeed presume the continuance of the influence, unless there 
 is a distinct evidence of its determination.^ Where the par- 
 ental influence is disproved or that influence has ceased, a 
 dealing between parent and child, or a gift from a child to a 
 parent, stands on the same footing as any other dealing or 
 o-ift.^ The entreaty of a sick father to a child does not 
 amount to undue influence.* 'Nov is the mere fact of a 
 daughter soon after coming of age voluntarily giving securities 
 to a creditor of her father in payment of his debts of itself 
 ground for imputing undue influence to the father.^ 
 
 Transactions between parent and child which proceed 
 upon arrangements between them for the settlement of the 
 family property, or which tend to the peace and security of 
 the family and the avoidance of litigation, do not come within 
 
 Heron ?'. Heron, 2 Atk. 160; Young v. Hoghton v. Hogliton, 15 Beav. 800; 
 
 Peachej', ib. 254 ; Rhodes v. Cook, 4 Wright v. Vanderplank, 8 D. M. & G. 
 
 L. J. Ch.'l49; Casborne ii. Barsham, 2 135; Bury v. Oppenheim, 26 Beav. 
 
 Beav. '76; Hogliton v. Hoghton, 15 594; Warde v. Dickson, 5 Jur. N. S. 
 
 Beav'. 2*78; Hartopp v. Hartopp, 21 699; Davies v: Davies, 4 Giff. 417; 
 
 Beav". 259 ; Baker v. Bradley, 1 D. M. Beriloe v. Dawson, 34 Beav. 603 ; Charn- 
 
 <fe G." 597 ;' Wright v. Vanderplank, 8 hers v. Crabbe, ih. 457 ; but see Thorn- 
 
 D. ]M. <fe G. 135, 146; Bury v. Oppen- ber v. Shcard, 12 Beav. 589. 
 
 heim, 26 Beav. 594; Savery r. King, 5 ° Rhodes v. Bate, L. R. 1 Ch. Ap. 
 
 H. l! 627, 655 ; Jenner v. jenner, 2 D. 252. 
 
 F. & J. 359 ; Davies v. Davies, 4 Giff. ' Wright v. Vanderplank, 8 D. M. & 
 
 417; Berdoe t'. Dawson, 34 Beav. 61 (S ; G. 135, 146; Bury v. Oppenheim, 26 
 
 Chambers v. Crabbe, ib. 457 ; Potts v. Beav. 594. 
 
 Surr, ib. 543 ; Beale v. Billing, 13 Ir. ■• Farrent v. Blanchford, 1 D. J. <fe S. 
 
 Ch. 250. 107. 
 
 ' 7 H. L. 722, per Lord Cranworth. ° Thornber v. Shcard, 12 Beav. 589, 
 
 See Walker v. Symouds, 3 Sw. 1, 72 ; see as to undue influence, in/ra, p. 184. 
 
 the duty, however, of courts of equity carefully to watch and examine 
 the circumstances attending transactions of this kind to discover if any 
 undue influence has been exercised in obtaining the conveyance. Jenkins 
 V. Pye, 13 Pet. 241 ; Taylor v. Taylor, 8 How. 183. 
 
 The impulse of filial duty and afl'ection -will be deemed a satisfactoiy 
 considtration for a deed in instances only in which the motives are shown 
 to have been free and unconstrained in their operation. Taylor v. Taylor, 
 8 How. 183.
 
 FRAUD PEESUMED. 181 
 
 the ordinary rules of the court with respect to parental influ- 
 ence. If the settlement is one by which the parent acquires 
 no benefit, not already possessed by him, and be a reasonable 
 arrangement and for the benefit of the family, and be not 
 obtained through misrepresentation or suppression of the 
 truth, it will be supported even although it may appear that 
 the parent did exert parental influence and authority over the 
 son to procure his execution of it. If the child is fully aware 
 of the nature and eff'ect of the transaction, it is of no conse- 
 quence that he niay not have had the advice of a separate 
 solicitor ; nor can he be heard to say that he executed the set- 
 tlement with precipitancy. If the settlement be for the benefit 
 of the family, a court of equity will not inquire into the 
 degree of influence which may have been exerted.^ Arrange- 
 ments between members of a family to assist their several 
 objects or relieve their several necessities, are affected by so 
 many peculiar considerations and are influenced by so many 
 different motives that they are withdrawn from the ordinary 
 rules by which the court is guided in adjudicating between 
 otlier parties.^ The court does not minutely weigh the con- 
 siderations on one side or the other. Even ignorance of 
 rights may not avail to impeach the transaction. But trans- 
 actions in the nature of a bounty from a child to a parent soon 
 after coming of age, are viewed by the court with jealousy.' 
 If the parent gains some advantage by the transaction 
 which he did not previously possess, the general principles 
 with respect to parental influence apply, and the transaction 
 cannot be supported, imless it can be shown that the child 
 
 » Tweddell v. TwocWell, T. <fe R. 1 ; ner, 2 D. F. & J. 334 ; Potts v. Surr, 34 
 
 Bellamy v. Sabine, 2 Ph. 425; Cooke v. Beav. 543; Williams v. Williams, L. K. 
 
 Burtciiaell, 2 Dr. & War. 165; Wallace 2 Ch. App. 295. 
 
 »'. Wallace, v6. 452; Iloglitnn r. IJogb- '^ Bellamy v. Sabine, 2 I'li. 425; 
 
 ton, 15 Bcav. 2*78, 305; Baker ?'. Brad- Head v. Godlee, Johns. 536. 
 ley, 7 D. M. & G. 597; Dimsdale v. 'Baker v. Bradley, ID M. &. Q. 
 
 Dinisdale, 3 Drew. 556; Jenuer v. Jen- 620.
 
 182 FRAUD PRESUMED. 
 
 knew what he was domg and was desirous of doing it, and 
 was not unduly influenced by his father.* The same consider- 
 ations apply where a third person takes a benefit under a 
 deed executed by a son in favor of his father.^ 
 
 If, however, the person who takes the benefit is a member 
 of the family, and the parent himself takes no benefit, the 
 transaction will not be set aside, even though considerable 
 pressure may have been nsed by the parent to induce the son 
 to execute it. In Wycherley v. Wycherley,^ where the father 
 of a family, with some warmth of temper, insisted upon a 
 deed being executed by a son for the benefit of his two sisters. 
 Lord Northington would not set it aside."* 
 
 The principles which govern the case of dealings of persons 
 standing in a fiduciary relation apply as between partners,'* 
 between principal and surety,^ and generally to the case of 
 persons who clothe themselves with a character which brings 
 them within the range of the principle.' A man who pos- 
 sesses the confidence of another will not be allowed by a court 
 
 'Heron v. Heron, 2 Atk 160; Ripley, 2 Mae. & G. 274; Blissett t). 
 
 Hoghton V. Hogliton, 15 Beav. 278; Daniel, 10 Ha. 538 ; Clegg v. Edmond- 
 
 Baker v. Bradley, 7 D. M. *fe G. 620; son, 8 D. M. & G. 807; Clements v. 
 
 Savery v. King, 5 H. L. 627 ; see Rogers Hall, 2 D. <fe J. 173 ; Perens v. Johnson, 
 
 V. Bruce, Beat. 486 ; Rhodes v. Cooke, 3 i^m. <fe G. 419 ; comp. Knight v. Mar- 
 
 4 L. J. (!h. 149 ; Wallace v. Wallace, 3 joribanks, 11 Beav, 322. 
 Dr, & War. 452 ; Jenner v. Jcniier, 2 D. " See Reed v. Norris, 2 M. <fe C. 
 
 F, & J. 359; Bolts v. Surr. 34 Beav. 361; Rhodes t). Bate, L. R. 1 Ch. Ap. 
 
 543 ; Berdoe v. Dawson, ih. 603. 252. 
 
 » Berdoe v. Dawson, ib. See Ser- ^ Tate v. Williamson, L. R. 2 Ch. 
 
 combe v. Saunders, ib. 382. App. 55. See Greenlaw v. King, 5 
 
 ^ 2 Eden, 175. Jar. 18 ; Giddings v. Giddings, 3 Russ. 
 
 * Bentley v. Mackay, 31 Beav. 151. 241 ; "Waters v. Bailey, 2 Y. & C. C. C. 
 
 ^ Bayne v. Ferguson, 5 Dow. 151 ; 219; Tanner v. EKvortliy, 4 Beav. 487; 
 
 Burton k Wookey, 6 Madd. 367; Mad- Smiths. Kay, 7 H. L. 750; Coulson v. 
 
 deford v. Austwick, 1 Sim. 89, 2 M. & Allison, 2 D^ F. &. J. 521 ; Prideaux v. 
 
 K. 279 ; Spittal v. Smith, Taml. 45 ; Lonsdale, 1 D. J. & S. 433, supra, p. 
 
 Chambers ;/. Howell, 11 Beav. 8 ; Bent- 152. 
 ley V. Craven, 18 Beav. 75 ; Maclure v. 
 
 * riagg 1}. Mann, 2 Sumner, 486 ; Simmons v. Vulcan Oil Co. 61 Penn. 
 202 ; Short v. Stevenson, 63 Penn. 95. 
 
 The rule does not apply to dealings that are not within the scope of 
 the partnership business. Wheeler v. Sage, 1 "Wall. 518.
 
 FRAUD PRESUMED. 183 
 
 of equity to take advantage of that situation, althongli the 
 relation of solicitor and client, or principal and agent, be not 
 strictly constituted between them. It is enough that a man 
 be merely consulted as a confidential friend.' It is immaterial 
 that no definite relation may exist between the parties.^ * 
 
 The principle on which a court of equity acts in relieving 
 against transactions on the ground of inequality of footing 
 between the parties, is not confined to cases where a fiduciary 
 relation can be shown to exist, but extends to all the varieties 
 of relations in which dominion may be exercised by one man 
 over another, and applies to every case where influence is ac- 
 quired and abused or where confidence is reposed and beti*ayed.^ 
 In cases where a fiduciary relation does not subsist between the 
 parties, the court will not, as it does where a fiduciary relation 
 subsists, presume confidence put and influence exerted: the 
 confidence and the influence must, in such cases, be proved 
 extrinsically, but when they are proved extrinsically, the 
 rules of equity are just as applicable in the one case as in the 
 other,* 
 
 No general rule can be laid down as to what shall constitute 
 undue influence. The question is one which must in each 
 case depend on its own particular circumstances. There is no 
 head of equity more difiicult of application than the avoid- 
 ance of a transaction on the ground of advantage taken of 
 
 ' Taylor v. Obee, 3 PH. 83 ; see Lord Kinsjsclown ; "Wyse v. Lambert, 
 
 Darley v. Sini>leton, Wiglit. 25. 10 Ir. Ch. 379 ; Rhodes v. Bate, L. R. 1 
 
 " J/).; Butler v. Miller, L. R. 1 Ir. Ch. App. 252. 
 
 Eq. 215. ■"7 H. L. 779, per Lord Kingsdown ; 
 
 ' llui^nenin ?>. Basley, 14 Ves. 273, see Casborne v. Barsham, 2 lieav. 76 ; 
 
 286; Dent v. Bennett, 4 M. & C. 269; Boj'se v. Russborouixh, 3 Jur. N. S. 
 
 Cooke V. Lamotte, 15 Bcav. 234 ; B.ll- 373 ; Bcanland v. Br.adlev, 2 Sni. & G. 
 
 age V. Southee, 9 Ha. 534, 540; Wil- 339; Harrison v. Guest, "o L>. M. & G. 
 
 liams V. Bayley, L. R. 1 App. Ca. 200; 424 ; Rhodes v. Bate, 1 L. R. Ch. Ap, 
 
 Smith V, Kay, 7 II. L. 750, 779, per 252; Lyon v. Home, 16 W. R. 824. 
 
 * McUormick v. Malin, 5 Blackf. 509; Wilsou v. "Watts, 9 Md. 356; 
 Dismukes v. Teriy, Walk. 197.
 
 184 FRAUD PRESUMED. 
 
 distress.^ The case presents no difiiculty where direct restraint, 
 duress, or oppression can be shown.'' The difficulty arises 
 when the court has to determine whether the advantage taken 
 of distress amounts to oppression,® * or the influence exerted 
 has been so pressing as to be undue within the rule of equity.* 
 In a case where the holders of forged bills working on the 
 fears of a father for the safety of his son, who had forged them, 
 but without any distinct threat and without any distinct prom- 
 ise not to prosecute, obtained from him a security for the 
 amount of the bills, the transaction was set aside.^ In a case 
 however where a debtor who was under arrest had given to a 
 creditor, at whose suit he was imprisoned, a warrant of at- 
 torney to confess judgment for the whole amount claimed, the 
 court held that the arrangement having been entered into de- 
 liberately, with full knowledge of the circumstances and with 
 professional advice, was not impeachable, although one of the 
 debts for which the warrant of attorney was given was barred 
 
 ' Ramsbottom v. Parker, 6 Madd. 6. It was said in the Pandects that the 
 
 » Xicholls V. Nicliolls. 1 Atk. 409; partj' must be intimidated by the ap- 
 
 Roy J). Duke of Bcauford, 2 Atk. 190; prehension of some serious evil of a 
 
 Thornhill r. Evans, ib. 330 ; Talleyrand present or pressing nature, and such as 
 
 t'. Boulam^er, 3 Yes. 448; Lampliigh v. is capable of making an impression 
 
 Lamplugh, 1 Dick. 411; Gubbins v. upon a person of courage. Pothier, 
 
 Creed, 2' Sell. <fe Lef 214; Underbill w. however, thinks this rule too strict, 
 
 Harwood, 10 Ves. 219 ; Pickett v. Log- and that regard should be had to the 
 
 gan, 14 Ves. 215 ; Peel i>. , 16 Ves. age, sex, and condition of the party, 
 
 157; Middletont). Middleton, IJ. AW. and that a fear which would not be 
 
 94 deemed sufficient to have influence on a 
 
 ' Ramsbottom v. Parker, 6 Madd. 6. man in the prime of life, might be suffi- 
 
 * Middloton v. Sherburne, 4 Y. & C. cient in respect of a woman, or a man 
 
 389 ; Bovse v. Russborough, 3 Jur. N. in the decline of life. Obi. p. 1, c. 1, 
 
 S. 373 ; Rhodes v. Bate, L. R. 1 Ch. Ap. art. 3. g. 2, p. 25. 
 
 252. The civil law alwavs sets aside a ^ Williams v. Bayley, L. R. 1 App. 
 
 contract procured by force, or from a Ca. 2u0 ; see Nicholls v. Nicholls, I 
 
 want of liberty in the contracting party. Atk. 409 ; Scott v. Scott, 11 Ir. Eq. 74. 
 
 * Butler V. Haskell, 4 Dessau. 651 ; Kenny v. Udall, 5 Johns. Ch. 464; 
 Stewart v. Stewart, 7 J. J. Marsh. 183; Lyon i\ Talmadge, 14 Johns. 501; 
 Driver v. Fortune, 5 Port. 9 ; Hough v. Hunt, 2 Ohio, 435 ; Esham v. 
 Lamar, 10 B. Mon. 43; Central Bank v. Copcland, 18 Md. 305; Hunt v. 
 Bass, 2 Dev. Eq. 292 ; Davis v. Morgan, 1 Dana, 20 ; Tate v. Whitney, Har- 
 ring's Ch. 145 ; Kebey v. Hobby, 16 Pet. 269.
 
 FRAUD PRESUMED. 185 
 
 bj tlie Statute of Limitations.* The court is bound to examine 
 carefully into a contract entered into with a party who is in 
 gaol, and to see that no undue advantage has been taken of his 
 position. But it is not true, as a general principle, that a man 
 in insolvent circumstances and in prison can not sell his prop- 
 erty,^ 
 
 In charging a jury, with respect to what shall constitute 
 undue influence in the making of a will, Mr. Justice Wilde 
 said as follows, in a very late case : '* "To make a good will a 
 man must be a free agent, but all influences are not unlawful. 
 Persuasion appeals to the affections, or ties of kindred, to a 
 sentiment of gratitude for past services or pity for future desti- 
 tution or the like. These are all legitimate and may be fairly 
 pressed on a testator. On the other hand, pressure of what- 
 ever character, whether acting on the fears or the hopes, if so 
 exerted as to overpower the volition without convincing the 
 judgment, is a species of restraint under which no valid will 
 can be made. Importunity or threats such as the testator has 
 not the courage to resist ; moral command asserted and yielded 
 for the sake of peace and quiet, or of escaping from distress of 
 mind or social discomfort ; these, if carried to a degree in 
 which the free play of the testator's judgment, discretion, or 
 wishes is overborne, will constitute undue influence, though no 
 force is either used or threatened. In a word a testator may 
 be led, not driven, and his will must be the ofispring of his 
 own volition and not that of another." * 
 
 'Richards v. Curle-syis, 3 Eq. Rep. " Brintley w. ITann, 1 Dni. 175; see 
 
 2*78 ; see ITinton v. Ilinton, 2 Vcs. 634; Parker v. Clarke, 30 Beav. 54. 
 Roy V. Duke of Beaufort, 2 Atk. 193; =» Hall v. H.ill, 18 L. T. N. S. 153; 37 
 
 Knight V. Marjoribanks, 11 Beav. 322, 2 L. J. Ch. 24; L. R. Pr. & Div. 482. ' 
 Mac. & G. lu; Scott v. Scott, 11 Ir. * See Farrent v. Blanchford, 1 D.J. 
 
 Eq. 74 ; comp. Falkner v. O'Brien, 2 «S5 S. 121. 
 Ba.<fe Be. 220; Wilkinson v. Stafford, 1 
 Ves. Jr. 43. 
 
 * Davis 'C. Calvert, 5 G & J. 269 ; Gardiner v. Gardiner, 34 N. Y. 155 ; 
 13
 
 186 FRAUD PRESUMED. 
 
 Mere inadequacy of consideration or inequality in a bargain 
 is not a ground to set aside a transaction, if the parties were 
 on equal terms and in a situation to judge for themselves, and 
 performed the act wittingly and willingly.** Mere inade- 
 
 » Gartside v. Isherwood, 1 Bro. C. C. Madd. 409 ; Wood v. Abrey, 3 Madd. 
 
 551; Griffith v. Spiatley, 1 Cox, 383; 417; Merediih v. Saunders, 2 Dow. 
 
 Collier v. Brown, ib. 4-J8 ; Fox r. Ma- 514; Curzon ?>. Belworthy, 3 H. L. 742; 
 
 cre'.h, 2 Cox, 322 , Murray v. Calmer, 2 Harrison v. Guest, 6 D. M. <fe G. 434, 8 
 
 Sch. & Lef. 488; Copis v. Middleton, 2 H. L. 481, 
 
 Tyler «. Gardiner, 35 N. T. 559 ; Turner v. Cheeseman, 2 McCarter, 243 ; 
 Moore v Blauvelt, 2 McCarter, 367 ; Hall v. Hall, 38 Ala. 181. 
 
 * Butler V. Haskell, 4 Dessau. 651; Eyre v. Potter, 15 How. 42 ; Barei- 
 beau V. Brant, 17 How. 43; Farnam v. Brooks, 9 Pick. 212; Steele®. 
 Worthington, 2 Ohio, 352 ; Wiutermute v. Snyder, 2 Green's Ch. 489 ; 
 Bedel v. Loomis, 11 N. H. 9 ; Cubbins ». Markwood, 13 Gratt. 495 ; Erwin 
 V. Parbam, 12 How. 197. 
 
 It bas been left, perbaps, wisely, to tbe experience of tbe courts of 
 justice to apply tbe great principles of equity to each case according to 
 its particular circumstances, and tbus gradually to form a practical sys- 
 tem of pure justice. And tbe courts bave never decided, as a broad prin- 
 ciple, tbat mere inadequacy of price, unconnected witb direct fraud or im- 
 position, or concealment, or advantage taken of extreme weakness or 
 great necessity, should be a distinct and independent ground for vitiating 
 contracts. But tbe courts bave said tbat tbe inadequacy may be so gross 
 as to furnish strong and even conclusive presumjoiion of fraud, and tbat 
 is tbe way tbe grossness or inadequacy may avoid tbe sale. "Wherever tbe 
 courts perceive tbat a sale of property bas been made at a grossly inade- 
 quate price such as would shock a correct mind, this inadequacy faniisbes 
 a strong and in general a conclusive presumption, though there is no 
 direct proof of fraud, that an undue advantage bas been taken of tbe 
 ignorance, the weakness, or tbe necessity and distress of tbe vendor; and 
 this imposes upon tbe purchaser tbe necessity to remove this violent pre- 
 sumption by the clearest evidence of tbe fairness of bis conduct. Tbe re- 
 lief is extended not only to young heirs selling tbeir expectancies, but to 
 all wbo are weak, or necessitous, or not perfectly conusant of tbeir 
 rif^bts, wbetber selling expectancies or absolute estates, more especially 
 ■wbere tbe purchaser is very intelligent and acute, and avails himself of 
 bis superiority in an unreasonable manner. Butler v. Haskell, 4 Dessau. 
 651. 
 
 When the smallness of the price is due to the fault of tbe vendor, the 
 sale is valid. Forde v. Herron, 4 Munf. 816. 
 
 The inadequacy of tbe price given at the sale of land for unpaid taxes
 
 FRAUP PRESUMED. 187 
 
 quacy of consideration is not a ground for refusing specific per- 
 formance of an unexecuted contract, and still less can it be 
 ground for rescinding an executed contract.^ But inadequacy 
 of consideration, if it be of so gross a nature as to amount in it- 
 self to conclusive and decisive evidence of fraud, is a ground 
 for canceling a transaction. In such cases the relief is granted 
 not on the ground of the inadequacy of consideration, but on 
 the ground of fraud as evidenced thereby.^* In determining 
 
 » Collier V. Bro^vTi, 1 Cox, 428; Coles v. Staniforth, 1 J. .fe H. 484. But it 
 
 V. Trecothick, 9 Ves. 246 , Calla^han v. has been enactod by 31 Vict. c. 4 that 
 
 Calla han, 8 01. <fe Fin. 401 ; Bower v. no purchase made bona fide, and with- 
 
 Ci oper, 2 Ha. 408 ; Borell v. Dann, ib. out fraud or unfair dealing, of ;iny 
 
 AoO, per 'Wiiram, V.-C. ; Abbott v. reversionary interest in real or personal 
 
 Sworder, 4 Deg. & Sm. 456 ; comp. estate, shall be hereafter opened or set 
 
 Barnardiston v. Lingood, 2 Atk. 194; aside merely on the ground of under- 
 
 Falcke V. Gray, 4 Drew. 651. There value. 
 
 was till very recently a well recognized ' Gwynne v. Heaton, 1 Bro. C. C. 9; 
 
 distinction between sales of estates in Gartside ?>. Isherwood, ib. 559; Ileath- 
 
 possession and estates in reversion. coate v. Paignon, 2 Bro. C. C. 173; 
 
 The sale of an estate in reversion, Lf Evans v. Llewellin, 1 Cox, 33 ; Gibson 
 
 effected by private contract, was liable v. Jeyes, 6 Ves. 266, 273 ; Underbill v. 
 
 to be set aside at anytime afterwards Ilorwood, 10 Ves. 209, 219; Morsj v. 
 
 for mere inadequacy of consideration, Koyal, 12 Ves. 373; Wood c Abrey, 3 
 
 and the onus proband i. did not, as in MadJ. 417; 1 laken -y v. Baggott, 1 
 
 ordinary cases, rest with the plaintiff Dow & CI. 405 ; Stillwell v. W Ikins, 
 
 seeking' to impeach the rule, but with Jac. 282; Borell v. Dann, 2 Ha. 440, 
 
 the defendant upholding it. Davis v. 450; Rice v. Gordon, 11 Beav. 265; 
 
 Duke of Marlborough, 2" Sw. 151; Gow- Cockell w. Taylor, 15 Beav. 103,115; 
 
 Ian I V. De Faria, 11 Ves. 20; Earl of Falcke v. Gray, 4 Drew. 651 ; Summers 
 
 Aldborough ?j. Trye, 7 CI. <fe Fin. 456 ; v. Griffiths, 35 Beav. 27; Butler w. 
 
 Edwards v. Burt, 2 D. M. & G. 55 ; Miller, L. R. 1 Ir. Eq. 210. 
 Bromley v. Smith, 26 Beav. 644 ; Talbot 
 
 thereon does not constitute a valid objection to the sale. Slater v. Max- 
 well, 6 Wall. 268. 
 
 * Butler ?j. Haskell, 4 Dessau. 651 ; McCormick v. Malin, 5 Blackf 509; 
 Eyre v. Potter, 15 How. 43; Veazie v. "Williams, 8 How. 134; Wright «, 
 Stannard, 2 Brock. 312 ; Green v. Thompson, 2 Ired. Eq. 365 ; Xcwnian v. 
 Meek, 1 Freeman's Ch. 441 ; White v Flora, 2 Overton, 42G ; Hardeman v. 
 Berge, 10 Yerg. 202 ; Knobb v. Lindsay, 5 Ohio, 468 ; Osgood v. Franklin, 
 2 Johns. Ch. 1 ; Stubl)lefield v. Patterson, 3 Hey. 128 ; Jouziu «. Toulmin, 
 9 Ala. 662 ; Baker v. Howell, 4 Johns. Ch. 118. 
 
 The qualification to the rule implies necessarily the affirmation that if 
 the inadequacy be of a nature so gross as to shock the conscience, it will 
 amount to proof of fraud. Byers v. Surget, 19 How. 303 ; Wright v. Wil- 
 son, 2 Yerg. 294 ; Baruett v. Spratt, 4 Ired. Eq. 171 ; Dcaderickf. Watkius,
 
 188 FRAUD PRESUMED. 
 
 wlietlier the consideration is or is not adequate, it must always 
 be remembered that there are fancy prices not regulated by 
 intrinsic value.-^ 
 
 By the civil law a sale for one half the value might be set 
 aside for inadequacy.^ If the price given was less than one- 
 
 ' Abbott V. Sworder, 4 Deg. & Sm. ^ Nott v. Hill, 2 Ch. Ca. 120 ; per 
 
 456_ Lord Nottingham ; How v. ^^ eklon, 2 
 
 8 HumpTi. 520 ; Morris v. Philiber, 30 Mo. 145 ; Hardeman v. Burge, 10 
 Yerg. 202. 
 
 Inadequacy of price witLin itself, and disconnected from all other 
 facts, can not be a ground for setting aside a contract, or affording relief 
 against it. What this something besides inadequacy should be, perhaps 
 no court ought to say, lest the cunning and the wary, by employing other 
 means than those named, should escape with their fraudulent gains. It 
 ought, however, in connection with the inadequacy of consideration, to 
 induce the belief that there has been either a suppression of the truth, the 
 suggestion of falsehood, abuse of confidence, or violation of duty arising 
 out of some fiduciary relation between the parties, the exercise of undue 
 influence, or the taking of an imjust or inequitable advantage of one 
 whose peculiar situation at the time would be calculated to render him an 
 easy prey for the cunning and artful. But if no one of these appear, or if 
 no fact is proved, that will lead the mind to the conclusion that the party 
 against whom relief is sought has suppressed some fact that he ought to 
 have disclosed, or that he has suggested some falsehood, or abused in 
 some manner the confidence reposed in him, or that some fiduciary rela- 
 tion existed between the parties, or that the party complaining was under 
 his influence, or at the time of the transaction was in a condition, from 
 any cause, an easy victim to the unconscientious, then relief can not be 
 afforded. Judge v. Wilkins, 19 Ala. 765. 
 
 Whenever equity interferes with a contract, or refuses its aid to cany 
 it into execution for inadequacy of consideration, it is on the ground of 
 fraud whicb must either be clearly proved, or result irresistibly at the 
 first view, and without calculation from the grossness of the disparity. 
 Steele V. Worthington, 2 Ohio, 352; Hardeman ». Burge, 10 Yerg. 203. 
 
 Aji entire failure of cousideration by the receipt of what is a mere ' 
 bubble, may be the ground for rescinding a contract. Warner v. Daniels, 
 1 Wood. & Min. 90. 
 
 The fact that the sale was made under judicial process weakens, but 
 does not absolutely remove the presumption of fraud arising from great 
 inadequacy. Byers v. Surget, 19 How. 303 ; s. c. 1 Hemp. 715. 
 
 Inadequacy of price is no ground for setting aside a sale at auction. 
 Newman v. Meek, 1 Frccm. Ch. 441 ; Ilames v. Coales, 1 Dev. Eq. 420.
 
 FRAUD PRESUMED. 189 
 
 half the value, the inequality was deemed bj the civil law 
 Icesio and relief was afforded. There is however no rule in 
 our own law as to what difference between the real value of 
 property and the consideration given constitutes inadequacy of 
 price. This the judge must decide.^* In most cases, however, 
 perhaps a sale at half price might be sufficient to induce the 
 court to set aside a transaction, if there is no ground for sug- 
 gesting that bounty was intended.^ When bounty is intended, 
 there is no room for the inference of fraud from the inadequacy 
 of the price; love and affection will alone support the convey- 
 ance without any pecuniary consideration, and will equally 
 support it where tliere is a pecuniary consideration wholly 
 inadequate to the value of the property.^ 
 
 The fact that a transaction may have been improvident or 
 precipitate, oi» may have been entered into without inde- 
 pendent professional advice, is as immaterial as mere inade- 
 quacy of consideration, if the parties were on equal terms and 
 in a situation to act and judge for themselves, and fully under- 
 stood the nature of the transaction, and no evidence can be 
 adduced of the exercise of undue influence or oppression.* f 
 But inadequacy of consideration or the absence of independent 
 professional advice becomes a most material circumstance 
 where one of the parties to a transaction is from age, igno- 
 rance, distress, incapacity, weakness of mind, body, or dis- 
 
 Ves. 516; Day v. Newnan, 2 Cox, 80; * Whalleyw. Whalley, 1 Mer. 446. 
 
 Burrowcs v. Lock, lO Ves. 474, per Sir * Meredith v. Saunders, 2 Dow. 514; 
 
 W. Grant. Blackie v. Clark, 15 Beav. 595; Ilarri- 
 
 ' See Nott v. Hill, 2 Ch. Ca. 120; son v. Guest, D. M. & G. 434, 8 H. L. 
 
 Butler V. Miller, L. R. 1 Ir. Eq. 194; 481; Denton v. Donner, 23 Beav. 291; 
 
 but see 2 Madd. 421 n. Toker v. Toker, 31 Beav. 629, 82 L. J. 
 
 "" Builer V. Miller, L. R. 1 Ir. Eq. Ch. 322. 
 194. 
 
 * Butler V. Haskell, 4 Dessau. 651 ; Wild v. Rees, 48 El. 428; Wester- 
 velt ». Mathcson, 1 Hoff. Ch. 37. 
 
 t Green v. Thompion, 3 Ircd. Eq. 305 ; Dunn v. Chambers, 4 Baib. 376 ; 
 Jouzin V. Toulinia, 9 Ala. 663.
 
 190 FRAUD PRESUMED. 
 
 position, or from humble position or other circumstances, 
 unable to protect himself. In all such cases, whatever be the 
 nature of the transaction, the onus of proof rests on the party 
 who seeks to uphold it to show that the other performed the 
 act or entered into the transaction voluntarily and delib- 
 erately, knowing its nature and effect, and that his consent 
 to perform the act or become a party to the transaction was 
 not obtained by reason of any undue advantage taken of his 
 position or of any undue influence exerted over him.^ * The 
 mere fact, however, that one of the parties may be an illiterate 
 person or a man of advanced age, or may be in bad health, or 
 in distress, or pecuniary embarrassment, will not vitiate a trans- 
 action, even although it may have been founded on an inadequate 
 consideration, and no independent advice may have been had, 
 if it appear on the face of the evidence that he was fully com- 
 petent to form an independent judgment in the matter, and 
 became a party to the transaction deliberately and advisedly, 
 knowing its nature and effect. The onus rests on the party 
 
 * Ardglasse v. Muschamp, 1 Vern. wan, LI. & G. 47 ; Dent v. Bennett, 4 M. 
 
 236; Clarkson v. Hanway, 2 P. Wms. & C. 273; Ahenrne v. Hogan, Dru. 310; 
 
 203; Proof y. Ilines, Forrest, 111; How Garvey v. M'Minn, 9 Ir. Eq. 526; Gib- 
 
 V. Weldon, 2 Ve3. 516; Gartside v. son *. Russell, 2 Y. <fe C. C. C. 104; 
 
 Isherwood, 1 Bro. C. C. 559; Evans n. Sturge v. Sturge, 12 Beav. 244; Cockell 
 
 Llewellin, 1 Cox, 333; Murray « Palm- v. Taylor, 15 Beav. 115; Cooke v. La- 
 
 er, 2 Sell. & Lef. 486; Morse v. Royal, motte, ib. 234; Longiiiate v. Ledger, 2 
 
 12' Ves. 373; Pickett v. Loggan, 14 Giff. 157; Grosveuof v. Sherratt, 28 
 
 Ves. 231 ; Falkner v. O'Brien, 2 Ba. & Beav. 659; Smith v. Kay, 7 H. U 750 
 
 Be. 220; Griffith v. Bobbins, 3 Madd. Prideaux v. Lonsdale, 1 D. J. & G. 433 
 
 191; Wood y. Abrey, /6. 417; Wilhui y. Summers v. Griffith, 35 Be iv. 27 
 
 Willan, 2 Dow. 274; Collins v. Hare, 2 Rhodes v. Bate, L. R. 1 Ch. App. 252 
 
 Bligli's X. S.106; M'Diiriuid '■. ^M'lJiar- Tate v. Williamson, L. R. 2 Ch. App. 
 
 mid, 3 Bligli's X. S. 374 ; Williams v. 65. 
 Smith, 7 L. J. Ch. 129; Bowea v. Kir- 
 
 * ISTeely v. Anderson, 2 Strobh. Eq. 2G2 ; Maddox v. Simmons, 31 Geo. 
 512; Wormack v. Rogers, 9 Geo. GO; Mann 11. Betterly, 21 Vt. 326; 
 Holmes®. Fresh, 9 Mo. 201 ; George v. Ricliardson, Gilmer, 230; Hawley 
 t'. Cramer, 4 Cosv. 717 ; Hall v. Perkins, 3 Wend. 626 ; Howard v. Eddll, 
 17 Vt. 9; Holden v. Crawford, 1 Aik. 390; McKinney v. Piuckaid, 2 
 Leigh, 149 ; Todd v. Grove, 33 Md. 183.
 
 FRAUD PRESUMED. 191 
 
 impeaching the transaction to show that coercion was used or 
 undue influence was exercised.^ There can be no title to 
 relief on the ground of advantage taken of distress where tlie 
 advantage or disadvantage of the transaction is to be the 
 result of future contingencies, and is not within the view of 
 the parties at the time.^ * 
 
 A mere false statement of the consideration does not of 
 itself necessarily vitiate a deed/ but there may be cases where 
 a false statement of the consideration may of itself destroy the 
 whole transaction.* The general rule is that, where no con- 
 sideration is expressed in a deed, a party may aver and prove 
 consideration in support of it, and, where a consideration is 
 expressed, a man may still aver other considerations not incon- 
 sistent therewith.^ "Where, however, the consideration ex- 
 pressed in a deed is impeached on the ground of fraud, the 
 party claiming under the deed cannot aver in its support con- 
 siderations different from that expressed.® If the transaction 
 on which a deed pui'ports to be founded and the consideration 
 for which it was executed, appear to be untruly stated, the 
 instrument may, if the untruth would operate fraudulently, 
 lose all its binding quality in equity even though it be con- 
 clusive at law.' If a deed states on its face a pecuniary 
 consideration, a party cannot, if it be impeached, set up con- 
 
 ' Lewis V. Pead, 1 Ves. Jr. 19; ' Bowen w. Kirwan, LI. <fe. G. 4*7, 
 
 Leym v. Home, 16 W. R. 824; M'Neill * lb. Upiungton v. Bullen, 2 Dr. & 
 
 V. Cahill, 2 Bligh, 228 ; Pratt v. Barker, War. 184 ; Gibson v. Russell, 2 Y. &, C. 
 
 1 Sim. 1; Hunter v. Atkins, 3 M. & K. C. C. 104. 
 
 113; Purdie v. Millett, Taml. 31 ; Rich- * Ilartopp v. Hartopp, 17 Ves. 192; 
 
 ards V. Curlewis, 3 Eq. Rep. 278; Cur- Clifford >'. Turrell, 1 Y. <fe C. C. C. ISs', 
 
 zon V. Belwortli}^ 3 H. L. 742 ; Ilairi- affd. 14 L. J. Ch. 39; Nixon v. Ilamil- 
 
 son V. Guest, 6 I). M. & G. 434, 8 II. L. ton, 2 Dr. &, Wal. 387, and cases cit. 2 
 
 481 ; see Ilovenden v. Lord Annesle}', 2 P. Wms. 204. 
 
 Sell. & Lof. 007, 639; Price v. Price, I U'larkson v. Hanway, 2 P. Wms. 
 
 D. M. &, G. 308; but see Cooke v. La- 203; Bridgman v. Green, 2 Ves. 627; 
 
 niotte, 15 Beav. 234. Comp. Murray v. "VVatt v. Grove, 2 Sch. & Lef. 501 ; VVil- 
 
 Palmer, 2 Sch. & Lef. 4SG. Ian v. Willan, 2 Dow. 274. 
 
 " Ramsbottom v. Parker, 6 Madd. 6. ' Watt v. Grove, 2 Sch. & Lef. 5(H. 
 
 * Farnam i\ Brooks, 9 Pick. 213 ; White v. Flora, 2 Overton, 42G.
 
 102 FRAUD PRESUMED. 
 
 siderations of blood or natural love and affection.^ Where, 
 liowever, the recitals stated a peeiiniarj consideration as the 
 foundation of a deed, and, in the operative part, love and 
 affection were introduced as being partly the consideration* on 
 which the deed was founded, the court would not, from this 
 circumstance alone, presume fraud.^ 
 
 In dealiugs between parties, one of whom is subject to the 
 influence of the other, there nmst be upon the face of the deed 
 itself a fair and correct statement of the transaction. If the 
 statement as to the consideration is not true, the transaction 
 cannot be supported. A consideration partly of the considera- 
 tion stated in the deed and partly of something else, is not 
 consistent with the consideration stated on the face of the 
 deed. It is not open to the party who seeks to uphold it to 
 give such evidence to sustain the deed.^ 
 
 The statement of consideration where there was in fact 
 none, or the untrue statement of the consideration or other 
 circumstances of a suspicious nature, may be sufficient to shift 
 the burthen of proof from the party impeaching a deed upon 
 the party upholding it.* 
 
 The jurisdiction of the court in relieving against transac- 
 tions on the ground of undue influence has been exercised as 
 between a medical man and a patient ; ^ as between the keeper 
 of a lunatic asylum and a patient under his care;® as between 
 a minister of religion and a 'person under his spiritual influ- 
 
 ' Cla'-kson V. Hanway, 2 P. Wms. rison v. Guest, 6 T>. M. <fe G. 434, 8 H 
 
 203; Willaii v. Willan, 2 Dow. 282. L. 481. 
 
 '^ FHnuT V. Gott, 4 Bro. P. C. 230; ^ Dent v. Bennett, 4 M. <fe C. 269; 
 
 Whalley v. Whalley, 3 Blinb, 13. Ahearne v. Hoi-aa, Dru. 310; Gib on v. 
 
 ' Ahearne ;■. Ilogan, Dru. 310; Up- llussell, 2 Y. ct C. C. C. 104; I'eacockw 
 
 pington V. Bullen, 2 Dr. <fe War. 184; Kernot, 8 L. T. 292; Allen v. Davis, 4 
 
 Cliilord )'. Tiirrell, 1 Y. & C. C. G. Deg. & Sm, 133; Eillage v. Southee, 9 
 
 138; Gibson v. Russell, 2 Y. <fe G. C. C. Ha. 540. See Pratt v. Parker, 4 lluss. 
 
 104. 507; Pophain v. Brooke, 5 Russ. 9; 
 
 * Watt V. Grove, 2 Sch. & Lef. 492, Biackie v Clarke, 15 Beav. 595 ; Purler 
 
 502; Griffiths v. Robbins. 3 Madd. 191 ; v. Laue, 29 L. T. 2. 
 
 Gibson V. Russell, 2 Y. & C. C. C. 104; » Wright v. Proud, 13 Yes. 136. 
 Ahearne v. Hogan, Dru. 310. See Har-
 
 FRAUD PEESUMED. 193 
 
 ence;* as between a spiritualist medium and an old lady;^ 
 as between a young man in tlie army, just come of age, 
 and liis superior officer;^ as between husband and wife ;^ as 
 between a man and a lady to whom he was about to be mar- 
 ried;^ as between a man and a woman with whom he was 
 living;^ as between brother and sister;' as between two 
 brothers ; ^ as between an elder and a younger brother just come 
 of aire : ® as between two sisters : ^^ as between an uncle and 
 his nephew/^ who was deaf and dumb ;^^ as between an uncle, 
 who was in such a state of bodily and mental imbecility as 
 rendered him incapable of transacting business requiring de- 
 liberation and reflection, and a nephew ; ^^ as between nephew 
 and aunt," or aunt and niece ; ^^ as between a young man just 
 come of age and a man who had acquired an influence over 
 him during his minority ;^'' as between a young man of intem- 
 perate habits and a person with whom he was living;" as 
 between an unmarried woman and her brother-in-law ; ^^ as 
 between an old lady and a woman living with her in the 
 
 'Norton V. Relly, 2 Eden, 286; « Sturge w. Sturge, 12 Beav. 229. 
 
 Ilno-ucniii v. I'.asley, 14 Ves. 273; IVlid- ° Sercome v. Saunders, 34 Beav. 
 
 dlefori V. Sherburne, 4 Y. & 0. 358; 382. 
 
 W'hyte ". Meade, 2 Ir. Eq. 420 ; Not- " Harvey v. Mount, 8 Beav. 439. 
 
 tid""e V. Prince, 2 Giff. i!46. Comp. " Tate v. Williamson, L. R. 2 Ch. 
 
 Kir\VMn v. Cullen, 4 Ir. Ch. 322 ; re App. 56. 
 
 Metcalfe, 2 D. J. & S. 122. See also " Ferres v. Ferres, 2 Eq. Ca. Ab. 
 
 Thompson v. Ileffernan, 4 Dr. & War. 695. Comp. Farmer v. Farmer, 1 H. 
 
 286 L- '724; Vickers v. Bell, 9 L. T. N. S. 
 
 ■' Lvon V. Home, 16 W. R 824. 600. 
 
 ' Lloyd V. Clarke. 6 Beav. 309. " Willnn v. Willan, 2 Dow. 274. 
 
 * Ljinbert v. Lambert, 2 Lro. P. C. " Griffiths i'. Robbins, 3 Madd. 191; 
 
 18; Peel''. , 16 Ves. 157; Prices. Cooke »;. L:imotte, 15 Beav. 241. See 
 
 Price. 1 i). M. & G. 308; Boyse v. Pratt v. Barker, 1 Sim. 1, 4 L. J. Ch. 
 
 Russborough, 3 Jur. 373 ; Proctor v. 149 ; Wlialley v. Whalley, 3 Bligh, 1 ; 
 
 Robinson, 35 Beav. 335. See Nedby v. Toker v. Toker, 31 Beav. 629, 32 L. J. 
 
 Nedby, 5 Deg. & S. 377 ; Coulsoav. Al- Ch. 322. 
 
 lison,'2 D. F. & J. 521. '^ Anderson v. Ellsworth, 3 Giff. 154. 
 
 °'Pa;;e r. lloriie, 11 Beav. 227,235 '" Grosvenor v. Sherratt, 28 Beav. 
 
 Cobbett"''. Brock, 20 Beav. 525. 661 ; Smith v. Kay, 7 H. L. 750. See 
 
 * Coul^oii If. Allison, 2 D. F. & J. Aylw rd v. Kearney, 2 B. A B. 468. 
 621. See Farmer v. Farmer. 111. L. " Terry «;. Wacher, 15 Sim. 447. 
 724 ; Gar\ ey n. M'Minn, 9 Ir. Eq 526. " Rhodes v. Bate, L. 11. 1 Ch. Ap. 
 
 ' Sharp y. Leach, 31 Beav. 491. 252.
 
 194 FEAUD PRESUMED. 
 
 capacity of a companion or domestic; ^ as between a child and 
 an imbecile parent ; ^ and in otlier cases.' 
 
 The principle upon wliicli the court sets aside transactions 
 on the ground of undue influence only applies to cases where 
 some lawful relation has been constituted between the par- 
 ties.* Where, accordingly, a woman, while living in adultery 
 with a married man, assigned certain property to secure a 
 debt which he owed, the court would not, from tlie mere 
 existence of the relation presume undue influence, the woman 
 being of mature intelligence, and the transaction having been 
 entered into deliberately.^ 
 
 Transactions even between mortgagor and mortgagee are 
 looked on with jealousy where a mortgagor in embarrassed 
 circumstances, and under pressm-e, sells the equity of redemp- 
 tion to the mortgagee for a sum considerably less than its 
 value.® * 
 
 In the application of the principles of the court, there is 
 no distinction between the case of one who himself exercises 
 a direct influence, or of another who makes himself a part;y 
 with the person who exercises the undue influence.' 
 
 ' Cole V. Gibson, 1 Ves. 503 ; Bate 477 ; D'Arcy v. D'Arcy, Hay & J. 115 ; 
 
 V. Bank of Enn-land, 9 Jur. 545 Longmate v. Ledger, 2 Oiff. 1 57 ; Cus- 
 
 = Whelanz). Whelan, 3Co\v. (Amer.), tance v. Cunuingbam. 13 Beav. 363; 
 
 538 See Gardner V. Gardner, 22 Wend. Douglas v. CulverweH, 31 L. J. Ch. 
 
 (Amer.). Conip. Beanland v. Bradley, 543 ; Clark v. Jlalpas, ib. 696; Baker v. 
 
 2 Sm. & G. 339. Monk. 10 Jur. N. S. 091 ; I'rideaux v. 
 
 " Brooks V. Gaily, 2 Atk. 34; Bollw. Lonsdale, 1 D. J. & S. 439; Williams v. 
 
 Howard, 9 Mod. 302; Osmond v. Fitz- Bauley, L. R. 1 A|>p. Ca. 200; Tate ». 
 
 roy, 3 P. W. 129; How v. Weldon, 2 Willi imson, L. R. 1 Eq. 528. 
 Ves. 51 (i; Evans?;. LlewelUn, 1 Cox, ^ Hargreave v.Everurd, 6 Ir.Ch. 278. 
 
 833; Wood v. Abrey, 3 Madd. 417 
 Hudson V. Beauchamp, cit. 3 Bli;;h, 18 
 Collins V. Hare, 2 Bligh's N. S. 106 
 M'Diarinid v. M'Diarmid, 3 Bligh's N. S, 
 
 lb. 
 
 « Ford V. Oldeu, L. R. 3 Eq. 461. See 
 Webb V. Rorke, 2 Sell. & Lei. 661; 
 Hickes v. Cooke, 4 Dow. 16. 
 
 374; Aylward v. Kearney, 2 B. <fe B. •> Ardglasse v. Pitt, 1 Vern. 238; 
 
 * Baugher v. Merryman, 32 Md. 185; Sheckell v. Hopkins, 2 Md. Ch. 
 90; Dougherty r. McColgan, 6 G. & J. 275 ; Thompson r. Lee, 2 Ala. 292; 
 Conway v. Alexander, 7 Cranch, 218.
 
 FRAUD UPON THIRD PARTIES. 195 
 
 The difficulty of defining the point at wliieli influence ex- 
 erted over the mind of a testator becomes so pressing as to 
 be properly described as coercion is greatly enhanced wlien 
 the question is one between husband and wife.^ The pre- 
 sumption of undue influence exercised by a husband over a 
 feeble dying wife is however far stronger than when a similar 
 charge is made against a wife in respect of her deceased hus- 
 band.^ 
 
 Whether a transaction can be set aside on the ground of 
 undue influence, where the influence has been exercised not 
 by the party obtaining the benefit, but by a third person, 
 appears to be doubtful.' 
 
 SECTION IV.-FRAUD UPON THIRD PARTIES. 
 
 Another class of frauds against which relief may be had 
 in equity is where a contract or other act is substantially a 
 fraud upon the rights, interests, or intentions of third parties. 
 The general rule is that particular persons in contracts and 
 other acts shall not only transact hond fide between them- 
 selves, but shall not transact mala fide in respect to other 
 persons who stand in such a relation to either as to be afl'ected 
 by the contract or the consequences of it.* Collusion between 
 two persons to the prejudice or loss of a third is in the eye of 
 the court the same as a fraud.' 
 
 Espey V. Lake, 10 Ha. 260; "Wyse v. » Clarke v. Sawyer, 3 Sandf. (Amer.) 
 
 Lambert, 16 Ir. Cli. 379, n'lpm, p. 152. 357. 
 
 ' Boyse v. Ilussboroujvh, 3 Jur. N. S. ' Bentlcy v. Mackay, 31 Beav. 143. 
 
 373, 377. See Price v. Price, 1 D. M. See Wyclierley v. Wycherley, 2 Eden, 
 
 <fe.G. 308; Gardner v. Gardner, 22 175. 
 
 Wend. (Ainer.) 526; Clarke i;. Sawyer, *2 Ves. 156, 157, per Lord ITard- 
 
 3 Sandf. (Ainer.) 351. Corap. Middle- wicke; Wallis v. Duke of Portland, 3 
 
 ton V. Itiiddleton, IJ. & W. 94. Ves. 502. 
 
 ' Garth v. Cotton, 1 Dick. 217.
 
 196 FRAUD UPOX THIED PARTIES. 
 
 FRAUD UPON CREDITORS. 
 
 A class of frauds ^ coming under the head of fraud upon 
 third parties embraces all those agreements or other acts of 
 parties which tend to delay, deceive, or defraud creditors. 
 Transactions of the sort are void at common law,^ * but the 
 
 • Pope V. Wilson, 1 Ala. 690. Copis v. Middleton, 2 Madd. 428; Bar- 
 
 • Cadoo-an v. Kennet, Cowp. 432; ton v. Vanheythuj-sen, 11 Ha. 132. 
 
 * The statute must be received as a true and accurate declaration of 
 what the common law was. Clark v. Douglass, 62 Penn. 408. 
 
 A debtor has the right to pay his debt to an insolvent creditor in 
 order to defeat an attachment which he knows is about to be laid in his 
 hands, and the court will not inquire into the motive which prompted its 
 payment. Simpson r. Dall, 3 Wall. 4G1 ; Chamberlain r. Pillsbury, 35 Vt. 16. 
 
 A conveyance by a /emme sole on the eve of marriage is not fraudulent 
 against her husband's creditors. Prior t. Kinney, 6 3Iunf. 610; Laud «. 
 JeQries, 5 Rand. 211. 
 
 A conveyance in fraud of one creditor is void as to all creditors. Hoke 
 V. Hendtrsoa, 2 Dev. 12. 
 
 Any agreement entered into by a debtor with a view to deprive hia 
 creditors of his future earnings, and enal^le him to retain and use them 
 for his own benefit and advantage, is fraudulent. Tripp r. Childs, 14 
 Barb. 85. 
 
 All conveyances for the use of the grantor are fraudulent and null 
 against creditors. Mackie r. Cairns, 1 Hopk. 373; s. c. 2 Cow. 54; Wil- 
 son V. Cheshire, 1 McCord's Ch. 233 ; Brown v. Donald, 1 Hill's Ch. 297 ; 
 Jackson v. Parker, 9 Cow. 73; Van Wyck r. Seward, 18 Wend. 375; 
 Lukin V. Aird, 6 Wall. 78; Smith r. Smith, 11 N. H. 460. 
 
 A conveyance upon trusts of a loose and indefinite nature, and control- 
 able by the grantor, is fraudulent. Burbank r. Hammond, 3 Summer 
 429. 
 
 A sale of property by an insolvent debtor for long notes is fraudulent. 
 Pope r. Andrews. 1 Smed. & l\Iar. Ch. 135 ; Kepner v. Burkhart, 5 Barr, 
 478; Borland r. Walker, 7 Ala. 269; Grannis v. Smith, 3 Humph. 179; 
 Mitchell V. Beal, 8 Yerg. 134. 
 
 A deed of articles consumable in their use is void on its face against 
 creditors. Hunter v. Foster, 4 Humph. 211 ; Wade r. Green, 3 Humph. 
 547; Charlton v. Leay, 5 Humph. 493; Richmond r. Curdup, 1 Meigs, 
 581. 
 
 A judgment voluntarily confessed by an insolvent debtor for more
 
 FEATID UPON THIRD PARTIES. 197 
 
 legislature with the view of affirming the rule and c-arrying 
 the principles of the common law more fully into cffiset. 
 
 than is due is prima fucie fraudulent. Clark v. Douglass, G2 Penn. 408: 
 Sewnll V. Russell, 2 Paige, 175. 
 
 If a plaintiff to an execution places it in the hands of the sherifi" with 
 any other view than that of having it lond fide executed, it is not valid 
 against fjUbsequent executions. Weir «. Hale, 3 W. & S. 285 ; Matthews 
 «. Wame, 6 Halst. 295. 
 
 A mortgage made by an insolvent debtor which covers more property 
 than is necessary to secure the mortgage debt, is fraudulent. Bailey v. 
 Burton, 8 Wend. 339; Mitchell v. Beal, 8 Yerg. 134; Cennett ®. Union 
 Bank, 5 Humph. 612 ; see Downs \\ Kissam, 10 How. 102. 
 
 A mortgage made in good faith to secure future advances is not fraud- 
 ulent. United States t. Hoe, 3 Cranch, 73; Wilson v. Russell, 13 Md. 
 494 ; Lansing v. Woodworth, 1 Sandf. Ch. 43 ; Hendricks v. Robinson, 2 
 Johns. Ch. 283. 
 
 The length of time which a mortgage has to run may in connection 
 with other facts be evidence of fraud. Spalding t. Fisher, 57 Me. 411; 
 Croft? V. Arthur, 3 Dessau. 223 ; Mitchell t\ Beal, 8 Yerg. 134. 
 
 A purchase in the name of a third person with intent to defraud the 
 creditors of the purchaser, may be set aside. Guy «. Paris, 7 Yerg. 155 ; 
 Kimmel v. Mesright, 2 BaiT, 38 ; Guthrie %\ Gardner, 9 Wend. 414 ; Far- 
 row V. Teackle, 4 H. J. 271 ; Wiss «. Trijjp, 1 Shep. 9; Peay v. Sublet, 1 
 Mo. 449; Coleman v. Cocke, 6 Rand. G18; Elliott x. Horn, 10 Ala. 355. 
 
 A purchase in the name of a third person can not be declared void in 
 an action at law by a purchaser under a judgment. Howe \\ Bishop, 3 
 Met. 26 ; Dolkray v. Mason, 48 Me. 178. 
 
 A reconveyance by the grantee under a fraudulent deed is fraudulent 
 as to his creditors. Chapin v. Pease, 10 Ct. 69. 
 
 A mortgage made by the mortgagor after the execution of a fraudulent 
 deed is valid and binds the property. Fox v. Clark, Walker's Ch. 535. 
 
 A fraudulent conveyance is void in toto^ and not jjartly valid and 
 partly void. Wlien a deed is made void by statute, it is void throughout. 
 ]Mackie r. Cairns, 1 Hopk. 373 ; s. c. 5 Cow. 547 ; Kirby v. lugersoll, Barr- 
 ing's Ch. 172 ; Hyslop v. Clark, 14 Johns. 464 ; Weedon v. Hawes, 10 Ct. 
 50 ; Tickner v. Wishall, 9 Ala 305. 
 
 A judgment recovered after the execution of the fraudulent convey- 
 ance is a lien upon the land, except as against honfifide purchasers, Man- 
 hattan Co. r. Evertson, 6 Paige, 457. 
 
 A fraudulent deed set aside at the instance of creditors, does not bar 
 the surviving wife of dower as against creditors or purchasers under a 
 mere decretal sale. Dugan v. Massey, 6 Bush, 81 ; Goodworth r. Paige, 5 
 Ohio St. R. 70 ; Summers v. Bebb, 13 111. 483 ; Stribling v. Ross, 16 III
 
 198 FRAUD UPOX TfllED PAETIES. 
 
 declared by statutes 50 Edw. Ill, c. G, and 3 nen. YII, c. 4, all 
 fraudulent gifts of goods and chattels in trust for the donor 
 and to defraud creditors to be void ; and by 13 Eliz. c. 5, all 
 gifts, grants, and conveyances of goods, chattels, or land, 
 made with an intent to hinder, delay, or defraud creditors 
 were rendered void as against the person to whom such 
 frauds would be prejudicial.^ Estates, however, or interests 
 in land or chattels conveyed or assured lond fide and upon 
 good consideration, without notice of any fraud or collusion, 
 are excepted from the operation of the statute.^ 
 
 The statute 13 Eliz. c. 5, does not declare voluntary con- 
 veyances to be void, but only declares all fraudulent convey- 
 
 ' Tarleton v. LiddeU, 17 Q. B. 391. "" 13 Eliz. c, 5, §. 6. See Tarloton v. 
 
 Liddell, 17 Q. B. 390, 4 Deg & S. 538. 
 
 123; Pixley v. Bennett, 11 Mass. 298; Robinson v. Bates, 3 Met. 40 ; 
 Randolph r. Doss, 3 How. (Miss.) 205 ; contra Manhattan Co. v. Evertson, 
 6 Paige, 457. 
 
 A purchaser at a sale under an execution is clothed with all the rights 
 of the judgment creditor. Sands t. Hildreth, 2 Johns. Ch. 35 ; s. c. 14 
 Johns. 493 ; Frakes v. Brown, 3 Blackf. 295 ; Gray v. Tappan, Wright, 
 117 ; Price v. Sykes, 1 Hawks, 87. 
 
 A fraudulent conveyance is valid against all parties, except creditors. 
 Randall v. Phillips, 3 Mastm, 378 ; Anderson v. Bradford, 5 J. J. Marsh. 
 69; "Woodman v. Bodfish, 25 Me. 317; Morey i\ Forsyth, Walkers Ch. 
 465 ; DelesdeiTiier r. Moary, 2 App 150. 
 
 A vendee claiming under a fraudulent deed gains no title by a pur- 
 chase under an execution. Foulk v. M'Farlans, 1 W. & S. 297. 
 
 A wife having a lawful claim for alimony, is a creditor. Feigley v. 
 Feigiey, 7 Md. 537 ; Boils v. Boils, 1 Cold. 284; Flake v. Brown, 2 Blackf. 
 295. 
 
 A person having a claim for a tort, is a creditor. Lillard !-. M'Gee, 4 
 Bibb. IGo ; Jackson t. Myers, 18 Johns. 425; Farnsworth v. Bell, 5 Sneed, 
 531; Lavigford r. Fly, 7 Humph. 585; Walradt t\ Brown, 1 Gilmau, 397 ; 
 contra, Fowler v. Frisbie, 3 Ct. 320. 
 
 The act applies to sureties as well as principal debtors. Yan Wyck v. 
 SeTvard, 18 Wend. 375 ; Howe v. Ward, 4 Greenl 195 ; Hutchinson r. Kelly, 
 1 Rob. 123; Carlisle v. Rich, 8 N. H. 44; Russell v. Stinson, 3 Hey. 1; 
 Thompson v. Thompson, 1 App. 244
 
 TEAUD UPON THIRD PARTIES. 199 
 
 ances to be void.^ Whether a conveyance be fraudulent or 
 not is declared by the statute to depend upon its being made 
 " upon good consideration and Ijond jldeP It is not sufficient 
 that it be upon good consideration or hona fide. It must be 
 both. Although a deed be made upon good consideration 
 within the meaning of the statute, it is void against creditors, 
 unless it be hond fide? * The expression " good considera- 
 tion " in the statute means valuable consideration. Meritorious 
 consideration, such as love, affection, &c., though g^od as 
 between the parties themselves, is not in the eye of the law 
 hond fide, if it is inconsistent with that good faith which is 
 due to creditors.^ f As between the parties themselves and 
 all persons claiming under them in privity of estate, voluntary 
 conveyances are binding,* but in so far as they have the efiect 
 of delaying, defrauding, or deceiving creditors, voluntary con- 
 veyances are not Ijond fide, and are void as against creditors 
 to the extent to which it may be necessary to deal with the 
 property to their satisfaction. To this extent, and to this 
 extent only, they will be treated as if they had not been made. 
 To every other pm-pose they are good.' 
 
 ' Russell V. Hammond, 1 Atk. 13 ; Fraser v. Tliompson, 4 D. <fe J. 600 
 
 Dne V. Routledge, Cowp. 708 ; Cadoo-an Corlett v. Radcliffe, 14 Moo. P. C. l:il, 
 
 V. Kennett, ib. 432, 434; Ilolloway v. 135. 
 
 Millard, 1 Madd. 414 ; Gale v. William- ^ Copis v. Middleton, 2 Jladd. 430 ; 
 
 son, 8 M. & W. 405. Taylor v. Jones, 2 Atk. 600 ; Strong v. 
 
 ''Twyne's Case, 3 Co. Hep. 81; Sti-on<r, 18 Beav. 408; Goldsmith «. 
 
 Worsley v. De Mattos, 1 Burr. 474, Russell, 5 D. M. & G. 547. 
 
 475; C'adogan v. Kennett, Cowp. 434; * I'etre v. Espinasse, 2 M. & K. 496; 
 
 Bott V. Smith, 21 Beav. SKi; llarman Bell v. Cureton, ib. 5(i3 ; French v. 
 
 V. RicharcU, lU Ha. 81 ; Tliompson v. iM-eiich, 6 D. M. & G. 95. 
 
 Webster, 4 Drew. (128 ; 7 Jiir. N. S. ^ Curtis v. Price, 12 Yes. 103 ; Wors- 
 
 531 ; Lloyd v. Attwood, 3 D. & J. 055; ley v. i>e Mattos, 1 Burr. 474 : Bott v. 
 
 * Whiting V. Johnson, 11 St. R. 328; Clements v. Mooic, G Wall. 229; 
 Ashmead r. Hean, 13 Penn. 584. 
 
 t Edgington r. Williams, Wright, 439 ; Goodell i-. Taylor, Wright, 82 ; 
 O'Brien v. Coulter, 2 Blackf. 421 ; Killough i\ Steele, 1 Stew. & Port. 2G2. 
 
 The services of a minor son, miloss emancipated, are not a good con- 
 Bidcration. Dick t. Grissom, 1 Freem. 428; Brown v. McDonald, 1 Hiira 
 Ch. 30G.
 
 200 FRAUD UPOX THIRD PARTIES. 
 
 A deed which appears to be voluntary may be shown by 
 any evidence (consistent with its terms) to have been made 
 for valuable consideration,^ but the evidence must be clear and 
 free from suspicion.^ 
 
 It is not enough, in order to support a settlement against 
 creditors, that it be made for valuable consideration. It must 
 also be hond fide. If it be made with intent to delay, hinder, 
 or defraud creditors, it is void as against them, although there 
 may be in the strictest sense a valuable or even an adequate 
 consideration.^ * Cases have frequently occurred, in which 
 
 Smith, 21 Beav. 516 ; Croker v. Martin, v. Williamson, 8 M. k TV. 405 ; Kelson 
 
 1 Bligh's N. 8. 573 ; French v. French, v. Kelson, 10 Ha. 385 ; Townend v. 
 
 6 D. M. (fe G. 95 ; Neale v. Day, 28 L. Toker, L. R. 1 Ch. Ap. 446, supra, p. 
 
 J. Ch. 45. See Wakefield v. Gibbon, 1 192. 
 
 Giff. 401 ; Murphy v. Abraham, 15 Jr. ^ Graham v. O'Keefe, 16 Ir. Ch. 1. 
 
 Ch. 371 ; Shaw v. Jeffrey, 13 Moo. P. = Twyne's Case, 3 Co. Rep. 81 ; Hol- 
 
 C. 432. mes v. Penney, 3 K. <fe J. 99. 
 » Pott V. Todhunter, 2 Coll. ^6 ; Gale 
 
 * Cragg V. Martin, 12 Allen, 498 ; Brady v. Briscoe, 12 J. J. Marsh. 
 212 ; Bozman «. Draughan, 3 Stew. 343 ; Kempner v. Churchill, 8 Wall. 
 362 ; Ward v. Trotter, 3 Mon. 1 ; Ayres v. Moore, 2 Stew. 336 ; Trotter r. 
 Watson, 6 Humph. 509 ; Peck x. Land, 2 Kelly, 1 ; Farmers' Bank v. 
 Douglass, 11 Smed. & Mar. 469; Dacey ». Daniel, 1 Smith, 252; Wright 
 •c. Brandis, 1 Carter, 336 ; Carr v. Hill, 1 Stockt. 210 ; Bum i\ Ahl, 29 Penn. 
 387; Root v. Reynolds, 32 Vt. 139. 
 
 A deed not at first fraudulent may become so by being concealed or 
 not pursued, if creditors are thereby drawn to give credit to the grantor. 
 Hildrcth ». Sands, 2 Johns. Ch. 35 ; Perins i;. Dunn, 3 Johns. Ch. 508. 
 
 A conveyance to a creditor of property sufficient to pay his full debt 
 upon condition that he will give a portion to the grantor's wife, is fraud- 
 ulent. Kissam «. Edmonston, 1 Ired. Eq. 180 
 
 A subsequent payment will not give validity to a conveyance that was 
 originally fraudulent. Poague v. Boyce, 6 J. J. Marsh. 70 ; Lynde v. Mc- 
 Gregor, 13 Allen, 213; Hartman v. Diller, 62 Penn. 37; Pettibone i-. 
 Stevens, 15 Ct. 19; Thomas v. Goodwin, 12 Mass. 140. 
 
 If an instrument is made with the intent to hinder and delay creditors, 
 it is not purged, because the grantor may also have had some other pur- 
 pose in view. Reed v. Noxon, 48 111. 323 ; Merry v. Bostwick, 1 3 111. 21. 
 
 A deed which misrepresents the transaction which it recites, and the 
 consideration upon which it is founded, is liable to susi^icion, but if 
 upon investigation the real transaction appears to be fair though some-
 
 FRAUD UPOX THIRD PARTIES. 201 
 
 persons have given a full and fair price for goods, and wliere 
 the possession has been actually changed, yet being done for 
 the purpose of delaying or defeating creditors the transaction 
 has been held fraudulent, and has therefore been set aside as 
 against them. ^ Though there be a judgment against the 
 vendor, and the purchaser has notice of it, that ftict will not, 
 of itself, affect the validity of the sale of personal property. 
 But if the purchaser, knowing of the judgment, purchases 
 with the view and purpose to defeat the creditor's execution, 
 it is iniquitous and fraudulent, notwithstanding he may have 
 given a full price, for it is assisting the debtor to injure the 
 creditor. The question of fraud depends on the motive.' * 
 
 * Holmes v. Penney, 3 K. <fe J. 99 ; '1 Burr. 4*74 ; Cowp. 434, per Lord 
 
 Worsley v. De Mattos, 1 Burr. 474, Mansfield; 8 Taunt. 678, per Dallas, 
 
 475 ; Cadogan v. Kennett, Cowp. 434 ; G. J. 
 Harman v. Uichards, 10 Ha. 81. 
 
 what variant from tliat which is described, it will be valid. Shirras v. 
 Craig, 7 Cranch, 34 ; Storer v. Harrington, 7 Ala. 143 ; Frost v. Warren, 
 42N. Y. 204; Hubbard v. Turner, 2 3IcLean, 519; Bumi^ass v. Dotsou, 
 7 Humph. 310. 
 
 A deed absolute in form but intended as a mortgage, is valid if made 
 in good faith. Chickering v. Hatch, 3 Sumner, 474 ; Butler v. Stoddard, 
 7 Paige, 168; Smith v. Onion, 19 Vt. 427; Halcombe v. Ray, 1 Ired. 340; 
 contra, North v. Belden, 13 Ct. 376; Tift v. Walker, 10 N. H. 150; 
 Hadstior v. Williams, 31 Ala. 149. 
 
 * Lowry v. Pinson, 2 Bailey, 324 ; Hickman v. Quinn, 6 Yerg. 36 ; 
 Bullock V. Irving, 4 Munf 450; Bird v. Aitken, 1 Rice's Cb, 73; Thorn- 
 ton v. Davenport, 1 Scam. 296 ; Williams v. Jones, 2 Ala. 314; Clemens v. 
 Davis, 7 BaiT, 263 ; Petters v. Smith, 4 Rich. Eq. 197. 
 
 It is not sufficient that a creditor knows of the double intent of the 
 debtor to give a preference and to defeat other creditors, and that he con- 
 curs in the act by which that intent in both its aspects is effectuated. He 
 must have concurred in the illegal intent before he can be involved in its 
 consequences. Ford t\ Williams, 3 B. Mon. 550 ; Worland v. Kimberlin, 
 6 B. Mon. 608; Brown v. Smith, 7 B. Mon. 361. 
 
 Notice of the fraudulent intent before the payment of the purchase 
 money will make the conveyance fraudulent. Parkinson v. Hanna, 7 
 Blackf 400 ; Johnson v. Brandia, 1 Smith, 263 ; White v. Graves, 7 J. J. 
 Marsh. 523. 
 
 A conveyance can not be impeached by proof of a fraudulent intent 
 14
 
 2QQ FRAUD upo:j: third parties. 
 
 The consideration of marriage, altliough the most valuaHe 
 of all considerations, if there be bond fides^ will not support a 
 settlement by a man in insolvent or embarrassed circum- 
 stances, if there be evidence to show that the intended wife 
 was implicated in any design to delay or defraud the cred- 
 itors of the intended husband, or that the marriage was part 
 of a scheme or contrivance between them to protect his 
 property against the claims of his creditors.^* 
 
 A postnuptial settlement made in pm'suance of a prior 
 valid written agreement is valid against creditors.f but a 
 parol antenuptial agreement does not prevent a postnuptial 
 settlement from being voluntary.^ Kor will the written 
 recognition after marriage of a verbal promise, made before 
 
 * Campion v. Cotton, 17 Yes. 264; * Spurgeon v Collier, 1 Eden, 61; 
 
 Ex-pnrte M'Burnie, 1 D. M. <fe G. 441; Randall v. Morgan, 12 Ves. 67; Las- 
 
 Dilkes V. Broadmead, 2 D. F. <fe J. 566. sence v. Tieruey, 1 Mac. & G. 551 ; Ez- 
 
 "Culombine w. Pen hall, 1 Sm. «fr G. parte M'Burnie, 1 D. M. <fe G. 445; 
 
 228; Fraser v. Thompsjn, 4 D. <fe J. Warden v. Jones. 2 D. <fc J. 76; Goldi- 
 
 600. See exrparte M'Burnie, 1 D. M. & cutt v. Townsend, 28 Beav. 445. 
 G. 445. 
 
 on the part of the grantor, unless it is known to the grantee. Green v. 
 Tanner, 8 Met. 411; Sands r. Hildreth. 14 Johns. 493; Astor r. Wells, 4 
 Wheat. 4G6; Stover r. Herrington, 7 Ala. 142; Yiolett r. Violett, 2 Dana, 
 323 ; Partsls v. Harris, 26 Ct. 480 ; Splaun v. Martin, 17 Ark. 146 ; Chou- 
 teau r Sherman, 11 Mo. 335 ; Bancroft t. Blizzard, 13 Ohio, 30. 
 
 Although the law permits a failing debtor to make a preference, it 
 denies hiu- the right while doing so to pro^-ide that unpreferred creditors 
 shall never be paid. Drury t. Cross, 7 Wall. 299. 
 
 * A marriage settlement must be reasonable, and with a due regard to 
 the rights of othei-s. If it is di.~proportionate to the means of the grantor, 
 it is fraudulent. Simpson r. Graves, Riley's Ch. 292 ; Croft t. Arthur, 
 8 Dessau. 223. 
 
 To make an antenuptial settlement void as a traud upon creditors, it is 
 necessary th it both parties should concur in or have cognizance of the 
 fraud. Magniac r. Thompson, 7 Pet. 348. 
 
 A conveyance by the grantee under a fraudulent deed to a creditor of 
 the grantor for the purpose of recovering his debt, is valid. Brown v. 
 Webb, 20 Ohio, 389. 
 
 t Magniac r. Thoaipson, 7 Pet. 348; Lockwood r. Nelson, 16 Ala. 294.
 
 FRAUD UPOK THIRD PARTIES. 203 
 
 marriage, support a postnuptial settlement against creditors.' 
 Postnuptial settlements are, as a general rule, voluntary 
 deeds, and, therefore, void as against creditors;'^- but in 
 certain cases the concurrence of a stranger may deprive a 
 postnuptial settlement of its voluntary character.' So also a 
 postnuptial settlement made on the receipt of an additional 
 portion is a settlement for valuable consideration.* The fact 
 that a postnuptial settlement may be founded on a moral 
 duty, will not deprive it of its voluntary character.' In cer- 
 tain cases, however, a settlement made upon a wife after 
 marriage, is not to be treated as wholly voluntary, where it is 
 done in performance of a duty which a court of equity would 
 enforce.f Thus, if a man should contract a marriage by 
 stealth with a woman having a considerable fortune in the 
 hands of trustees, and he should afterwards make a suitable 
 provision on her in respect of her fortune, the settlement 
 would not be set aside in favor of the creditors of the husband, 
 since a court of equity would not suffer him to take pos- 
 session of her fortune, without making a suitable settlement 
 on her.' 
 
 'Randall v. Morgan, 12 Vcs. 6Y; * Lloore v. Rjcault, Free. Ch. 22, 
 
 Warden v. Jones, 2 D. & J. 76. and other cases cited, 1 Fonk. Bk. 1, c. 
 
 ^ Su"-. V. & P. 715. 4, § 12, and note (b), H,. c. 2, § 6 ; Jonea 
 
 ' DaTt. V. <& F. 576. See Holmes v. v. iMarsh, Ca. t. Talb. 64; Wheeler i;. 
 
 Penney, 3 K. & J. 90. Caryl, Anib. 121; Jcwsnn v. Moulson, 
 
 * buV V. <fe P. 718; Dart, V. <fe P. 2 Atk. 417: JMiddlecoiiihe v. Marlow, 
 
 576. ° ?7>. 519; Ward v. Shallett, 2 Ves. 16; 
 
 ^ Holloway v. Headington, 8 Sim. Ramsdeu v. Hylton, ib. 304 ; Arundell 
 
 324; Jefferys v. Jefferys, (Jr. &. Ph. 138, v. Fliipps, 10 Ves. 139. 
 141. 
 
 * Izard V. Izard, 1 Biiley's Ch. 228 ; Saunders v. Ferrill, 1 Ired. 97 ; 
 Deerbell t\ Fisher, R. M. Charlton, 3G; Blow v. Maynard, 2 Leigh, 29; 
 Jones V. Henry, 3 Litt. 4'27; Simpson v. Graves, Riley's Ch. 232. 
 
 + Wickes V. Clark, 3 Edw. Cli. 58; Bank of U. S. v. Brown, Riley's 
 Ch. 131; Smith ». Greer, 3 Humph. 118; Garrell v. Grant, 4 Met. 480; 
 3IcCauley v. Rhodes, 7 B. Mon. 462. 
 
 An antenuptial settlement upon the intended wife and her children, 
 born l)efore marriage, is valid. Coutts v. Greenhorn, 2 Munf. ?S3 ; z. c. i 
 Hen. & M. 485.
 
 204 FEAUD UPON THIRD PARTIES. 
 
 An antenuptial settlement containing trusts in fa^or of the 
 husband, wife, and issue, and also ulterior trusts for collaterals 
 is, so far as the ulterior trusts are concerned, voluntary;^ but 
 if the limitations in the settlements so interfere with those 
 which would naturally be made in favor of the husband, wife, 
 and issue, that they must be presumed to have been agreed 
 upon by all parties, as part of the marriage contract, they nre 
 not voluntary and will be upheld.^ 
 
 There is some inconsistency in the decided cases on the 
 subject of conveyances in fraud of creditors. Some cases 
 appear to lay down the rule that a deed is not invalid, unless 
 the grantor or settler was at the time indebted to the extent 
 of insolvency, but the rule as so laid down is clearly not cor- 
 rect.' According to dicta, in other cases, a voluntary settle- 
 ment is not invalid, although the settler may have been 
 considerably indebted at the time of the settlement, provided 
 he was not indebted beyond his means of payment remaining 
 after the settlement.* But in Spirett v. Willows,^ Lord West- 
 bury laid it down as the conclusion to be drawn from the 
 cases, that if the debt of the creditor, by whom the voluntary 
 settlement is impeached, existed at the date of the settlement, 
 and it be the necessary consequence of the settlement that 
 creditors are defrauded or delayed, it is immaterial whether 
 the debtor was or was not solvent after making the settle- 
 ment. " The fact," he said, " of a voluntary settler retaining 
 money enough to pay the debts which he owes at the time of 
 making the settlement, but not actually paying them, cannot 
 give a different character to the settlement or take it out of 
 the statute. It still remains a voluntary alienation or deed of 
 
 > Smith V. Cherrill, L. R. 4 Eq. 390. Beav. 340; Skarf v. Sonlby, 1 Mac. A 
 
 ^ Clarke v. Wright, 6 H. & N. 869 ; G. 864, 1 H. & Tw. 429 ; French v. 
 
 Dart, V. & P. 578, 581, see infra. French, 6 D. M. <fe Gr. 95; Seward v 
 
 '4 Drew, 632 per Kindersley, V.-C. Jackson, 8 Cow. (Amer.), 406. 
 * See Townsend v. Westacott, 2 ° 34 L. J. Ch. 365.
 
 FRAUD UPON THIED PARTIES. 205 
 
 gift, whereby in the event the remedies of creditors are 'de- 
 layed, hindered, or defrauded.' "^ The rule so laid down may 
 operate harshly in cases where an ample fund is retained by a 
 settler for the payment of his debts, and he afterwards, at 
 some distance of time, loses or spends so much of his property 
 as not to leave enough to pay such debts. But the rule 
 appears on the whole to be sound, and agrees with the 
 opinion of Kent, C, in Livingstone v. Eeade.~ "The con- 
 clusion," he said, "to be drawn from the cases is that if 
 the party is indebted at the time of the voluntary settlement, 
 it is presumed to be fraudulent in respect to such debts, 
 and no circumstance will permit those debts to be affected by 
 the settlement or repel the legal presumption of fraud. The 
 presumption of law in this case does not depend upon the 
 amount of debts or the extent of the property in settlement 
 or the circumstances of the party. There is no such line of 
 distinction set up or traced in any of the cases. The attempt 
 would be embarrassing, if not dangerous to the rights of cred- 
 itors, and prove an inlet to fraud. The law has, therefore, 
 wisely disabled the debtor from making any voluntary settle- 
 ment of his estate to stand in the way of existing debts." It 
 must, however, be observed that the reasoning of Kent, C, 
 has not been followed in later American cases, and that the 
 doctrine has not been pressed to the extent of holding a volun- 
 tary conveyance made on a meritorious consideration, as of 
 blood and affection, void, because there was a small indebted- 
 ness at the time. The better doctrine has been held to be 
 that there is no absolute presumption of fraud which entirely 
 disregards the intent and purpose of the conveyance, if the 
 grantor happened to be indebted at the time it was made, but 
 that such a conveyance, under such circumstance, affords only 
 
 ' See French v. French; 6 D. M. & C. 121, 135 ; Smith v. Cherrill, L. K. 4 
 G-. 95 ; Thompson v. Wobsk-r, 7 Jur. N. Eq. 395. 
 S. 531 ; Cyrlett v. Radclifie, 14 Moo. P. * 3 Johns. Ch. (Araer.), 500.
 
 206 FRAUD UPON THIRD PARTIES. 
 
 frhna facie, or presumptive evidence of fraud, wWcli may be 
 rebutted or controlled, the question being in eacli case a qiies- 
 tion of fact for the jury.* 
 
 In his Commentaries' Kent, C, admits the tendency of 
 the decisions both in America and England to be to leave the 
 conclusion of fraud as a matter of fact for a jury ; but he does 
 not approve of the rule, and adheres to the doctrine of Reade 
 -y. Livingstone, and thinks that the presumption of fraudulent 
 intent in cases of the sort may and ought to be an inference 
 of law.'* 
 
 The provisions of the stat. 13 Eliz. c. 5, are not confined 
 to existing creditors, but extend to subsequent creditors, whose 
 
 ' Seward v. Jackson, 8 Cow. (Amer.), marth, 9 ib. 3S6 ; Story's Eq. Jur. 362. 
 
 40(5; Bank of United States w. House- See also Thompson w. Webster, 4 Drew, 
 
 man, 6 Paige (Amer.), 526; Wickes w. 632, p'?- Kindersley, V.-C. ; Graham?;. 
 
 Clarke, 8 Taige (Amer.), 165; Hinde's O'Keele, 16 Ir. Ch. 1. 
 
 Lessees v. Longworth, 11 Wheat. "^ Vol. 2, p. 442. 
 
 (Amer.), 199; Taacher v. Phinney, 7 ^ See Van Wyck t). Seward, 18 "Wend. 
 
 Allen (Amer.), 150; Lerow v. Wil- (Amer.) 392, 4U5. 
 
 * A voluntary conveyance by a person not indebted is good against 
 future creditors. Sexton v. Wheaton, 8 Wheat. 229 ; Benton v. Jones, 8 
 Ct. 186 ; Mattingly «. Nye, 8 Wall. 370 ; Davis ». Payne, 4 Rand. 332 ; 
 Baker «. Welch, 4 Mo. 484. 
 
 A voluntary deed by a person indebted at the time of its execution is 
 not absolutely void as against creditors. The mere fact of being in debt 
 does not make the deed fraudulent if it can be shown that the gift was a 
 reasonable provision according to the state and condition of the grantor, 
 and left enough for the payment of debts. The want of consideration is 
 only a presumptive badge of fraud, and may be met and rebutted by 
 evidence on the other side. Hinde v. Longworth, 11 Wheat. 199; Parish 
 V. TMurphree, 13 How. 92 ; Salmon v. Bennett, 1 Ct. 525 ; Hopkirk v. 
 Randolph, 2 Brock. 132 ; Leyne v. Bank of Ky., 5 J. J. Marsh. 545 ; Young 
 V. White, 25 Miss. 146 ; Carpenter ®. Roe, 10 N. Y. 227 ; Wilson v. Houser, 
 12 Penn. lOif ; Lerow v. Wilmarth, 9 Allen, 382 ; Dodd v. McCraw, 3 Eng. 
 83 ; Arnett v. Wanett, 6 Ired. 41 ; Hall v. Edriugton, 8 B. Mon. 47 ; 
 Stewart v. Rogers. 25 Iowa, 395 ; Van Wyck «. Seward, 18 Wend. 375 ; 
 Bank of Alexandria v. Patton, 1 Rob. 499; Dillard v. Dillard, 3 Humph. 
 118; Bird v. Boldtic, 1 Mo. 701. 
 
 The relincptislimcnt of a mnrital right to a legacy is valid against 
 creditors. Gallego v. Gallego, 2 Brock. 285.
 
 FRAUD UPON THIRD PARTIES. 207 
 
 debts liad not been contracted at the date of the settlement ; * 
 but the principle will not operate in favor of subsequent cred- 
 itors, unless it can be shown either that the settler made the 
 settlement with the exjDress intent to "delay, hinder, or 
 defraud" persons who might become creditors,^ * or that after 
 the settlement the settler had not sufficient means or reason- 
 able expectation of being able to pay his then existing debts, 
 in which case the law infers that the settlement was made 
 with intent to delay, hinder, or defraud creditors,^ f o^" at least 
 that there are debts unsatisfied which were due at the date of 
 the settlement.* If at the time of filing the bill no debt due 
 at the execution of the settlement remains unpaid, and there 
 is no evidence to show that the settlement had for its object 
 the delaying, hindering, or defrauding of subsequent creditors, 
 the settlement prevails against them,^ :j: but if any debt due at 
 
 ' Tarback v. Marbury, 2 Vern. 509. 36'7, per Lord Westbury ; Thompson v. 
 
 » Stileman v. Ashdown, 2 Atk. 481; Webster, 1 Jur. N. S. 531. Comp. Hoi- 
 
 Stephfns v. Ollive, 2 Bro. C. C. 01; mes v. Penney, 3 K. & J. 90. 
 
 Holloway v. Millard, 1 Madd. 414; * Jenkyn ?;. Vaughan, 3 Drew. 419 ; 
 
 Holmes v. I'enney, 3 K. & J. 99; Barl- Barton v. Vanheythuysen, 11 Ha, 132. 
 
 ing V. Bishop, 29 Beav. 417; Murphy Comp. Holmes v. Penney, 3 K. & J. 90. 
 
 V. Abraham, 15 Ir. Ch. 371. " Jenkyn v. Vaughan, 3 Drew. 419. 
 
 * Spirett V. Willows, 34 L. J. Ch. See Russell v. Hammond, 1 Atk. 13; 
 
 * Case V. Phelps, 39 N. T. 164; Hall v. Sands, 52 Me. 355; Bedford v. 
 Crane, 1 C. E. Green, 2G5 ; Henderson v. Dodd, 1 Bailey's Cli. 138; Blake 
 V. Jones, 1 Bailey's Ch. 141 ; Russell v. Stenson, 3 Hey. 1 ; Cosby v. Ross, 
 3 J. J Marsh. 290 ; Bogard v. Gardley, 4 Smed. & Mar. 302 ; Wright v. 
 Henderson, 7 How. (Miss.) 539 ; Henry «. Fullerton, 13 Smed. & Mar. 
 G31 ; Mullen v. Wilson. 44 Penn. 413 ; Savage v. Murphy, 8 Bosw. 75 ; 
 Carlisle v. Rich, 8 N. H. 44 ; Winchester v. Charter, 12 Allen, 60G ; 97 
 Mass. 140; 102 Mass. 272. 
 
 t Parkman v. Welch, 19 Pick. 231 ; Bank of Alexandria v. Atwater, 1 
 Rob. 499; Hutchinson v. Kelly, 1 Rob. 123; Hey t). Niswanger, 1 IJc- 
 Cord's Ch. 518; s. c. 1 Harp. Ch. 295; Hamilton v. Thomas, 5 Hey. 127; 
 Hauzen v. Power, 8 Dana, 91 ; Mason v. Rogers, 1 Root, 324 ; Miller v. 
 Thompson, 3 Port. 198 ; Clark v. French, 10 Shep. 221 ; ]\IcConipe r. 
 Sawyer, 12 N. H. 396; Thompson v. Dougherty, 12 S. &R. 448; Somer- 
 ville V. Horton, 4 Yerg. 541 ; Darwin v. Handley, 3 Yerg. 302 ; Simpson 
 «. Mitchell, 8 Yerg. 417 ; King v. Wilcox, 11 Paige, 589 ; Hester W.Wil- 
 kinson, 6 Humph. 215. 
 
 X TaJe V. Tate, 1 Dev. & But. Eq. 22; Ingram v. Philips, 3 Strobh. 865.
 
 208 FRAUD UPON THIED PAKllES. 
 
 the date of tlie settlement reinaius unsatisfied at tlie time of 
 filing the bill,^ or if there be evidence to show that the settle- 
 ment was made in contemplation of future debts, or in fmiher- 
 ance of a meditated design of future fraud, although the settler 
 may not have been indebted at the time,^ the deed will be set 
 aside.' If a settlement is set aside as fraudulent against cred- 
 itors whose debts accrued before its execution, subsequent 
 creditors are entitled to participate : * but if antecedent cred- 
 itors can not make out a case for setting it aside, subsequent 
 creditors can not impeach the settlement as fraudulent by 
 reason of the prior indebtment.^ 
 
 In Holmes v. Penney ^ the conveyance by a man of his 
 property to trustees for valuable consideration upon trust to 
 apply it at their discretion in the maintenance of himself, his 
 wife and children, or any of them, in such a manner as they 
 should think fit, was held valid against subsequent creditors, 
 
 Holmes ». Penney. 3 K. <fe J. 96; Barl- ham v. O'Keefe, 16 Ir. Ch. 1 ; Savage 
 
 ing V. Bishop. 29 Beav. 41*7 ; Thompson v. Murphy, 7 Tiff. (Amer.) 508. 
 
 V. Webster, 7 Jur. X. S. 531. ^ See Whittington v. Jennings, 6 Sim. 
 
 * Jenkyn v. Vaughan, 3 Drew. 419. 
 Comp. Holmes v. Tenney, 3 K. <fe J 
 90. See Graham v. O'keefe, 16 Ir, 
 Ch. 1. 
 
 = Stileraan v. Ashdown, 2 Atk. 481 
 Richardson v. Smailwood, Jac. 552 
 HolLjway v. Millard, 1 Madd, 414 
 Barling v. Bishop, 29 Beav. 417 ; Mur- 
 
 496. 
 
 * Richardson v. Smailwood, Jac. 552; 
 Ede V. Knowles, 2 Y. <fc C. C. C. 172 ; 
 Barton v. Vanheythuysen, 11 Ha. 132. 
 
 * See Holloway v. Millard, 1 .Madd. 
 419; Walker v. "Burrows, 1 Atk. 94; 
 Ede V. Knowles, 2 Y. & C. C. C. 172, 
 178. Comp. Story's Eq. Jur. 363. 
 
 phy V. Abraham, 15 Ir. Ch, 371 ; Gra- « 3 K & J. 99. 
 
 Accounts -which have 1)6011 merged in judgments may be offered in 
 evidence to show an indebtedness prior to the making of the deed. Hinds 
 V. Longworth, 11 Wheat. 199; Harlan t. Barnes, 5 Dana, 219. 
 
 A contingent debt likely to become absolute, and which afterwards 
 does become absolute, is sufficient. McLaughlin v. Bank of Potomac, 7 
 How. 220. 
 
 A debt by a note which is afterwards renewed, continues to be the 
 same debt. McLaughlin v. Bank of Potomac, 7 How. 220 ; Eigleberger 
 V. Kibler, 1 Hill's Ch. 113. 
 
 Subsequent debts contracted in exoneration of preceding ones are 
 nothing more than a continuance of antecedent indebtedness. Brown v. 
 McDonald, 1 Hill's Ch. 297 ; Savage, v. Murphy, 34 N. Y. 508.
 
 FRAUD UPON THIED PARTIES. 209 
 
 and also against a person wlio was a creditor at tlie time of 
 making the conveyance, and whose debt was concealed by the 
 settler from the purchaser. It was also laid down ^ by Wood, 
 L. J., that a voluntary settlement to the same effect would be 
 upheld against subsequent creditors. 
 
 In order to make a voluntary settlement or conveyance 
 void as against creditors, whether existing or subsequent, it is 
 indispensable that it should transfer property which would be 
 liable to be taken in execution for the payment of debts.^ * 
 Under the old law a voluntary settlement of stock or of 
 choses in action, or of copyholds, or of any other property 
 not liable, to execution was not within the statute of Elizabeth :' 
 but copyholds, bonds, money, stock, &c., &c., being under 1 
 Yict. c. 100 seizable in execution, are now within the statute.* 
 
 A strong presumption of fraud against creditors arises, 
 where after a bill of sale of chattel property, purporting on 
 its face to take effect immediately, the vendor or settler is 
 after its execution permitted to remain in possession of the 
 property.^ f It is otherwise, however, if his continuance in 
 
 ' 3 K. <fe J. 100. ■* Norcut.t v. Dodd, Cr. & Ph. 100 
 
 " ^cc Dundas v. Dutens, 1 Vea. Jr. Barrack v. MV^uUock, 3 K. <t J. 110 
 
 196; I'aill.uid v. Estwick, Anst. 381; French v. French, 6 D. M. & G. 95. 
 
 Nantes v. Corrock, 9 Ves. 188, 189; Warden «;. Jones, 2 D. <fe J. 70 ; Stokoe 
 
 Rider v. Kidder, 10 Ves. 368 ; Guy v. v. Cowen, 29 Ecav. 637. 
 
 Pearkes, 18 Ves. 196. * Twyne's Case, 3 Co. Rop. 81 j Ed- 
 
 ^ lb ; Ilorn v. Horn, Amb. 79 ; wards v. Harben, 2 T. R. 587. 
 
 Cochrane v. Cliambers, ib. n. Korcutt; 
 
 V. Dodd, Cr. & Pk 100. 
 
 * Bean v. Smith, 3 Mason, 252 ; Poague ». Boyce, 6 J. J. Marsh. 70 ; 
 Bayard i\ Hoffman, 5 Johns. Ch 450; Phinters' Bank v. Ilendcrson, 4 
 Humph 75 ; Winebrenner v. Worsiger, 3 Mon. 33 ; Legro v. Lord. 1 Fairf. 
 161 • Foster v. M'Gregor, 11 Vt 595; Dearman v. Dearman, 4 Ala. 531; 
 How V. Wayman, 12 Mo. 169; Lishey v. Clayton, 6 Bush, 515. 
 
 If a debtor without any secret trust or intentional fraud invests his 
 money in improvements upon the real estate of another, his creditors can 
 not treat such third party, or the land as liable to them. Ewiug v. 
 Cantrels 1 :\Ieig3, 304. 
 
 t Concurrent possession by grantor and grantee is colorable. The
 
 210 FRAUD UPON THIliD PARTIES. 
 
 possession is consistent with the nature of the transaction, as 
 where a bill of sale is not absolute on its face or in its form, 
 but only conditional, so that possession is not to be gi^en until 
 the condition has been performed.^" In Edwards v. Har- 
 ben' t the court* went so far as to say that possession of goods 
 sold under an absolute bill of sale is conclusive evidence of 
 fraud ; but the tendency of later decisions has been to cpialify 
 that doctrine, and the weight of authority is in favor of the 
 modified doctrine that possession by the vendor or settler 
 affords only a badge or ^rima facie presumption of fraud, 
 which may be rebutted by explanation, showing the trans- 
 action to be fair and honest, and giving a reasonable ground 
 for the retention of possession. The question as to fraud in 
 
 ' Edwards v. Ilarben, 2 T. R. 587; see 17 & 18 Vict. c. 36, Registration of 
 
 Cadogau v. Kennett, Cowp 434; Martin- Bills of Sales Act, 1 Smith's L. C. 14: 
 
 dale %. Bootl), 3 B. & Ad. 498, 505 ; Addison on Contracts, 147-150. 
 Minsliall v. Lloyd, 2 M. & W. 450 ; but =* 2 T. R. 587. 
 
 possession must be exclusive. Boyd v. Dunlap, 1 Johns. Cli. 478 ; Baxter 
 V. Gaines, 4 Hen & M. 151 ; Hall x. Parsous, 17 Vt. 271 ; Mills v. Warner, 
 19 Vt. 609 ; Stadtler v. Wood, 24 Tex. 623. 
 
 Joint possession by husband and wife is not fraudulent. Danforth «. 
 Wood, 11 Paige, 9. 
 
 Assumption of possession after the death of the grantor is not sufS- 
 cient. Shields ». Anderson, 3 Leigh, 729. 
 
 A mortgagee who takes a release of an equity of redemption, thereby 
 extinguishes his mortgage, and, if the release is fraudulent, his riglit is 
 gone. Gla::SCock o. Battou, 6 Rand. 78 ; Clayborn v. Hill, 1 Wash. (Va.) 
 177 ; contra, Irish v. Morse, 10 Vt. 81 ; Toule v. Hoit, 14 N. H. 61. 
 
 * Letcher v. Norton, 4 Scam. 575 ; U. S. «. Hoe, 3 Cranch, 73 ; Bank 
 of Georgia v. Higginbottom. 9 Pet. 148 ; Gist v. Pressley, 2 Hill's Oh. 
 318 ; Briggs v. Parkman, 2 Met. 258 ; Planters' & Merchants' Br.nk v. 
 Wdlis, 5 Ala. 770 ; Leane «. Borland, 2 Shep. 77 ; Ash v. Savage, 5 N. I[, 
 545 ; Maney v. Killough, 7 Yerg. 440. 
 
 t It has been held in the following cases that the retention of posses- 
 sion by the vendor was fraudulent per se. Hamilton v. RusseU, 1 Cranch, 
 310; Phettiplace v. Sayle?, 4 Mason, 312; Fuller v. Sears, 5 Vt. 527; 
 Farnsworth v. Shepard, G Vt. 521 ; Mills v. Camp, 14 Ct. 219; Kirtland v. 
 f^ow, 20 Ct. 2o; Doack v. Brubackcr, 1 Nev. 218; I'abb /•. Clemscn, 10 S. 
 6: R. 419; Young v. M'Glure, 2 W. & S. 147 ; Jarvis v. Davis, 14 B. Moo.
 
 FRAUE UPON THIRD PARTIES. 211 
 
 sucli cases is not an inierence of law, but one of fact for tlie 
 jiiry.i * 
 
 * Lady Arundell v. Pliipps, 10 Ves. 898, per Tindal, C. J, ; Macdona v. 
 
 145 ; MartiiidMle v. Booth, 3 B. <fe Ad. Swiney, 8 Ir. C. L. 73 ; Cooke v. Wal- 
 
 498, 505 ; Latimer v. Batson, 4 B. &. C. ker, 3 W. R. 357 ; 1 Smith's L. C. p. 
 
 652; Linden v. Sharp, 6 M. & G. 895, 13. 
 
 52 ; Hundley v Webb, 3 J. J. Marsh. 643 ; Bremmel v. Stockton, 3 Dana, 
 134; Chenery v. Palmer, G Cal. 119 ; Gibson t\ Love, 4 Fla. 217 ; Saudera 
 i\ Pepoon, 4 Fla. 46") ; Bowman )\ Herring, 4 Harring. 458 ; Jorda v. Lewis, 
 1 La. An. 59 ; Cobum v. Pickering, 3 N. H. 415 ; Clafflin v. Rosenberg, 42 
 Mo. 439 ; Ketclmm v. Watson, 24 111. 591. 
 
 * It has been beld in the following cases that the retention of posses- 
 sion by the vendor is only presumptive evidence of fraud. Warner v. 
 Norton, 20 How. 448 ; Hombeck v. Vanmetre, 9 Ohio, 153 ; Collins v. 
 Myers, IGOhio, 547; Reed v. Jewett, 5 Greenl. 96; Ulmer v. Hills, 8 
 Greenl. 32G ; Brooks v. Powers, 15 Mass. 244 ; Bartlett «. Willianis, 1 
 Pick. 288; Hanford v. Artcher, 4 Hill, 271 ; Thompson v. Blanchard, 4 N. 
 y. 803 ; Terry v. Belcher, 1 Bailey, 568 ; Davis v. Turner, 4 Gratt. 422 ; 
 Forkner v. Stuart, 6 Gratt. 197; Callen v, Thompson, 3 Yerg. 475; Manly 
 V. Killough, 7 Yerg. 440; Vick v. Keys, 2 Hayw. 126; Foley v. Knight, 
 4 Blackf. 420; Watson v. Williams, 4 Blackf 26; Miller «. Pancoast, 
 4 N. Y. 303; Beers v. Dawson, 8 Geo. 556; Kuykeudall v. McDonald, 
 15 Mo. 416 ; Biyant v. Kelton, 1 Tex. 415 ; Morgan v. Republic, 2 Tex. 
 273; Livingston v. Littell, 15 Wis. 221; Bullis ». Borden, 21 Wis. 136; 
 Ilobbs V. Bibb, 2 Stew. 54-336 ; Mayer v. Clark, 40 Ala. 259 ; Rankin «. 
 Holloway, 3 Smed. & Mar. 614 ; Corastock v. Rayford, 12 Smed. & Mar. 
 369 ; Frield v. Simco, 2 Eng. 2G9. 
 
 After a sale under an execution when a stranger is a purchaser, the 
 property may be left in the possession of the vendor. Floyd v. Goodwin, 
 8 Yerg. 484; Andrews v. Brooks, 11 Ala. 953; Abney v. KiugsLnd, 10 
 Ala. 355; Simerson v. Bank of Decatur, 12 Ala. 205; Garland 'o. Cham- 
 bers, 11 Smed. & Mar. 337 ; Coleman v. Bank of Hamburg, 2 Strobh. Eq. 
 
 285. 
 
 Possession for a long time after a sale under an execution is fraudulent. 
 Taylor v. Mills, 2 Edw. Ch. 318 ; Stover v. Farmers' & Merchants' Bank, 8 
 Smed, & Mar. 305. 
 
 Want of possession is not presumptive of fraud if, from the circum- 
 etances of the property, possession can not be given. A familiar example 
 of this doctrine is in the case of a sale of a ship or goods at sea wdiere 
 possession is dispensed vf'iXh. on the plain ground of its impossibility; and 
 it is sufficient if the vendee takes possession of the property within a 
 reasonable time after its arrival in port. Conrad ». Atlantic Fire Ins. Co., 
 1 Pet. 386 ; Portland Bank ». Stacey, 4 Mass. 661 ; Putnam i}. Dutch, 8 
 Mass. 287 ; Joy v. Sears, 9 Pick. 4.
 
 212 
 
 FRAUD UPO>? THIRD PAETIES. 
 
 Transactions wliicli have for their object the defeating op 
 defrauding of creditors must be carefully distinguished from 
 cases where a sale, or assignment, or other conveyance merely 
 amounts to giving a preference to one creditor, or to one set 
 of creditors, over another, or where the assignment or convey- 
 ance is made for the benefit of all creditors. The law tolerates 
 assignments giving one creditor a preference over another. * 
 The fact that an assignment may have been expressly made 
 with the intent to defeat the claim of a particular creditor is 
 of no consequence either at common law or under the statute 
 of Elizabeth, if the consideration be adequate.^ Under the 
 bankrupt law, however, the transfer by a man of the whole, or 
 the bulk, or even a part of his property to a creditor in con- 
 sideration of an antecedent debt is fraudulent, if made volun- 
 tarily and in contemplation of bankruptcy.' 
 
 » Holbird v. Anderson, 6 T. R. 235 
 Estwick V. Caillaud, 5 T. R. 420 
 Grogan v. Cooke, 2 Ea. & Be. 235 
 Pickptock V. Lyster, 3 M. & S. 311 
 Wood V. Dixie, 7 Q. B. 892 ; Hale v 
 Saloon Omnibus Co., 4 Drew. 592 
 
 Wolverhampton and Staflfordshire Bank- 
 ing Co. V. Marston, 1 H. & N. 148. But 
 see Bott v. Smith, 21 Beav. 511. 
 
 "" Smith V. Cannan, 2 E. & B. 35 , 
 Bittleston v. Cooke, 6 E. & B. 298; 
 Young V. Fletcher, 3 H. «fe C. 132, infra. 
 
 * Tompkins v. Wheeler, 16 Pet. 108 ; Marbury v. Brooks, 7 Wheart. 
 556; s. c. 11 Wheat. 78; Murray v. Riggs, 15 Johns. 571; Green «. Tan- 
 ner, 8 Met. 411 ; Skipwitli v. Cunningham, 8 Leigh, 271 ; U. S. Bank v. 
 Hath, 4 B. Men. 423. 
 
 An assignment for the benefit of creditors exacting releases is valid. 
 Brastiear v. West, 7 Pet. 608 ; Lippincott v. Barker, 3 Binney, 174 ; Pier- 
 pont V. Graham, 4 Wash. (Penn.) 333 ; Halsey v. Whitney, 4 Mason, 230 ; 
 Niolen v. Douglass, 3 Hill's Ch. 443 ; Ashunt v. Martin, 9 Port. 566 ; Vose 
 «. Holcomb, 31 Me. 407 ; Heydock v. Stanhope, 1 Curt. 471; Pierce v. 
 Jackson, 1 R. I. 35 ; Dockray v. Dockray, 3 R. I. 547 ; Rankin ». Lodor, 
 21 Ala. 380 ; McCall v. Hinkley. 4 Gill, 128 ; Kettlewell «. Stewart, 8 Gill, 
 472; contra, Wakeman v. Grover, 4 Paige, 23; s. c. 11 Wend. 187, Amos 
 T. Blunt, 5 Paige, 113 ; Ingraham v. Wheeler, 6 Ct 377 ; Atkinson «. Jor- 
 dan, 5 Ohio, 393 ; Hyslop v. Clark, 14 Johns. 458 ; Austin v. Clark, 30 
 Johns. 443; Haven v. Richardson, 5 N. H. 113; The Watchman, Ware, 
 233; Conklingw Carson, 11 111. 503; Nesbit v. Digby, 13 111. 387; Miller 
 t. Couklm, 17 Geo. 430.
 
 FRAUD UPOlJf THIRD PARTIES. 213 
 
 An assignment by a man of liis property for tlie benefit of 
 his creditors is valid, and will be supported, provided the 
 deed be oond fide, for the benefit of all the creditors, and there 
 be an miconditional surrender by the debtor of all his prop- 
 erty and effects.^ But a deed which the debtor has a power 
 to revoke, and attempts to use as a shield against his creditors, 
 is fraudulent and void against creditors who are affected by 
 the deed, notwithstanding the deed upon the face of it pur- 
 ports to be for the benefit of all the creditors.^ So also is an 
 instrument void as against creditors, if there is any provision 
 contained in it which shows that the debtor, at the time of its 
 execution, intended to prevent an immediate application of 
 his property in favor of his creditors.^ * 
 
 'Smith w. Hurst, 10 Ha. 30; Riches » Brigham v. Tillinghast, 3 Kern. 
 
 V. Evans, 9 C. & P. 641. (Araer.), 215. 
 
 ■■' Smith V. Hurst, 10 Ha. 30. 
 
 * The fact that the mortgagor is allowed to sell the mortgaged goods 
 at retail after the execution of the mortgage, is merely a badge of fraud. 
 Frost V. Warren, 43 N. Y. 204 ; Summers v. Roos, 42 Miss. 749. 
 
 A mortgage which contains a stipulation reserving to the mortgagor 
 the power to sell the mortgaged property for his own benefit, is fraudu- 
 lent. Edzell V. Hart, 9 N. Y. 21 ; Lang v. Lee, 3 Rand. 410 ; Collins r. 
 McEh-oy, 16 Ohio, 547; Sheppard v. Turpin, 3 Gratt. 373; Addington v. 
 Etheridge, 12 Gratt. 436; Brooks v. Wimer, 20 Mo. 503; Walter v. 
 Wimer, 24 Mo. 63; Freeman v. Rauson, 5 Ohio St. R. 1 ; Harman v. Abbey, 
 7 Ohio St. R. 218 ; Chophard v. Bayard, 4 Minn. 533 ; Place v. Langworth, 
 13 Wis. 629; Armstrong ®. Tuttle, 34 Mo. 432; Barnet «. Fergus, 51 111. 
 352. 
 
 When there is an agreement out of the mortgage that the mortgagor 
 shall continue in possession, and buy and sell as usual, the mortgage is 
 fraudulent. Gardner v. McEwen, 19 K Y. 123 ; Russell v. Wines, 37 N. Y. 
 591; Ward v. Lowry, 17 Wend. 432; Delaware v. Ensign, 21 Barb. 85. 
 
 An agreement that the mortgagor shall continue in possession and sell 
 the mortgaged property, and apply the proceeds to the satisfaction of the 
 debt which the mortgage is given to secure, is not fraudulent. Conkling 
 V. Shelley, 28 N. Y. 300 ; Ford v. Williams, 24 N. Y. 359 ; MUler v. Lock- 
 wood, 33 N. Y. 293 ; Saunders v. Turbeville, 3 Humph. 273 ; Abbott w. 
 Goodwin, 20 Me 408; Contra Ticknor v. Wisnall, 9 Ala. 305.
 
 214 FRAUD UPOK THIRD PARTIES. 
 
 The same policy of affording protection to the rights of 
 creditors pervades the provisions of the statute 3 & 4 Will. & 
 M. c. 14, respecting fraudulent devises in fraud of creditors;* 
 but the statute does not reach conveyances, whether voluntary 
 or not, which the debtor may make in his lifetime.^ A debtor 
 may alienate the land notwithstanding the existence of debts, 
 or he may by will make it equitable assets, or he may devise 
 it for the payment of a particular debt on simple contract, and 
 so withdraw it from specialty creditors altogether. The cred- 
 itors may, by taking proceedings, obtain payment out of the 
 descended or devised real estates in the hands of the heir or 
 devisee; but if such proceedings are not taken, the heir or 
 devisee may alienate, and in the hands of the alienee, whether 
 upon a common purchase or on a settlement, even with notice 
 that there are debts unpaid, the land is not liable, althcugb 
 the heir remains personally liable to the extent of the value of 
 the land alienated.^ The alienee, however, may be restrained 
 at the suit of creditors from parting with the money,* 
 
 Another case of fraud upon creditors is where upon a com- 
 position by a debtor with his creditors, particular creditors, by 
 means of secret bargains, secure to themselves undue advan- 
 tages over the rest of the creditors. The principle of all 
 composition deeds being that the debtor shall make a true 
 representation of his assets, and that the creditors shall stand 
 upon an equal footing and observe good faith towards each 
 other, any secret arrangements between the debtor and a par- 
 ticular creditor, whereby he is placed in a more favored 
 position than the rest of the creditors, is a fraud upon the 
 
 ' Sec Jeremy on Eq. Jur. bk. 3, pt. 123; Dilkes v. Broadmead, 2 D. F. <fe J. 
 
 2, c. 3, §4 pp.415, 416. See also Coope 566. But see Pimm v. Insall, 1 Mac. & 
 
 V. Cresswell, L. R. 2 Ch. App. 112. G. 449. 
 
 * 1 Ff.nb. Eq. b. 1, c. 4, § 14 n. * Green v. Lowes, 3 Bro. C. C. 21V. 
 
 ' Sj^ackman v. Timbrell, 8 Sim 2.53; 
 RichaidsoQ v. Ilorton, V Beav. 112,
 
 FRAUD UPOX THIRD PARTIES. 215 
 
 others.^ * In modern times, the same rule lias been acted on 
 at law.'^ 
 
 For the like reasons, any agreement made by an insolvent 
 debtor with his assignee, by which the estate of the insolvent 
 is to be held in trust by the assignee to secure certain benefits 
 for himself and his family, such as to pay certain annuities to 
 himself and his wife out of the rents or proceeds of the prop- 
 erty assigned, and to apply the surplus to the extinction of 
 debt due to the assignee, is void as being a contrivance in 
 fraud of creditors.^ 
 
 A creditor, however, holding a security for his own debt, 
 may stipulate to have the benefit of it in addition to the 
 amount of the composition offered by a debtor to his creditors, 
 but he must hold himself entirely aloof from the other cred- 
 itors, or distinctly communicate with them on the subject, if 
 he at all acts in common with them.* 
 
 FRAUD UPON MARRIAGE ARTICLES. 
 
 Another class of frauds upon third parties, which will be 
 relieved against in equity, is where persons after doing acts 
 
 ' Jackman v. Mitchell, 13 Ves. 581 ; Barker, 1 L. R. Eq. 139. Comp. Lee?;. 
 
 Sadler v. Jackson, 15 Ves. 52; Coleman Lockliart, 3 M. &, G. 315. 
 
 V. Waller, 3 Y. & J. 215 ; CuUingwoith ' Cuckshott v. Bennett, 2 T. R. 763 ; 
 
 V. Lloj'd, 2 Beav. 385, and cases cited Knight v. Hunt. 6 Biug. 432 ; Lewis v. 
 
 395 n.; Pendlebury i). Walker, 4 Y. <fe Jones, 4 B. <fe C. 50G; Ilowden v. 
 
 C. 434; Ex-parie Oliver, 4 lia^^. <fe Sm. liaigh, 11 A. & E. 1033. 
 
 362; Mare v. Sandford, 1 Giff. 288; = McNeill z;. Cahill, 2 Bligh, 228. 
 
 Mare i;, Warner, 3 Giff. 100; Wood v. * Culliugworth ii. Lloyd, 2 Beav. 385. 
 
 I 
 
 * 1 Smith V. Stone, 4 G. & J. 310 ; Daugbty r. Savage, 28 Ct. 146 ; Case 
 «. Garrish, 15 Pick, 49 ; Ramsdell v. Eilgarton, 8 Met. 227 ; Lotlirop ». 
 King, 8 Cash. 382 ; Breck v. Cole, 4 Sandf. 79; Carroll %\ Shields, 4 E. D. 
 Smith 466; Higgins x>. Mayer, 10 How. Pr. 863; Lawrence v. Clark, 36 N. 
 Y. 128; Pinneo ». Higgins, 12 Abb. Pr. 334; Beach v. Ollendorf, 1 Hilt. 
 41 ; Smith r. Owens, 21 Cal. 11 ; Bartleman v. Douglass, 1 Crancli's C. C. 450. 
 
 The rule has no applic.ition to a case where each creditor acts not only 
 for himself but in opposition to every other creditor, all equally relying 
 upon their vigilance to obtain priority. Clark «. White, 12 Pet. 178. 
 
 A concealment of a portion of his assets by the debtor will make
 
 216 FEAUD UrON THIRD PARTIES. 
 
 required to be done on a treaty of marriage, render those acts 
 unavailing by entering into otlicr secret agreements, or dero- 
 gate from those acts or otherwise commit a fraud upon the 
 relatives or friends of one of the contracting parties;^ as where 
 a parent declines to consent to a marriage on account of the 
 intended husband being in debt, and the brother of the latter 
 gives a bond for the debt to procure such consent, and the 
 intended husband then gives a counter-bond to his brother to 
 indemnify him against the first bond.^ So, also, where a 
 creditor of the intended husband concealed his own debt and 
 misrepresented to the lady's father the amount of the debts of 
 the intended husband, the transaction was treated as a fraud 
 upon the marriage, and the creditor was restrained from 
 enforcing his debt at law against the husband after the mar- 
 riage.^ So, also, where a brother on the marriage of his sister 
 let her have a sum of money privately that her fortune might 
 appear to be as much as was insisted on by the other side, and 
 the sister gave a bond to the brother to repay it, the bond 
 was set aside.* So, also, where the money due by an intended 
 husband upon a mortgage was represented by the mortgagee 
 to the relations of the wife to be much less than was really 
 due, he was not allowed to recover more than he had repre- 
 sented the debt to amount to.^ 
 
 Another case of fraud upon marriage articles is where a 
 father, who had, on the marriage of his daughter, covenanted 
 that he would upon his death leave her certain tenements, and 
 would also by his will give and leave her a full and equal 
 
 ' Peyton v. Bladwell, 1 Vcrn. 240. 543. See D'Albiac v. D'Albiac, 16 
 
 ^ Iledman v. Redman, 1 Vern. 848 ; Ves. 124; Morris v. Clarkson, IJ. & W. 
 
 Turton v. Benson, 1 P. Wms. 496 ; Scott 107. 
 
 V. Scott, 1 Cox, 366 ; Palmer v. Neave, '' Gale v. Lindo, 1 Vern. 4*75 ; Lamlee 
 
 11 Yes. 166. V. Hanman, 2 Vern. 499. 
 
 ' Neville «. Wilkinson, 1 Bro. C. C. " Barrett ?^. Wells, Prec. Ch. 131. 
 
 the deed void. Phettiplace v. Sayles, 4 Mason, 313; Richards v. Hunt, 6 
 Vt. 251 ; Jackson v. Hodges, 24 Md. 469 ; Seving v. Gale, 28 Ind. 486.
 
 PEAUD UPON THIED PARTIES. 217 
 
 share witli lier brothers and sisters of all his personal estates, 
 transfers afterwards during his life a very large portion of his 
 personal property to his son, retaining the dividends for his 
 own life. ^ Covenants of this sort do not prohibit a parent 
 from making any disposition of his property during his life- 
 time among his children more favorable to one than another; 
 but they do prohibit a man from doing any acts which are 
 designed to defeat or defraud the covenant. A parent may, if 
 he pleases, notwithstanding the covenant, make an absolute 
 gift to a child ; but the gift must be an absolute and unqualified 
 one, and must not be a mere reversionary gift, which saves the 
 income to the parent during his own life.^ 
 
 FRAUD UPON THE IVIARITAL EIGHTS. 
 Another class of transactions which will be relieved against 
 as being in fraud of the marriage contract are conveyances 
 made by an unmarried woman of her property, dm-ing the 
 treaty of marriage without the knowledge of her intended hus- 
 band, in contravention of his marital rights, or in disaj>point- 
 ment of his just expectations.'* Several circumstances appear 
 
 ' Jones V. Martin, 3 Anst. 882, 5 dard v. Snow, 1 Rus3. 485 ; England v. 
 
 Ves. 265 n. ; 8 Bro. P. C. 242. See Ran- Downs, 2 Beav. 522 ; Taylor v. Tugh. 1 
 
 dall V. Willis, 5 Ves. 261 ; M'Neill v. Ha. 608 ; Llewellin v. Cobbold, 1 Sm. 
 
 Cahill, 2 Blig'h, 228. Comp. Stocken «. &. G. 3Y6; Downes v. Jennings, 32 
 
 Stocken, 4 M. <fe C. 95; Bell w. Clarke, Beav. 290. See Loader v. Clark, 2 
 
 25 Beav. 436. Mac. & G. 387 ; Chambers v. Crabbe, 
 
 ' Jones V. Martin, 3 Anst. 882, 5 Ves. 34 Beav. 457. A secret settlement by 
 
 265 n. ^ woman of her property during a 
 
 ' Lance v Norman, 2 Ch. Rep. 41 ; treaty of marriage, is not necessarily 
 
 Lady Strathmore v. Bowes, 2 Bro. C, void at law. Doe d. Richards v. Lewis, 
 
 C. 345, 2 Cox, 33, 1 Ves. Jr. 22; God- 11 C. B. 1035. 
 
 * Tucker*. Andrews, 13 Me. 124; Ramsay v. Joyce, 1 McMullan's Ch. 
 236; Black v. Jones, 1 A. K. Marsh. 312; Manes «. Durant, 2 Rich. Eq. 
 404 ; Linker v. Smith, 4 Wash. C. C. 224. 
 
 There is no distinction whether the conveyances be to children or to a 
 stranger. Ramsay v. Joyce, 1 Mc]\Iullan's Ch. 236. 
 
 A conveyance made by a woman in discharge of the moral duty of 
 providing for the children of a former marriage, is not considered a fraud 
 upon the intended husband, although it is concealed from him. Green v. 
 Goodall, 1 Cold. 404. 
 15
 
 218 FRAUD UPON THIRD PARTIES. 
 
 to have been thought material as negativing the imputed 
 fraud: such, for instance, as the poverty of the husband, the 
 fact that he has made no settlement on the wife, the fulfilment 
 of a moral obligation, as in the ease of a settlement upon the 
 children of a former marriage, or of a bond given to secure a 
 debt contracted for a valuable consideration, or the fact of the 
 ignorance of the husband that his wife possessed the property.^ 
 There can be no doubt that any of these facts would be a good 
 ground for insisting that there should be a settlement, but it 
 is not so easy to understand why they should constitute reasons 
 for practising concealment upon him, or for treating such con- 
 cealment as immaterial.^ If both the property and the mode 
 of its conveyance, pending the marriage treaty, were concealed 
 from the intended husband, there still is or may be a fraud prac- 
 tised on him. It is true that the non acquisition of the prop- 
 erty is no disappointment, but still his legal right is defeated, 
 and the conveying away of the property for the benefit of a 
 third person, or the vesting and continuance of a sejDarate 
 power in the wife over property which ought to have been his, 
 and which is, without his consent made independent of his 
 control, is a surprise upon him, and might, if previously 
 known, have induced him to abstain from the marriage.^ 
 The mere fact, however, of concealment, or rather the non- 
 communication to him, is not necessarily, and under all cir- 
 cumstances, equivalent to fraud. In the absence of any 
 representation as to specific property, there is no implied con- 
 tract on the part of the lady that her property shall not be in 
 any way diminished before the marriage: but it is for the 
 court to determine in each case whether having regard to the 
 
 'Hunt V. MattheTTS, 1 Vern. 408; 533 ; Lady Strathmore v. Bowes, 2 Bro. 
 
 Taylor v. Pua:li, 1 Ha. 608. See Downea C. C. 345, 6 Bro. P. C. 427, 1 Ves. 
 
 V. Jennings, 32 Beav. 290. Jr. 22. 
 
 ' England v. Downs, 2 Beav. 522, ' Carlcton v. Earl of Dorset, 2 Vern, 
 
 629; Taylor r. Tugli, 1 Ila. 608, 613; 17; Goddard v. Snow, 1 Kuss. 485; 
 
 Chambers v. Cra'otie, 34 Beav. 457. EngLind v. Downs, 2 Bcay. 522, 529; 
 
 See Poulson v, Wellington, 2 P. Wms. Downes v. Jennings, 32 Beav. 290.
 
 FRAUD UPON THIED PARTIES. 219 
 
 condition of the parties and the other attendant circumstances, 
 a transaction complained of by the husband should be treated 
 as fraudulent.^ * Where the husband has so conducted him- 
 self towards the intended wife that she cannot without dis- 
 grace retire from the marriage, as where he had induced her 
 to cohabit with him before marriage, a settlement made by 
 her of her property without his knowledge, will not be treated 
 as in fraud of his marital rights.^ 
 
 The equity in favor of the husband does not arise, unless it 
 can be clearly made out that at the time of the conveyance of 
 her property by the wife there was an engagement of mar- 
 riage between them.^ A conveyance to be fraudulent must be 
 made in contemplation of a particular marriage.* Kor has the 
 husband any equity to set it aside, if before the marriage he 
 has notice that tlie intended wife has dealt in some way with 
 her property. It is essential to the application of the princi- 
 ple that the husband should, up to the moment of the mar- 
 riage, have been kept in ignorance of the transaction. If he 
 has notice before the marriage that the lady intended to make 
 a settlement of her property, and nothing took place to justify 
 a belief on his part, that at the time of the marriage no such 
 settlement had been made, he has no equity to set it aside, 
 although he may not be proved to have been aware of any set- 
 tlement having been actually made. If the husband has notice 
 that the propei-ty has been in some way dealt with and makes 
 no inquiry, he is bound by what has been done. It is enough 
 that he had notice of the intended settlement, though he may 
 not have been aware of the trusts.^ 
 
 • De Manneville v. Compton, 1 V. <fe ' En-rland v. Do-mig, 2 Beav. 622; 
 
 B. ?.f.4 ; St. Gei i£ic v. W: kc, 1 M. & K. Gri^'ss v. Staplce, 2 Dcj?. <fe S. 572. 
 
 310; Taylor v. Puuli, 1 Ila. 608. ■* Jlabor v. Hobbs. 2 Y. <fe C. 317. 
 
 = Taylor v. Tu^h, 1 Hu, 608. " St. George v. Wake, 1 M. & K. 610; 
 
 * Caldwell v. Gillis, 2 Port. 52G ; Crump v. Dudley, 3 Call. 507 ; M'Clure 
 V. Miller, 1 Bailey's Ch. 107.
 
 220 FRAUD UPON THIED PAETIES. 
 
 If a bond be given by a woman before marriage to secure a 
 debt contracted for valuable consideration, there is no fraud on 
 the husband though it be concealed from him.^ 
 
 The right of the husband to impeach a transaction, as 
 being in fraud of his marital rights, may be lost by acqui- 
 escence or delay ; ^ nor have his representatives after his death 
 any equity against the wife, if he does not before his death 
 discover the fraud upon his marital rights.^* 
 
 MARRIAGE AND PLACE BROKAGE BONDS. 
 
 Another class of transactions which are relieved against aa 
 being in fraud of third parties, are contracts or agreements to 
 negotiate a marriage between two parties for a certain compen- 
 sation.* In some early cases, Grisley v. Lother,^ and a case 
 
 Ergland v. Downs, 2 Beav. 522 ; Grij^gs G. 882 ; Downes v. Jennings, 32 Beav. 
 
 V. Staplee, 2 Deg. & S. 572 , Wrigley v. 290. See i7ifra. 
 
 Swainson, 3 Deg. <fe S. 458. See Pri- ' Grazebrook v. Percival, 14 Jur. 
 
 deaux v. Lcnsdale, 1 D. J. & S. 433. 1103, 
 
 » Blanehet v. Foster, 2 Ves. 264. " See "Worsley v. De Mattos, 1 Burr. 
 
 "^ De Manneville v. Compton, 1 V. <fe 476, per Lord Mansfield. 
 
 B. 354; Loader v. Clarke, 2 Mac. & * Hob. 10. 
 
 ♦ A conveyance made by a man in contemplation of marriage, for the 
 purpose of defrauding his wife, is void. Petty v. Petty, 4 B. Mon. 215 ; 
 Swain v. Perine, 5 Jolins. Ch. 482; Smith «. Smith, 2 Halst. Ch. 515; 
 Deal-man «. Dearman, 10 Ind. 191 ; Tate v. Tate, 1 Dev. & Bat. Eq. 22. 
 
 There can be no doubt of the power of a husband to dispose absolutely 
 of his property during his life independently of the concurrence, and exon- 
 erated from any claim of his wife, provided the transaction is not merely 
 colorable and be unattended with circumstances indicative of fraud upon 
 the rights of the wife. If the disposition by the husband be l)07id Jide^ 
 and no right is reserved to him, though made to defeat the right of the 
 wife, it will be good against her. Dunnock «. Dunnock, 3 Md. Ch. 140 ; 
 Cameron v. Cameron, 10 Smed. & Mar. 394; Lightfoot \\ Colgin, 5 Munf. 
 42 ; Stewart v. Stewart, 5 Ct. 317 ; Holmes r. Holmes, 3 Paige, 363. 
 
 If the disposition of the property by the husband is a mere device or 
 contrivance by which, not parting with the absolute dominion over the 
 property during his life, he seeks at his death to deny his widow the share 
 in his estate which the law assigns to her, it will be ineffectual against 
 her. Hays t. Henry, 1 Md. Ch. 337; Thayer v. Thayer, 14 Vt. 107 ; Rey. 
 nolds ». Vance, 1 Heisk. 344.
 
 FRAUD UPON THIRD PARTIES. 221 
 
 cited in Hall v. Potter,* a marriage brokage bond was held 
 good at law ; but these cases cannot be considered law. The 
 better opinion would seem to be that a marriage brokage bond 
 is void at law upon grounds of public policy. In equity it has 
 long been settled that such bonds will be relieved against, as 
 well upon grounds of public policy, as because they tend to 
 induce the exercise of undue influence in the promotion of 
 marriages, and are a fraud on the families of those who are so 
 induced to marry without taking the advice of their friends.^ 
 Marriage brokage contracts are so adverse to public policy as 
 not to be capable of confirmation;^ and even money paid 
 under them may be reclaimed.-* It makes no difference that 
 the marriage is between persons of equal rank, age, and for- 
 tune, for the contract is equally open to objection upon 
 general principles as being of dangerous consequence.^ The 
 principle has even gone further, and a bond given for assisting 
 a clandestine marriage has been set aside, though given volun- 
 tarily after the marriage and without any previous agreement 
 for the purpose.® 
 
 Upon a similar ground, if a parent or guardian, or any 
 person nearly connected to a party, privately connive with a 
 third person, and agree to procure a marriage between such 
 parties in consideration of a certain compensation, or agree 
 upon payment of a certain sum to consent to such marriage, 
 the contract is utterly void upon the ground that it is a bar- 
 
 J 3 "Lev. 412. ^ov their services to a limited extent. 
 
 '« Hall V. Potter, 3 Lev. 412, Show, P. Story's Eq. Jur. 260. 
 
 C. 76 ; Arundel v. Trevillian, 1 Ch. Rop. ' Cole v. Gibson, 1 Ves. 503, 506, 
 
 47 ; Law v. Law, Ca. t. Talb. 140, 142 ; 507 ; Rocho v. O'Brien, 1 Ba. & Be. 
 
 Cole >;. Gibson, 1 Ves. 503 ; Vauxhall 358. 
 
 Bridge Co. «. Spencer, Jac. 67 ; Boyn- ''Smith v. Bruning, 2 Vern. 392; 
 
 ton V. Hubbard, 7 Mass. (Auier.), 112. Goldsmith v. Bruning, 1 Eq. Ca Ab. 89. 
 
 The civil law does not seem to have ' Hall v. Potter, 3 Lev. 411, 1 Fonb. 
 
 held contracts of this sort in such se- bk. 1, c. 4, 5^ 10. 
 
 vere rebuke, for it allowed proxexetce, * Williamson v. Gibson, 2 Sch. &, Lef. 
 
 or match-makers, to receive a reward 35'?.
 
 222 FRAUD UPON THIRD PARTIES. 
 
 gain in contravention of the riglits of third parties, whose 
 interests are thus controlled and sacrificed.^ 
 
 Of a kindred nature to marriage brocage contracts, and 
 governed by the same rule, are cases where bonds are given, 
 or other ao:reem3nts made as a reward for using iufluance and 
 power over another person to induce him to make a will in 
 favor of the obligee and for his benefit, for all such contracts 
 tend to the deceit and injury of third parties, and encourage 
 artifice and improper attempt to control the exercise of their 
 free judgment.^ But such cases are carefully to be distin- 
 guished from those in which there is an agreement among 
 heirs or other near relatives to share the estate equally be- 
 tween them, whatever may be the will made by the testator; 
 for such an agreement is generally made to suppress fraud 
 and undue influence, and cannot truly be said to disappoint 
 the testator's intention, if he does not impose any restriction 
 on his devisee.^ 
 
 Of a kindred nature to marriage brokage contracts are 
 office brokage bonds. Bonds of this sort are fraudulent, and, 
 therefore, void upon grounds of public policy, the tendency of 
 such bonds being to introduce unfit persons into places of 
 great public trust, and to defraud the public of the service of 
 the most efficient candidates or officers.* 
 
 BONDS TO MARRY. 
 A bond given by a young woman secretly to a man, condi- 
 tioned to pay him a sum of money, if she did not marry him 
 on the death of the parent or other individual from whom she 
 has expectancies, but kept secret from him, is in equity looked 
 
 'Pevton V. Bladwell, 1 Vern. 240; ered v. Wethered, ib. 183; Stor/a Eq. 
 
 Stribbleliill v. Brett, 2 Vern. 445; Kent Jur. 265, 785. 
 
 V Allen, ih. 588, 1 Fonb. Eq. bk. 1, c. * Law v. Law, Ca. t. Talb. 140, 3 P. 
 
 4, S 11 ; Story's Eq. Jur. 266, 267. Wms. 391 ; Morris v. M'Culloch, 2 Eden, 
 
 '»' Deb'enham v. Ox, 1 Ves. 276. 190; Hannington v. Du Cbatel, 1 Bro. 
 
 ' Beckley v. Newland, 2 P. Wm. 181; C. C. 124 ; Ilartwell >'. llartwcU 4 Ves. 
 
 narwood V. Tooke, 2 Sim. 192; Wetli- 811; Osborne i'. Williams, 18 Ves. 379=
 
 FRAUD UPON TniED PAETIES. 223 
 
 on as a fraud on the parent or other individual, from whom she 
 has expectations, who disapproved of the marriage, and might 
 be misled into making a provision for her, which, had he 
 known of the bond, he might have done in such a manner as 
 would have prevented the marriage.* 
 
 FRAUD IN WITHHOLDING CONSENT TO MARRIAGE. 
 
 Gifts and legacies are often bestowed upon persons upon 
 condition that they shall not marry without the consent of 
 parents, guardians, or other confidential persons. If such con- 
 sent to the marriage is withheld from a corrupt motive, the 
 Court of Chancery may interfere. It has been contended that 
 if the person whose consent is req[uired is interested in with- 
 holding it, he must show a reason for his dissent. But if the 
 author of the trust chooses to require the consent of a person 
 whom he knows at the time to have an interest in refusing it, 
 it is difficult to conceive an equity interfering with his choice. 
 At all events no equity will arise if the trustee has meant to 
 act honestly, though his decision may not be the same as that 
 at which the court would have arrived.^ 
 
 FRAUD IN RESPECT OF EXPECTANCIES. 
 
 It would appear to have been partly, if not mainly, on the 
 ground that a bargain with an expectant heir in respect of his 
 expectancy during the life, and without the knowledge of the 
 person from whom the expectancy was looked for, was a fraud 
 on the latter, that a bargain with an expectant heir was liable 
 to be opened and set aside upon the ground merely of under- 
 value.^ A fair and hond fide agreement, however, between 
 expectants to share equally, or in a certain manner, the prop- 
 
 • Woodhouse v. Shcpley, 2 Atk. 536; Sw, 140, 14'^; Kini^ Hamlet, 2 M. <t K, 
 Cock V. Richards, ]0 Ves!" 429. 456. But see now 31 Vict. c. 4, supra 
 
 " Clarke ». Parker, 19 Ves. 1. p. 187 n. 
 
 • Davis V, Duke of ilurlborougli, 2
 
 224 rHAUD UPON THIED PARTIES. 
 
 erty wliicli might be left them, although entered into behind 
 the back of the person from whom the expectancy is looked 
 for, has always been held valid in equity.^ 
 
 FRAUD IN RESPECT OF SALES BY AUCTION. 
 Agreements whereby parties for the purpose of preventing 
 competition at an auction, and of depressing the value of the 
 property below its market price, engage not to bid against each 
 other, have been held in some American cases to operate as a 
 fraud upon third parties.^ * But it is difficult to see upon what 
 principle it can be maintained that a mere agreement between 
 two persons, each desirous of effecting the pm-chase of an 
 
 'Beckley v. Fewland, 2 P. Wms. 182; 29 ; Doolin v. Ward, 6 Johns. ( Amer.) 
 
 Wethered v. Wethered, 2 Sim. 183; 194; Wilbur v. How, 8 Johns. (Amer.) 
 
 Harwo)d v. Tooke, ik 192; Hyde t;. 444; Ilawley v. Cramer, 4 Cow. (Amer.) 
 
 White 5 Sim. 524; Lyde v. Mynn, 1 111; Brisbane v. Adams, 3 Corast. 
 
 M <fe k. 683. See Hougliton y. Lees, 1 (Amer.) 129; Story's Eq. Jur. 293. 
 
 Jur. N. S. 862 ; Heap v. Tonge, 9 Ha. See also Fuller v. Abrahams, 6 Moo. 
 
 100. 316. 
 
 • Jones V. Caswell, 3 Johns. (Amer.) 
 
 * Troup V. Wood, 4 Johns. Ch. 228; Grant v. Lloyd, 12 Smed. & Mar. 
 191; Martin v. Ranlett, 5 Rich. 541 ; Wooten v. Iliukle, 20 Mo. 290; Dud- 
 ley??. Little, 2 Ohio, 508; Piatt v. Oliver, 1 McClenn, 295; Guiickv. Ward, 
 5 Halst. 87 ; Martin v. Blight, 4 J. J. Marsh. 401. 
 
 The law does not tolerate any influence likely to prevent coaipetition 
 at judicial sales, and it accords to every dabtor tlie chances for a fair sale 
 and full price. Cocks v. Izard, 7 Wall. 559. 
 
 It is essential to the validity of tax sales, not merely that they should 
 be conducted in confonnity to the requirement of law, but that they 
 should be conducted with entire fairness. Perfect freedom from all in- 
 fluence likely to prevent competition in the sale should be strictly exacted. 
 Slater r. Maxwell, 6 Wall. 2G8. 
 
 A sale of real estate en masse, instead of in separate parcels, will only 
 be set aside upon the ground of fraud or prejudice to some one's rights. 
 Rose V. Mead, 5 Gilman, 171. 
 
 - The mere fact that the purchase was made by an association formed 
 for the purpose of bidding, does not make a sale void. If the object and 
 puipose of the association are, not to prevent competition, but to enable, 
 or as an inducement to, the persons composing it to participate in the bid-
 
 FRAUD UPON THIRD PARTIES. 225 
 
 estate, that thej will not bid against each other, but that one 
 shall retire and leave the field open to the other, can be held 
 to invalidate the sale, and in two cases before our own courts, 
 an agreement to this effect has been held good.^ 
 
 • The secret employment bj the owner of property of a 
 puffer, or underbidder, at a sale by auction of the property, is 
 at law a fraud upon hona, fide bidders ; nor can the owner bid 
 privately for his own property. All secret dealing on the part 
 of the seller is deemed fraudulent. If he be unwilling that 
 his goods shall be sold at an under price, he may order them to 
 be set up at his own price or not lower, or he may previously 
 declare as a condition of the sale, that it is subject to a reserved 
 price.^ * In equity, however, a vendor could lawfully, without 
 
 ' Galton V. Emuss. 1 Coll. 243 ; Re » Bexwell v. Christie, Cowp. 395 ; 
 
 Carew's Estate, 26 iieav. 187. See also Howard w. Castle, 6 T. R. 042; Thor- 
 
 Pliippen V. Slickuey, 3 Mete. (Amer.) nett v. Haines, 15 M. & W. 367;' Green 
 
 884; Snell v. Jones, 6 Serj. &, R, v. Baverstocke, 14 C. B, N. S. 204. 
 (Amer.) 122. 
 
 ding, the sale will be tiplield. Kearaey v. Taylor, lo How. 494 ; Goode v. 
 Hawkin, 3 Dev. Eq. 393; Smith v. Greenlee, 3 Dev. 136; Smull v. Jones, 
 1 M. & S. 138; Phippen v. Stickney, 3 Mat. 387; contra, Thompson v. 
 Davis, 13 Johns. 113; Dudley ^). Little, 1 Ohio, 503; Switzer v. Skiles, 3 
 Gilman, 539 ; Wolf v. Luyster, 1 Hall, 146. 
 
 A parchuser who uses unfair meaas to prevent competition cannot hold 
 the property. Newman v. Meek, 1 Freeman's Ch. 441 ; Johnston v. La 
 Motte, 6 lUch. Eq. 347 ; Plaster v. Burger, 5 Ind. 333. 
 
 It is no fraud for a purchaser to declare that he intends to give the 
 property to the debtor, or let him redeem, when such is really his intention. 
 To make a purchase void, it must be proved that the property was ob- 
 tained at an undue value an 1 by a f ilse representation. Dick v. Cooper, 
 34 Penn. 317; Benedict v. Gilman, 4 Paige, 58; Brown v. Lynch, 1 Paige, 
 147. 
 
 * Towle V. Leavitt, 33 N. H. 3G0; Moncrieff v. Goldsborough, 4 H. & 
 Mc. H. 381 ; Wolf «. Luyster, 1 Hall, 146; Wood v. Hall, 1 Dsv. Eq. 411 ; 
 Staines ?•. Shores, 16 Penn. 300; Trust v. Dalaplaine, 3 E. D. Smith, 319; 
 Donakboi «. M'Roy, 1 Brown, 346; Smith v. Greenlee, 3 Dev. 12(5; Jen- 
 kins V n )gpr, 3 Const. R. 821; Baham v. Bach, 13 La. 387; Woods ». 
 Hall, 13 La. 411 ; Moreheadii. Hunt, 1 Dev. & Bat. Eq. 35.
 
 226 FEAUD UPON THIRD PARTIES. 
 
 any express stipulation, or without making the fact publicly 
 known, fix a reserved price and employ a person to bid for 
 him, so as to prevent the property going under that price ; but 
 if more than one person be employed to bid, or if the object 
 of the employment of a bidder be to run up and enhance "the 
 price, or if the sale profess to be without reserve and a bidder 
 be nevertheless employed, there is a fraud in equity as well as 
 at law.^ Lord Cranworth, in Mortimer v. Bell,^ and Knight 
 Bruce, L. J., in "Woodward v. Miller,^ animadverted upon the 
 inconvenience of there being a conflict between the rules at 
 law and equity upon the subject, and said they considered the 
 rule at law more salutary than the rule which had been adopted 
 by courts of equity. Witli the view accordingly of obviating 
 this inconvenience in the case of sales by auction of land, and 
 of assimilating the rules of law and equity, it has been lately 
 enacted by 30 & 31 Yict. c. 48, that particulars or conditions 
 of sale by auction of land shall state whether the sale be with 
 or without reserve ; and that, if the sale is stated to be without 
 reserve, the seller may not employ any person for him ; * but 
 that, if the sale is stated to be subject to a reserved price, the 
 seller, or any person named on his behalf, may bid.^ The stat- 
 ute does not affect any species of property other than land. 
 
 VOLUNTARY CONVEYANCES IN FRAUD OF SUBSEQUENT 
 PURCHASERS. 
 
 Another class of frauds upon third parties is that of volun- 
 
 » Smith V. Harke, 12 Ves. 411; '' L. R. 1 Ch. App. 10. 
 
 ■Wood.vai-d v. Millt-r, 2 Coll. 279; Rob- » 2 Coll. 279. 
 
 inson v. Wall, 2 Ph. 372; Flint v. •• Sec. 5. 
 
 Woodin, 9 Ua. 618. " Sec. 6. 
 
 An auctioneer cannot make fictitious bids. Veazie v. Williams, 8 How. 
 134. 
 
 An auctioneer who sells below tlie sum fixed by the vendor, is liable 
 for the difference. Steele v. Ellmaker, 11 S. & R. 86.
 
 FEAUD UPON THIRD PARTIES. 227 
 
 tary conveyances of real estate in regard to subsequent pur- 
 chasers. By tlie 27 Eliz. c. 4, made perpetual by 39 Eliz. c. 
 18, § 31, all conveyances, &c., of any hereditaments for the 
 intent and purpose to deceive purchasers are made void as 
 against them.^ Courts of equity had jurisdiction in the matter 
 long before the statute. The act has not defeated the jurisdic- 
 tion, but only gives a more clear and distinct jurisdiction, and 
 a more extended remedy .^ A voluntary conveyance, is, by the 
 statute, void as against a subsequent purchaser, although it 
 may have been hond fide and for good consideration, and 
 although the purchaser may have had full notice of the volun- 
 tary conveyance. The statute in every such case infers fraud, 
 and will not allow the presumption to be rebutted.^ * A vol- 
 untary conveyance will not be supported against a subsequent 
 
 • See Perry Herrick v. Attwood, 2 D. vertoft v. rulvertoft, 1 8 Ves. 84, 86 ; 
 ^ J 21. Buclde V. Mitchell, ib. 100; Kelson w. 
 
 2/5 ' Kelson, 10 Ha. 385; Dakin;^- r. Whim- 
 
 * Taylor v. Stile, cit. Su?. V. & P per, 26 Beav. 508 ; Clarke v. Wriglit, 6 
 714; Evelyn v. Templar, 2'Bro. C. C. H. «fe N. 849. 
 
 148 ; Doe v. Manning, 9 East, 59 ; Pul- 
 
 ♦ Clanter «. Burgess, 2 Dev. Eq. 13; Freeman v. Eatman,,3 Irocl. Eq. 
 81 ; Andsrson v. Green, 7 J. J. Marsb. 448 ; Bariincas3 «. M'Murray, 3 Bre- 
 vard, 204 ; Carter v. Cartlebury, 5 Ala. 377 ; Latter v. Morrison, 1 Ired. 
 149; Elliott V. Horn, 10 Ala. 348; Ricker ®. Ham, 14 Mass. 137; Clapp 
 V. Tirnll, 20 Pick. 247; Tate v. Leggatt, 3 Leigh, 84; Bell v. Blaney, 2 
 Murph. 181. 
 
 The received construction in England of the British statutes at the 
 time of our separation from the British empire, may be considered as accom- 
 panying the statutes and foraiing an integral part of them. Subsequent 
 decisions are entitled to respect, but are not absolute authority. At the 
 commencement of the American Revolution the construction of the statute 
 of 27th Elizabeth was not settled. The principle adopted in this country 
 in continuing the statute, is, that a subsequent sale without notice by a 
 person who has made a settlement not on valuable consideration, is pre- 
 sumptive evidence of fraud, and throws on the person claiming under such 
 settlement the burden oT proving thit it was madj honl Jide. Calhcartt). 
 Robinson, 5 Pet. 264 ; Lyne v. Bank of Kentucky, 5 J. J. Marsh. o45 ; Ver-
 
 228 FRAUD UPON THIRD PARTIES. 
 
 purchaser, even altliongli it may have been made by the direc- 
 tion of the com-t.^ A purchaser cannot, however, avail himself 
 of the provisions of the statute unless he has purchased lond 
 fide and for a valuable consideration. The consideration must 
 
 'Martin v. Martin, 2 R. & M. 507; Dart, V. <fc P. 576. 
 
 planet v. Sterry, 12 Jolins. 536 ; s. c. 1 Johns. Ch. 260 ; Bank of Alexan- 
 dria V. Patton, 1 Rob. 499 ; Lancaster v. Dolan, 1 Rawle, 231 ; Footman v. 
 Pendergrass, 3 Rich. Eq. 38 ; Corprew v. Arthur, 15 Ala. 525 ; Mayor t& City 
 Council of Baltimore v. Williams, 6 Md. 235; Fowler v. Stoneum, 11 Tex. 
 478 ; Wells v. Treadwell, 28 Miss. 717 ; Brown v. Bucks, 22 Geo. 574 ; Gard- 
 ner «. Booth, 31 Ala. 136 ; Gardner v. Cole, 21 Iowa, 205 ; Jackson v. Town, 
 4 Cowen, 603 ; Seward v. Jackson, 8 Cow. 406 ; Wickes v. Clarke, 8 Paige, 
 165 ; Beal v. Warren, 2 Gray, 440 ; Salmon v. Bennett, 1 Ct. 525. 
 
 The act does not apply to conveyances made by the State, because it 
 operates upon the intent of the person conveying, and the State cannot 
 legally be said to intend to defraud any person. Dodson v. Cooke, 1 Over- 
 ton, 314. 
 
 The same circumstances wbich would render a deed fraudulent if the 
 grantor had owned the legal estate, likewise render it fraudulent considered 
 as a mere assignment of his equity. The claimant of an equity whose 
 claim is based upon a valuable consideration, must prevail over a prior 
 claim to the same equity based upon a good consideration merely. Lyne 
 «. Bank of Kentucky, 5 J. J. Marsh. 545. 
 
 To make a voluntaiy conveyance void, it must be covinous and fraud- 
 ulent, and not voluntary merely, and the evidence of fi-aud must be 
 pointed. Clayton v. Brown, 17 Geo. 217 ; Cooke v. Kell, 13 Md. 469. 
 
 The doctrine only applies where both conveyances are made by the 
 same person. Russell v. Kearney, 27 Geo. 96 ; Bell v. McCauley, 29 Geo. 
 355. 
 
 A voluntary conveyance without actual fraud is valid agf\inst a subse- 
 quent purchaser for valuable consideration with natice of the prior con- 
 veyances. Bank of Alexandria v. Patton, 1 Rob. 499 ; Anderson v. Green, 
 7 J. J. Marsh. 448 ; Foster v. Walton, 5 Watts, 378 ; Hudnal t\ Wilder, 4 
 McCord, 294; Footman v. Pendergass, 3 Rich. Eq. 33; Frisbie v. McCarty, 
 1 Stew. & Port. 68; Mayor & C. C of Baltimorj v. Williams, 6 Md. 235; 
 Dougherty «. Jack, 5 Watts, 456; Speise v. McCoy, 6 W. & S 485 ; Moul- 
 trie V. Jennings, 2 McMullan, 508 ; Howard «. Williams, 1 Bailey, 575 ; 
 Sanger v. Eastwood. 19 Wend. 514 ; Shaw v. Levy, 17 S. & R. 99 ; Tate v. 
 Liggatt, 2 Leigh, 84 : Hiatt v. Wade, 8 Ired. 340 ; Brown v. Buck, 22 Geo. 
 574 ; Chaffin v. Kimball, 23 I'.l. 36 ; Coppage v. Barnett, 34 Miss. 021 ; 
 Enders v. Williams, 1 Met. (Ky.) 346 ; Aiken v. Bruen, 21 Ind. 137.
 
 FEAUD VVO'S THIRD PAETIES. 229 
 
 not be so small as to be palpably fraudulent.^" In order that 
 a subsequent conveyance for value should defeat a prior volun- 
 tary conveyance, it is also essential that both conveyances 
 should be made by the same person. An heir or devisee can- 
 not by a conveyance for value defeat a voluntary settlement 
 made by his ancestor or testator ; ^ nor will equity interfere in 
 favor of a subsequent purchaser, where the voluntary grantee 
 has conveyed it to a ho7id fide purchaser for value, or a person 
 has intermarried with the voluntary grantee, on the faith of the 
 voluntary deed, before the 'bond fide purchaser from the volun- 
 tary grantee acquired his title.^f 
 
 A contract to sell the settled estate to a person with full 
 notice of the voluntary settlement, will be enforced at the suit 
 
 ' Hnrnphreys v. Pensam, 1 M. AC. • Parker v. Carter 4 Ha. 409 ; Doe 
 
 580; Roberts v. Williams, 4 Ila. 130: v. Rusliam, 17 Q. B. ^'iS; Lewis v. 
 
 Kelson v. Kelson, 10 Ha. 385; Sug. V. Rees, .3 K. <fe J, i;?2 
 
 <fe P. 713. * aug. V. <fe P. 720, 721. 
 
 A record of a deed is constructive notice to all subsequent purchasers. 
 Cooke «. Kell, 13 Md. 469 ; Bell ®, Blaney, 2 Murph. 171 ; Cain « Jones, 5 
 Yerg. 249 ; Bank of Alexandria «. Patton, 1 Rob. 499 ; Lancaster v. Dolan, 
 1 Rawle, 231 ; M'Xeely v. Rucker, 6 Blackf. 391 ; contra, Lewis v. Love, 3 
 B. Mon. 345 ; Enders v. Williams, 1 Met. (Ky.) 34(5. 
 
 When a deed is actually fraudulent, the constructive notice arising from 
 recording will not defeat the right of a subsequent purchaser. Gardner 
 V. Cole, 21 Iowa, 205. 
 
 * FuUenwider v. Roberts, 4 Dev. & Bat. 278 : Tate v. Tate, 1 Dev. & 
 Bat. Eq. 22. 
 
 No man is a subsequent purchaser except him to whom a conveyance 
 has been executed for a valuable consideration, by which there is conveyed 
 to him an estate in the premises either of freehold or for years or some rent 
 or profit therein. A covenant to convey is no such sale as constitutes the 
 covenantee a subsequent purchaser. He must have a legal title such as he 
 can enforce at law, and not a mere equity. Hopkins «. Webb, 9 Humph. 
 519. 
 
 t Anderson v. Green, 7 J. J. Marsh. 448; Sterry v. Arden, 1 Johns. Ch. 
 260.
 
 233 FRAUD uro:^ third pahties. 
 
 of ihe piircliaser ; ^ but the seller cannot compel a specific per- 
 formance of the contract.'^ A trust created by a voluntary 
 settlement will be carried into execution until sale ; but an 
 injunciion -will not be granted restraining the settler from 
 defeating the settlement by a sale,^ nor will the pendency of a 
 suit prevent the settler from selling the property, or the 
 purchaser from filing a bill in order to enforce his rights under 
 the contract.* When a voluntary settlement is avoided by a 
 Bubsequent sale, the volunteers have no ecLuity against the 
 purchase money payable to the settler." 
 
 As between the parties themselves, and as against other 
 voluntary grantees of the same estate, voluntary conveyances 
 are binding.^ * A voluntary settlement will be defeated by a 
 conveyance or settlement for value only to the extent neces- 
 sary to give effect to the conveyance or settlement for value.' 
 As between two volunteers, the conveyance which is prior in 
 date will prevail, if it be ho?id fide?' A subsequent volunteer 
 cannot, by selling for value, confer any title on a purchaser as 
 against a grantee of the same estate who is prior in date." A 
 judgment creditor not being a purchaser within the meaning 
 of the statute, has no title on that ground to set aside a prior 
 voluntary settlement.^" f Though a settlement may appear on 
 
 'Buckle V. Mitchell, 18 Yes. 100; •Bill v. Cureton, 2 M. A K. 503; 
 
 Currie v. Nind, 1 M. &. C. 17; Willats Doe v. Paisham, 17 Q. B. 723; Lewis v. 
 
 V. Busby, 5 BeaT. 193; Lister v. Tur- Kees, 3 K. <fe J. 132. 
 
 per, 5 Ha. 291 ; Su?. V. <fe P. 720. ' Croker v. Martin, 1 Bligh's K S. 
 
 " Smith V. Garland, 2 Mer. 123; 673. 
 
 Johnson >•. Legard, T. & R. 281. " Doe v. Rusham, 17 Q. B. 723; 
 
 ' Pulyerto.t V. Pulvertoft, 18 Yes. 84. Lewis v. Rees, 3 K. <fe J. 132. 
 
 « Metcalfe v. Pulvertoft, 1 Y. <k B. " lb. 
 
 180; Sug. V. <fe P. 721. '" Beavan v. Lord Oxford, 6 D. M, A 
 
 * Daking v. Whimper, 26 Bcav. 568. G, 507. 
 
 * Tate T). Tate, 1 Dev. & Bat. Eq. 23 ; Clapp v. Tinell, 1 Pick. 247. 
 
 t There is no material difference between a judicial sale and a private 
 sale. Reynolds v. Yilas, 8 "Wis 471 ; Latta b. Morrison, 1 Ired. 149; contra^ 
 Ridgway v. Underwood, 4 Wash. 139.
 
 FRAUD UPOX THIRD PARTIES. 231 
 
 its face to be volnntaiy, evidence is admissible to prove that 
 it was made for valuable consideration.^ In the case of deeds 
 alleged to be voluntary, the court does not enter into the 
 quantum of consideration ; but only inquires whether the 
 transaction was one of bargain or one of gift merely.^ In a 
 case where an agreement was entered into between a lady, 
 entitled in fee to an estate subject to mortgages, and her 
 nephew, that she should come and live with him, and that he 
 should remove into a larger house, and he covenanted to 
 indemnify her from all liability in respect of the mortgages, 
 and fulfilled his own part of the agreement, it was held that 
 the settlement was not voluntary, the covenant to indemnify, 
 and the expenses incurred by the nephew on the faith of the 
 
 'Kelson v. Kelson, ]0 Ha. 385; » Townend v. Toker, L. R. 1 Ch. Ajip. 
 
 Townend v. Toker, L. R. 1 Lh. App. 4D9. 
 459. 
 
 A puTcTiaser from an executor is within tlie statute. Clapp ■». Leather- 
 bee, 18 Pick. 131. 
 
 A mortgagee is a purchaser for a valuable consideration. Lewis v. 
 Love, 3 B. Mon. 345 ; Lancaster v. Dolan, 1 Rawle, 231 ; Freeman i. Lewis, 
 5 Irecl. 91; Potts v. Blackwell, 3 Jones' Eq. 449; s. c 4 Jones' Eq. 58; 
 Ledgard «. Butler, 9 Paige, 132. 
 
 A deed made exclusively with the design to defraud creditors can not 
 be considered as having been made with the design to defraud purchasers. 
 Foster v. Walton, 5 Watts, 378; Shaw v. Levy, 17 S. »& R. 99 ; Danglass v. 
 Dunlap, 10 Ohio, 162; Sanger v. Eastwood, 19 Wend. 514; Te.isdale v. 
 Atkinson, 3 Brevard, 48 ; Woodman v. Bodfish, 25 Me. 317 ; Fowler v. 
 Stoneum, 11 Tex. 478 ; Moscley v. Moseley, 15 N. T. 334 ; Doolittle v, 
 Lyman, 44 N. U. 608; Stevens v. Morse, 247 N. H. 532. 
 
 If there is any fraud in a voluntary conveyance, or it is merely color- 
 able, it can never be set up against a subsequent purchaser for a valuable 
 consideralion. Clapp r. Leatheibee, 18 Pick. 131; Ricker v. Ham, 14 Mass. 
 137 ; Kiuiball v. Hutchins, 3 Ct. 450 ; Eddins v. Wilson, 1 Ala. 237 ; Carter 
 V. Castleberry, 5 Ala. 377 ; Fullenwider v. Roberts, 4 Dev. & Bat. 278 ; 
 Walter v. CruUe, 8 B. Mon. 11 ; How v. Waysman, 12 Mo. 169.
 
 232 FRAUD UPON THIRD PARTIES. 
 
 settlement being nominally sufficient to support it as made for 
 value.^ 
 
 Prenuptial settlements, and postnuptial settlements in 
 pursuance of prenuptial articles, or on receipt of an additional 
 portion, &c., &c., are settlements for valuable consideration, 
 and are therefore good against subsequent purchasers or prior 
 voluntary grantees, as the case may be.^ * So also, in certain 
 cases, the concurrence of a stranger may deprive a postnuptial 
 settlement of its voluntary character ; ^ but as a general rule a 
 postnuptial settlement is voluntary.^ The marriage considera- 
 tions run through the whole settlement, as far as it relates to 
 the husband, and wife, and issue ; but does not extend to 
 remainders to collateral relations, so as to support them against 
 a subsequent sale to a hondfide purchaser.^ A marriage settle- 
 ment so far as it is made in favor of collaterals, is voluntary, 
 and therefore fraudulent and void as against subsequent pur- 
 chasers, though made honestly and openly to provide for the 
 settler's wife and children,® or his mother and younger 
 brothers and sisters,' or for a niece and adopted daughter.^ 
 Il^o moral consideration, however strong, is sufficient to sup- 
 port a settlement against a purchaser ; ^ but if the remainders 
 are specifically contracted for, and brought within the con- 
 sideration,^" or if the limitation in the settlement so interfere 
 with those which would naturally be made in favor of the 
 husband, wife, and issue, that it must be presumed to have 
 been agreed upon by all parties as part of the marriage con- 
 
 1 
 
 * Townend v. Toker, L. R. 1 Ch. App. * Chapman v. Emery, Cowp. 278, 280. 
 459. ' Doe v. Manning, 9 East, 59. 
 
 " Su2:.V. &P. T18 ; Dart's V. & P. 576. « Smith v. Chen-ill, L. R. 4 Eq. 390, 
 
 » Dart's V. & P. 576, 577. • But see Clarke v. Wright, 6 H. <fe 
 
 * Sug. V. & P. 715. K 872, j»e>- Cockburn, C. J. 
 ^ Jol)nson V. Legard, 6 M. & S. 60; " Sug. V. & P. 716. 
 
 T. & R. 281 ; Sug. V. & P. 716. 
 
 * Yerplanck v. Sterry, 13 Johns. 536 ; 8. c. 1 Jolms. Ch. 360.
 
 FRAUD UPON THIRD PARTIES. 233 
 
 tract, it is not voluntaiy, and will be supported against a sub- 
 sequent purchaser.^ 
 
 The statute 27 Eliz. c. 4, further makes void as against 
 subsequent purchasers for money or other good consideration 
 all conveyances made with any clause, provision, article, or 
 condition of revocation, determination or alteration at the 
 grantor's will or ])leasure, whether such clause, &c., &c., ex- 
 tend to the whole interest actually conveyed or only partially 
 affect it.^ 
 
 The statute 27 Eliz. c. 4, does not apply to personal chat- 
 
 tels.3* 
 
 A purchaser for value of real estate cannot come into the 
 Court of Chancery to have a prior voluntary deed void under 
 27 Eliz. c. 5, delivered up to be cancelled. The court, in such 
 a case, leaves both parties to their legal rights and remedies.* 
 
 NOTICE. 
 
 Another class of frauds upon third parties consists of cases 
 where a man takes or purchases property with notice of the 
 
 ' Clarke v. Wright, 6 H. <fe K 869, on this subject Sug. V. <feP. 721 ; Darfs 
 per Blackburn and Willes, JJ. ; Dart's V. & P. 584. 
 
 V. & P. 578-581; but see 6 H. & N. Mones v. Croucber, 1 Sim. <fe St. 
 
 869, per Williams, J. 315 ; Bill v. Cureton, 2 M. <fe K 503; 
 
 ^ Burt Real Prop. §. 224. See further Barton v. Vanbeythuj'sen, 11 Ha. 126. 
 
 * De Hoghton v. Mouey, 35 Beav. 98. 
 
 * Davis V. Bigler, 63 Perm. 242; Teasdale v. Atkinson, 2 Brevard, 48; 
 Bewail V. Gliddon, 1 Ala. 52 ; Bolin i). Headley, 7 H. & J. 257 ; Garrison 
 V. Rives, 3 Jones, 85 ; Jones v. Hall, 5 Jones' Eq. 26. 
 
 Although the terms of the act apply only to land, yet, being declaratory 
 of the common law, they must be interpreted as defining the nature and 
 effect of fraudulent conveyances, generally, in its letter, as enacting the 
 common law as to fraud relating to land, but in its spirit sanctioning and 
 sustaining the condemnation passed by the common law ui)on all frauds. 
 Gibson v. Love, 4 Fla. 217 ; Footman v. Pendergrass, 3 Rich. Eq. 33. 
 
 If tbe vendee allows personal property to remiiu in the possession of 
 16
 
 234 PRAUD UPON THIRD PARTIES. 
 
 legal or equitable title of other persons to the same property, 
 and seeks to defeat their just rights by appropriating the 
 property to his own use. In equity notice affects the con- 
 science. A man M'ho takes or purchases property cannot 
 protect himself against claims, of which he has notice, to the 
 same property. If a man acquiring property has at the time 
 of the acquisition notice of an equity binding the person from 
 whom he takes, in respect of the property, he is bound to the 
 same extent and in the same manner by the same equity.'' * In 
 accordance with this principle the purchaser of property from 
 a trustee, with notice of the trust, is himself a trustee for the 
 same property ; ^ the purchaser of property which the vendor 
 has contracted to sell, is, if he has notice of the contract, 
 bound by the same equity by which the vendor whom he 
 represents was bound ; ^ the purchaser of property with notice 
 of an equitable lien for unpaid purchase-money,* or of an 
 equitable mortgage by deposit of deeds,^ is bound by the 
 equity to which his vendor was liable ; and the purchaser of 
 
 ' Taylor v. Stibbert, 2 Ves. Jr. 437 ; Roland, 1 Dr. & Wal. 37. See Dowell 
 
 Dunbar v. Tredennick, 2 Ba. & Be. 310. v. Dew, 1 Y. & C. C. C. 345. 
 
 * Saunders v. Dehew, 2 Vern. 271; ^ Macreth v. Symons, 15 Ves. 350; 
 
 Allen V. Knight, 5 Ha. 272; 11 Jur. Rice y. Uice, 2 Drew. 73. 
 527; Carter v. Carter, 3 K. & J. 617; ' Plumb v. Fluitt, 2 Anst. 432; Hiern 
 
 Cory V. Eyre, 1 D. J. & S. 149. v. Mill, 13 Ves. 114 ; Dryden v. Frost, 
 
 » Taylor v. Stibbert, 2 Ves. Jur. 438; 3 M. <fe C. 670 ; Leigh v. Lloyd, 2 D. J, 
 
 Scott V. Dunbar, 1 MoU. 442 ; Field v. & S. 330. 
 
 tlie vendor, and the vendor sells it again to a bon I fide iiurchr.ser without 
 notice, he can not recover it. Shaw v. Levy, 17 S. «& R. 99 ; Davis v. 
 Bigler, 62 Penn. 242; Fleming v. Townsend, 6 Geo. 103; Hudiial v. 
 Wilder, 4 McCord, 295 ; Harper -o. Scott, 12 Geo. 125. 
 
 To sustain a voluntary conveyance of personal property against a sub 
 sequent purchaser for value, the notice must be actual, and not by recrrl. 
 Fleming v. Townsend, C Geo. 103 : Fowler v. Waldrip, 10 Geo. 350; Har- 
 per r. Scott, 12 Geo. 125. 
 
 * Caldwell v. C.arrjigton, 9 Pet. 86; Mas^y r. Mcllvaiu, 2 Hill's Ch. 
 421; Allen r. Sanders, 2 Bibb, 94; Yodcr v. Swope, 3 Bibb, 204; Lang- 
 dou t. Woodfield, 2 B. Mon. 105 ; Edwards v. Morris, 2 A. K. Marsh. 65; 
 Moreland r. LeMaster, 4 Blackf. 383.
 
 FRAUD UPON THIRD PARTIES. 235 
 
 land whicli the vendor has covenanted to use in a specified 
 manner is, if he has notice of the covenant, bound by its 
 terms.* 
 
 It must, however, be observed that the notice required by 
 the doctrine is notice of an equity, which, if clothed with legal 
 completeness, would be indefeasible, and not merely notice of 
 a defeasible legal interest, or of an interest which, if legal, 
 would be defeasible. The principle is, that an interest which, 
 if legal, would be indefeasible shall not be defeated by reason 
 of its equitable character by a party who has notice of it ; if, 
 being legal, it may be defeated at law, there is no equity to 
 support it;^ A voluntary conveyance, for instance, has no 
 equity to support it against a subsequent alienation for value, 
 even though with notice, for the right of the volunteer is 
 defeasible by statute.^ A feme covert or an infant is just as 
 much bound by notice as an adult.'* 
 
 Notice is either actual or constructive ; but there is no 
 difference between them in its consequences.' Actual notice 
 consists in express information of a fact, and brings home 
 knowledge directly to a party. Actual notice must, in order 
 to be binding, at least when it depends on oral communication 
 only, proceed from some one interested in the property,® and 
 should be in the same transaction. Mere vague rumors, or 
 the assertions of strangers, will not fix a party with actual 
 notice.' Actual notice embraces all degrees and grades of 
 
 ' Tulk V. Moxbay, 2 Ph. 7Y4 ; Coles v. * Sheldon v. Cox, 2 Eden, 22 1 ; Pros- 
 
 Sims, 5 D. M. & G. 1; De Mattos v. ser v. Kice, 28 Beav. 68; Wormald y 
 
 Gibson, 4 D. <fe J. 282. Maitland, 35 L. J. Cli. 69. 
 
 * Ad.'ims' Doct. Kquity, 152. ° Earnhardt v. Greenshields, 9 Moo. 
 'PulvcTioltt;. Pulvertoft, 18 Ves. 92; P. C. C. 18. See Greeushule v. Dare, 
 
 Buckle V. iMitchell, ih. 100. 20 Beav. 284 ; Jay v. Richardson, 30 
 
 * Jones V. Kearney, 1 Dr. & War. Beav. 563. 
 
 166, ^ Sug. V. <fe P. 755, See Greenslade 
 
 ♦Flagg V. Mann, 2 Sumner, 484; Eply v, Witherow, 7 Watts, 163; 
 Jaraea v. Drake, 3 Sneed. 340 ; Black v. Thornton, 31 Geo. 641.
 
 23G FRAUD UPON THIED PARTIES. 
 
 evidence, from the most direct and positive proof to tlie 
 slightest evidence from which a jury would be warranted in 
 inferring notice. It is a mere question of fact, and is open to 
 every species of legitimate evidence which may tend to 
 strengthen or impair the conclusion.^* 
 
 Whatever is notice enough to excite the attention of a 
 man of ordinary prudence and call for further inquiry is, in 
 equity, notice of all facts to the knowledge of which an inquiry 
 suggested by such notice, and prosecuted with due and reason- 
 able diligence, would have led.^ f Notice of this sort is called 
 constructive notice. Constructive notice, as distinguished 
 from actual notice, is a legal inference from established facts, 
 and, like other legal presumptions, does not admit of dispute.^ 
 If a man has actual notice of circumstances sufficient to put a 
 man of ordinary prudence on inquiry as to a particular point, 
 the knowledge which he might, by the exercise of reasonable 
 diligence, have obtained will be imputed to him by a court of 
 
 V. Dare, 20 Beav. 284 ; Central Railway v. Homan, 4 H. L. 997 ; Dawson v. 
 
 Co. of Venezuelan Kisch, 2 L. R. App. Prince, 2D. <fe J. 41 ; Perry v. Holl, 2 
 
 Ca. 112; Hamilton v. Royse, 2 Sch. & D. F. & J. 38 ; Broadbent v. Barlow, 3 
 
 Lef. 315. D. F. & J. 570; Dettmar v. Metropoli- 
 
 ' Williamson v. Brown, 1 Smith tan and Provincial Bank, 1 H. <fe M. 
 
 Amer.), 359, yjer Selden, J. See Bour- 641. 
 sot V. t?ava2;e, L. R. 2 Eq. 134. ^ Williamson v. Brown, 1 Smith 
 
 ^ Maitland v. Backhouse, 17 L. J. Ch. (Amer.) So9, per Selden, J.; Birdsall v. 
 
 121; Espey v. Lake, 10 Ha. 260; Russell, 2 Tilf. (Amer.) 249. 
 Mangles v. Dixon, 3 H. L. 702 ; Owen 
 
 There is no rule of law which makes a statement of a fact in a news- 
 paper either actual or constructive notice. It is not sufficient to show 
 that a person was in the habit of reading the paper. It must be proved 
 that he read it. Lincoln r. Wright, 23 Perin. 76. 
 
 * Williamson v. Brown, 15 N. Y. 354. 
 
 t Galatian v. Erwin, 1 Hopk. 48 ; Koberts v. Anderson, 3 Johns. Ch. 
 371 ; Pitney v. Leonard, 1 Paige, 461 ; Blaisdell v. Stevens, 16 Vt. 173 ; 
 Stafford v. Ballou, 17 Vt. 329; Peters v. Goodrich, 3 Ct. 146; Booth v. 
 Baruum, 9 Ct. 286 ; Bingaman v. Hyatt, 1 Smed. & Mar. Ch. 437.
 
 FRAUD UPON THIRD PARTIES. 237 
 
 equi-ty. The presumption of the existence of knowledge is so 
 strong that it cannot be allowed to be rebutted.^ ^ 
 
 There is, however, no constructive notice unless it clearly 
 appear that the inquiry suggested by the facts known or dis- 
 covered would, if fairly pursued, result in the discovery. 
 There must appear to be in the nature of the case such a con- 
 nection between the fact discovered and the further facts to be 
 discovered that the former may be said to furnish a clue — a 
 reasonable and natural clue — to the latter.'^ 
 
 The doctrine of constructive notice applies with peculiar 
 force where the court is satisfied that a man has designedly ab- 
 stained from inquiry for the very purpose of avoiding knowl- 
 edge, Wilful ignorance is not to be distinguished, in its 
 equitable consequences, from actual knowledge.^ If, however, 
 
 ' Plumb V. Flintt, 2 Anst. 438, per C. * Birdsall v. Russell, 2 Tiff. (Amer.) 
 
 B. Eyre ; Hewitt v. Loosemore, 9 Ha. 250. 
 
 455. per Turner, L. J. ; Espiti v. Pem- ' Jones v. Smith, 1 Ha. 55, 1 Ph. 
 
 berton, 3 D. <k J. 554, joer Lord Chelms- 244; Oweu v. Hoinan, 4 H. L. 997, 
 
 ford. 1035. 
 
 * Davis V. Bigler, 63 Penn. 242 ; Harris v. Carter, 3 Stew 233; Hinda 
 «. Vattier, 1 McLean, 110; Pearson v. Daniel, 2 Dev. & Bat. Eq. 360; 
 Lasselle v. Burnett, 1 Blackf. loO ; Cotton v. Hart, 1 A. K. Marsh. 56. 
 
 The principle of the doctrine of constructive notice is, that where a 
 person is about to perform an act by which he has reason to believe that 
 the rights of a third party may be affected, an inquiry into the fact is a 
 moral duty and diligence an act of justice. Hence he proceeds at his 
 peril when he omits to inquire, and is then chargeable with a knowledge 
 of all the facts which, by inquiry, he might have ascertained. This 
 neo-lcct is followed by all the consequences of bad f\iith, and he loses the 
 protection to which his ignorance, had it not proceeded from neglect, 
 would have entitled him. The rule is the same in courts of law or equity, 
 and in both the term notice must receive the same interpretation. It must 
 either be limited to strict knowledge which is derived from positive infor- 
 mation, or must be extended to that which the law imputes to him who, 
 having reason to believe or suspect, neglects to inquire. Pringle v. Philips, 
 5 Sandf. 157. 
 
 The presumption of notice which arises from proof of that degree of 
 knowledge which will put a party upon inquiry, is not a presumption of
 
 238 PEAUD UrON THIRD PARTIES. 
 
 a man abstain from inquiry where inquiry ought to have been 
 made, it is immaterial that the neglect to make inquiry may 
 not have proceeded from any wish to avoid knowledge. It 
 may be that inquiry might not have brought out the truth ; 
 but a man who abstains from inquiry where inquiry ought to 
 have been made, cannot he heard to say so and to rely on his 
 ignorance.** In the absence of inquiry, where inquiry ought 
 to have been made, the court is bound to assume that the per- 
 son from whom inquiry should have been made would liave 
 done what it was his duty to do.^ A man cannot escape being 
 fixed with constructive notice by not using the ordinary cau- 
 tion of employing a solicitor to protect his interest. If a man 
 employs no solicitor he will be held to have exactly the same 
 knowledge, and will be liable to the same extent as if he had 
 employed a solicitor.^ 
 
 If mere want of caution as distinguished from gross and 
 culpable negligence is all that can be imputed to a man, the 
 doctrine of constructive notice will not apply.* The doctrine 
 does not go to the extent of fixing a man with such knowledge 
 as he might by the exercise of extreme and exti-aordinary cau- 
 tion have obtained. A man is in no case bound to use every 
 exertion to obtain information. The want, indeed, of that 
 
 ' Jones V. Smith, 1 Ha. 43 ; West v. * Kennedy v. Green, 3 M. & K. 699; 
 
 Reid, 2 Ha. 249 ; Maitlaiid v. Back- Harrison v. Guest, 6 D. M. <fe G. 428 8 
 
 house, n L. J. Ch. 12] ; Jones v. Wil- H. L. 481. 
 
 liams, 24 Beav. 47 ; Mayor of Berwick ' Jones v. Smith, 1 Ha. 55 ; West v 
 
 V. Murray, 7 D. M. & G. 497 ; General Reid, 2 Ha. 249, 259; Waret;. Egmonti 
 
 Steam Navigatoo Co. v. Rolt, 6 C. B. 4 D. M. & G. 460; Wilson v. Hart 2 
 
 N. S. 550. See Farrant v. Blauchford, H. <k M. 551, See Dodds v. Hills 'ib 
 
 1 D, J. & S. 107. 426, 
 
 " Knight V. Boyer, 2 D, <t J. 450. 
 
 law but of fact, and may be rebutted by proof of diligent inquiry, Wil- 
 liumson «. Brown, 15 N. T. 854; Massie v. Greeuhow, 2 Pat. »& Heath 
 255; Hoyt v. Sheldon, 3 Bosw. 2G7, 
 
 * Oliver v. Piatt, 3 How. 333 ; Jenkins v. Eldridge, 3 Story, 131 • Pit. 
 ney v. Leonard, 181,
 
 FEAUD UPON THIRD PARTIES. 239 
 
 caution wliich a wary and prudent man miglit, and probably 
 would have adopted, is not sucli negligence as will affix a party 
 with notice of what he might have ascertained.^ Tlie means 
 of knowledge by which a man will be affected with notice 
 must be means of knowledge which are practically within 
 reach, and of which a reasonable man or a man of ordinary 
 prudence might have been expected to avail himself.^ Mere 
 suspicion or vague and indeterminate rumor is not sufficient to 
 put a man upon inquiry.^* There must be a reasonable cer- 
 tainty as to time, place, circumstances, or persons.* The ques- 
 tion is not whether a man had the means of obtaining, and 
 might by prudent caution have obtained, the knowledge in 
 question, but whether the not obtaining it was an act of gross 
 and culpable negligence." f I^egligence supposes a disregard 
 
 ' ITill V. Simpson, V Ves. 169 ; Whit- Hine v. Dodd, 2 Atb. 2*75. See Central 
 
 bread v. Jordan, 1 Y. & C. 317; Jones Railway Co. of Venezuela v. Kisch, 2 
 
 V. Smith, 1 Ph. 257; West v. Reid, 2 L. R. App. Ca. 112. 
 Ha. 250 ; Ware v. Egmont, 4 D. M. & * Story's Eq. Jur. 400; General Steam 
 
 G. 4G() ; Stephenson v. Royse, 5 Ir. Ch. Navigation Co. v. Rolt, 6 C. B. N. S. 
 
 401; He I\ati(jiial Life Assurance and 550. See Blacklow i'. Laws, 2 Ha. 48. 
 Investment Association, 31 L. J. Ch. * Ware i'. Ei^niont, 4 D. M. A O. 460 ; 
 
 828. See Dawson v. Prince, 2 D. <fe J. Montefiore v. Browne, 7 IL L. 241. See 
 
 41; Greenslade v Dare, 20 Beav. 284; Borell v. Dann, 2 Ha. 446; Greenslade 
 
 Dodds V. Hills, 2 H. & M. 424. v. Dare, 20 Beav. 284 ; Tildesley v. 
 
 ^ Jackson v. Rowe, 2 Sim. <fe St. 472 ; Lodge, 3 Sm. & G. 543 ; Re National 
 
 Broadbent v. Barlow, 3 D. F. <t J. 570. Life Assurance and Investment Asso- 
 
 ' Whiltield v. Fausset, 1 Ves. 392; elation, 31 L. J. Ch. 828. 
 
 * "Wilson V. McCullough, 23 Penn. 440 ; Lament i\ Stimson, 5 Wis. 443; 
 Colquitt V. Thomas, 8 Geo. 258. 
 
 Circumstances, suiBcient to raise suspicion, are constructive notice. 
 Bunting V. Kicks, 2 Dev. & Bat. Eq. 130. 
 
 A rumor is notice if it turns out to be correct, for it is sufficient to put 
 the party upon inquiry. Benzein v. Lenoir, 1 Dcv. Eq. 225. 
 
 Although the party whose interest would prompt him to misrepre- 
 sent, asserts that an incumbrance has been paid off or discharged, wilhout 
 furnishing any proof whatever, or referring to any circumstances in sup- 
 port of his assertion, the purchaser who fails to make further inquiry will 
 nevertheless be guilty of such a degree of negligence that he will be con- 
 Bidercd as having notice. Rice v. McDonald, 6 Md. 403. 
 
 t Wi'son v. Wall. 6 Wall. 83 ; Woodworth v. Paige, 5 Ohio St. R. TO ; 
 Briggs V. Taylor, 28 Vt 180.
 
 240 FRAUD UPON THIRD PARTIES. 
 
 of some fact known to a man wliicli at least indicates the 
 existence of that fact, notice of which the conrt imputes 
 to him.^ There is often much difficulty in drawing the line 
 "between the degree of negligence, wliich shall be gross negli- 
 gence, and that mere want of caution which, in the absence of 
 fraud, does not amount to negligence in the legal sense of the 
 term. ]S[o general rule can be laid down which shall govern 
 all cases. Each case must depend on its own circumstances.^ * 
 
 It a man has actual notice that the property in question is 
 in fact charged, encumbered, or in some way affected, or has 
 actual notice of facts raising a presumption that it is so, he is 
 bound in equity with constructive notice of all facts and instru- 
 ments, to a knowledge of which he would have been led by an 
 inquiry after the charge, incumbrance, or other circumstance 
 affecting the property of which he had actual notice.^ \ 
 
 "Where, accordingly, a man has notice, whether by recital, 
 description of parties, or otherwise, of an instrument, which 
 from its nature must form, directly or presumptively, a link in 
 the title, or is told at the time that it does so, he will be pre- 
 Bumed to have examined it, and therefore to have notice of all 
 
 » West V. Reid, 2 Ila. 249, 259. See Grant v. Campbell, 6 Dow, 239; Nee- 
 
 Greeuslade'j;. Dare, 20 Beav. 284. som v. Clarkson, 2 Ha. 163 ; AVcst. v. 
 
 ■■' Jones V. Smith, 1 Ha. 55; West v. Reid, ib. 249; Att.-Gen. v. Flint, 4 Ha. 
 
 Reid 2 Ha. 249; Ware f. Egmont, 4 D. 147; Frail w. Ellis, 16 Beav. 350; He 
 
 M. & G. 460; Colyer v. Finch, 5 H. L. Bright's Trusts, 21 Beav. 430; Coles v. 
 
 905 • Perry-Herrick v. Attwood, 2 D. <fe Sims, 5 D. M. & Cr. 1 ; Welchman v. 
 
 J. 21. See as to negligence, SMZ-ra, pp. Coventry Union Bank, 8 W. R. 729; 
 
 140 141. ''^y ''• iiichardson, 30 Beav. 563 ; Cox 
 
 *'l llsi. 55, />«»* digram, V.-C; 7 H. v. Coventon, 31 Beav. 388; Locke «. 
 
 L 262 joer Lord Chelmsford. See Prescott, 32 Beav. 261 ; Leigh v. Lloyd, 
 
 Dowaes v. Power, 2 Ba. & Be. 493 ; 2 D, J. <fe S. 330. 
 
 * Lowry r. Brown, 1 Cold. 456 ; Doyle v. Teas, 4 Scam. 203. 
 
 t Skcel V. Spraker, 8 Paige, 182; Roberts r. Stanton, 2 Munf. 129; 
 Rowan ®. Adams, 1 Smed. & :Mar. Ch. 45; Poulet v. Johnson, 25 Geo. 403; 
 Mavfield v. Averitt, 11 Tex. 140 ; Currens v. Hart, Hardin, 37. 
 
 'a defective deed is notice of all fraud connected witli its executioa 
 Smith «. Shane, 1 McLean, 22.
 
 FKAUD UPOX THIRD PARTIES. 211 
 
 instniments or facts to which an examiuation would have led 
 him.^ 
 
 A purchaser, accordingly, who has actual notice of a deed, 
 is bound by all its contents,'^ * and has notice of all equities 
 springing out of the deed,^ f and of all instruments to which 
 an examination of the deed would have led him;*+ even 
 although such instruments are not actually recited, but there 
 is only a recital that the property is subject to limitations 
 which, in fact, correspond with the limitations thereby created.' 
 If the deed under which he takes title be a settlement, he 
 takes with notice of all equities springing out of the settle- 
 
 ' Surman v. Barlow, 2 Eden, lf)7; Coventon, 31 Bcav. 378; Clements v. 
 
 SLelduii V. Cox, ib. 224; Uamiltm w. Welles, L. R. 1 Eq. 200. 
 
 Rovsc, 2 Sch. & Lef. 326 ; Taylor v. ^ Tanner v Florence, 1 Ch. Ca. 259 ; 
 
 Baiier, 5 Pri. 3()6 ; Jones v. Smith, 1 Taylor v. t^tibbert, 2 Ves. Jr. 437 ; Nee- 
 
 Ph., 253 ; West v. Keid, 2 Ila. 24i>. See som v. Clarks m, 2 lla. 173. 
 
 Moor «;. Bennett, 2 Ch. Ca. 240; Bath 'Hamilton v. Royse, 2 Sch. «fc Lef. 
 
 and Montague's Case, 3 < h. Ca. 110; 326; but see LI. A (J. 264, /)er Lord St. 
 
 Mertiiis v. Jolliffe, Arab. 311 ; Plumb Leonards, Sug. V. <fe P. 777. 
 
 t>. Flintt, 2 Anst. 432 ; I'ahner v. * Coppin ». Feruyhough, 2 Bro. C. C. 
 
 Wheeler, 2 Ba. & Be. 31; Eyre v. 291; Bisco ?;. Earl of Banbmy, 1 Ch. 
 
 D<Jphin. »6. 290 ; Malpns u. Acklaiid, 3 Ca. 287, 291; Tanner y. Florence, ib. 
 
 Russ. 273; Davis v. Thomas, 2 Y. & C. 259, 260; Davies v. Thomas, 2 Y, & G. 
 
 234 ; Roddy v. Williams, 3 J. & L. 1 ; 234. 
 
 Steadm:ui v. Poule, 16 L. J. Ch. 349; ^ Necsom v. Clarkson, 2 lla. 163. 
 Hope «. Liddell, 21 Bcav. 183; Cox v. 
 
 * Wormley v. Wormley, 8 Wheat. 421 ; Johnston v. Gwathmey, 4 Litt 
 317 ; Che ,v v. Calvert, Walker, 54 ; Oliver v. Piatt, 3 How. 333 ; Neale v. 
 Haythrop, 3 Bland, 551 ; Christmas v. Mitchell, 3 Ired. Eq. 535; Mason v. 
 Fame, Walker's Ch. 453. 
 
 t Ilackwilh r. Daws n, 1 Minn. 235 ; Rutter v. Barr, 4 Ohio, 44C ; Van 
 Dorn r. Robinson, 1 Green, 256 ; Gordon i\ Sizer, 39 ]\Ii^s. 805 ; Griffith v. 
 Griffith, 1 Hoff. Ch. 153 ; Rogers v. Jones, 8 K H. 2G4. 
 
 t Chew V. Caloitt, 1 Walk. 54; Neale v. Haythrop, 3 Bland, 551 ; Kerr 
 «. Kitchen, 17 Pcnn. 433 ; Johnson r. Thweatt, 18 Ala. 741 ; Wailes v. 
 Cooper, 24 Miss. 208 ; McRimmcrs r. Martin, 14 Tex. 318. 
 
 A purchaser is bound to take notice of qualifications in the power of 
 attorney of an agent from whom he purchases. Morris v. Terrell, 2 Rand. 
 6 ; Graves v. Graves, 1 A K. Marsh. 165. 
 
 The doctrine of constructive notice has no reference to controversies 
 between vendor and vendee in relation to their own rights. Champlin v. 
 Laytin. G Paige, 18!).
 
 242 FEAUD uroN third parties. 
 
 ment.^ ISTotice of a postnuptial, and apparently volnntaiy, 
 settlement agreement, is notice of tlie antenuptial settlement 
 on whicli it is founded.'' So also notice of an equitable claim, 
 as affecting an unspecified portion of tlie property, is notice of 
 the claim as in fact atfecting the entirety.^ If the deed under 
 which he takes title shows that there are incumbrances affect- 
 ing the property to which the deed relates, he takes with 
 notice of all such incumbrances.* In Peto v. Hammond,^ the 
 purchaser of land from the allottees of a building society, who 
 had not inquired for the conveyance of the land to the trustees 
 of the society, was held bound not only by the notice of the 
 deed, but also by what would have certainly been told him, if 
 lie had inquired for the deed, namely, that the deed had been 
 retained by the party who had sold the land to the trustees, as 
 an equitable mortgage, with a covenant from the trustees to 
 convey the legal estate to him, if required. So also if a man 
 purchases from a seller whose conveyance was " subject to all 
 the mortgages and charges affecting the same," he will be 
 bound by a prior deposit of the deeds relating to a portion of 
 the estate of which he had not notice, although there were 
 other charges of which he was informed, which satisfied the 
 words, "mortgages and charges."® A prospectus, however, 
 of a company, mentioning an act of Parliament, in which act 
 a deed of settlement is recited, is not of itself sufiicient to fix 
 any person reading the prospectus with constructive notice of 
 the contents of the deed. To hold that he was would be 
 carrying the doctrine of constructive notice too far.' 
 
 So also notice of a lease is notice of all its contents.^ If a 
 purchaser has notice that property is held under a lease, he 
 
 32f) 
 
 • Hamilton v. Royse, 2 Sch. & Lef. * 30 Beav. 495 
 
 * Jones V. Williams, 24 Beav. 47. 
 
 Ferrars v Chorry, 2 Vern. 384. "" Re National Assurance Association, 
 
 * Att.-Gen.'?;. Flint, 4 Ila. 147. 10 W. H. 548. 
 
 * Moiitetiore v. Browne, 7 H. L. 241 ; " Hall v. Sniitli, 14 Ves. 420 ; Walter 
 but see Sug. V. & P. 777. v. Mauude, 1 J. <fe W. 181 ; ISmith v.
 
 FKAUD UPON THIRD PARTIES. 243 
 
 cannot object that he liad no notice of any particidar covenant 
 therein contained.^ The omission on the part of the vendor 
 to state unusual covenants in the particulars of sale, does not 
 affect the title ; ^ nor is it a misrepresentation, although tlie 
 value of the premises may be lessened by such covenants.^ In 
 a case where the conditions of sale were silent as to the nature 
 of the covenants, and required that the purcliaser should 
 covenant with the vendor for the performance of the covenants 
 and conditions in the lease, a covenant in the lease against 
 carrying on certain specified trades, " or any otlier noisome or 
 offensive trade," was held to be no objection to the title.* So 
 also a clause against alienation without the lessor's consent 
 was held to be no objection in the lease of a house, at least in 
 or near London.' 
 
 A man who wishes to protect himself against unusual or 
 particular covenants, should, before purchasing, inquire into 
 the covenants and stipulations of the original lease, so as to 
 know precisely the terms on which the property is held.* If 
 there be no misrepresentation by the vendor, the purcliaser is 
 bound by the contents of the lease;' but if there be mis- 
 representation, so that the acuteness and industry of the pur- 
 chaser is set to sleep, and he is induced to believe the contrary 
 of what is the real state of the case, the vendor is in such case 
 bound by the misrepresentation.^ If, for instance, the terms 
 of a particular covenant turn out to be of a much more 
 stringent description than they were represented to be, there 
 is fraud.® 
 
 Capron, 7 ITa. 191; Dawes v. Betts, 12 * Grosvenor v. Green, 28 L. J. Ch. 
 
 Jur. 70'.) ; Lewis v. Hond, 18 Beav. 85; 173. 
 
 Parker v. Whyte, 1 II. & M. 167 ; Clem- ■* Strangways v. Bishop, 29 L. T. 120. 
 
 ents V. Welles, L. R. 1 Eq. 200 ; but see » Pope t; Garland, 4 Y. & C. 394; 
 
 Martin v. Cotter, 3 J. tfc L. 506, jotr Lord Martin v. Cotter, 3 J. <fe L. 506 ; CuUen 
 
 St. Leonards. v. O'Meara, L. K. Ir. 2 C. L. 063. 
 
 ' Jfi- ' Pope V. Garland, 4 Y. cfe C. 394 ; 
 
 " Pope V. Garland, 4 Y. <feC. 394. Spunncr v. Walsh, 10 Ir. Eq. 400. 
 
 ' Spuiiiiur V. Walsh, 10 Ir. Eq. 386, " I'ope v. Garland, 4 Y. A C. 391. 
 
 11 Ir. Eq. 598. " Flight v. Booth, 1 Bing. N. C. 377;
 
 244 FEAUD VTO^ THIRD P.AJITIES. 
 
 The rule tliat notice of a lease is notice of its contents 
 applies to tlie case of sales under a decree, as well as to the 
 case of sales out of court.^ 
 
 Thougli notice of a lease is notice of its contents, tlie court 
 may, on the application for specific performance, decline to 
 grant specific performance of a lease containing covenants of 
 an unusual nature, if the person against whom the relief is 
 sought had no reasonable means of inspecting the original 
 lease, or knowing its contents.'' If, however, he has had 
 reasonable means of inspecting the lease, specific performance 
 will be decreed,^ although he may have intended to apply the 
 property to a purpose which, as it turned out, was prohibited.* 
 It is immaterial, in such case, whether or not the vendor knew 
 the purchaser's intention.'' 
 
 So, also, and upon the same principle, where a man is of 
 rio-ht in possession of corporeal hereditaments, he is entitled 
 to impute kuowdedge of that possession to all who deal for any 
 interest in the property, and persons so dealing cannot be 
 heard to deny notice of the title under which the possession is 
 held;^* nor is it necessary that such possession should be 
 
 Van V. Corpe, 3 M. & K. 269, supra, p. * Morley v. aavering, 29 Beav. 84. 
 
 92 
 
 Jl). 
 
 ' Sputiner v. Walsh, 10 Ir. Eq. 386. * Taylor v. Stibl)ert, 2 Ves. Jr. 437 
 
 " Ilanlnu-y v. Lit'hfield, 2 M. & K. Croftou v. Ormsby, 2 Sch. <fe Lef. 583 
 
 629; Fii'A-lit ?;. Barton, 3 M. »fe K. 282 ; Powell v. Dillon, 2 Ba. & Be. 416, 
 
 Kelthorpe v. Holgate, 1 Coll. 203; Mar- Greenwood v. Bairstow, 5 L. J Cb. N, 
 
 tin «. CottiT, 3 J. <fc L. 507 ; Williams •«. S. 179; Jones v. Smith. 1 Ha. 60; 
 
 Livesev, 18 Beav. 206; Brumfit v. Mor- Bailey v. Richardson, 9 Ha. 734 ; Att.- 
 
 ton, 3 Jur. X. S. 1198; Darlington v. Gen. v. Stephens, 1 K. tfe J. 750 ; Holmea 
 
 Hamillon, Kay, 550. v. Powell, 8 D. M. & G. 580. 
 ^ Smith V. Capron, 7 Ha. 191. 
 
 * Harris ®. Carter, 3 Stew. 233 ; Bucldngliam t'. Smith, 10 Ohio, 288; 
 Patten v. Hollidaysljurg, 40 Penn. 206 ; Hardy v. Summers, 10 G & J. 316 ; 
 Hanly v. Morse, 32 Me 287; Hughes v. United States, 4 Wall. 232 ; More- 
 land V. Lemaster, 4 Blackf. 883 ; Landis v. Brant, 10 How. 375 ; Lea v. 
 Polk County Copper Co., 21 How. 499 ; Griswold v. Smith, 10 Vt. 452 ; 
 Morgan v. Morgan, 8 Stew. 383 ; Walker v. Gilbert, 1 Freem. Cli. 85 ; 
 Jenkins v. Bodley, 1 Smed. & Mar. Ch. 338 ; Witter v. Hightower, 6 Smed.
 
 FEAUD UPON TBIRD PARTIES. 245 
 
 continually visible, or actively asserted. If a man Las once 
 received rightml possession of land, lie may go to any distance 
 from it without authorizing any servant, or agent, or other 
 person, to enter upon it, or look after it, may leave it for years 
 uncultivated and unused, may set no mark of ownership upon 
 it, and his possession may nevertheless continue, at least unless 
 his conduct afford evidence of intentional abandonment. A man 
 who knows, or cannot be heard to deny that he knows, another 
 to be in possession of a certain property, cannot for any civil 
 purpose, as against him at least, be heard to deny having 
 thereby notice of the title, or alleged title, under which, or in 
 respect of which, the former is or claims to be in that posses- 
 sion.^ Where, accordingly, the purchaser of mines took 
 possession under the agreement for purchase, without any 
 conveyance, it was held that a subsequent purchaser of land, 
 without any exception of mines, took with notice of the 
 agreement.' 
 
 » Holroes v. Powell, 8 D. M. & G. 580. • Holmes v. Powell, 8 D. M. & G. 580. 
 
 & Mar. 345 ; Smith v. Sbane, 1 McLean, 33 ; Grimstone v. Carter, 3 Paige, 
 431 ; Diehl v. Page, 3 Green's Ch. 143 ; Baldwin v. Johnson, Saxtou, 441 ; 
 Knox V. Thompson, 1 Litt. 350 ; Brown v. Anderson, 1 Mon. 193 ; Johnston 
 V. Glaucey, 4 Blackf. 94. 
 
 In this country, where the registration of deeds as matters of title is 
 universally provided for, courts of equity will not enlarge the doctrine of 
 constructive notice, nor follow English cases, except with cautious atten- 
 tion to their application to the circumstances of our country, and to the 
 structure of our laws. Flagg v. Mann, 3 Sumner, 4b6. 
 
 Possession is not evidence of notice, unless that possession was known 
 to the purchaser, nor can it be conclusive if it be known ; and, therefore 
 is not equivalent to recording. It is at most implied notice, which may 
 be rebutted. Harris v. Arnold, 1 R. I. 136 ; Vaughan v. Tracey, 33 Mo. 
 415 ; Hewes v. Wiswall, 8 Grcenl. 94 ; Emmons v. Murray, 16 K H. 385. 
 
 The notice is merely an inference. It may not arise in some cases ; it, 
 may be repelled in others ; and in others it may be restricted to some 
 particular title. The rule, like all rules of circumstantial evidence, must 
 be governed by the particular circumstances of each case, and have a
 
 246 FRAUD UPON TRIED PARTIES. 
 
 Tf there be a tenant in possession of land, a purchaser is 
 hound by all the equities which the tenant could enforce 
 against the vendor, and the equity of the tenant extends not 
 only to interests connected with his tenancy, as in Taylor v. 
 Stibbert,^ but also to interests under collateral aji^reenicnts,' the 
 principle being the same in both cases, namely, that r.he pos- 
 session of the tenant is notice that he has some interest in the 
 land, and that a purchaser havin<); notice of that fact is bound 
 either to inquire what the interest is, or to give eti'ect to it 
 whatever it may be.® * If the tenant has even changed his 
 character by having agreed to purchase the estate, his posses- 
 sion amounts to notice of his equitable title as pm'chaser/ 
 
 ' 2 Ves. Jr. 437. * Daniels v. Davison, 16 Ves. 249; 17 
 
 * Daniels y. Davison, 16 Ves. 249; 17 Ves. 433; Crofton •>. Orm.sb>'. 2 >ch. & 
 
 Ves. 433; Allen v. Anthony, 1 MeT. Lef. 583; Powell v. Dillon, 2 Ba. & Be. 
 
 282. 416; Wilbraham h. lavesey, 18 Beav. 
 
 ■ Earnhardt v. Greenshields, 9 Moo, 206, 
 
 P. C. 32; Knight v. Bowyer, 2 D. & J. 
 
 450. 
 
 reasonable operation. Cook v. Travis, 22 Barb. 338 ; Faust d. Smith, 23 
 N. Y. 252. 
 
 Possession under a recorded deed is uot notice of rights under an 
 unrecorded deed. Great Falls Co. v. Worster, 15 N. H. 412. 
 
 There is no eificacy in a possession which terminated before the nego- 
 tiation that led to the purchase commenced. Wright u. Wood. 23 Penn. 
 120. 
 
 Joint possession by a vendor and vendee is no notice of an unrecorded 
 deed. Smith v. Yule, 31 Cal. 180. 
 
 Possession by a mortgagor after foreclosure is not notice of any secret 
 trust in his favor. Surmberger v Webster, 1 Clark, 188. 
 
 Possession is notice to judgment creditors of the vendor. Massey v. 
 Mcllwain, 2 Hill's Ch, 421 ; Macon c. Sheppard, 2 Humph. 335 ; Ilackwith 
 i\ Damson, 1 Mon. 235. 
 
 * Disbrow v. Jones, Harring's Ch. 48 ; McMechen v. Griffing, 3 Pick. 149. 
 Possession by a tenant is not notice of the landlord's title. Smith v. Dall, 13 
 
 Cal. 510, 
 
 The possession of a cestui que trust is not constructive notice of the 
 leo-al title of the trustee. Scott v. Gallagher, 14 S. & R, 333. 
 
 The possession of an intruder is not notice of the title of a stranger. 
 Wright V. Wood, 23 Penn. 120.
 
 FRAUD UPON THIED PARTIES. 247 
 
 The principle that possession bj a tenant of land is notice 
 of the terms of his holding applies to a case where a man buys 
 property subject to an easement. He is bound by all the 
 equities which bound his vendors.^ So also when the mort- 
 gagee of a burial ground had notice of the purposes to which 
 it was devoted, he was held bound by the right of burial, tem- 
 porary or in perpetuit}^, granted by his mortgagor when left iu 
 possession.^ 
 
 Notice, however, of a past tenancy is not notice of the ten- 
 ants' equitable interests,^ nor when the vendor is himself the 
 tenant, and has acknowledged payment of the purchase money 
 both in the body of the conveyance and by the usual endorsed 
 receipt, is the tenancy notice of his lien for any part thereof 
 which may in fact remain unpaid.* ISTor is notice of a tenancy 
 necessarily notice of the tenant's equities as between vendor 
 and purchaser.'^ ISTor is notice of a tenancy constructive notice 
 of the lessor's title.^ ]^or will a hond fide purchaser, other- 
 wise without notice, be affected by the mere circumstance of 
 the vendor having been out of possession for many years. A 
 purchaser neglecting to inquire into the title of the occupier is 
 not affected by any other equities than those which such occu- 
 pier may insist on. If a person equitably entitled to an estate 
 lets it to a tenant who takes possession, and then the person 
 having the legal estate sells to a person who purchases hona 
 fide and without notice of the equitable claim, the purchaser 
 will hold against the equitable owner, although he had notice 
 of the tenant being in possession.' In all the cases the pos- 
 session relied on has been the actual occupation of the land, 
 and the equity sought to be enforced has been on behalf of the 
 
 ' Hervoy v. Sroitb, 1 K. <fe J, 389; 22 • Neltborpe v. Holgate, 1 Coll. 203. 
 
 Beav. 499. ' Jones v. iSniith, 1 Ha. 63, per Wig- 
 
 " Moreland v. Richardson, 22 Beav. ram, V.-C; Bernhardt v. Greeushields, 
 
 596. 9 Moo. P. C. 34. 
 
 ' Miles V. Langley, 1 R. <fe JI. 39 ; 2 ' Oxwith v. riummor, 2 Vcrn. 636 ; 
 
 R. <fe ]M. 026. Earnhardt v. GreLUshields, 9 Moo. l\ C 
 
 ♦ White V. Wakefield, 1 Sim. 401. 34.
 
 2-18 FRAUD UrON THIRD PARTIES. 
 
 party so in possession.^* But it must be remembered that by 
 the ^arty in oGcupation is meant, not merely the person who 
 by himself and his laborers tills the ground, but the person 
 who is known to receive the rents from the person in occupa- 
 tion.' So also notice of the legal estate being outstanding is 
 notice of the trusts on which it is held ; ^ and notice that the 
 title deeds are in the possession of a third party, is notice of 
 any charge he has upon the property.* 
 
 So also, and upon the same principle, a person has been 
 held to be affected with notice of a fraud affecting a deed, and 
 which the unusual manner in which it was executed ought to 
 have suggested to his solicitor.^ So also, if a bill be accepted 
 in blank, and the acceptor was aware of the fact, there is notice 
 of any fraudulent use that may have been made of it.' So 
 also a lessee,' or a sub-lessee, has notice of the title of the im- 
 
 ' Earnhardt v. Greensbields, 9 Moo. See Greenslade v. Dare, 20 Beav. 291 ; 
 
 p c. 34. Greenfield v. Edwards, 2 D. J. <t G. 
 
 '''KniLiht V. Bowyer, 23 Beav. 609, 582; Sug. V. <fc P. 776. 
 
 640, 641, 2 D. & J. 421. " Hatch v. Searlea, 24 L. J. Ch. 22. 
 
 "Anon. 2 Freem. 137. See Sharp v. Arbuthnot, 13 Jur. 219. 
 
 * Hiern v. Mill, 13 Ves. 122; Dryden ' Att.-Gen. v. Backhouse, 17 Ves. 293; 
 
 V Frost, 3 M. <fe C. 670. Butler v. Lord Portarlington, 1 Dr. & 
 
 ' • Kennedy v. Green, 3 M. &. K. 699. War. 20 ; Att.-Gen.i;. Hall,16 Beav. 388. 
 
 * Kendall «. Lawrence, 33 Pick. 540 ; Holmes ». Stout, 3 Stockt. 419 ; 
 Coleman v. Barklew, 3 Dutch. 3-57; Truesdale v. Ford, 37 111 310; Ely v. 
 Wilcox, 30 Wis. 533 ; Blankenskip ». Douglass, 36 Tex. 335 ; Patten v. 
 Moore, 33 N. H. 383. 
 
 Tlie holder of an unrecorded deed must show a possessio pedis, an actual 
 "bona fide possession consistent with his written title ; and this possession 
 must be evidenced by an actual inclosure, or something equivalent, as 
 showing the extent and the fact of his dominion and control of the prem- 
 ises. Havens v Dale, 18 Cal. 359. 
 
 The possession must b8 such an occupancy of the land as will put any 
 person upon inquiry, and indicate the party of whom inquiry is to be 
 made. Green r. Drinker, 7 W. & S. 440 ; Rogers v. Jones, 8 N. H. 264 ; 
 Williams v. Sprigg, 6 Ohio St. R. 585. 
 
 Possession is not notice, when the purchaser also knows that the pos- 
 sessor has been in possession for some time without claiming title. Mat- 
 thews V. Demerritt, 9 Shep. 313.
 
 FRAUD UPON THIRD PARTIES. 249 
 
 raediate and (in the case of a sub-lessee) original lessee.^ So 
 where a family solicitor, who had prepared a marriage settle- 
 ment, became the apparent purchaser of the estate under a 
 fictitious exercise of the usual power of sale, and subsequently 
 executed instruments purporting to vest the estate in the hus- 
 band, and then, as the husband's solicitor, applied for a loan on 
 morto'ao-e, and delivered an abstract of the title as above re- 
 ferred to in the usual wav, with his name as solicitor, it was 
 held that the pm-chaser had implied notice of his having been 
 the solicitor who prej^ared the settlement, and of the irregular- 
 ity of the nominal purchase.^ So, a mortgagee having notice 
 that a bill which formed part of the consideration for the pur- 
 chase of the estate by the mortgagor, remained unpaid, has 
 been held bound to inquire whether the vendor has any lien on 
 the estate, the deed of conveyance leaving the point doubtful.* 
 So, a purchaser dealing with trustees for sale at a. time or under 
 circumstances suggestive of the probability of the sale being a 
 breach of trust, is bound to inquire and see whether any such 
 breach of trust is in fact being committed.* So also notice of 
 a deed is not only notice of its contents, but of the facts to a 
 knowledge of which the insisting on its production would have 
 necessarily led.^ So also a man who buys property from an 
 agent, with distinct notice that the party with whom he is 
 dealing is an agent, has cast upon him the liability of sustain- 
 ing the transaction just as much as the agent himself. If the 
 transaction could not be upheld by the agent, neither could it 
 be supported by a purchaser from that agent, if he deals with 
 him in his character of agent. ^ 
 
 When, however, a sale by fiduciary vendoi*s is apparently 
 regular, a purchaser need not inquire into collateral questions, 
 
 ' Stecdman v. Poole, 6 Ila. 193. See * Strougliill a. Anstcy, 1 D. K <fe G. 
 
 Cesser v. Collinge, 3 M. & K. 283. 635. 
 
 " iiobiuson v. Briggs, 1 Sm. & G. ' Peto v. Hammond, 30 Beav. 495. 
 
 188. • Molony v. Keruan, 2 Dr. & War. 40 
 
 * Frail v. Ellis, 16 Beav. 350. 
 
 17
 
 250 FRAUD UPON THIRD PARTIES. 
 
 sucIl as tlie mode in wliicli tlie sale has been conducted,* 
 although he will be affected with notice of a breach of trust 
 clearly deducible from facts appearing in the assurance.^ Nor, 
 although a purchaser of a lease is bound to know from whom 
 the lessor derived his title, is he affected with notice of all the 
 circumstances under which he so derived it.' Nor, seirible^ is 
 notice of a lease notice of collateral facts mentioned in the 
 lease.^ Nor, on the purchase of A, one of two adjoining 
 estates belonging to the same owner, is notice of building 
 covenants entered into bj" such owner with a mortgagee of the 
 adjoining estate B, notice of the expenditure on both estates 
 of money which, under the covenant, ought to have been ex- 
 pended on B exclusively.' 
 
 The possession of a client's deeds by a solicitor is so usual, 
 and so much in che ordinary course of transactions, that where 
 a man purchases an estate, and is informed that the deeds are 
 in the hands of the solicitor of the owner of the estate, there 
 is nothing which renders it necessary for him to inquire under 
 what circumstances the solicitor held the deeds.^ When a 
 solicitor acquires by contract a different interest beyond what 
 his character of solicitor confers (such as equitable mortgagee), 
 it iB incumbent on him immediately to give clear and distinct 
 notice of such interest to all persons in visible ownership of 
 the estate. Such a case is not within the principle of the cases 
 in which a purchaser of land has been held bound to inquire 
 of the tenant in possession the nature of his interest.' 
 
 The omission of a purchaser of property to inquire after 
 the title deeds is gross negligence, and will affect him with 
 the knowledge which he might have obtained upon inquiry, 
 
 • See Borell v. Dann, 2 Ila. 440, 450, ' Att.-Gea. v. Blackhouse, *? Ves. 293, 
 
 See "Ware v. Egmout, 4 D. M. <fe G. ■* See Darlington v. Uamilton, Kay, 
 
 460. 556. 
 
 » See Att.-Gen. «. Part^eter, 6 Bear. ^ Harryman v. Collins, 18 Beav. 19. 
 
 150; Ker v. Lord Dungaunon, 1 Dr. «fc * Bozon v. WUliams, 3 Y. & J. 150. 
 
 War. 509, 542. ' Ih,
 
 ITRAUD UPON TniRD PARTIES. 251 
 
 The possession of the legal estate will not protect a man -who 
 has omitted to inquire after the title deeds, or who accepts a 
 frivolous excuse for their non-production against the claim of 
 an innocent partj.^ So also, a man taking from a vendor who 
 has not possession of the deeds, will take with notice of any 
 claim which the party in possession of the title deeds has.^ 
 The omission, however, of a purchaser to inquire for the deeds 
 will not affect him with knowledge of fraud committed by the 
 person of whom he was bound to make inquiry,^ 
 
 Though notice of a deed is notice of its contents, the mere 
 fact that a man has been witness to the execution of a deed 
 will not of itself fix him with notice of the contents.* I^or is 
 notice of a will passing all the testator's real estates generally, 
 and not specifically, notice of all the particular estates which 
 the testator had to pass.^ Nor if a purchaser has notice ouly 
 that a draft of the deed is prepared, and not that the deed was 
 executed, would he be bound by notice, although the deed was 
 actually executed ; for a purchaser is not to be affected by 
 notice of a deed in contemplation.® 
 
 A mere statement that further information is to be had at 
 the office of a comj^any, is hot enough to put persons upon 
 inquiry whether statements put forward by directors are true 
 or false.''' But if a man, on being specially referred to another 
 for information, neglects to apply to him, he will be held to 
 
 ' Worfhington v. Morgan, 16 Sim. Bozon v. "Williams, 3 T. and J. 150, 
 
 647; Tvlue v. Webb, 6 Beav. 552; Al- supra, pp. 140, 141. 
 
 leii V. Kuiglit, 5 JIa. 272; 11 Jur. 527; ^ Ilipkins v. Amery, 2 Giff. 292. 
 
 Hewctt V. Loosemore, 9 Ha. 449 ; Col- * Mocatta v. Murgatroyd, 1 P. Wma. 
 
 yer v. Finch, 5 H. L. 905; Tildesley v. 893; Beckett v. Cordley, 1 I5ro. C. C. 
 
 Lodge, 3 Mil. & G. 543 ; Perry-MeiTick 357 ; llaiicliffe v. Parkins, 6 Dow, 149, 
 
 V. Attwood, 2 D. «fe J. 21 ; Atterbury v. 222 ; Sug. V. <fe P. 751, 
 
 "VVallis, 8 D. iM. & G. 454 ; Vaio v. IJara- " liancliffe v. Parkins, 6 Dow, 149, 
 
 mond, 3-t Beav. 495; Worinald v. Mait- 222-224. 
 
 land, 35 L. J. Cli. 69 ; llopgood v. ° Cotliay v. Sydenham, 2 Bro. C. 0. 
 
 Erncdt, 3 D. J. & .s. 116, supra, pp. 140, 391. See Jones v. Wmith, 1 Ha. 63 : 1 
 
 141. Ph. 256. 
 
 * Dryd<m v. Frost, 3 M. <fe C. 670. ' Smith v. Reese River Co., L, R. 2 
 
 See Iliura i'. Mill, 13 Ves. 122. Comp. Eq. 209.
 
 252 FRAUD UPON THIRD PARTIES. 
 
 liave notice of what be might have learnt upon inquiry.* So 
 also if a man, having reasonable grounds to suspect the 
 existence of a fact of importance, asks one of the parties to 
 the transaction, who refuses all information, but does not ask 
 other parties, whom he has reason to believe to be able and 
 willing to give him information, his ignorance is willful.^ A 
 party relying on his ignorance of fact must show not only that 
 he had not the information, but that he could not with dili- 
 gence have obtained it,^ 
 
 A man who in dealing for property is told of anything as 
 affecting the property, though incorrectly, can not rely on 
 what is told him, but is bound to make further inquiry, and to 
 •ascertain the exact truth.* If a man knows that another has 
 or claims an interest in property, he, in dealing for that prop- 
 erty, is bound to inquire what that interest is, although it may 
 be inaccurately described.^ If a man be told or has notice that 
 a certain instrument affects the property in question in some 
 particular respect, he will be fixed with notice of its provisions 
 if it should turn out to affect the j)roperty in other respects 
 also.* Notice of a charge to an indefinite amount, although 
 the notice be inaccurate as to the particulars, or the extent oi 
 the charge, is sufficient to put upon inquiry a party dealing 
 for the property subject to the charge, and if the actual charge 
 appear afterwards to be incorrectly described in the notice, it 
 is nevertheless sufficient as a ground for giving priority for 
 the true amount of the charge as against the party who re- 
 ceived the incorrect notice, but made no inquiry.' 
 
 In Taylor v. Baker,* a party, at the time of making his 
 
 • Wason V. Waring, 15 Beav. 151. ' Taylor v. Baker, 5 Pri. 306 ; Jack- 
 ' Bainbrigge v. Moss, 3 Jur. N. S. 58. son v. Rowe, 2 Sim. & St. 475 ; Farrow 
 ' Wason V. Waring, 15 Beav. 151. v. Rees, 4 Beav. 18; Mitchell v. Stew- 
 
 * Wilson V. IIart."2 H. & M. 551 ; L. ard, 35 L. J. Ch. 393. See Jones v. 
 R. 1 Ch. A[)p. 4(53. See Jones v. Smith, Smith, 1 Ph. 255. 
 
 1 Ph. 255. Comp. re Bright's Trust, ' Gibson v. Ingo, 6 Ha. 124. 
 
 21 Beav. 430. • 6 Pri. 306. 
 
 ' Gibson v. Ingo, 6 Ha. 112, 124, See 
 Att,-Geu, c. Jones, 2 Jur. 369.
 
 FRAUD UPON THIED PARTIES. 253 
 
 purchase, and before it was made, had actual notice that a 
 certain person had a judgment and warrant of attorney which 
 affected the purchased estate. It turned out, however, that he 
 had a mortgage and not a judgment, and the court held that 
 the purchaser, having notice that he had an interest affecting 
 the property, could not ward off the claim to the incumbrance, 
 only because the nature of the claim was different from that 
 which the notice conveyed to him.^ The principle was carried 
 farther in Penny v. "Watts.^ A man there, who claimed under 
 a marriage settlement as a purchaser without notice, had 
 notice before his marriage that a legatee had given up her 
 leo-acy under a will in favor of the intended wife, to whom 
 the estate upon which it was charged belonged, and which was 
 comprised in the subsequent marriage settlement ; and had 
 also notice that the intended wife had in consequence devised 
 to the legatee a portion of the estate, and that the legatee was 
 dead. This was held by Lord Cottenham to be notice as lead- 
 ing to inquiry of an equitable reversionary title in the husband 
 of the legatee under a subsequent agreement with the hidy, 
 the devisor, before her marriage, to convey the devised estate 
 to him. It has, however, been considered by Lord St. Leon- 
 ards,* and in Abbott v. Gerahty,* that this case carries the 
 principle too far. 
 
 Though a man, who has actual notice that the property in 
 respect of which he is dealing, is in fact affected by a j)articu- 
 lar instrument, is bound to examine that instrument, he is not 
 bound to examine instruments which are not directly or pre- 
 sumptively connected with the title to the property in ques- 
 tion, merely because he knows that they exist, and may by 
 possibility affect it. If an instrument does not necessarily 
 
 ' See Steadman v. Poole, 16 L. J. Ch. ' Sug. V. & P. 766. 
 
 S49; 6lla. VXi. * 4 li-. Ch. 23. 
 
 ••' 1 Mac. & G. 150.
 
 254 FRAUD UrON THIRD PARTIES. 
 
 affect the title, but only may or may not do so according to 
 circumstances, the omission to examine it will not fix a party 
 with gross negligence, if there is no reason to suppose that he 
 may have acted otherwise than fairly in the transaction.^ j^or 
 is notice that certain circumstances exist which may by possi- 
 bility affect the property in dispute sufficient to put a man 
 upon inquiry, if he appear to have acted fairly in the transac- 
 tion.^ A purchaser, for instance, will not be affected by an 
 ambiguous recital,^ or by circumstances inducing merely a 
 suspicion of fraucl,^ or by the usual trust of a term to attend 
 the inheritance, where no reference is made to any particular 
 instrument or course of limitations ; ^ so notice of there being a 
 change of solicitors who are professionally to rej^resent a par- 
 ticular interest, is not, in itself, notice of a change in the 
 ownership of such interest;* nor is the mere fact of a daughter, 
 soon after coming of age, giving securities to a creditor of her 
 father in payment of his debt, of itself a ground for imputing 
 to the creditor knowledge of undue influence having been 
 exerted over her by her father.' To affect the creditor with 
 notice of undue influence, it is not enough to show that he 
 was aware of the reluctance of the daughter to concur in the 
 security.^ 
 
 In Hervey v. Smith,' the purchaser of a house to which a 
 
 ' Kenney v. Browne, 3 Ridg. P. C. * M'Queen v. Farqiibar, 11 Ves. 482. 
 
 512; Joiii's V. Smith, 1 Ha. 43, 1 Ph. See Dodds v. Hills, 2 H. & M. 426. 
 
 254 ; West v. Reid, 2 Ha. 249; Ware v. * Dart, V. & P. 566. 
 
 Egmoiit, 4 D. M. &. G. 400; Harryman ' West v. Reid, 2 Ha. 249. 
 
 V. Collins, 18 Beav. 11; Greenslade v. ' Thornber v. Sheard, 12 Beav. 589. 
 
 Dare, 20 Beav. 284 ; 7?P Bright's Trust, See Cobbett v. Brock, 20 Beav. 524. 
 
 21 Beav. 430: Stephenson v. Royse, 5 Comp. Espey v. Lake, 10 Ha. 260; Ser- 
 
 Ir. ell. 401 ; Cox i'. Coventon, 31 Beav. combe v. Saunders, 34 Beav. 382; 
 
 878; General Steam Navig-ation Co. v. Berdoe v. Dawson, ib. 603. See supra, 
 
 Rolt, 6 C. B. N. S. 550; Perry r. Holl. p. 180. 
 
 2 D. F. & J. 38. See Jie National Life " Rhodes v. Cook, 4 L. J. Ch. 149, 2 
 
 Assurance and Investment Co , 31 L. J. Sim. & St. 488. See Blackie v. Clark, 
 
 Ch. 828. 16 Beav. 595. Comp. Maitland v. Ir- 
 
 " If). ving, 15 Sim. 441. 
 
 " Kcnney v. Browne, 3 Ridg. P. C. '22 Beav. 299. 
 512 Sea 2 Ha. 175.
 
 FKAUD UPON THIED PARTIES. 255 
 
 wall having fourteen flues or chimneys in it belonged, twelve 
 onlj, however, of which were used by the house, was held 
 bound by this fact to know that the other two must have 
 been used by his neighbor. But the doctrine of constructive 
 Dotice was carried too far in that case.* 
 
 Nor is a man bound to examine a deed or document, 
 which does not necessarily from its very nature affect the 
 property in question, if he be told that it does not affect it, and 
 he acts fairly in the transaction, and believes the representa- 
 tion to be true.^ The effect, indeed, of what would otherwise 
 be notice, may be destroyed by misrepresentation. A man to 
 whom a particular and distinct representation is made is 
 entitled to rely on the representation, and need not make any 
 further inquiry, although there are circumstances in the case 
 from which an inference inconsistent with the representation 
 might be drawn, and which, independently of the representa- 
 tion, would have been sufficient to put him upon inquiry,' or, 
 although he is told that further information may be had on the 
 matter by making inquiries from a particular person, or at a 
 particular place.* A man is entitled to rely on the representa- 
 tions of the vendor as to the contents of a deed, and is not 
 bound to examine the deed itself.^ So, also, a man who pur- 
 chases shares in a company on the faith of a prospectus, may 
 rely on the statements made therein, and is not bound to 
 ascertain whether they are true.® The mere fact that he may 
 have attended a meeting of the comj)any is not a sufficient 
 
 » Bug. V. dr. p. %6. * Grosvenor v. Green, 28 L. J. Ch 
 
 •Jones V. Smith. 1 Ha. 43. 1 Ph. 173; M'Culloch v. Gregory, 1 K. cfe J 
 
 254; lie Bright's Trust, 21 Beav. 430. 286; Jie Briglit's Trust, 21 Beav. 430, 
 
 'Van V. Corpe, 3 M. & K. 269; Cox v. Coventon, 31 Beav. 378; Ex- 
 
 Flight i>. Barton, ?6. 282; Pope v. Gar- parfe Briggs, L. R. 1 Eq. 483. See 
 
 land. 4 Y. <fe C. 394; Wilson v. Short, 6 Martin v. Cotter, 3 J. cfe L. 505. 
 
 Ha. 366, 367; Vignolles v. Bowcn, 12 " Smith v. Reese River Silver Mining 
 
 Ir Eq. 385; Cox ik Middleton, 2 Drew. Co., L. R. 2 Eq. 264; Stewart's Case, L. 
 
 209, .nipra, pp. 80, 81. R. 1 Ch. App. 574. 
 
 "Smith V. Keese River Silver Min- 
 ing Co., L, 11. 2 Eq. 264.
 
 256 FKAUD UrOX third PAPtTIES. 
 
 ground for fixing liim with notice of the falsity of tlie repre- 
 sentations in the prospectus.* I^or will a shareholder in a 
 company be affected with knowledge of the documents refer- 
 red to in the memorandum, or articles of association of a com- 
 pany, as to be debarred from complaining of any false or 
 deceptive statements which may have been made as to the 
 contents of those documents.^ 
 
 If a lonafide inquiry be made in the proper quarter, and a 
 reasonable answer be given, a man may rest satisfied with the 
 information, and need not make any further inquiry.^ A man, 
 for instance, who, on the purchase of property homX fide, 
 inquires for the title deeds, is not bound to make further 
 inquiry, if a reasonable excuse is made for their not forth- 
 coming.* So, also, if deeds are deposited with a man by the 
 other party to the transaction, which purport, or are repre- 
 sented to be all the material deeds relating to the estate, and 
 he honestly believes the representation to be true, he is not 
 guilty of gross negligence, if he abstains from further inquiry 
 on the subject.^ The fact that the person with whom he is 
 dealing, and who makes the representation, may be his own 
 solicitor, is immaterial, if the representation was honestly be- 
 lieved to be true.® 
 
 A representation or an answer to an inquiry will not, how- 
 ever, dispense with the necessity of further inquiry, unless it 
 be made by a person upon whose representation the other 
 party is entitled to rely and rest satisfied. The representations 
 of a man bind him as far as his own interest is concerned, but 
 
 ^ Stewart's Caso, L. R. 1 Ch. App. * Hewitt v. Loosemore, 9 Ha. 449 ; 
 
 574. See Webster's Case, L. R. 2 Eq. Espin v. Pemberton, 3 D. ik J. 547, 
 
 741. suj)ra, p. 141. 
 
 Mvisch?;. Central Venezuela Railway "Riberts v. Croft, 2 D. & J. 1 ; 
 
 Co., 3 D. J. & S. 122. Hunt v. Elmes, 2 D. F. <fe J. 578. 
 
 = Jones V. Smitli, 1 Ha. 4.3 ; Bird v. " Roberts v. Croft, 2 D. <fe J. 1 ; 
 
 Fox, 11 Ha. 47 ; Jones v. Williams, 24 Hunt v. Elmes, 2 D. F. <fe J. 578. See 
 
 Beav. 47 ; Dawson v. Prince, 2 D. & J. Perry v. HoU, ib. 38; Cory v. Eyre, 1 
 
 44 ; Kspin v. Pemberton, 3 D. & J. 547; D. J. & S. 168. 
 Carter v. Carter, 3 K. <fe J. 618.
 
 FEAUD UrON THIRD PARTIES. 257 
 
 do not bind the interests of other parties, unless he was author- 
 ized by them to make the representations. An mider-lessee 
 must not rest satisfied with the representations of his lessor, 
 who is also a sub-lessee, as to the covenants in the lease. He 
 iHust go back to some one who can give him more comj)lete 
 •nformation.^ Xor should a man who deals with an agent 
 having a limited authority rest satisfied with his representa- 
 iions as to the extent of his authority, but should refer to the 
 principal for further information.^ So, also, a man who 
 accepts a conveyance without any previous investigation, rely- 
 ing on the mere assurances of the vendor that he is absolute 
 owner, wilj be held to have constructive notice of the 
 title, although he may have acted without any fraudulent 
 intention.^ 
 
 The effect of what would be otherwise notice may be 
 destroyed not only by actual misrepresentation, but by mere 
 silence, or by anything calculated to deceive, or even lull sus- 
 picion on a particular point.* If the vendor of a lease be 
 informed by the purchaser of his object in buying, and the 
 lease contains covenants which will defeat that object, the 
 silence of the vendor is equivalent to a misrepresentation.^ 
 But if the agent of the purchaser has had the opportunity of 
 inspecting the original lease, the vendor need not inform the 
 purchaser of unusual covenants which will prevent him from 
 carrying out his intention.® 
 
 Although a man who has been induced to enter into a 
 transaction by misrepresentation might have detected the mis- 
 
 ' Parker v. "SVli}'te, 1 IT. & M. 107. Drew. 1, afFJ, 1 Jur. N. S. 149; How 
 
 See Clements v. Welles, L. R. 1 Eq. ard v. Cliaffer.s, 2 Dr. & Sin. 236.' 
 200. * Pope V. Garlnnd, 4 Y. <fe C. 394 • 
 
 ' Wilson V. Hart, 2 H. cfc M. 551, L. Partktt v. Salmon, 6 D. JI. & G. 41 • 
 
 B. 1 Ch. App. 463. Darlington v. Hamilton, Kay, 550 Dart' 
 
 * Jaeks..n ,<. Howe, 2 Sim. & St. 472, V. <fe !'. 75, supra, p. 91. 
 475. See Jones i;. Smith, 1 I'll 255; '' Fli;;l)t r. B.irton, 3 M. <fe CI. 282. 
 
 Keesom «. Clarkson, 2 Ha. 173; West v. * Morley v. Claveriug, 29 Beuv. 84. 
 
 Reid, ib. 260; Proctor v. Cooper, 2
 
 258 FRAUD UrOK THIRD PARTIES. 
 
 representation long before the time he did, he is not "bound to 
 make inquiries, until there is something to raise suspicion.^ 
 
 Constructive notice only operates in cases affecting title. 
 A mere constructive notice of circumstances of neo:lii>'ence in 
 the mode of conducting a sale is entirely collateral to any 
 question of title.^ 
 
 It is not necessary that notice should be brought home to 
 the party interested himself It is enough, if it is brought 
 home to his agent, solicitor, or counsel.^ There is no distinc- 
 tion in point of legal effect between personal notice to the 
 party and notice affecting him through the medium of his 
 agent.* Notice to the agent is notice to the principal: for 
 upon general principles of public policy it must be taken for 
 granted that the principal knows whatever the agent knows.^* 
 As a general rule, the princii^al is deemed to have notice of 
 whatever is communicated to his a^ent whilst acting as such in 
 the transaction to which the communication relates.^ The 
 principal or client is fixed with the knowledge of every fact 
 material to the transaction which his agent or solicitor eithei* 
 knows or has imparted to him in the course of his employ- 
 ment, and which it was his duty to communicate, whether it 
 be communicated or not.' The rule that notice to an agent is 
 
 ' Rawlins v. Wickham, 3 D. <fe J. 304. ■* Toulmin v. Steere, 3 Mer. 224. 
 
 " Borell V. Dann, 2 Ha. 440. * Bank of United States v. Davies, 2 
 
 ^ Bath and Montagu's Case, 3 Ch. Ca. Hill (Amer.) 461. 
 
 110; Hrotlierton t). llatt, 2 Vern. 574; ° Sandford v. Handy, 23 Wend. 
 
 Maddox )■. Maddox, 1 Yes. 60; Hughes (Amer.) 208; Bank of United States v. 
 
 V. Garner, 2 Y. <fe C. 328; Archer v. Davies, 2 Hill (Amer.), 452. 
 
 Hudson, 15 L. J, Ch. 211, ' Sheldon v. Cox, Amb. 624; Roddy 
 
 * Hovey v. Rlanchard, 19 N. H. 145; Ross r. Houston, 25 Miss. 591 ; 
 Jones V. Bamford, 21 Iowa, 217; Miller v. Fralej', 21 Ark. 22; Walkers. 
 Ayrcs, 1 Clarke, 449; Ingalls v. Morgan, 10 N. Y. 178; Smith v. Oliver, 
 31 Ala. 39; Worden v. Williams, 24 111. 67 ; Reed's Appeal, 34 Penn. 207 ; 
 Willis V. Vallette, 4 Met. (Ky.) 186. 
 
 Notice to a man is not notice to liis wife. Sponable v. Snyder, 7 nil], 
 427.
 
 FEAUD UPON THIRD PARTIES. 259 
 
 notice to the principal applies to cases where the principal is 
 an infant.^ 
 
 The notice which affects a principal or client through his 
 agent or solicitor is generally treated as constructive notice ; 
 but inasmuch as the principal or client is bound by the notice 
 whether it be communicated to him or not, and is not pre- 
 sumed to have the knowledge, merely because the circum- 
 stances of the case put him on inquiry, such notice may more 
 properly be treated as actual notice, or if it is necessary to 
 make a distinction between the knowledge which a man pos- 
 sesses himself and that which is known to his agent or solici- 
 tor, the latter may be called imputed knowledge.^ 
 
 IS'otice to an agent, solicitor, or counsel should, in order to 
 bind a principal or client, be notice in the same transaction.* * 
 But the rule is subject to a qualification where, from the sur- 
 rounding circumstances, or from the one transaction being so 
 closely connected with another, the agent or solicitor must be 
 presumed to have remembered tl)e previous one. In all such 
 cases the notice, though not in the same transaction, is never- 
 theless binding.' f 
 
 t). Williams, 3 J. <feL. 16; Marjoribanks, ♦Fitzgerald v. Fauconberg, Fitrg. 
 
 v.Hovenden.Dru. 11 ; Cannock r. Jauu- 211 ; Warrick v. Warrick, 15 Atk. 29u; 
 
 cev 27 L J Ch. 57; Espin v. I'ciiiber- Worsley v. Lord Scarborough, lO. 392; 
 
 ton,' 3 D. & J. 554; Wyllie v. Pollen, Ilicru v. Mill, 13 Yes. 114; Ldgccumbe 
 
 32 L. J Ch. 782 ; Bonrsot v. Savage, L. v, Stranger, 1 Jur. 400; Fuller v. Ben- 
 
 R, 2Eq. 134. See Taml. 176, ;>(>• Sir nett, 2 Ha. 394; Tylee V. Webb, 6 
 
 J Leach M. II.; Spaight v. Cowne, 1 Beav. 552; Finch v. Shaw 19 Beav. 
 
 H & M. 359. 600 ; Colyer v. Finch, 6 H. L. 905. 
 
 '' Touimin v. Steere, 3 Mer. 222. See Steed r. WHiitaker, Barnard's Ch. 
 
 « Sec Touimin v. Steere, 3 Mer. 222. 220 ; Hamilton v. Royse, 2 Sch. & Lef. 
 
 * 3 D & J. bM. per Lord Chelmsford. 315 ; Mountford v. Scott, 3 Madd. 34, 
 
 See Mayhew v. Fames, 3 B. & C. 601 ; T. & R. 274. 
 
 Cookson « Lee, 23 L. J. Ch. 473 ; Eyre ^Touimin v. Steere, 3 Mer. 222; 
 
 V. Burniester, 10 H. L. 103. Comp. Hargreaves w. Roth well, 1 Keen, 154; 
 
 Wilde V. Gibson, 1 H. L. 605. Kixon v. Hamilton, 2 Dr. & Wal. 391 ; 
 
 * McCormick v. "Wlieclcr, 30 111. 114 ; Bracken v. Miller, 4 W. & S. 102 ; 
 Hood V. Fahnestock, 8 Watts, 483 ; Grant v. Cole, 8 Ala. 519 ; Lawrence 
 «. Tucker, 7 Greenl. 195; Boyd r. Vanderkcmp, 1 Barb. 287. 
 
 t Hart V. Farmers', &c. Bank, 33 Vt. 252 ; Blumeuthal v. Brainerd, 38 
 Vt. 410 ; The Distilled Spirits, 11 WaU. 35G.
 
 2G0 FKAUD UPON THIRD PARTIES. 
 
 The rule that notice to an agent or solicitor is notice to a 
 principal or a client, applies where the same solicitor or agent is 
 employed by both parties to the transaction,^ or is himself the 
 vendor.^ The mere circumstance, however, of there being 
 only one solicitor in the business does not necessarily consti- 
 tute him the solicitor of both parties so as to affect both with 
 notice. It does not follow that if there be not a solicitor em- 
 ployed on both sides, the solicitor who does act is the solicitor 
 of both parties. To have this effect, there must be a consent 
 to accept him as such, or something equivalent thereto.' 
 
 The rule that notice to a solicitor is notice to the client 
 applies only as between parties dealing hostilely with each 
 other.* 
 
 It is not every description of knowledge possessed by a 
 solicitor employed in any particular transaction that can be 
 treated as the actual knowledge of the client. All matters 
 affecting the title to property, or the interests of other persons 
 in connection with it, all circumstances which would entitle 
 parties to equitable priorities, or change the character of rights, 
 
 Fuller V. Bennett, 2 Ha. 394 ; Gerard v. Frost, 3 M. & C. 670 ; Slarjoribanka 
 
 ?). OjRe'Uy, 3 Dr. (fc War. 414; Marjori- v. Hovenden, Dru. 11; Robinson v. 
 
 banks y. lioveaden, Dru. 11. See Edje- Bri^^s, 1 Sm. <t G. 188; Jie Rorke'a 
 
 cumbe v. Stran2:er, 1 Jur. 400; Re Estate, 13 Jr. Ch. 371. 
 Smallnmn's Estate, Ir. L. R. 2 Eq. 34. ' Espia v. Pemberton, 4 Drew. 333, 3 
 
 Comp. Wilde v. Gibson, 1 H. L. 605; D. & J. 547; Wythes v. Labouchere, 3 
 
 but see Su^. L. P. 641. D. <fe J. 594 ; Lloyd v. Attwood, ib. 
 
 ' Le Neve v. Le Neve, 3 Atk. 646 ; 614 ; Perry v. Holl, 2 D. F. & J. 38. 
 
 Toulmin v. Steere, 3 Mer. 210 ; Fuller v. See Le Neve v. Le Neve, 3 Atk. 646 ; 
 
 Bennett, 2 Ha. 394; Drvden v. Frost, Kendall v. Hulls, 11 Jur. 864; Plewitl 
 
 3 M. & C. 670; Roddy V Williams, 3 v. Loosemore, 9 Ha. 449; Cobbett i; 
 
 J. <fe L. 10; Fraily. Ellis, 16Beav. 350; Brock, 20 Beav. 524; Atterbury v 
 
 Tweedale v. Tweedale, 23 Beav. 341 ; Wallis, 8 D. M. & G. 454, Su?. V. & 
 
 Atterbury v. Wallis, 8 D. M. <fe G. 454; P. 772. Comp. Tweedale v. Tweedale, 
 
 Ogilvie V. Jeaffreson, 2 Giff. 353 ; 23 Beav. 341. 
 
 Spaiijht V. Cowne, 1 H. & M. 359 ; * Austin v. Tawney, L. R. 2 Ch. App 
 
 Boursot 71. Savage, L. R. 2 Eq. 134. 143. 
 
 ' Sheldon v. Cox, Arab. 624 ; Dryden 
 
 Notice communicatee! to an agent by mere rumor and talk upon the 
 street corners, is not knowledge that will bind the principal. Keenan v. 
 Missouri, &c. Ins. Co. 12 Iowa, 120.
 
 FRAUD UPON THIRD PARTIES. 261 
 
 wliich depend upon want of notice, if known to the solicitor, 
 have the same effect as if actually known to the client. But 
 this imputed knowledge will not extend to matters which have 
 no reference to rights created or affected by the transaction, 
 but which merely relate to the motives and objects of the 
 parties, or to the consideration upon which the matter is 
 founded.* ]!^or does the employment of a solicitor to do a 
 mere ministerial act, such as the procuring the execution of a 
 deed, so constitute him an agent, as to affect his employer with 
 notice of matters within his knowledo^e.^ 
 
 The rule that notice to a solicitor is notice to the client 
 applies, notwithstanding that the solicitor may be perpetrating 
 a fraud upon the client in the transaction.^ The commission 
 of a fraud being beyond the scope of the authority of a soli- 
 citor, the fraud of a solicitor cannot of course be imputed to 
 the client.^ But the fact that a solicitor may be committing a 
 fraud in relation to a transaction, in which he is employed, can 
 not afford any reason why the client should not be affected 
 with constructive knowledge of the facts. The constructive 
 knowledge of all the facts must be imputed to him whether 
 there is fraud relating to the transaction or not. The solicitor 
 is the alter ego of the client. The client stands in precisely 
 the same situation as the solicitor does in the transaction, and 
 therefore the knowledge of the solicitor is the knowledge of 
 the client. It would be a monstrous injustice that the client 
 ehould have the advantage of what the solicitor knows without 
 the disadvantage. ^ In determining . the equities, however, 
 
 ' Per Lord Chelmsford, 10 H. L. 114. v. Ilovenden, Dru. 11 ; Kendall w. ITulls, 
 
 » Wyllie V. Pollen, 32 L. J. Ch. 782. 11 Jur. 864; Eastham v. Wilkinson, 38 
 
 ' Boursot V. Savage, L. R. 2 Eq. 134. L. T. 234 ; Spaight v. Cowae, 1 II. &l 
 
 5ee Roddy t;. Williams, 3 J. & L. 16. M. 365; Thompson v. Cartwright, 3;; 
 
 *■ Kennedy v. Green, 3 M. <fe K. 699; Beav. 185; 2 D. J. & S. 10; re Rorke's 
 
 Roddy V. Williams, 3 J. <fe L. 16; Espin Estite, 13 Ir. Ch. 271. 
 
 V. Pemberton, 3 D. <fr J. 547; Perry v. ^ Per Kinderslev, V.-C. ; Boursot v. 
 
 HoU, 2 D. F. <fe J. 38; Ogilvie v. Jeaff- Savage, L. R. 2 Eq. 134. See BjwIos 
 
 ^eson, 2 Giflf. 374. See Marjoribanks v. Stuart, 1 Sch. «fe Lcf. 222; Nixou t;.
 
 202 FRAUD UPON THIRD PARTIES. 
 
 between parties who have been defrauded by a common soli- 
 citor, the court looks to see whether there has been anything 
 in the transaction calculated to put either of the parties upon 
 inquiry. If there be anything in the case calculated to excite 
 suspicion, or to put either of the parties upon inquiry, and he 
 abstains from inquiry, the same knowledge will be imputed to 
 him as he would have been affected with, had he employed an 
 independent solicitor.^ 
 
 Notice to one partner of a trading partnership is notice to 
 the other partners.^ * A partner, however, is not necessarily 
 fixed with notice of the contents of his own books.^ 
 
 The rule that notice to one partner is notice to the other 
 partners does not apply to the case of corporations or joint- 
 stock companies. ISTotice on the part of a share-holder, or 
 non-acting director, does not affect the whole body ; * f but 
 notice to one of the persons legally intrusted with the proper 
 business to which the notice relates, or who has authority to 
 act for the corporation in the particular matter in regard to 
 which the notice is given, will bind the corporation.^:}; Notice, 
 
 Hamilton, 2 Dr. & Wal. 391 ; Toulmin 2 D. F. & J. 3S. See Greenslade v. 
 
 V. Steere, 3 Mer. 222; Hewitt v. Loose- Dare, 20 Beav. 284; Eastham v. Wil- 
 
 more, 9 Ha. 449 ; Atterbiiry v. Wallis, kinson, 33 L. T. 234. 
 
 8 D. M. & G. 457; Rorke's Estate, 13 ' Atkinson v. Macretb. 35 L. J. Ch. 
 
 Ir. Ch. 271; Bank of United States v. 624; Lindl. on Partnr. 294. 
 
 Davies, 2 Hill (Amer.), 461. ^ See Stewart's Case, L. R. 1 Ch. App. 
 
 ' Kennedy v. Green, 3 M. & K. 699 ; 574. 
 
 Frail ?;. Ellis, 16 Beav. 357 ; Ogilvie w. " Powles v. Page, 3 C. B. 16; re 
 
 JeafFreson, 2 Giff. 374; Atterbury «. Carew's Estate, 31 Beav. 45. 
 
 Wallis, 25 L. J. Ch. 794; Perry v. HoU, * Worcester Corn Exchange Co., 3D. 
 
 * "Watson r. Wells, 5 Ct. 468; Middleton &c. Bank v. Dubuque, 19 
 Iowa, 4G7 ; Bauglier v. Duphoin, 9 Gill, 314. 
 
 t Housatonic Bank v. Martin, 1 Met. 294 ; Custer v. Tompldns County 
 Bank, 9 Penn. 27; Bank of Pittsburgh v. Whitehead, 10 Watts, 397; 
 Union Canal Co. v. Lloyd, 4 W. & S. 393. 
 
 I Porter v. Bank of Rutland, 19 Vt. 410 ; Fulton Bank v. New York 
 &c. Canal Co., 4 Paige, 127 ; Banks v. Martin, 1 Met. 308 ; Bank of United 
 States V. Davis, 2 Hill, 451 ; National Bank v. Norton, 1 Hill, 575 ; 
 Macbanics' Bank of Alexandria v. Seton, 1 Pet. 299.
 
 FRAUD UPON THIRD PAGTIES. 203 
 
 however, to the officer of a corporation, or knowledge obtained 
 hy him whilst not engaged, officially in the business of the 
 company, is inoperative as notice to the latter, - Bnt in the 
 case of a joint agency (<?, g., the directors of a company), notice 
 to either whilst engaged in the business of his ageacy is notice 
 to the principal.^ 
 
 A shareholder in a company formed under the Companies' 
 Act, 1862, is not necessarily fixed with a knowledge of the 
 contents of the memorandum or articles of association of the 
 company.^ But he must, within a reasonable time after the 
 registration of the memorandum and articles of association, be 
 presumed to acquaint himself with their contents. After the 
 lapse of a reasonable time he cannot be heard to say that he 
 had no knowledge of their contents. What will be a reason- 
 able time may in some degree vary in different cases, but niust 
 always be measured with reference to the thing, to be done.^ 
 
 The shareholders in a company are not bound to look into 
 the management, and will not be held bound to have notice of 
 everything which has been done by the directors, who may be 
 assumed by the shareholders to have done their duty.* But if 
 a transaction be inserted in the books of a company, the share- 
 holders will be fixed with notice of it.' 
 
 The registration of an assurance is not of itself notice. A 
 prior equitable incumbrance will not, although registered, 
 
 M. & G. 183; re Carew's Estate, 31 425; Wilkinson's Case, re Madrid 
 
 Beav. 45 ; Parsons on Contracts, p. 65. Lank, ib. 540. 
 
 ' Bank of United States v. Davies, 2 * Stanlicpe's Case, L. R. 1 Ch. App. 
 
 Hill (Amer.), 462. But see Story ou 161. But see Walford v. Adie, 5 lla. 
 
 Agency, g§ 140 a, 140 6. 112, 119. 
 
 * Stewart's Case, L. R. 1 Ch. App. " Spackman's Case, 34 L. J. Ch. 321, 
 
 e*?*. 325 ; Stanhope's Case, L. R. 1 Ch. App. 
 
 •Lawrence's Case, L. R. 2 Ch. App. 161. 
 
 * Lyne v. Bank of Kentucky, 5 J. J Marsh. 545 ; General Ins. Co. v. 
 United States Ins. Co., 10 Md. 517; United States Ins. Co. v. Shriver, 3 
 Md. Ch. 381 ; Washington Bank v. Lewis, 22 Pick. 24 ; FarrcU Foundiy 
 Co. V. Dart, 26 Ct. 37G.
 
 264 FEAUD UrOX third TAPvTIES. 
 
 affect a subsequent purchaser without notice who has obtained 
 the legal estate.^ * But if a purchaser search the register, he 
 
 ' Morecock v. Dickens, Amb. GY8 ; Bnshell v. Bushell, 1 Sch. & Lef. 98. 
 
 * Tbe registration of a deed is constructive notice to a subsequen 
 purcliaser. Hughes v. Edwards, 9 Wheat. 489; Lasselle v. Barnett, 
 Blackf. 130 ; Peters v. Goodrich, 3 Ct. 146 ; Smith v. Prince, 14 Ct. V 
 Todd V. Benedict, 15 Iowa, 591 ; Schutt v. Large, 6 Barb. 373. 
 
 The record of a deed not required by hxw to be recorded is n' 
 structive notice. Villard v. Roberts, 1 Strobh. Eq. 393 ; Common 
 1). Rodes, 6 B. Mon. 171; Thomas v. Grand Gulf Bank, 9 Smed. & .x 
 201 ; Lewis v. Baird, 3 McLean, 56 ; Reed v. Coale, 4 Ind. 283 ; Bumham 
 «. Chandley, 15 Tex. 441 ; Bossard v. White, 9 Rich's Eq. 483 ; Parrett v. 
 Shaubhut, 5 Minn. 323 ; Galpin v. Abbott, 6 Mich. 17. 
 
 The record of a deed deficient in some statutory requirement is not 
 constructive notice of its existence. Carter v. Champion, 8 Ct. 549 ; Sum- 
 ner V. Rhodes, 14 Ct. 135 ; Moored. Auditor, 3 Hen. & M. 235; Doswell ». 
 Buchanan, 3 Leigh, 365 ; Duphey v. Frenage, 5 Stew. & Port. 215 ; Jolins 
 V. Reardon, 3 Md. Ch. 57 ; Choban v. Jones, 11 111 300 ; Isham v. Benn- 
 ington Iron Co., 19 Vt. 230 ; Schultz v. Moore, 1 McLean, 520 ; De Witt 
 V. Moulton, 5 Shep. 418 ; Gait «. Dibrell, 10 Yerg. 146 ; Harper v. Reno, 1 
 Freem. Ch. 323. 
 
 Record is constructive notice only to those claiming under the grantor 
 by whom the deed was made. Til ton «. Hunter, 11 Shep. 29 ; Crockett v. 
 Maguire, 10 Mo. 34 ; Lily i). Wolf, 10 Ohio, 83 ; Stuyvesant v. Hall, 2 
 Barb. Ch. 158 ; Murray v. Ballou, 1 Johns. Ch. 574 ; Keller v. Nutz, 5 8. & 
 R. 252; Lightney v. Mooney, 10 Watts, 412; Bates ». Norcross, 14 Pick. 
 224 ; Blake v. Graham, 6 Ohio St. R. 580. 
 
 A deed properly left with the clerk for record will be considered as 
 recorded from the time when it was so left, although it has been lost and 
 never recorded through the negligence of the clerk. Beverly v. Ellis, 1 
 Rand. 102 ; Nichols v. Reynolds, I Angell, 30. 
 
 An incorrect entry in the index book will not impart constructive 
 notice to a subsequent purchaser. Breed «. Conley, 14 Iowa, 269 ; Gwynn 
 «. Turner, 18 Iowa, 1. 
 
 Where the state of the title is such that there is nothing to connect 
 the name or interests of a third person with the property, it is unreason- 
 able to impute notice of the interests of such third person to a purchaser, 
 for no ordinary prudence can detect it. Lily v. Wolf, 10 Ohio, 83 ; Mur- 
 ray V. Ballou, 1 Johns. Ch. 566 ; Sanger v. Craigar, 10 Vt. 555 ; Jenning v. 
 Wood, 20 Ohio, 261 ; Filton r. Pitneau, 14 Geo. 530. 
 
 The recording of a deed from the true owner in his right name, though
 
 PRATJD UPON THIRD TAKTIES. 265 
 
 Will be presumed to have notice, unless tlie presumption can 
 be rebutted bj showing that the search was made for a period 
 only in which the registered deeds are not inchided.^ There 
 is a material distinction in the effect of resristration between 
 the register acts of Ireland and those of England. Bv the 
 Irish Act 6 Anne, c. 2, an absolute priority is expressly given 
 to the instrument first registered, so that a subsequent pur- 
 chaser, having the legal estate, though he has not notice of an 
 equitable estate previously registered, will be bound and com- 
 pelled to give effect to it.^ 
 
 At law, notwithstanding notice, mere priority of registra- 
 tion absolutely determines the right to the property as between 
 persons claiming under adverse registered instruments, pur- 
 porting to pass the legal estate ; ' but in equity, notwithstand- 
 ing the stringent language of the Registration Acts, registra- 
 
 ' Hodgson V. Dean, 2 Sim. & St. 221, 98 ; Latouche v. Lord Diinsany. ib. 159. 
 
 affd. See Sug. V. & P. 7G1. Comp. 160; Drew i'. Lord ^'orbury, 3 J. & L. 
 
 Procter v. Cooper, 2 Drew. 1 ; 1 Jur. N. 267 ; Will v. Hill, 3 H. L. 828. 
 
 S. 149. » Doe V. Alsop, 5 B. & Aid. .142. 
 
 ^ Bushell ». Bushell, 1 Sch. & Let 
 
 diflferent from the name by which he acquired it, is constructive notice of 
 such deed. Fallon v. Kehoe, 38 Cal. 44. 
 
 When there is a material variance between the record copy and the 
 deed, the record is not constructive notice. Frost i;. Beekman, 1 Johns. 
 Ch 288; Sawyer v. Crane, 10 Vt. 553 ; Baldwin v. Marshall, 2 Humph. 
 116; Jennings v. Wood, 20 Ohio, 261 ; Miller e. Bradford, 13 Iowa, 14. 
 
 Fraud can not be inferred from mere delay in putting a deed on rec- 
 ord, if the grantee has used all the dispatch which the law requires. If 
 subsequent purchasers without notice sustain an injury within the time 
 allowed for recording a deed, the injury is to be ascribed to the law. 
 Sherras v. Craig, 7 Cranch, 34. 
 
 A party cannot be permitted to take a deed from another for his own 
 security, and leave the grantor in possession, and ostensibly the owner, 
 and withhold it from record for an indefinite period, renewing it periodi- 
 cally, and then receive the benefit of it by placing the last renewal upon 
 the record. All the renewals are mere continuations of the first deed, and 
 the time for recording begins to run from its date. Gill v. Griffith, 2 Md. 
 Ch. 270. 
 
 18
 
 266 FRAUD UPON THIRD PARTIES. 
 
 tion is no protection against an unregistered assurance of wliicb 
 the party claiming under the registered instrument had notice 
 prior to the completion of his purchase or security.'^ The ob- 
 ject of the Kegistration Acts being to give notice, the evils 
 against which those statutes intended to guard do not exist 
 where a man has notice independently of the registry. If, 
 therefore, a man having such notice seeks to defeat a prior 
 charge on the pretence that he had no notice by means of the 
 registry, it is a fraud in the sense of a court of equity.^* The 
 notice must, however, be clear and distinct.^ f The same rules 
 in regard to notice apply to cases nuder the Kegistry Acts as 
 to all other cases.* Constructive notice of a prior unregistered 
 assurance affecting lands in Middlesex, is as effectual as actual 
 notice.^ 
 
 'Le Neve v. Le Neve, 3 Atk. 630; 'Wyntt v. Barwell, 19 Ves. 435; 
 
 Eyre v. M'Dowell, 9 H. L. 619 ; Re Chad wick v. Turner, L. R. 1 Ch. Ap. 
 
 Korke's Estate, 13 Ir. Ch. 2*71. See 310. 
 
 Nixon V. Hamilton, 2 Dr. & Wal. 391 ; * Whitbread v. Jordan, 1 Y. & C. 303; 
 
 Benham v. Keane, IJ. & H. 685; 3 D. Ford v. Wliite, 16 Beav. 120; Wormald 
 
 F. <fe J. 318. V. Maitland, 35 L. J. Ch. 69. 
 
 " Sheldon v. Cox, 2 Eden, 224; Bush- ' lb. See :sixon v. Hamilton, 2 Dr. 
 
 ell V. Bushel), 1 Sch. & Lef. 102; Eyre & Wal. 391; Rochard v. Fulton, IJ. & 
 
 «. M'Dowell, 9 H. L. 619, 646; Chad- L. 413. 
 wick V. Turner, L. R. 1 Ch. App. 310. 
 
 * Dunham v. Dey, 15 Johns. 5G8; Lupton v. Cornell, 4 Johns. Ch. 262; 
 Ohio Life Ins. Co. v. Ledyard, 8 Ala. 866; Ingram -y. Pliiiips, 3 Strobh. 
 565 ; Knotts v. Ginger, 4 Rich. 33 ; Smith v. Hall, 28 Vt. 364; Dickenson 
 V. Braden, 30 111. 279 ; Doe «. Reed, 4 Scam. 117 ; Warnock v. Wrightman, 
 1 Brevard, 331; Hudson ®. Warner, 2 H. & G. 415; Morton®. Robards, 4 
 Dana, 258 ; Jackson v. Leek, 19 Wend. 339. 
 
 t Taylor i\ Heriot, 4 Dessau. 227 ; Wallace v. Craps, 3 Strobh. 266 ; 
 Porter v. Sevey, 43 Me. 519. 
 
 Constructive notice is not sufficient. The notice must be such as will, 
 with the surrounding circumstances, affect the purchaser with fraud. Dey 
 v. Dunham, 2 Johns. Ch. 182 ; City Council v. Page, Spear's Ch. 159 ; Spof- 
 ford 1). Weston, 29 Me. 140 ; Hopping v. Burnam, 2 Iowa, 39; contra, New- 
 man V. Chapman, 2 Rand. 93 ; Rogers v. Jones, 8 N. 11. 264 ; Doe v. Reed, 
 4 Scam. 117; Parks®. Willard, 1 Tex. 350. 
 
 A voUmtaiy unrecorded conveyance is valid against any subsequent 
 voluntary conveyance by the grantor. Way v. Lyon, 3 Blackf. 76.
 
 MISCELLANEOUS FRAUDS. 2G7 
 
 The same principles were held under the old law to apply 
 to the case of a purchaser with notice of undocketed judg- 
 ments,* but under the new law a purchaser even with notice is 
 not bound by a judgment, unless it has been duly registered in 
 the Common Pleas ;^ nor will notice of a registered judgment 
 affect a purchaser, unless it has been re-registered in due time.^ 
 As between judgment creditors notice is not material.* 
 
 Purchasers of lands in Middlesex are bound by notice of 
 unregistered or undocketed judgments, but as between judg- 
 ment creditors notice is not material. A prior judgment cred- 
 itor has no equity against a subsequent judgment creditor, who 
 has registered with notice.' 
 
 The registration of a judgment is not notice,® unless a 
 search has been made for judgments, in which case notice will 
 be presumed;' but it seems that a title depending on the fact 
 of the vendor having been a purchaser without notice of a 
 registered judgment cannot be forced on a purchaser.^ 
 
 SECTION v.— MISCELLANEOUS FRAUDS. 
 FRAUD UPON POWERS. 
 
 A class of frauds against which courts of equity will re- 
 lieve, are fi-auds upon powers. 
 
 There is a fraud upon a power if a man, having a power of 
 appointment, corruptly exercises the power with a view to his 
 own personal beneUt and advantage. An appointment under 
 
 * Davis V. Lord Stratlimore, 16 Ves. D. F. & J. 318. See Evana t. Williams 
 419; Sug. V. <fe F. 521, 34 L. J. Ch. 485. 
 
 * Sug. V. & P. 53.3. ^ Eenham v. Keane, 3 D. F. & J. 318 
 
 * 18 Vict. c. 15, § 3. See Beavan v. * Clmrcliill v. Grove, 1 Ch. Ca. 35; 
 Lord Oxford, 6 D. M. & G. 492; Shaw Freem. Ch Ca. 176; Lane v. Jackson 
 V. Neule, 6 H. L. 584; Benhara ?;. 20 Beav. 535. 
 
 Keane, 1 J. <fe II. 685 ; 3 D. F. & J. ' Proctor v. Cooper, 2 Drew. 1 • 1 
 
 818; Evans v. Williams, 34 L. J. Ch. Jur. N. S. 149. 
 
 485. 8 Freer v. Hesse, 4 D. M. tfc G. 495. 
 
 * Benham v. Keane, 1 J. A U. 685; 3
 
 268 MISCELLANEOUS" FRAUDS. 
 
 a power, accordingly, will be set aside in equity if it appear 
 that tlie person in whose favor the power has been exercised 
 has agreed or stipulated to give the owner of the power some 
 benefit or advantage in the event of the power being exercised 
 in his favor,^ or if the circumstances of the case attending the 
 execution of the power are such as to show conclusively that 
 the appointment was made with a view to some profit ulti- 
 mately accruing to the owner of the power ; ^ as, for instance, 
 where a parent, having a power of appointment among child- 
 ren, exercises it in favor of a son, a lunatic, in very bad health 
 and likely to die, in which event the parent would, of course, 
 become entitled to the fund, as the personal representative of 
 the son.^ So also, and for the same reason, where a parent 
 having power to raise portions for children, appointed a portion 
 to a child long before it was required, and the child died 
 shortly afterward, the appointment was held invalid.* So 
 also an appointment by a parent in favor of a daughter, with a 
 view to obtaining the benefit of the fund so appointed, through 
 the exercise of undue parental influence over her, would be 
 held invalid.' 
 
 There is a very material distinction between powers to ap- 
 point portions to be raised for children, and powers to appoint 
 to children a fund actually set apart or provided. Under a 
 power of the former class, an appointment whereby a portion 
 is raised for a child before it is wanted, carries with itself the 
 evidence of fraud, even though the terms of the power author- 
 ize the parent to raise the portion whenever he thinks proper.^ 
 
 1 Lane v. Page, Ambl 233 ; Palmer ' Wellesley v. Mornington, 2 K. <fe J. 
 
 V. Wheeler, 2 Ba. & Be. 31 ; Farmer v. 143. 
 
 Martin, 2 Sim. 511; Arnold v. Hard- ■* Lord Hinchinbrooke v. Seymour, 1 
 
 wick, 7 Sim. 343 ; Jackson v. Jackson, 7 Bro. C. C. 395 ; Wellesley v. Morning- 
 
 Cl. & Fin. 977 ; Rowley v. Rowley, Kay, ton, 2 K. & J. 143. 
 
 242 ; Reid v. Rekl, 25"^ Beav. 478. See ' Re Marsden's Trusts, 4 Drew. 601. 
 
 Askham v. Barber, 17 Beav. 44. ' Lord Hinchinbrooke v. Seymour, 1 
 
 "" Ilumpbrey v. Oliver, 28 L. J. Cb. Bro. C. C. 395. 
 i06
 
 MISCELLANEOUS FEAUDS. 209 
 
 TJuder a power of the latter class, however, shares may be ap- 
 pointed to a child so as to vest long before they are required. 
 A hond fide appointment to a child of very tender age, and in 
 good health, of an estate or fund which has been previously set 
 apart or provided for the benefit of children, is in itself no 
 sio-n of fraud. It is of no consequence that the child may die 
 shortly afterward, if it was in good health at the time the 
 power was exercised. If the power be in other respects well 
 executed, it is immaterial that it may have in fact been exer- 
 cised with the object of providing that in any event the per- 
 sons entitled in remainder on failure of children shall not take 
 the estate or, fund.^ 
 
 If a person be the only child who has been kind to a parent 
 in distress, there is no fraud if the parent exercises a power of 
 appointment in his favor.' JSTor is there fraud if a parent exer- 
 cises a power of appointment in favor of two of his sons, to 
 enable them to embark in business, and then, at their request, 
 becomes a partner with them in the business, there being no 
 evidence to prove any bargain between them in the event of 
 his exercising the power in a particular way.^ An appoint- 
 ment, however, to one of several objects of a power in pay- 
 ment of a debt due to him from the appointer is bad.* 
 
 Although an appointment by a parent in favor of a child, 
 over whom he exercises undue influence, cannot be supported,^ 
 it is otherwise if the exercise of undue influence be disproved.' 
 A child to whom property has been appointed by a j^arent 
 may, in such a case, give the parent a benefit or advantage 
 in the property so appointed.' 
 
 ' Butcher v. Butcher, 14 Sim. 444 ; ' Re Marsden's Trusts, 4 Drew. fiOl. 
 
 Feaion v. Desbrisay, 14 Bcav. 635 ; See Topliara v. Duke of I'urtlunil, 1 D. 
 
 Beere v. lloffmeister, 23 Beav. 101. J. & 8. 517. 
 
 ^ Wheeler v. Palmer, 2 Ba. & Be. 31. ° See mpra. p. 181. 
 
 ' Cockcroft V. Sutcliflfe, 2 Jur. N. S. ' Davis v. Iphill, 1 Sw. 136; Warde 
 
 823. V. Dickson, 5 Jur. JN. S. 699. 
 
 * Reid V. Reid, 25 Beav. 478. See 
 Beddocs V. Pugh, 26 Beav. 411.
 
 270 MISCELLANEOUS FEAUDS. 
 
 In an arrano-ement settling tlie interests of all the branches 
 of a family, children may contract with each other to give 
 to a parent, who had power to distribute property among 
 them, some advantage which the parent, without their contract 
 with each other, could not have.* 
 
 In order, however, to constitute a fraud upon a power, it is 
 not necessary that the object of the exercise of the power 
 should be the personal benefit or advantage of the donee of 
 the power. If the design of the donee in exercising the 
 power is to confer a benefit, not upon himself actually, but 
 upon some other person not being an object of the power, 
 that motive just as much interferes with and defeats the 
 purpose for which the power was created as if it had been 
 for the personal benefit of the donee himself. If the donee 
 of a power of appointment exercises tlie power in favor of 
 one of several objects of the power, with a view to the benefit 
 of a stranger, the appointment is fraudulent and void, even 
 although the motive of the donee is not morally wrong.^ A 
 man who takes property absolutely under an appointment, 
 may do with the pi'operty so appointed as he pleases, and may 
 settle it on persons who are not objects of the power ; ' but 
 there is a fraud upon a power if an appointment be made upon 
 a bargain for the benefit of persons who are not objects of the 
 power.* The appointment, accordingly, of a portion of a fund 
 to a daughter, for the purpose of paying her husband's debts, 
 was held void." So also, where a married woman, having a 
 power to appoint a fund of which she received the income for 
 her life, appointed the whole fund at her death absolutely in 
 favor of her daughter, in order that thereout the daughter 
 should benefit the father, the appointment was held invalid.® 
 
 ' Davis ?'. Uphill, 1 Sw. 136. ^ Birley v. Eirley, ib.; Pryor v. 
 
 - lie IMarsden's Trusts, 4 Drew. 601. I'ryor, 2 D. J. <t S. 205. 
 » Routledge v. Dorrill, 2 Ves. Jr. 357. ' liauking v. Barnes, 12 W. R. 568. 
 
 See Birlev v. Birley, 25 Beav. 21)9. ' He Marsden's Trusts, 4 Drew. 601.
 
 MISCELLAXEOUS FKAUDS. 271 
 
 The principle has been held even to apply to a case where an 
 arrangement was entered into between the original donor and 
 creator of the power and any of the objects of the power, to 
 benefit persons other than those within the power.'' The 
 principle that the donee of a power may not appoint to a per- 
 son who is not an object of the power applies even although 
 the appointee is not privy to the intentions of the donee of 
 the power. The design to defeat the purpose for which the 
 power was created will stand just the same whether the 
 appointee was aware of it or not.^ Where, accordingly, a 
 married woman, having a power to appoint a fund of which she 
 received the- income for her life among her children, appointed 
 the whole fund at her death in favor of her daughter, in order 
 that thereout the daughter should benefit her father, relying 
 on the influence which the father would have over her to carry 
 out the secret arrangement, the appointment was held invalid, 
 although the daughter was not informed of the mother's inten- 
 tion until after her mother's death.' 
 
 Although children may contract with each other to give 
 to a parent, who has powder to distribute property among them, 
 some advantage which the parent, without their contract with 
 each other, would not have,* a transaction of the sort cannot 
 be upheld if, taken as a whole, it appears not to be a l)ona fide 
 family arrangement, but to have been entered into in fraud of 
 the power, for the purpose of giving a benefit to a person who 
 was by the donor excluded from being an appointee or from 
 deriving any advantage from the exercise of the power.' 
 
 There is a fraud upon a power, not only ^vhere it is exer- 
 cised in favor of persons who are not the proper objects of the 
 power, but also where it is exercised for purposes foreign to those 
 
 ' Lee V. Fftrnie, 1 Beav. 483. * Davis v. Uphill, 1 Sw. 136. 
 
 " Re Marsden's Trusts, 4 DrcTV. 001. * Agassiz v. bquire, 18 Beav. 431. 
 
 * Ih. (See Ranking v. Barnes, 12 W. 
 R. 508.
 
 272 MISCELLANEOUS EKAUDS. 
 
 for wliicli the power was created.^ The donee of the power shall, 
 at the time of the exercise of the power, and for any purpose for 
 which it is used, act with good faith and sincerity, and with an 
 entire and single view to the real pui-pose and object of the 
 power, and not for the purpose of accomplishing or carrying into 
 effect any object which is beyond the purpose and intent of 
 the power.2 It is accordingly, a fraud upon a power, if a man 
 having a power to appoint among two sisters appoints the 
 whole to one of them, it being understood that she was only 
 to receive one moiety of the fund to her own use, and was to 
 allow the other to accumulate, subject to some future arrange- 
 ment.^ In determining whether there is a fraud upon a power, 
 the court looks to the purpose with which the power was exer- 
 cised.* In Scroggs v. Scroggs,^ the consent of a trustee was 
 necessary to the exercise of a power, and the donee of the 
 power procured the trustee's consent by a false representation, 
 to which the appointee does not appear to have been in any 
 way a party ; yet the court set aside the appointment.* 
 
 If there be a fraudulent arrangement between the donee of 
 a power and the appointee, the bad purpose will, in general, 
 vitiate the appointment in toio, and not merely the part to 
 which the fraud extends.' Appointments to children, accord- 
 ingly, in part fraudulent, have almost always been avoided 
 altogether.^ In cases, however, where the evidence enables 
 the court to distinguish what is attributable to an authorized 
 from what is attributable to an unauthorized purpose, the bad 
 purpose wiU not affect the whole appointment.^ So when 
 there is a sum of money to be appointed among children, 
 
 ' Tophnra v. Duke of Portland, ID, ' Daubeny v. Cockburn, 1 Mer. 626. 
 
 J. <fe S 570. * Ih. Fanner >•. Marlin, 2 Siin. 511 ; 
 
 ^ Duke of Tortland v. Topham, 11 H. Arnold v. Hardwicke, 7 Sim. 343. See 
 
 L. 54, j/er Lord Westbury. Rowley v. Rowley, Kay. 259. 
 
 » Jb. 32. ° Topl)am v. Duke of Portland, 1 D. 
 
 * Topham v. Duke of Portland, ID. J. <fe S. 572 , per Turner, L. J. See 
 J. <fe S. 570. Carver v. Richards, 27 Beav. 488 ; 
 
 * Ambl. 272. Ranking v. Barnes, 12 W. R. 5C5. 
 
 * Fer Turner, L. J., 1 D. J. & S. 570. 
 
 i
 
 MISCELLANEOUS^ FRAUDS, 273 
 
 althougli an appointment to one cLild may be void on account 
 of a corrupt agreement, an apj)ointment to another child, 
 although by a contemporaneous deed, if it can be severed 
 from the previous appointment so as not to form part of the 
 same transaction, will be valid.-^ 
 
 Although in the case of appointments to children, a fraud- 
 ulent arrangement between the donee of the power and the 
 appointee will, in general, vitiate the whole appointment, a 
 different doctrine has been maintained in the case of appoint- 
 ments by way of jointure. The appointment will, in such 
 cases, be only vitiated in the extent to which it is affected by 
 the fraud.^ , 
 
 It was formerly held that illusory appointments under a 
 power were void in equity, e. g., appointments of a nominal 
 instead of a substantial share to one of the members of a class 
 where power was given to appoint among them all. An 
 appointment of this kind was always valid at law, and it would 
 perhaps be difficult to reconcile with principle its avoidance in 
 equity. The doctrine has been abolished by statute.^ 
 
 FRAUD IN THE PREVENTION" BY UNDUE 3HEANS OF ACTS TO 
 BE DONE FOR THE BENEFIT OF THIRD PARTIES. 
 
 There is fraud against which a court of equity will relieve, 
 if a man be prevented by undue means from doiiig an act for 
 the benefit of third parties. If a man be prevented by duress, 
 undue influence, or other undue means, from executing an 
 instrument, the court will treat it as if it had been executed.* 
 "When, for instance, a tenant in tail, meaning to suffer a 
 recovery, was prevented on his deathbed from sufferijig it, by 
 the fraud of the person whose wife was entitled in remainder, 
 
 * Rowley v. Rowley, Kay, 242. See » 11 Geo. IV, & 1 Wm. IV, c. 46. 
 
 Harrison v. Randall, 9 Ila. 397. Butcher v. Butcher, 9 Yes. 382. 
 
 ' Lane v. Pa^e, Arab. 2:53 ; Alevn v. * Middletou v. Middletou, 1 J. & W, 
 
 Belcher, 1 Eden, 138, t-ug. Pow." 610. 96. 
 See llovvley v. Rowley, Kay, 239.
 
 274 MISCELLANEOUS FRAUDS. 
 
 it was held that the estate ought to be held as if the recovery 
 had been perfected, though even in favor of a volunteer, and 
 against one not a party to the fraud.^ So also when a pei-son 
 interested in the non -execution of a power has the deed 
 creating the power in his custody, and the donee of the power, 
 wishing to execute it, sends for tlie deed, which the party 
 refuses to deliver, and thereupon the donee does an act with 
 an intent to execute the power, equity will uphold the 
 execution, although defective by reason of the fraud in the 
 person who was to have the benefit of the original settlement.^ 
 But the mere refusal or neglect of an attorney with whom a 
 deed containing a power has been deposited, to deliver it up 
 to the donee of the power, in the absence of fraud, is no 
 ground for relief against informality.* Equity would extend 
 the relief to a case wdiere a wife, having a power of revocation 
 over an estate vested in her husband, is desirous to exercise it ; 
 but the husband hinders anybody from coming to her, or 
 prevents the execution, or obstructs the engrossing of the 
 deed of revocation.^ 
 
 The principle applies to cases where a man has been 
 induced by false promises to abstain from doing an act for 
 the benefit of third parties. If, for example, a testator be 
 induced to omit the insertion in his will of a formal provision 
 for any intended object of his bounty, upon the faith of assur- 
 ances given by his heir or other person, who would take hir, 
 property in the event of his omitting to insert the particular 
 bequest in his will, that his, the testator's, wishes shall be 
 executed as punctually and fully as if the bequest were 
 formally made, this promise and undertaking will raise a trust, 
 
 > Luttrell V. Olmius, cit. 11 Yes. 638 ; ' Buckell v. Blenkhorn, 5 Ha. 131. 
 
 14 Ves. 290; 1 J. & W. 96. * Pig^ott v. Penrice, Com. 250 ; Free. 
 
 " See 3 Ch. Ca 67, 83, 84, 89, 93, 108, Ch. 471 ; Vane v. Fletcher, 1 P. "Wms. 
 
 122; Ward v. Booth, cit. 3 Ch. Ca. 69. 354; Segrave v. Kirwan, Beatt. 157; 
 
 See Fort. 383; Buckell t'. Blenkhorn, 6 Bulkley w.Willford, 2 CI. & Fin. 102; 
 
 Ha. 131 ; West v. Ra}-, Kay, 385. Naaney v. Williams, 22 Beav. 452.
 
 MISCELLANEOUS FRAUDS. 275 
 
 which, though not avaOable at law, will be enforced in equity 
 on the ground of fraud,^ * So, also, if a father devises an 
 estate to one son, who engages, if the estate is devised to him, 
 to give a certain amount of money to another son, the promise 
 will be enforced in equity.^ An engagement of the kind 
 alluded to may be entered into not only by words, but by 
 silent assent to such a proposed undertaking, which will equally 
 raise a trust.^ 
 
 FRAUDULENT SUPPRESSION" OR DESTRUCTION OF DEEDS 
 
 AND OTHER INSTRU:MENTS IN VIOLATION OF OR 
 
 INJURY TO THE RIGHTS OF OTHERS. 
 
 If an heir should suppress deeds, wills, &c., in order to 
 Tsrevent another party, as grantee or devisee, from obtaining 
 the estate vested in him thereby, courts of equity, upon due 
 proof by other evidence, would grant relief, and perpetuate 
 the possession and enjoyment of the estate in such grantee or 
 devisee.* If the contents of a suppressed or destroyed instru- 
 ment are proved, the party will receive the same benefit as if 
 the instrument were produced.^ 
 
 Where there has been a spoliation or suppression of instru- 
 ments, which might have thrown light upon a suit, everything 
 will be presumed against the party by whose agent such 
 
 ' Dutton V. Pool, 1 Vent. 318 ; Thynn ' Sticldand v. Aldridq:?, 9 Ves. 519. 
 
 t*. Tliynn, I Vern. 296 ; Sellack v. Har- ' Byrne v. Godfrey, 4 Ves. 10; Paine 
 
 ris, 5 Viii. Ab 521 ; DLveninli u. IJa'mes, v. Hall, 18 Ves. 475. 
 Free. Ch. 3 ; Oldham v. Lit; hfield, 2 * Hunt v. Mattliews. 1 Vern. 408 ; 
 
 Vern. 5UG ; 2 Freein. Cb 284; fbam- Wardoiir i». Berisford, ib. 452, cit. 2 P. 
 
 berldne ?'. Chamberlaine, 2 Froem. Ch. AVm. 748, 749 ; Dalston v. Coatswortb, 
 
 34; Keech v. Kenninate, Anib. 07 ; Bar- 1 P. Wms. 731 ; Finch v. Newnham, 2 
 
 row V. (Irecnough, 3 Ves 153; Mestaer Vern. 210; Barnesley '■. Pi)\vell, 1 Ves. 
 
 V. Gillcs]iic, 11 Ves. 038; Chamberlaine 289 ; Tucker v. Phip'ps, 3 Atk. 360. See 
 
 V. Aii-iir, 2 V. & B. 262 ; Podniore c Gun- Hornby v. Mateham, 16 Sim. 325. 
 ninsj, 7 Sim. 660; Russell t;. Jackson, 10 'Saltern v. Meliiuish, Amb. 247; 
 
 Ha. 213. Cowper v. Cowper, 2 P. Wms. 719. 
 
 * In no case has a party been successful when a reasonable doubt in 
 regard to the promise could I)e entertained. Gaither v. Gailher, 3 Md. Ch. 
 158; Richardson v. Adams, 10 Yerg. 273.
 
 270 MISCELLANEOUS FRAUDS. 
 
 spoliation and suppression have been practiced, and every 
 presumption will be made in favor of the j^rima facie rights 
 of the other party.^ 
 
 Prima facie the cancellation of a deed is evidence of its 
 discharge, but in a court of equity it is open to the party 
 claiming under the deed to show that it was cancelled by 
 fraud, mistake, or accident. Where the deed has always been 
 in the hands of the party beneficially interested under it, 
 should it appear to have been cancelled, the proof that this 
 was done by fraud would rest with that party ; but where the 
 deed has constantly remained in the power of the maker 
 thereof, or has been deposited by him with a person of his 
 own selection, circumstances may throw upon the maker of the 
 deed the onus of showing not only that such deed is cancelled, 
 but that the obligation it imposed has been duly discharged 
 and satisfied.' 
 
 FRAUD m SETTING UP AN INSTRUMENT OBTAINED FOR 
 ONE PURPOSE FOR ANOTHER PURPOSE. 
 
 Where a man obtains an instrument or conveyance from 
 another, in order to answer one particular purpose, but after- 
 wards makes use of it for another, a court of equity will 
 relieve under the head of fraud. It is immaterial that the 
 conveyance may be perfected by act of record.^ Where, 
 accordingly, a father, who was a tenant for life of real estate, 
 fearing that the husband of his daughter, who was tenant in 
 tail of the property, would waste the property, induced him 
 and the daughter to join in a recovery, with a view to protect- 
 ing the property from his creditors, and the property was 
 conveyed to the father for a mere nominal sum, the recovery 
 
 » Bowles V. Stuart, 1 Sch. <fe Lef. 222; « Sluysken v. Hunter, 1 Mer. 46. 
 
 Eyton V Eyton, 1 Bro. P. C. 153; « Young «;. Peachey, 2 Atk. 256. 
 
 llampcleri v. iJaiii|)den, ih. 25:i ; Sepal- 
 ino V. Twitty, teel. Ca. Ch. 76,
 
 MISCELLANEOUS FKAUDS. 277 
 
 ■was set aside at tlie suit of the assignees in insolvency of his 
 6on-in-law.^ 
 
 FRAUD IN ASSIGNMENTS, BY ASSIGNEES, ETC. 
 
 An assignment by the assignee of a lease or term is not a 
 franclnlent assignment. If a man assign nominally only, 
 retaining the beneficial enjoyment, it is fraudulent, because 
 while he assumes to one thing, he really does another. He 
 retains the benefit, and, by a false act, endeavors to get rid of 
 the burthen. But if he assigns really, getting rid of the 
 burthen, and giving up really the benefit also (if any) to his 
 assignee, it is not a fraudulent act. His motive for parting 
 with it. Or the other's motive for receiving it, are not enough 
 to make it fraudulent, if the act done be a real act, intended 
 really to operate as it appears to do. The assignment even to 
 a beggar is not fraudulent, although, made in order to avoid 
 payment of a sum of money chargeable on the property under 
 the original agreement. The motive which induces the as- 
 signee to assign over has no bearing upon the question 
 whether the assignment be fraudulent or not, provided the 
 assignment is real and intended to operate, as it appears to 
 operate.* 
 
 Where the assignee of a lease, subject to a mortgage, in- 
 duced the lessor, a friend and client, to take advantage of a 
 forfeiture, which was committed by the lessee expressly for 
 that purpose, and, after the forfeiture was complete, induced 
 the lessor to grant him a new lease of the property on the 
 same terms, the court declared that the new lease was subject 
 to the mortgage.' 
 
 ' Young V. Peachy, 2 Atk. 256, See ' Taylor v. Shum, 1 B. <fe P. 21 ; 0ns- 
 
 Wilkinson v. Biayiield. 2 Venn. 307; low ?'. Corrie, 2 Madd. 340; Fagg v. 
 
 Goodricke v. Brown, 2 Freem. 180, 1 Dobie, 3 Y. & C. lOi. 
 
 Ch. Ca. 49 ; Evans v. Bickncll, 6 Ves. * Hughes v. Howard, 25 Beav. 575. 
 191 ; Pickett v. Loggon, 14 Ves. 234.
 
 278 miscella:^eous frauds. 
 
 fraud by axd upon co:mpames. 
 
 Fraud wliicli consists in misrepresentation or concealment 
 on the part of companies Las been already considered; but 
 there are other acts on the part of companies which are 
 fraudulent in the contemplation of a conrt of equity. 
 
 The creditor of a company who has recovered judgment 
 against the company may, unless in the case of companies 
 within the Companies' Act, 1802,^ proceed to execution at 
 his pleasure against any particular shareholder ; ^ but if a com- 
 pany enter into an agreement with one of its creditors that he 
 shall recover judgment against the company, and take out 
 execution against a particular shareholder, there is fraud, 
 against which relief may be had in equity.^ The rule that a 
 partner cannot buy in a debt, and enforce it against his copart- 
 ners applies equally as between shareholders in joint stock 
 companies.* 
 
 A shareholder in a company acting tojid fide may sell his 
 shares to another person, or give him money to take the shares, 
 if the transaction be open and not merely colorable ; but if a 
 shareholder gets rid of his shares by assigning them to a 
 pauper, or to a person over whom he has entire control, in 
 order to avoid paying his share ot the debts of the company 
 and to throw them upon the other shareholders, the transaction 
 is fraudulent.^ 
 
 Where shares in a joint stock company have been issued 
 fraudulently, a hond fide purchaser of these shares in the 
 market, before any bill has been filed to impeach the transac- 
 tion, is entitled, on a winding-up of the company, notwith- 
 standing the fraud, and notwithstanding that he bought the 
 shares at a very great discount, to prove on equal terms with 
 
 ' 25 <fe 2G Vict. c. 89, §^ 85, 201. Railway Co., 1 K. & J. 399 ; Bargate v. 
 
 " Green v. Nixon, 23 Bear. 530 ; Beck Short rid 2;e, 5 II. L. 297. 
 
 V. Denn, 3 Jur. N. S. 14. * Wooclliams v. Anglo- Australian, <fec. 
 
 ^ Taylor v. Hughes, 2 J. & L. 24; Co., 2 D. J. <fe S. 1G2. 
 
 Fernih'ough v. Leader, 15 L. J. Ch. 458, ' Slater's Case, 35 Beav. 393. See 
 
 4 Ed. Ca. 373; Horn v. Kilkenny, &c. Ez-parte Garstin, 10 W. R. 457.
 
 MISCELLANEOUS FRAUDS. 279 
 
 the other shareholders of the company who bought their 
 shares at par ; hut this privilege does not extend to any per- 
 son who purchased his shares after the filing of the bill, unless 
 his vendor was a hond fide holder of the shares before bill 
 filed, and the onus of proof that such was the case is upon 
 liim.^ 
 
 FRAUD UPON THE MORTMAIN LAWS. 
 The court will relieve against a fraud on the Mortmain 
 laws. The statute 9 Geo. II, cannot be evaded by a secret 
 trust, and the heir may compel the devisee to disclose any 
 promise which he may have made to the testator to devote 
 the land to charity ; ^ and such promise, if denied by the 
 devisee, may be proved by evidence aliunde^ The trust, by 
 whatever means established, invalidates the devise. This 
 doctrine evidently assumes that the trust, if legal, would have 
 been binding on the conscience of, and might have been en- 
 forced against, the devisee ; and this ground failing, the rule 
 does not apply : as where a testator, after devising lands by a 
 will duly attested, declares a trust in favor of a charity by an 
 unattested paper or by parol, the statute law, which affords to 
 the devisee a valid defence against any claim on the part of 
 the charity, of course equally defends him against the claim of 
 the heir, founded on the charitable trust.* The case would 
 be different, however, if the devisee had prevailed on the 
 testator to give him the estate absolutely, under an assurance 
 that the unattested paper was a sufficient declaration of trust 
 for the charity,^ or under a promise that if the estate were 
 devised to him, he would perform the trust.® 
 
 » Barnard v. Bagshaw, 1 IT. <fe M. 69. * Adlington v Cann, 3 Afk. 141 ; cit. 
 
 » Boson V. Statha.n, 1 Ed. 508 ; Miic- 9 Ves. 519 ; Wallgrave v. Tobbs, 2 K. 
 
 lileston V. Brown, 6 Ves. 52; Stickland <fe J. 313; Lomax v. Kiple}-, 3 Sm. «fe G. 
 
 V. Aldridge, 9 Ves. 516 ; Paine v. llull, 48. 
 
 18 Ves. 475. ' See Adlington v. Cann, 3 Atk. 152. 
 
 ' Edwards v. Pike, 1 Ed. 267, 1 Cox, • Ihissell v. Jackson, 10 Ila. 204. See ' 
 
 17. Jarman ou Wills, vol. I, p. 213.
 
 280 MISCELLANEOUS FRAUDS. 
 
 FRAUDS ON THE LAW OF FORFEITUEE. 
 
 A court of equity will relieve against frauds on the law of 
 forfeiture. 
 
 The crown coming in on the foot of an attainder has all 
 the rights of the party forfeiting, and has the same equity to 
 be relieved against conveyances on the ground of fraud as he 
 would have. The crown, on a forfeiture, takes the estate, sub- 
 ject to all charges and incumbrances which would have bound 
 the party forfeiting, and is bound, too, thereby, where there is 
 no fraud, in respect of the crown. If, however, the attainted 
 party has voluntarily and designedly made a grant or convey- 
 ance to encumber his estate, with a view to high treason, the 
 crown, and those taking froni it, would have a right to dispute 
 that demand, and be delivered therefrom, as fraudulent.^ 
 
 If a man gives an estate to A and his heirs, but in case he 
 commits high treason, over to another, this is a void limitation, 
 because it is an invasion of the laws of forfeiture.^ So also a 
 man may substitute another legatee or executor, if the first 
 should die during the life of the testator, but he cannot extend 
 it beyond the term of his own life.^ 
 
 FRAUD UPON THE BANKRUPT LAWS. 
 
 The principle of the Bankrupt laws being the equal dis- 
 tribution of the property and efifects of a bankrupt among his 
 creditors,* acts which are done with the object of preventing 
 an equal distribution of the property and effects of a bankrupt 
 among his creditors are fraudulent within the meaning of those 
 laws.^ The assignment, accordingly, by a man of the whole of 
 his estate and effects, or of the whole with a colorable excep- 
 
 ' Dnke of Bedford v. Coke, 2 Ves. * Worsley v. De Mattes, 1 Burr. 416 , 
 
 115. "Woodhouse v. Murray, L. R. 2 Q. B. 
 
 'Carte v. Carte, 3 Atk. 180; Amb. 637. 
 32 ' Young V. Waud, 8 Exch. 234.
 
 MISCELLANEOUS FRAUDS. 281 
 
 tion of part only, under such circumstances as necessarily to 
 defeat or delay his creditors, is a fraud within the meaning of 
 those laws, although there be no actual moral fraud.^ An ex- 
 ception, however, has been grafted on the general principle. 
 The assignment by a trader of his property and effects for a 
 present advance of money is not necessarily a fraud on the 
 Bankrupt laws, though the whole of his stock, present and 
 future, is included in the conveyance. If the conveyance be 
 made hond fide for the purpose of enabling him to carry on 
 his business, it cannot be called a fraudulent act as tending to 
 defeat or delay creditors,^ although the property or effects have 
 been sold or pledged for a sum less than their value. The 
 assignment by a trader of all his property and effects for a 
 present advance of part of their value is not necessarily a fraud 
 on creditors under the Bankrupt laws. The advance may be 
 the means of enabling him to go on with his trade, and so the 
 transaction may be beneficial for the creditors. A hond fide 
 Bale of goods in a season of pressure by a trader for whatever 
 ready money can be obtained is valid, though the price be 
 small. The proportion which the sum raised bears to the value 
 of the property sold or pledged, is a circumstance to be con- 
 sidered in determining whether the transaction is hond fide or 
 not, but is not conclusive that it is fraudulent.^ It is for the 
 court or the jury to say whether, under all the circumstances 
 of the case, the effect of the assignment is to delay or defeat 
 creditors * If there was in the minds of the parties the sin- 
 ister object of defeating or delaying creditors, the advance of 
 
 * Hooper v. Smith, 1 W. Bl. 441 , Sie- Bell v. Simpson, 2 H. <fe N. 410. See Ex- 
 
 bert V. Spooner, 1 M. <fe "W. 715 ; Stanger parte Wensley, 1 D. J. <fe S. 281 ; Mercer 
 
 V. Wilkius, 19 Beav. 626; Smith v. Can- v. Peterson, L. R. 3 Exch. 104. 
 
 nan, 2 E. <fe B. Z6;Ex-parte Bland, 6D. ' Lee v. Hart, 11 Exch. 880; Bittle- 
 
 M. & G. 757 ; Graham v. Chapman, 12 C. stone v. Cooke, 6 E. & B. 307, 309 ; Pen- 
 
 B 85 ; Leake v. Young, 5 E. & B. 965 ; nell v. Reynolds, 1 1 C B. N. S. 709 ; 
 
 Smith V. Timms, 1 H. & C. 856; Young Shrubsole v. Sussams, 16 C. B. N. S. 
 
 V. Fletcher, 3 H, & C. 742; Woodhouse 453. 
 
 %,. Muirav, L. R. 2 Q. B. 637. * Ih. Woodhouse v. Murray, L. R. 2 
 
 ' Bittlestone v. Cooke, 6 E. <fe B. 307 ; Q. B. 637. 
 
 19
 
 282 MISCELLANEOUS FRAUDS. 
 
 even a substantial part of the value of tlie property at tlie time 
 of tlie assignment would not make the transaction valid. But 
 the court will not hold that a deed conveying property in con- 
 sideration of a present advance which bears a substantial pro- 
 portion to the value of the property, is invalid, unless it is sat- 
 isfied that there exists an intention to defeat or delay, and con- 
 sequently to defraud creditors; and that object must be the 
 object not only of the bankrupt but also of the party who is 
 dealing- with him. A person dealing l)ona, fide with the bank- 
 rupt would be safe. Unless he knows, or, from the very nature 
 of the transaction, must be taken necessarily to have known, 
 that the object was to defeat or delay creditors, the deed can- 
 not be impeached.^ A conveyance by a trader of all his prop- 
 erty was held fraudulent upon creditors within the meaning of 
 the bankruptcy laws, even though made in consideration of 
 marriage, it being shown that the wife was cognisant of the 
 embarrassed condition of the husband's affairs.^ 
 
 There are authorities to show that when a conveyance is 
 made by a trader of all his property and efifects, and the con- 
 veyance is made in part for a bygone or pre-existing debt, the 
 transaction is a fraud upon creditors within the meaning of the 
 Bankrupt laws, upon the principle that in such case the trader 
 does not get an equivalent.^ But according to other author- 
 ities, the fact that the consideration for which the conveyance 
 may be made is in part an old or pre-existing debt, is Moi per 
 86 a fraud upon creditors within the meaning of those laws, 
 though the effect may be to stop the business of the trader.* 
 The assignment by a man of all his property with a view to 
 release and relieve the property from the charges already laid 
 
 ' Pennell v. Revnolds, 11 C. B. N. S. Smith w. Cannan, 2 E. A B. 35; Lacon v. 
 
 "722 ; Fraser v. Levy, 6 II. & N. 16. See Liffen, 32 L. J. Cli. 316 ; Oriental Bank- 
 
 Re Colemere, L. H. 1 I'l). Apj). 128. ing Co. v. Coleman, 3 Giff. 11; Good- 
 
 » Colombine v. Penhall, 1 Sm. & G. ricke v. Tavlor, 2 D. J. & S. 135. 
 
 228. ■* Bell y. Simpson, 2 H. & N. 410. 
 
 'Graliama;. Chapman, 12 C. B. 85;
 
 MISCELLANEOUS FEAUDS. 283 
 
 on it, and not to pay a past debt only, is valid.^ So also an 
 assignment by a man of the whole of his property in consider- 
 ation of a bill of exchange being taken up, is not an act o'f 
 bankruptcy.^ ISTor is the assignment by a trader of all his prop- 
 erty as security for an advance of money, which he afterwards 
 applies in payment of existing debts, necessarily fraudulent 
 within the meaning of the Bankrupt laws. In order to make 
 such an assignment fraudulent, the lender must be aware that 
 the borrower's object was to defeat or delay his creditors.^ 
 
 An assignment by a man, not of the whole of his property 
 and effects, but of his property and effects, with a real and sub- 
 stantial exception, is not a fraud within the meaning of the 
 Bankrupt laws.* But the deed is invalid, although a substan- 
 tial part of the property and effects of the assignor be not com- 
 prised in it, if the necessary consequence of it be to cause 
 insolvency, or to defeat and delay creditors.^ The rule applies 
 with peculiar force, if the fact of his embarrassed circumstances 
 be known, or must be necessarily taken to be known, by the 
 assignee.® 
 
 Objections, however, to an assignment or other transaction, 
 as being in fraud of the Bankrupt laws, are removed if it is 
 founded on a legal obligation entered into lond fide for a good 
 and valid con.-?ideration. Any legal obligation which would 
 render an assignment unimpeachable, if made when the obliga- 
 tion was first incurred, will protect it if made afterwards.' 
 Where money was lent on a verbal promise to give security, 
 and a deed was executed, two days before bankruptcy, purport- 
 
 • Whitmore v. Clarid-e, 33 L. J. Q. v. Chapman, 12 C. B. 103; Hale v. All- 
 B. 87. iiutt, 18 C. B. 526; Young i'. Wand, 8 
 
 ' Mercer v. Peterson, L. R. 3 Exch. Excii. 221 ; ^T-/)a;-<e Wensley, 1 D. J. <fe 
 
 104 S. 281 ; Goodricke v. Taylor, 2 D. J, <fe 
 
 » Re Colemcre, L. R. 1 Cli. App. 128. S. 135. 
 
 ' Pennell v. Ruyiiolds, 11 C. B. N. S. ° Ex-partc Bailey, 3 D. M. & G. 54G; 
 
 T09; f^niith p. Ti'inms. 1 II. & C. 849. Yoini'j; t;. Fletcher, 3 11. & C. 732. See 
 
 * S\an<;cr v. Wilkiiis, 19 Beav. 626; Leake v. Young, 5 E. & B. 965. 
 Smith *'. I annan, 2 E. &, B. 45; Ex- ' Harris v. Rickett, 4 H ik K 1. 
 farle Bland, 6 I>. M. & G. 757; Graham
 
 284 MISCELLANEOUS FRAUDS. 
 
 ing to be an absolute assignment to the creditor of the equity 
 of redemption in some property, it was held that the promise 
 was sufficient to support the deed.^ So, also, where a marriage 
 is solemnized upon the faith of a former hond fide contract of 
 marriage, it seems the settlement will be maintained, even 
 though at the time of the solemnization the husband may be 
 insolvent within the knowledge of the wife, if such knowledge 
 is not shown to have existed at the time of the contract,^ pro- 
 vided no act of bankruptcy has been actually committed at the 
 date of the marriage with the knowledge of the wife.' 
 
 Any legal obligation presently to assign which is not of the 
 assignor's own creation will excuse an assignment so far that it 
 shall not be fi-audulent within the meaning of the Bankrupt 
 laws.* If the obligation be his own creation, as if incurred by 
 his own contract, or upon his undertaking, then the limitation 
 must be added that it is such an obligation as he might without 
 fraud have incurred.' 
 
 A debtor may at common law give one creditor a prefer- 
 ence over another ; ^ but there is fraud against the Bankrupt 
 laws, if a man in contemplation of bankruptcy gives one cred- 
 itor a perference over another. In order to constitute a fraud- 
 ulent preference, the transaction must not only be in contem- 
 plation of bankruptcy, but it must be purely voluntary,' If 
 the circumstances of the party who makes the payment or ex- 
 ecutes the assignment, are at the time of the payment, or of 
 the execution of the assignment, to his knowledge in such a 
 situation, that he must reasonably expect bankruptcy to be the 
 necessary consequence of his act, the payment or the assign- 
 ment must be taken to have been made in contemplation of 
 
 ' Morris r, Venables, 15 W. R, 2. » Hutton v. Cruttwell, 1 E. & B. 16. 
 
 » Fraser v. Thompson, 5 Jur. N. S. * Supra, pp. 212, 213. 
 
 669; 4 D. «fe J. 659. '' Brown v. Kempton, 19 L. J. C. P. 
 
 = Ih. See Colorabine v. Penhall, 1 Sm. 1*70 ; Shrubsole v. Sussams, 16 C. B. N. 
 
 & G. 228, mpra, p. 202. S. 459. 
 
 * Payne v. Hornby, 25 Beav. 280.
 
 MISCELLANEOUS FRAUDS. 285 
 
 bankruptcy.* There is fraudulent preference, if the intent be 
 to give preference in the event of bankruptcy.^ 
 
 It was formerly supposed that, in order to prevent a trans- 
 action being void as a fraudulent preference, it was necessary 
 to show something like coercion or pressure on the part of the 
 creditor, and a reluctant yielding by the debtor ; but the only 
 question in cases of the sort is whether the act is voluntary on 
 the part of the debtor. Pressure is not necessary to prevent a 
 payment or assignment from being a fraudulent preference. It 
 is sufficient that the payment or assignment is not the sponta- 
 neous act of the debtor.^ If the payment or assignment origi- 
 nates with, or is simply by the act and will of the debtor, there 
 is a fraudulent preference ; but, if the creditor demands pay- 
 ment, pressure is not necessary on his part to take it out of the 
 class of voluntary acts. A mere hond fide demand by the 
 creditor, without any pressure, is sufficient to support a pay- 
 ment or transaction made in consequence.* A request by a 
 surety that the money for the payment of which he is ulti- 
 mately responsible may be paid over by the debtor to the cred- 
 itor, prevents such payment by the debtor from being a volun- 
 tary payment, just as much as a request by the creditor himself.* 
 
 It is not, however, enough to remove the objection of 
 fraudulent preference, that a demand for payment should be 
 made. It must appear that the demand operated on the mind 
 of the debtor in inducing him to make the payment.® A 
 demand for payment will not of itself legalize the payment, if 
 the debtor was uninfluenced thereby, and the payment was 
 
 ' GiLbins v. riiillips, 7 B. <fe C. 529 ; * Mogsj v. Baker, 4 M. <fe W. 348 ; Stra- 
 
 riook V. Jon s, 4 Biiig. 20; Aldrcd v, chan w. Bai-ton, 11 Excli. (V17; Brown i'. 
 
 Constable, 4 Q. B. 674; Jolinson v. Kempton, 19 L. J. C. P. 170 ; Johnson u. 
 
 Fesemeyer, 3 D. & J. 24 ; Ex-parte Fesemeyer, 3 D. <fe J. 24 ; Edwards ». 
 
 Wensley, 1 D. J. <fe S. 281. Glyn, 2 El. & El. 43. 
 
 ■" Blown V. Kempton, 19 L. J. C. T. ' Edwards v. Glvn, 2 El. & El. 47. 
 
 169. ° Cook V. Pritchard, 6 He. K K. 34; 
 
 ' Jolmsun V. Fesemeyer, 3 D. & J. 24. Brown v. Kempton, 19 L. J. C. P. 169.
 
 286 MISCELLANEOUS FRAUDS. 
 
 made voluiitarilj bj tlie debtor, aud witli a view to prejudice 
 his other creditors.'^ 
 
 Other circumstances, besides a demand for payment on the 
 part of the creditor, may rebut the presumption of fraudulent 
 preference on the part of the debtor. Although the trans- 
 action is apparently voluntary, if the effect of the evidence is 
 to show that the desire to give a fraudulent preference was 
 not the motive operating on the debtor in banding over his 
 assets to the particular debtor, the transaction is valid.^ If 
 the debtor, though he was aware that bankruptcy was unavoid- 
 able, and though no application was made for payment, has 
 paid the debt simply in discharge of an obligation he had 
 entered into to pay it on a given day, without any view of 
 giving a preference to the particular creditor at the expense of 
 the rest, the payment would not be a fraudulent preference 
 within the meaning of the Bankrupt laws.^ 
 
 The knowledge of the creditor preferred, or his privity to 
 the circumstances, is not to be taken into consideration in 
 estimating whether a transaction is, or is not, a fraudulent 
 preference. If it appear that a demand was made by the 
 creditor, it is immaterial that he may have been aware of the 
 ijisolvency of the debtor.* 
 
 If property be granted to a man defeasible on his bank- 
 ruptcy, the grant is good, if made by a person other than the 
 bankrupt, and if the condition is express.^ But the law is 
 clearly settled that no man possessed of property can reserve 
 that property to himself, until he shall become bankrupt, and- 
 then provide that in the event of bankruptcy it shall pass to 
 another, and not to his creditors.® A covenant or bond by a 
 
 ' Cook V. Rogers, 7 Bing. 438. ' Roe v. Galliers, 2 T. R. 133 ; Doe v. 
 
 » Bills V. Smith, 6 B. & S. 321. Bevan, 3 M. tfe S. 353 ; Donimett v. Bed- 
 
 * lb. Hunt V. Mortimer, 10 B. & C. ford, 3 Ves. 149, 6 T. R. 684 ; Seymour 
 44. V. Lucas, 29 L. J. Cli. 841 ; Griffith and 
 
 * Davison V. r.obinson, 3 Jur. N. S. Holm. B.ink. '277. 
 
 791. ^ Higinbotham v. Holme, 19 Vea. 88;
 
 MISCELLANEOUS FBAUDS. 287 
 
 man to pay moneys upon the contingency of bis bankruptcy, 
 even though given in consideration of marriage, is a fraud 
 upon the Bankrupt laws, and cannot be upheld,* except as far 
 as the value of the wife's fortune may extend.^ If the court 
 can find a definite sum which can be appropriated as the wife's 
 property, the covenant will to that extent be supported.^ The 
 fortune of a wife may be settled on her husband till he shall 
 become bankrupt, or make a composition with his creditors, 
 and then to her separate use.* 
 
 Assignments by a trader of all his property and effects in 
 trust for all his creditors were, under the old Bankrupt laws, 
 held void ; ^ but they were protected to a certain degree, and 
 under certain conditions, by the Bankruptcy Act, 1S49,® and 
 are still further protected by the Bankruptcy Act, 1861.' By 
 the 192d section of the latter Act, trust deeds for the benefit 
 of creditors, composition and inspectorship deeds are binding 
 on all the creditors of a certain debtor, if certain specified 
 conditions are complied with. The power, however, given by 
 the clause enabling the majority of creditors to bind the non- 
 assenting minority, must be exercised hondfide for the benefit 
 of all the creditors. It is necessary, in order to make a deed 
 of this description binding, that it should be free from all 
 taint of fraud. If there is a fraudulent bargain for the benefit 
 of some creditors, or if the majority of creditors are induced 
 by friendly feelings towards the debtor to accept a composition 
 greatly disproportioned to the assets, the court wiU hold the 
 (Iced not binding on the non-assenting creditors. But if the 
 
 Higfpnson v. Kelly, 1 Ba. <fe Be. 255 ; ' Higginson v. Kelly, 1 Ba. & Ee. 255; 
 iJe'Casey's Trusts, 4 Ir. Ch. 247 ; Whit- Lesler «;. Garland, 5 Sim. 2i)5; Whit- 
 more V. Mason, 2 J. ife II. 212. See more v. Mason, 2 J. (t 11. 204, 
 Holmes v. Penney, 3 K. <fe J. 102. ' lb. 
 
 ' Ex-parie lYi\\, 1 Cox, 300 ; Ex-parte * Lester t). Garland, 5 Sim. 222; Sharj. 
 
 Cooke, 8 Ves. 353 ; Ex-fiarle Murphy, 1 v. Cosseratt, 20 Beav. 470. 
 
 Sch. & Lef. 48 ; IIiginbotli:ini v. Holme, ' Griffith and Holm, on Bank. 120. 
 
 19 Yes. 8S; Hig-iiisou v. Kelly, 1 Ba. • lb. 987. 
 
 & Be. 25J . ' ' lb. Iu02.
 
 288 MISCELLANEOUS FRAUDS. 
 
 assenting majority appear to have exercised tlieir discretion 
 hond fide for the benefit of the creditors, the court will not 
 review the quantum of the composition.^ There is fraud upon 
 the clause, if a man having no assets professes to assign all his 
 property to fictitious creditors.' 
 
 FRAUD UPON RESTRAINING STATUTES, ETC. 
 
 In addition to those already enumerated, there are other 
 frauds upon statutes or acts of Parliament against which relief 
 may be had in equity : * such as, fraud upon the restraining 
 statutes ; ^ frau< I upon the registry acts ; * fraud upon a private 
 act of Parliament ; ^ and fraud on the revenue laws.' 
 
 FRAUD IN AWARDS. 
 
 Courts of equity have from a very early period had juris- 
 diction to set aside awards on the ground of fraud,' and still 
 entertain the jurisdiction, except where it is excluded by 
 statute.® t 
 
 * Ex-parte Cowen, L. R. 2 Ch. App. * Howard v. Earl of Shrewsbury, L. 
 563. R. 2 Ch. App. 772. 
 
 * Re Clunn, 12 W. R. 1093. ° Evans v. Richardson, 3 Mer. 469. 
 
 ^ Dean and Chapter of Windsor v. ' Greenhill v. Church, 3 Rep. Ch. 49 ; 
 
 Penvin, Moor. 789. Brown /•. Brown, 1 Vern. 156; Earl v. 
 
 * Curtis V. Perry, 6 Ves. 739 ; Osborne Stocker, 2 Vern. 251 ; Burton v. Knight, 
 V Williams, 18 Ves. 379; Battersby v. ib. 514. 
 
 Smvtb, 3 Madd. 110. ^ Smith v. Whitmore, 1 H. <fe M. 576, 
 
 ^ 2 D. J. & S. 297. 
 
 * Whatever is done in fraud of a law, is done in violation of it. Lee », 
 Lee, 8 Pet. 44. 
 
 t The jurisdiction of Chancery over judgments on awards is confined 
 to those cases where a court of equity is authorized to examine into and 
 decree upon the judgment of a court of common law, rendered upon the 
 verdict of a jury. There may be certain other cases where, from fraud, 
 corruption, or misbehavior, it may be necessary to make the arbitrators 
 parties in equity, in order to obtain a discovery, and in which an exten- 
 sion of the jurisdiction of a court of equity beyond this limit may be 
 allowed. Waples v. Waples, 1 Harring. 393 ; Emerson v. Udall, 13 Vt. 
 472,
 
 MISCELLANEOUS FRAUDS. 289 
 
 In cases where the submission to arbitration was by agree- 
 ment between the parties, the only mode of obtaining relief 
 formerly against an award which had been obtained under 
 circumstances of fraud and corruption on the part of the 
 arbitrator, was by bill in equity. But if the agreement 
 or submission to arbitration be in writing, and contain a 
 proviso that it may be made a rule of court, the case is now 
 governed by stat. 9 & 10 Will. Ill, c. 15, and the jurisdiction 
 of equity is excluded.^ A court of equity has no jurisdiction, 
 even on the ground of fraud, if a submission has been made a 
 rule of a court of common law under the statute.^ 
 
 If there be a proviso in the agreement or submission to 
 arbitration enabling the parties to make it a rule of court, it is 
 immaterial that it may not have been actually made a rule of 
 court until after the award has been made, or until after bill 
 filed.' The Court of Chancery is one of the courts of record 
 invested with summary jurisdiction under the statute.'* If 
 there was no proviso in the agreement or submission to arbi- 
 tration enabling the parties to make it a rule of court, the 
 jurisdiction was, until a recent period, exclusive in equity.^ 
 But by the seventeenth clause of the Common Law Procedure 
 Act, 17 & 18 Vict. c. 125, it is declared that every agreement 
 or submission to arbitration by consent, whether by deed or 
 instrument in writing, may be made a rule of a court of 
 common law, unless a contrary intention appears. The mere 
 existence, however, of a power to make an agreement or sub- 
 mission to arbitration a rule of court, is not tantamount to an 
 agreement that it shall be made so, nor does it of itself, and 
 independently of agreement, exclude the ordinary jurisdiction 
 
 ' Homina: v. Swinerton, 2 Ph. 79 ; ' Nichols v. Roe, 3 M. <fe K. 439 ; 
 
 Smith V. Whitmore, 1 H. & M. 576, 2 Heming v. Swinerton, 2 Ph. 7!>. 
 
 P J A S 297 * Ueming v. Swiiierton, 2 Ph. 79. 
 
 ''Auriol'- "smith, T. & R. 121 ; Daw- » v. Mills, 17 Ves. 419; Good. 
 
 son V. Sadler, 1 Sim. & St. 537. man v. Sayers, 2 J. A W. 249,
 
 200 MISCELLAXEOUS FRAUDS. 
 
 of tlie court.^ If tliere be no proviso that it may "be made a 
 rule of court, it does not become a rule of court under the 
 Common Law Procedure Act, unless it be actually made a rule 
 of court.^ 
 
 Before the statute 9 & 10 Will. Ill, c. 15, courts of law 
 were in the practice, upon consent of parties, of referrhig causes 
 to arbitration, either by rule of court, or by order of a judge, or 
 at 7iisi jjrius, and of making the submission at the same time a 
 rule of court. In such cases courts of ec[uity exercised a concur- 
 rent jurisdiction over the award made upon the reference with 
 courts of law, and the statute of William does not appear to have 
 interfered with the jurisdiction.^ Kor has the jurisdiction been 
 excluded by the enlarged powers conferred on courts of com- 
 mon law by the Common Law Procedure Act, 17 & 18 Yict. 
 c. 125.* It is, however, the rule of the court not to interfere 
 with an award made under a reference at law, unless there be 
 something in the circumstances of the case to show or to make 
 it appear that a court of law has not full power and jurisdic- 
 tion to grant full and adequate relief The fact that a court of 
 common law has a power of remitting the award for recon- 
 sideration, has weight with the Court of Chancery when called 
 upon to interfere.^ 
 
 There is fraud in an award if it be obtained through cor- 
 ruption or partiality on the part of tlie arbitrator."^ * In a case 
 
 ' Smith V. Whitmore, 2 D. J. &S. 308; * §§ 3-16. 
 
 per Turner. L. J. * Londonderry and Ennisldllen Rail- 
 
 ^ Jb. -way (,'o. v. Lefshman, 12 B.-av. 423; 
 
 ' Lord Lonsdale v. Littledale, 2 Ves. Harding v. Wiclihain, 2 J. ck H. 676. 
 Jr. 451 ; Nicliols v. Chalie, 14 Ves. 207 ; " Loni Lonsd.ile v. Littledale, 2 Ves. 
 
 Nicliolls V. Roe, 3 M. ct K. 439 ; Clmek Jr. 453; Lingood v. Croucber, 2 Atk. 
 
 V. Cremer, 2 I'h. 477; Harding v. Wick- 396. 
 ham, 2 J. & H. 676. 
 
 * It is misbehaTior in arbitrators tc repose undue confidence in the 
 unproved statements of one of the parties. Lee r. Patillo, 4 Leigh, 486. 
 For misbehavior in the arbitrators, by refusing to hear material
 
 MISCELLANEOUS FRAUDS. 291 
 
 ^here arbitrators had, either by force or fraud, excluded a 
 co-arbitrator, or either of the parties, from their meetings, it 
 was held to furnish such a presumption of corruption as to be 
 a sufficient ground for setting aside the award.^ So, also, it is 
 against good faith for a person appointed arbitrator to consider 
 himself as agent of the person appointing him,^ or to buy up 
 the unsustained claims of any of the parties to the reference.' 
 So, also, there is fraud if the award has been obtained by fraud 
 or concealment of material circumstances on the part of one 
 of the parties, so as to mislead the arbitrator. If either party 
 be guilty of fraudulent concealment of matters which he ought 
 to have declared, or if he wilfully mislead or deceive the 
 arbitrator, the award may be set aside.* An award will not, 
 however, be set aside on the ground that the arbitrator has 
 been mislead by the evidence of a witness who might have 
 been cross-examined.' There is also fraud to set aside an 
 award, if the award be obtained by undue means ; as, for 
 instance, if the witnesses have been examined in the absence 
 of the parties;'* or if the award has been made clandes- 
 
 » Burton v. Knight, 2 Vern. 514. See Ab. Arbitr (1 a) 39, 2 Eq. Ca. Ab. 80; 
 
 Haigh V. Haigh, 3 D. F. <fe J. 159. Ives v. Metcalfe, 1 Atk. 64 ; Gartside v. 
 
 ^ Ciilci-aft t)T Roebuck, 1 Ves. Jr. 22G. Gartside, 3 Anst YMS. 
 
 " Blennerbasset v. Day, 2 Ba. & Be. ° IMliuore v. Hood, 8 Scott, 180. 
 
 116. " Re Plows V Middleton, r, Q. B. 845. 
 
 * South Sea Co. v. Bumpstead, Vin. See Uaigh v Haigh, 3 D. F. & J. 159. 
 
 testimony, an award will be set aside. Van Cortland v. Underbill, 17 
 Johns. 405 ; s. c. 2 Johns. Ch. 339. 
 
 An award estimating damages or the value of property will not be set 
 aside in equity, unless the estimate is so enormously disproportioned to 
 the case proved as to strike every one that there must have been corruption 
 and partiality. Hand v. lledington, 13 N. II. 72 ; Bumpass r. Webb, 4 
 Port. G5 ; Beverly v. RcnnoMs, Wythe, 105 ; Van Cortland v. Underbill, 17 
 Johns. 405 ; s. c. 2 Johns. Cb. 339. 
 
 * Pierce v. Perkius, 2 Dcv, Eq. 250 ; Emery v. 0^^dngs, 7 Gill, 488; 
 Knowlton i\ Nicklcs, 29 Barb. 4G5.
 
 292 MISCELLANEOUS FRAUDS. 
 
 tinely witliout liaaring each party ; ^ * or if the award has been 
 made by one arbitrator apart from the others ; ^ or if interviews 
 have taken place between the arbitrator and one party in the 
 absence of the others.' So, also, the existence of any ground 
 calculated to bias the mind of tlie arbitrator, unknown to 
 either of the parties, is sufficient for the interference of the 
 court ; * or if one of the parties has not been allowed a proper 
 opportunity of discussing his case.^ If interviews have taken 
 place between the arbitrator and one of the parties, in the 
 absence of the other, similar misconduct on the part of the 
 person applying will not prevent the court from setting aside 
 
 * Ives V. Midcalfi', 1 Atk. 64 ; Hard- ^ Harvey v. Shelton, 1 Beav. 455. 
 
 in? V. Wickham, 2 J. & H. 676. S^ee * Kemp v. Rose, ] Giff. 258. 
 
 Smith V. Whitmore, 1 H. & M. 576. ' Spettique v. Carpenter, 3 P. 'Wins. 
 
 " lie Plews V. Middleton, 6 Q. B. 852. 361. 
 
 * Peters v. Newkirk, 6 Cow. 103 ; Lutz v. Lintlucum, 8 Pet. 178 ; Jordan 
 V. Hyatt, 3 Barb. 634 ; Rigden v. Martin, 6 H. & J. 403; "Walker v. City 
 Council, 1 P,ailey's Ch. 443. 
 
 Evidence cannot be introduced witliout giving the opposite party an 
 opportunity for cross-examination. Shinnis v. Coil, 1 McCord's Ch. 478. 
 
 Merely recalling a witness who had been examined, for the purpose of 
 explaining his testimony, in the absence of both parties, is not a sufficient 
 ground. Herrick v. Blair, 1 Johns. Ch. 101. 
 
 The mere fact that a party oflFered and prevailed before the arbitrators, 
 upon a groundless claim, is no ground for charging him with fiaud. The 
 mere fact that lie considered it one of doubtful equity, or even honestly 
 believed that it was not well founded, if all the facts known to him were 
 fairly laid before the arbitrators, is no such fraud as will justify a court of 
 equity in interfering. He must; eithei by the suggestion of falsehood, or 
 the suppression of truth, have i)resented to the arbitrators a state of facts 
 in regard to the merits of the claim which were iictitious, and which he at 
 the time believed to be such. Emerson «. Udall, 13Vt. 477; Bulkley t). 
 StaiT, 2 Day, 552. 
 
 The discovery of new evidence, or that the case might be i)ut on a 
 different footing by new evidence, or that a more perfect rule might have 
 been adopted, are no grounds for an application to Chancery to have an 
 award set aside. Allen v. Ranney, 1 Ct. 569. 
 
 New evidence may be so de; isive, and have been so supjiressed by the 
 adverse party, tint an award ■)ught to be relieved against in equity. 
 Lankton v. Scott, Kirby, 356.
 
 MISCELLANEOUS FKACDS. 293 
 
 the award, for tlie matter concerns the due administration of 
 justice.^ 
 
 Equity will not give relief against an award, if the conduct 
 of the party making the application has been such as to 
 destroy his right to resort to the court for relief.^ An agree- 
 ment for reference, accordingly, cannot be set aside as obtained 
 by undue pressure, if the party objecting has attended the 
 reference, and taken the chance of an award in his favor.^ Nor 
 can relief be had against an award when there has been any 
 laches on the part of the person making the application.* 
 Similar misconduct, however, to that complained of on the 
 part of the person making the application, will not prevent the 
 court from setting aside an award, if the award has been 
 obtained by undue means.'' 
 
 FRAUD IN JUDGilENTS. 
 A judgment or decree obtained by fraud upon a court, 
 binds not such court or any other, and its nullity upon this 
 ground, though it has not been set aside or reversed, may be 
 alleged in a collateral proceeding.^* " Fraud," said De Grey, 
 C. J., " is an extrinsic, collateral act, which vitiates the most 
 
 * Harvey v. Shelton, 1 BeaY. 455. 6Y4 ; Nichols v. Ilaiicock, V D. M. <fe G. 
 " Smith V. Whitmore, 1 H. & M. 576, 300. 
 
 2 D. J. & S. 297. ^ Harvey v. Shelton, 7 Beav. 455. 
 
 = brmes v. Beadel, 2 Giff. 166, 2 D. F. * Philippson v. Lord Egreraont, 6 Q. 
 
 & J. 383 ; Fx-parte Wyld, 2 D. F. & J. B. 582 ; Lord Bandon v. Becber, 3 CI. 
 
 642. <fe Fin. 510 ; Sheddon v. P:\trick, 1 Macq. 
 
 * Jones V. Bennett, 1 Bro. P. C. 528. 535 ; Reg. v. Saddlers' Co., 10 H. L. 
 See Eada v. Williams, 4 D. M. & G. 431, per Willes, J. See Toramey v. 
 
 White, 4 H. L. 313. 
 
 * Webster v. Reid, 11 Hov?. 437 ; Carpenter v. Hart, 5 Cal. 406. 
 
 Judgments, wlietlier confessed or rendered upon a verdict, may be 
 attacked collaterally as fraudulent against creditors. Clark v. Douglass, 
 62 Penn. 408. 
 
 A judgment may be attacked collaterally for some matter arising sub- 
 sequently to the entry of it, as payment or a release, which would show 
 that it was kept on foot fraudulently. Campbell v. Sloac, 62 Penn. 
 481.
 
 294 MISCELLANEOUS FRAUDS. 
 
 solemn proceedings of courts of justice. Lord Coke says it 
 avoids all judicial acts, ecclesiastical and temporal." * * In 
 applying this rule, it matters not whether the judgment im- 
 pugned has been pronounced by an inferior or by the highest 
 court of judicature in the realm, but in all cases alike it is 
 competent for every court, whether superior or inferior, to 
 treat as a nullity any judgment which can be clearly shown to 
 have been obtained by manifest fraud.^ Whether an innocent 
 party would be allowed to prove in one court that a judgment 
 against him in another court was obtained by fraud, is a ques- 
 tion not equally clear, as it would be in his power to apply 
 directly to the court which pronounced it to vacate it.' But, 
 however this point may be ultimately determined, thus much 
 is evident, that a guilty party would not be permitted to defeat 
 a judgment by showing that, in obtaining it, he had practiced 
 an impositition on the court, for it would be an outrage on 
 justice and common sense if a person could thus avoid the 
 consequences of his own fraudulent conduct.* 
 
 FEAUD UPON THE CROWN. 
 A conveyance executed in fraud of proceedings under an 
 outlawry, is a fraud upon the Crown, and will be set aside.^ 
 
 * Rex V. Duchess of Kingston, 20 ' Prudham v. Philipps, 2 Ambl. 763; 
 
 How. St. Tr. 544, 2 Smith's L. C. 687. 20 How. St. Tr. 479, 481 ; Rex v. Duch- 
 
 See Brownsword v. Edwards, 2 Ves. ess of Kingston, 20 How. St. Tr. 544. 
 
 246 ; Meddowcroft v. Hu2,uenin, 4 Moo. ■• Prudham v. Philipjis, 2 Arab. 763, 
 
 P. C. 386 ; Perry v. Meddowcroft, 10 20 How. St. Tr. 479 ; Doe v. Roberts, 2 
 
 Beav. 122; Harrison v. Mayor &c. of B. & Aid. 367; Bessey v. "Windham, 6 
 
 Southampton, 4 D. M. & G. 137. Q. B. 166. 
 
 » Sheddsu v. Patrick, 1 Macq. 535. ' Att.-Gen. v. Richards, 1 Ph. 383. 
 
 * Gill V. Carter, 6 J. J. Marsh. 484 ; HaU v. HaU, 1 GUI. 391 ; Wilson v. 
 Watts, 9 Md. 356. 
 
 With any fraudulent conduct of parties in obtaining a judgment, or in 
 attempting to avail themselves of it, a court of equity can regularly take 
 cognizance. The true and intrinsic character of proceedings, as well in 
 courts of law as in pals, is alike subject to the scrutiny of a court of 
 equity, which will probe, and either sustain or annul them, according to
 
 MISCELLANEOUS FRAUDS. 295 
 
 FRAUD UPON COURTS OF COMPETENT JURISDICTION. 
 
 A court of equity will give assistance to enforce the judg- 
 ments, decrees, or sentences of other courts of competent 
 and lawful civil jurisdiction, when the execution of such judg- 
 ments, decrees, and sentences is defeated or obstructed by 
 fraudulent contrivances.^ 
 
 A voluntary settlement, accordingly, of real and personal 
 estate, made by a man who was defendant in a suit in the 
 Ecclesiastical Court, with the intent of withdrawing his prop- 
 erty from the process of that court, was set aside.^ Although 
 the deed may have been executed before any right was de- 
 clared, or any order for payment of money was made, yet if it 
 appear that the deed was executed for the purpose of defeating 
 the right which the defendant knew the plaintiff was entitled 
 to establish, it will be considered to have been executed with 
 the view and intention of defrauding him.^ 
 
 FRAUD UPON THE LEGISLATUPtE. 
 
 In Yauxhall Bridge Co. v. Earl Spencer,^* it was held 
 that an agreement between a land-owner and a company, that, 
 in the event'of his not opposing an application to Parliament, 
 the land-owner should receive a sum of money, is a fraud 
 upon the legislature if concealed from Parliament, and is, 
 therefore, void upon grounds of public policy. But the prin- 
 
 > Blenkinsopp v. Blenkinsopp, 12 'ID. M. & G. 500. 
 
 Beav. 586. * 2 Madd. 306 ; S. C. Jac. 64. 
 
 " lb. ID. M. & G. 500. 
 
 their real character, and as tlie ends of justice may require. Byers ». 
 Surget, 19 How. 303 ; s. c. 1 Hemp. 715 ; Williams v. Fowler, 2 J. J. Marsh. 
 405 ; Griffin v. Sketo, 80 Geo. 300. 
 
 * Misrepresentation and concealment employed in obtaining an act of 
 the legislature, arc ground for a court of equity to give relief by depriving 
 a party of such unjust advantage obtained thereby. State v. Reed, 4 H. «fc 
 McH. 6; Williamson v. Williamson, 3 Smed. & Mar. 715.
 
 296 LOSS OF EIGHT TO IMrEACH 
 
 ciple upon wliicli that case was founded is open to mucli ques- 
 tion. The better opinion would seem to be, that there is no 
 fraud upon the legislature unless the agreement is one which 
 the parties are bound to communicate. There may be cases 
 in which an agreement of the sort should be communicated to 
 the legislature, but there can be no doubt that in ordinary 
 cases it is open to parties to enter into such an agreement, and 
 that there is no obligation incumbent on them to communicate 
 it to the legislature.^ The question whether such an agree- 
 ment is binding on the company after incorporation, is a very 
 different one. 
 
 SECTION VI.-HOW THE EIGHT TO IMPEACH A TRANS- 
 ACT! ON ON THE GROUND OF FRAUD MAY BE 
 
 LOST. 
 
 Transactions, although impeachable in equity at the time 
 of inception, and for some time afterwards, on the ground of 
 fraud, may become unimpeachable by a subsequent confirma- 
 tion, by acquiescence, or by the mere lapse of time. 
 
 CONFIRMATION. 
 
 In order that an act may have any effect or validity as a 
 confirmation, it must clearly appear that the party confirming 
 was fully apprised of his right to impeach the transaction, and 
 acted freely, deliberately, and advisedly, with the intention of 
 confirming a transaction which he knew, or might, or ought, 
 with reasonable or proper diligence, to have known to be 
 
 ' Simpson v. Lord Howden, 10 A. A ing a local act of Parliament, Mangles 
 
 E. 793, 9 CI. «fe Fin. 61 ; Taylor, v. Chi- v. Grand Dock Colliery Co., 10 Sim, 
 
 Chester, etc., Railway Co., L. R. 2 519. 
 Exch. 356. See as to fraud in obtain-
 
 ON THE GROUND OF FRAUD. 297 
 
 impeachable.* If Lis right to impeach the transaction be 
 concealed from him, or a free disclosure be not made to him of 
 every circumstance which it is material for him to know, or if 
 the act takes place under pressure or constraint, or bj the 
 exercise of undue influence, or under the delusive opinion that 
 the original transaction is binding on him, or if it be merely a 
 continuation of the original transaction, the confirmation 
 operates as nothing.^f Confirmation may be by will as well as 
 
 * Cann v. Cann, 1 P. Wms. 121; 425; Wedderburn v. Wedderburn, 2 
 
 Cole V. Gibbons, 3 P. Wms. 290; Crowe Keen, 722; De Montmorency v. Deve- 
 
 V. Ballard, 3 Bro. C. C. 119, 2 Cox, 253; reux, 7 01. <fc Fin. 188; Muriiallen v. 
 
 Chesterfield v. Jansen, 2 Ves. 125; Marum, 3 Dr. <fe War. 317; Salmon w. 
 
 Walker v. Symonds, 3 Sw. 1 ; Murray Cutts, 4 Deg. <fe S. 132; Stump v. Gaby, 
 
 V. Palmer, 2 Sch. & Lef. 486 ; Morse v. 2 D. M. & G. 623; Roberts v. Tunstall, 
 
 Roj-al, 12 Ves. 355; Purcell v. Macna- 4 Ha. 257; Cockell v. Taylor, 15 Beav. 
 
 mara, 14 Ves. 91; Gowland w. De 125; Waters v. Thorn, 22 Beav. 547; 
 
 Faria, 17 Ves. 20; Woodv. Downes, 18 Savery v. Kin^, 5 H. L. 627; Athe- 
 
 Ves. 128; Say v. Barwick, 1 V. <fe B. naum Life Society «^. Poolej^, 3 D. & J. 
 
 195; Ruche v. O'Brien, 1 B. <fe B. 338, 299; Smith v. Kay, 7 H. L. 750; Wall 
 
 340 ; Dunbar ?;. Treddennick, 2 B. tfe B. v. Cockerell, 10 11.1.229; Potts «. 
 
 317; Molony v. L'Estrange, Beat. 406; Surr, 34 Beav. 543. 
 Cockerell v. Cholmondeley, 1 R. <fe M. 
 
 * Confirmation and ratification imply knowledge of a defect in the act 
 to be confirmed and of the right to reject or ratify it. Cumberland Coal 
 Co. V. Sherman, 20 Md. 117. 
 
 The party must be aware that the act he is doing will have the eflfeet 
 to confirm the transaction. Cherry v. Newsom, 3 Yerg. 369. 
 
 Ratification is the adoption of a previously formed contract, notwith- 
 standing a vice that rendered it relatively void ; and by the very nature of 
 the act of ratification, confirmation, or affirmance, the party confirming 
 becomes a party to the contract ; he that was not bound becomes bound 
 by it, and entitled to all the benefits of it. He accepts the consideration 
 of the contract as a sufficient consideration for adopting it, and usually 
 this is quite enough to support the ratification. Pearsoll v. Chapin, 44 
 Penn. 9. 
 
 t Hoffman Steam Coal Co. v. Cumberland Coal Co. 16 Md. 456; Cum- 
 berland Coal Co. V. Sherman, 20 Md. 117 ; Williams v. Reed, 3 Mason, 405; 
 Butler t). Haskell, 4 Dessau. 651; Cumberland Coal Co. ®. Sherman, 30 
 Barb. 533 ; McCormiok v. Malin, 5 Blackf 509 ; Brodduc v. Call, 3 Call, 
 546; Boyd v. Hawkins, 2 Dev. Eq. 195; Rainsford ®. Rainsford, Spears' 
 Ch. 385. 
 
 Confirmation must be a solemn and deliberate act. When the original 
 transaction is infected with fraud, the confirmation of it is so inconsistent 
 20
 
 298 LOSS OF EIGHT TO IMPEA.CH 
 
 by deed.* If an independent legal adviser be employed, it 
 will be assumed that he had satisfied himself before approving 
 of the transaction, that it was for the benefit of his client to 
 confirm it.' 
 
 RELEASE. 
 
 The same requisites which are necessary to render a con- 
 firmation valid, are necessary to render a release valid.^* 
 
 ACQUIESCENCE. 
 
 It is not necessary, in order to render a transaction unim- 
 peachable, that any positive act of confirmation or release 
 should take place. It is enough, if proof can be given of a 
 fixed and unbiassed determination not to impeach the transac- 
 tion. This may be proved, either by acts evidencing acqui- 
 
 ' stump V. Gaby, 2 D. M. & G. 623. man v. Palling, 3 Atk. 423 ; Bowles v. 
 
 See Waters v. Thorn, 22 Beav. 547. Stuart, 1 Sch. & Lef. 209 ; CNeill v. 
 
 « Stanes v. Parker, 9 Beav. 388; De Hamill, Beat. 618; Williams v. Smith, 
 
 Montmorency v. Devereux, 7 CI. & 1 L. J. Ch. 129; Wedderburn i). Wed- 
 
 Finn. 188; Aspland v. Watte, 20 Beav, 
 474. 
 
 ^ Lloyd V. Attwood, 3D. <fe J. 614 
 Spaekman's Case, 34 L. J. Ch. 329 
 Far rant v. Blanch ford, 1 D. J. & S, 
 119; Aveline v. Melhiiish, 2 D. J. <fe S, 
 289. See Salkeld v. Vernon, 1 Eden 
 64; Broderick v. Brodeiick, 1 P. W. 
 
 derburn, 2 Keen, 728, 4 M. & C. 41 ; 
 Millar v. Craig, 6 Beav. 433 ; Stanes v. 
 Parker, 9 Beav. 385 ; Todd v. Wilson, 
 ib. 486; Lindo v. Lindo, 1 Beav. 496; 
 Duke of Leeds, v. Amherst, 2 Ph. 117; 
 Thornber v. Sheard, 12 Beav. 589; 
 Parker v. Bloxam, 20 Beav. 295 ; Asp- 
 land V. Watte, ib. 480; Eyre v. Bur- 
 
 239; Cocking v. Pratt, 1 Ves. 400; mester, 10 H. L. 106; Skilbeck v. Hil- 
 Heron v. Heron, 2 Atk 160; Pusey v. ton, 2 L. R. Eq. 587. 
 Desbouverie, 3 P. Wms. 315; Stead- 
 
 witli justice, and so likely to be accompanied with imposition, that the 
 courts watch it with the utmost strictness, and do not allow it to stand 
 but on the clearest evidence. Cumberland Coal Co. v. Sherman, 20 
 Md. 117. 
 
 The legal title is supreme until attacked. If the injured party ratifies 
 the original transaction, the abandonment of his equitable claims removes 
 all doubt from the legal title, and it is as if suspicion or embarrassment 
 had never attached to it. Comstock v. Ames, 3 Keyes, 357. 
 
 * Michoud V. Girod, 4 How. 503 ; Bradley v. Chase, 23 Me. 511 ; Parson 
 «. Hughes, 9 Paige, 591.
 
 ON THE GROUND OF FRAUD. 299 
 
 escence, or by the mere lapse of time during wliicli the 
 transaction has been allowed to stand.^ 
 
 Acquiescence or delay for a length of time after a man is in 
 a situation to enforce a right, and with a full knowledge of 
 facts, is, in equity, cogent evidence of a waiver and abandon- 
 ment of the right.^ * If a voidable contract, or other transac- 
 tion, is voluntarily acted on, with a knowledge of all the facts, 
 in the hope that it may turn out to the advantage of a party 
 who might have avoided it, he may not avoid it when, after 
 abiding that event, it has turned out to his disadvantage.^f 
 
 ' Vanderplank v. King, 8 D. M. <fe G. land v. Siddall, 3 D. F. <fe J. 73 ; Skot- 
 
 133. , towe V. Williams, ib. 535. 
 
 •' Duke of Leeds v. Lord Amherst, 2 ^ Ormes v. Beadel, 2 D. F. <fe J. 336, 
 
 Ph. 117, 123; Life Association of Scot- per Lord Campbell. 
 
 * Crozier v. Acer, 7 Paige, 137; Davis v. James, 4 J. J. Marsli. 81 ; Pol- 
 lard V. Rogers, 4 Call, 239; MoflFatt v. Winslow, 7 Paige, 124; Saddler v. 
 Robinson, 2 Stew. 520 ; Ayres r. Mitcliell, 3 Smed. & Mar. 383 ; Moore v. 
 Reed, 2 Ircd. Eq. 580; McNaiigliton v. Partridge, 11 Ohio, 223; Knuckolls 
 V. Lea, 10 Humph. 577; Dougherty v. Dougherty, 3 Halst. Ch. G27. 
 
 t Bruce v. Davenport, 3 Kcyes, 472 ; Collier «. Thompson, 4 Mon. 81 ; 
 Finley v. Lynch, 2 Bibb, 5G6 ; De Armand v. Philips, Walker's Ch. 186; 
 Blydenburch v. Welsh, 1 Bald. 331 ; Edwards v. Roberts, 7 Smed. & Mar. 
 644 ; Railroad Co. r. Rowe, 24 Wend. 74. 
 
 A vendor by bringing suit and recovering judgment for the purchase 
 money, ratifies and confirms the sale. Nelson v. Carrington, 4 Munf. 332; 
 Sanger v. Wood, 3 Johns. Ch. 416; Pettus v. Smith, 4 Rich. Eq. 197. 
 
 The matter of waiver is not a conclusion of law from any particular 
 incident, but a conclusion of fact deducible from all the acts of a party as 
 evidence of his intention. Crawley v. Timberlake, 2 Ired. Eq. 460. 
 
 A party is bound to be prompt in communicating the fraud when dis- 
 covered, and consistent in his notice to the o])posile party of the use he 
 intends to make of it. Carroll v. Rice, Walker's Ch. 373 ; Disbrow v. 
 Jones, Harring. Ch. 102; Street v. Dow, Harring. Ch. 427; Wingate v. 
 King, 10 Shep. 95 ; Cain v. Guthrie, 8 Blackf. 409; Alexander v. Ultez, 7 
 Ired, Eq. 242 ; Fratt v. Fiske, 17 Call. 380. 
 
 A party seeking the rescission of a contract for fraud, must act with 
 vigilance and promptness, and return, or offer to return, (he jiroperty to 
 the vendor within a reasonable time after the discovery of the fraud. If 
 the vendee keeps it and treats it as his own by putting it up for sale, or 
 exercismg other acts of ownership over it, he caunot afterwards rescind
 
 300 LOSS or EIGHT TO IMPEACH 
 
 To fix acquiescence upon a party it must unequivocally 
 appear that lie knew or bad notice of tlie fact upon which the 
 alleged acquiescence is founded, and to which it refers.* Ac- 
 quiescence imports and is founded on knowledge. A recogni- 
 tion resulting from ignorance of a material fact goes for 
 nothing. The question as to acquiescence cannot arise unless 
 the party against whom it is set up was aware of his rights. A 
 man cannot be said to acquiesce in what he does not know, 
 nor can he be bound by acquiescence unless he is fully ap- 
 prised as to his rights and all the material facts and circum- 
 stances of the case.^* 
 
 * Randall v. Errington, 10 Ves. 428; Honner v. Morton, 3 Russ. 65; Cocter- 
 
 Spackman's Case, 34 L. J. Ch. 321, ell v. Cholmeley, Taml. 435 ; Austin v. 
 
 326 ; Stanhope's Case, L. R. 1 Ch. Chambers, 6 CI. & Fin. 1 ; Charter v. 
 
 App. 161; Stewart's Case, L. R. 1 Ch. Trevehan, 11 Ch <fe Fin 714; Cockel] 
 
 App. 514. V. Taylor, 15 Beav. 122; Burrows v. 
 
 " Randall v. Errington, 10 Ves. 426; Walls, 5 D. M. &. 233; Lloyd v. Att- 
 
 Blennerhassett v. Day, 2 B. <fe B. 104; wood, 3 D. A J. 614; Savery v. King, 
 
 Cholmondeley v. Clinton, 2 Mer. 361; 5 H. L. 62V; Bright v. Legerton, 2 D. 
 
 the contract. Dill «. Camp, 22 Ala. 249 ; Taymon v. Mitchell, 1 Md, Ch. 
 496; Clement v. Smith, 9 Gill, 156 ; McCulloch v. Scott, 13 B. Mon. 172. 
 
 An offer to return, made through the medium of the post-office, ia 
 equivalent to a personal offer, and secures to the vendee every benefit re- 
 suiting from it. Bamett v. Stanton, 2 Ala. 181. 
 
 When the vendee, upon offering to return the property, ia informed 
 that it will not be received, he need not perform the vain and idle task of 
 making a personal tender. Tibbs v. Timberlake, 4 Litt. 12. 
 
 A purchaser, after an offer to return, must deliver the goods to the 
 vendor upon a reasonable demand, and a refusal to surrender, destroys the 
 effect of the previous tender. Bennett v. Fail, 26 Ala. 605. 
 
 A party is only bound to the extent of his acquiescence ; beyond that, 
 he is entitled to relief Pollard v. Rogers, 4 Call, 239. 
 
 * Flagg v. Mann, 2 Sumner, 486 ; Shackelford v. Handley, 1 A. K. 
 Marsh. 495; Shipp v. Swan, 2 Bibb, 82; Garvin v. Lewez, 7 Smed. & 
 Mar. 24. 
 
 A party must use reasonable diligence to ascertain the facts, Buford 
 V. Brown, 6 B. Mon. 553. 
 
 A party can not justly be regarded as confirming a contract believed 
 to be fraudulent because he did not repudiate it at an earlier period upon 
 a mere violent presumption of fraud instead of waiting until he can clearly 
 establish it. Irving v. Thomas, 6 Ship. 418.
 
 ON THE GKOUXD OF FRAUD. 301 
 
 'Nor, indeed, is a recognition of avail whicli assumes the 
 validity of a transaction, if the question as to its validity does 
 not appear to have come before the parties.* The mere fact 
 that a man may have heard unfavorable rumors, and con- 
 ceived suspicions, is not enough to fix him with acquiescence.' 
 The proof of knowledge lies on the party who alleges acquies- 
 cence, and sets it up as a defence.' If the transaction has 
 taken place under pressure, or the exercise of undue influence, 
 it must clearly and unequivocally appear that the party 
 against whom acquiescence is alleged was sui jinns, and was 
 released from the influence or the pressure under which he 
 stood at the, time of the transaction, and acted freely and ad- 
 visedly in abstaining from impeaching it. Acquiescence goes 
 for nothing so long as a man continues in the same situation 
 in which he was at the date of the transaction.* But as soon 
 as a man with full knowledge, or at least with suflicient notice 
 or means of knowledge, of his rights, and of all the material 
 circumstances of the case, freely aud advisedly does anything 
 which amounts to the recognition of a transaction, or acts in a 
 manner inconsistent with its repudiation, or lies by for a 
 considerable time, and knowingly and deliberately permits 
 another to deal with the property, or incur expense, under the 
 belief that the transaction has been recognized, or freely and 
 
 F. & J. 617 ; Life Association of Scot- S D. F. «fe J. 58; Wall v. Cockerell, 10 
 land V. Siddall, 3 D. F. <fe J. 74; Bui- H. L. 229; Spackman's Case, 34 L. J. 
 lock V. Downes. 9 H. L. 1 ; Wall v. . Ch. 329. 
 
 Cockerell, 10 H. L. 229; Berdoe v. ■» Gowland v. De Faria, 17 Ves. 25; 
 
 Dawson, 34 Beav. 603; Vyvyan v. Grco-ory «. Gregory, Coop. 201; Roche 
 
 Vy vynn, 30 Beav. 65 ; Spackman's v. O'Brien, 1 H. & B. 338 ; Aylward v. 
 
 Case, 34 L. J. Ch. 329; Stewart's Case, Kearney, 2 B. <fe B. 463; Palmer v. 
 
 L. R. 1 Ch. App. 514; supra, p. 132. Wheeler, ib. 31; Honner v. Morton, 3 
 
 ' Ilonner v. Morton, 3 Uuss. 65; Russ. 65; Duke of Leeds y. Lord Am- 
 
 Wright V. Vanderpl;mk, 8 D. M. & G. herst, 2 Ph. 117; Addis v. Campbell, 4 
 
 133. See Baker v. Bradley, 7 D. M. <fe Beav. 401 ; Roberts v. Tunstall, 4 Ha. 
 
 G. 697. 257 ; Salmon v. Cutts, 4 Deg. & Sra. 
 ' Central Railway Co. ofVenezuela «. 132; Wright v. Vanderplauk, 8 D. M. 
 
 Kisch, L. R. 2 App. Ca. 112. & G. 133 ; Eyre v. M'Donnell, 15 Ir. 
 
 ' Bennett v. Colley, 2 M. & K. 225; Ch. 534; Berdoe v. Dawson, 34 Beav. 
 
 Burrows v. Walls, 5 D. M. & G. 233 ; 6U3. 
 Life Association of Scotland v. Siddall,
 
 302 LOSS OF EIGHT TO IMPEACH 
 
 advisedly abstains for a considerable lapse of time from im- 
 peaching it, there is acquiescence, and the transaction, although 
 originally impeachable, becomes unimpeachable in equity.^ If, 
 for instance, a man after discovering that the representations 
 in a prospectus, on the faith of which he has purchased shares 
 arc false, deals "with the shares as owner, by instructing a 
 broker to sell them,^ or concurs in the appointment of a 
 committee of investigation into the affairs of the company 
 on behalf of the shareholders,^ there is acquiescence. So 
 where a party, with full knowledge of the misrepresentations 
 alleged to have been made, by his conduct agrees to treat the 
 transaction as binding, he is precluded in equity from insisting 
 on the misrepresentation in a suit for specific performance.* 
 And where plaintiffs sought to avoid an agreement for the 
 lease of a mine, on the ground of fraudulent misrepresentation 
 of its value, it was held that having continued to work the 
 mine after full knowledge of all the circumstances of the fraud, 
 they were not entitled to relief^ 
 
 The equitable rule as to acquiescence applies with peculiar 
 force to the case of property which is of a speculative charac- 
 ter, or is subject to contingencies, and can only be rendered 
 productive by a large and uncertain outlay.* 
 
 ' Selsey v. Rliorles, 1 Bligh, N. S. 1; Mousley, 31 L. J. Ch. 543; Ernest v. 
 
 Bellew V. Russell, 1 Ba. & Be. 96; Vivian, 38 L. J. Ch. 613; Wall v. 
 
 Blcnnerhassctt v. Day, 2 Ba. <fe Be 118; Cockerel!, 3 D. F. <fe J. 742. 
 
 Vigcrs V. Pike, 8 Cl.'& Fin. 652 ; Char- * Ex-parie Briggs, L. R. 1 Eq. 483. 
 
 ter%'. Trevelyan, 11 01. <fe Finn. 714 ; ' Lawrence's Case, L. R. 2 Ch. App. 
 
 Champion v. Rigby, Taml. 421, 9 L. J. 424. 
 
 Ch. N. S. 211; Maden v. Veevers, 5 * Macbryde t;. Weekes, 22 Beav. 533. 
 
 Beav. 511 ; Nagle v. Baylor, 3 Dr. <fe * Vigers v. Pike, 8 CI. <fe Finn. 562. 
 
 War. 60; Edwards v. Mej'rick, 2 Ha. 'Norway v. Rowe, 19 Ves. 144; 
 
 75 ; Loader v. Clark, 2 Mac. & G. 387 ; Small v. Attwood, 6 CI. & Finn. 232, 
 
 Stone V. Godfrey, 5 U. M. & G. 76 ; 359 ; Prendergast v. Turton, 1 Y. & C. 
 
 Lyddon v. Moss, '4 D. & J. 104; Dims- C. C. 98, ]3 L. J. Ch. 268; Lovell v. 
 
 dale V. Dimsdale, 3 Drew. 556; Far- Hicks, 2 Y. & C. 46; Jennings v. 
 
 rant v. Blanchford, 1 1). J. &. S. 107; Broughton, 5 D. M. & G. 140; Clegg 
 
 Archbold v. Scully, 9 H. L. 360. 8ee v. Edmondson, 8 D. M. <fe G. 787 ; 
 
 Plenderleath v. Eraser, 3 V. & B. 174; Clements v. Hall, 2 D. <fe J. 173 ; Gros- 
 
 Bernal v. Lord Donegal, 3 D<iw. 133; venor i). Sberratt, 28 Beav. 659; Whal. 
 
 Ba3'ne v Ferguson, 5 Dow. 151; Pear- ley v. Whalley, 2 D. F. <fe J. 310. 
 Bon V. Benson, 28 Beav. 598 ; Gresley v.
 
 ON THE GEOUND OF FRAUD. 303 
 
 The representatives of a man who has acquiesced in a 
 particular transaction, cannot be in a better position than the 
 man himself.^ 
 
 So, also, may a remainder-man be bound by acquiescence.^ 
 But there is no acquiescence, if the remainder-man acts in a 
 transaction merely as an attorney of the tenant for life.* 
 
 The doctrine of acquiescence applies even as between 
 trustee and cestui que trusty even in cases of express trusts.* 
 A cestui que trust, whose interest is reversionary, though not 
 bound to assert his title until he comes into possession, is not 
 less capable of giving his assent to a breach of trust while 
 the interest is in reversion, than when it is in possession. 
 "Whether he has done so or not depends on the facts of each 
 particular case.^ 
 
 DELAY AND LAPSE OP TIME. 
 The mere lapse of time during which a transaction hag 
 been allowed to stand, may render it unimpeachable in equity. 
 A man who seeks the aid of a court of equity, must assert his 
 claim with reasonable, diligence.® * It is a rule of equity not 
 to encourage stale demands, or give relief to parties who sleep 
 on their rights. The rule is founded ^on the difficulty of pro- 
 
 ' Walmesley v. Booth, 2 Atk. 25 ; * Life Association of Scotland v. Sid* 
 
 Bellew V. Russell, 1 Ba. <fe.Be. 9G. dall, 3 D. F. <fe J. 58, 73. 
 
 * Shannon v. Bradstreet, 1 Sch. <fe " Smith v. Clay, cit. 3 Bro. C. C. 639 ; 
 Lef. 73. Jones v. Turberville, 2 Ves. Jr. 11; 
 
 ' Liebman v. Harcourt, 2 Mer. 520. Herey v. Dinwoody, ib. 87 ; Underwood 
 
 * Walker v. Syrnonds, 3 Sw. 64, 75; v. Lord Courtown, 2 Sch. & Lef. 71; 
 Bnrrows v. Walls, 5 D. M. & G. 233; Hickes v. Cooke, 4 Dow. 16; Chalmer 
 Farrant v. BlancLford, I D. J. <fe S. v. Bradley, 1 J. <fe W. 59 ; Walford v 
 107. Adie, 5 Ha. 112. 
 
 * Piatt V. Vattier, 9 Pet. 405 ; s. c. 1 McLean, 40 ; Liipton v. Janney, 13 
 Pet. 381; Wade v. Pettibono, 11 Ohio, 557; s. c. 14 Ohio, 557; McLean v. 
 Barton, Harring. Ch. 379 ; Badger v. Badger, 2 Wall. 87 ; Hawley v. 
 Cramer, 4 Cow. 717 ; Coleman v. Lyne, 4 Rand. 454 ; Johnson v. Johnson, 5 
 Ala. 90 ; Graham v. Davidson, 2 Dev. & Bat. Eq. 155; McKnight v. Taylor, 1. 
 How. IGl ; Jenkins v. Pye, 13 Pet. 241.
 
 304 LOSS or RIGHT TO IMPEACH 
 
 curing full evidence of the character and particulars of remote 
 transactions, and is independent of the Statute of Limita- 
 tions.^ * In the case of legal titles and legal demands, courts 
 of equity act in obedience to the Statutes of Limitations ; ^ f 
 but if the demand is not of a legal nature, or is strictly equit- 
 able, the Statutes of Limitations are not a bar in equity. 
 Coui'ts of equity, however, look to them as guides,^ and 
 assimilate their rules as far as they can, and as far as the trans- 
 actions will admit, to the law/ :|: "Where a bar exists by 
 statute, ec|uity will, in analogous cases, consider the equitable 
 rights as bound by the same limitations ; ^ § but in cases where 
 the analogies of law do not apply, a court of equity is 
 governed by its own inherent doctrine not to encourage stale 
 demands. Parties who would have had the clearest title to 
 
 ' Hovenden v. Lord Annesley, 2 Sch. ' Hovenden v. Lord Annesley, 2 Scb. 
 
 & Lef. 630; Beckford v. Wade. 17 Yes. & Lef. 631 ; Foley v. Hill, 1 Ph. 399. 
 8Y; Chalmer I'. Bradley, 1 J. ife W. 63; Mlainiltou v. Grant, 3 Dow. 33; 
 
 Hickes V. Cooke, 4 Dow. 16; Rancliffe Whallcy v. Whalley, 3 Bligh, 17. 
 V. Parkins, 6 Dow. 149, 232 ; Whalley * Cholmondeley v. Clinton, 4 Bligh, 
 
 V. Whalley, 3 Bligh, 17; Cholmondeley 1, 95 ; Brooksbank v. Smith, 2 Y. & C. 
 
 V. Clinton, 4 bligh, 119 ; Gibbering ;;. 60. 
 
 Earl of Balcarres, 3 Deg. & S. 735; * Smith t>. Clay, cit. 3 Bro. C. C. 639; 
 
 Browne v. Cross, 14 Beav. 105; Hart- Hovenden v. Lord Annesley, 2 Sch. & 
 
 •well z;. Colvin, IGBeav. 140; Beaden y. Lef. 607, 632; Whalley y. Whalley, 3* 
 
 King, 9 Ha. 532; Knight v. Bowyer, 2 Bligh, 17 ; Cholmondeley v. Clinton, 4 
 
 D. & J. 421, 443 ; Gresley v. Mousley, Bligh, 1, 119; Gibbering v. Earl of Bal- 
 
 4 D. & J. 78; Harcourt v. Wliite, 28 carres. 3 Deg. <fe S. 735 ; Duke of Leeds 
 
 Beav. 312; Skottowe v. Williams, 3 D. v. Lord Amherst, 2 Ph. 117. 
 F. & J. 535. 
 
 * Prevost V. Gratz, 6 Wheat. 481 ; Randolph v. "Ware, 8 Cranch, 503 ; 
 Weatlierford v. Tate, 3 Strobh. Eq. 27; Peacock v. Black, 1 Halst. Ch. 535; 
 3 GreeQ'sCh. 61 ; Bond v. Brown, 1 Harp. Ch. 270; Page v. Booth, 1 Rob. 
 161 ; Ludlow V. Cooper, 13 Ohio, 552 ; Graham v. Torreance, 1 Ired. Eq. 
 210 ; Sbearin r. Eaton, 3 Ired. Eq. 282. 
 
 t Peyton v. Stith, 5 Pet. 485 ; Humbert v. Trinity Church, 7 Paige, 195; 
 8. c. 24 Wend. 587 ; Hawley v. Cramer, 4 Cow. 717. 
 
 I Kane v. Bloodgoocl, 7 Johns. Ch. 00; Elmendorf ». Taylor, 10 Wheat. 
 152 ; Hunt v. WickliflFe, 2 Pet. 201 ; Varlick v. Edwards, 1 Hoff. Ch. 
 383. 
 
 § ]\ncboud V. Girod, 4 How. 503 ; Miller v. Mclntyre, 6 Pet. Gl ; Bowman 
 e. Wathen, 1 How. 189; Perkins v. Cartmell, 4 Harring. 270.
 
 ON THE GEOUND OF FEAUD. 305 
 
 relief, liad tliey come in reasonable time, may deprive tliem- 
 Belves of their equity by a delay which falls short of the period 
 fixed by the statutes.^ Lapse of time, when it does not operate 
 as a positive or statutory bar, operates in equity as an evidence 
 of assent, acquiescence, or waiver.^ The two propositions of 
 bar by length of time, and bar by acquiescence, are not dis- 
 tinct propositions. They constitute but one proposition.^ 
 Acquiescence, however, as distinguished from delay, imports 
 conduct.'* 
 
 The rule that a man who sleeps on his rights cannot come 
 to a court of equity for relief, holds good not only in circum- 
 stances where the length of time would render it extremely 
 difficult to ascertain the true state of the fact, but where the 
 true state of the fact is easily ascertained, and where it is 
 perfectly clear that relief would have been given had there 
 been no delay .^ 
 
 No precise or defined limit of time can be stated within 
 which the interposition of the court must be sought. What 
 is a reasonable time cannot M'ell be defined so as to establish 
 any general rule, and must in a great measure dejDcnd upon 
 the exercise of the sound discretion of the court under all the 
 circumstances of each particular case.^ * In Gregory v. 
 
 » Oliver v. Court, 8 Pri. 167, 168; Wcntworth v. Lloyd, 32 Beav. 467; 
 
 Gresoryi). Gregory, Coop. 201 ; Hickes Downcs v. Jennings, ib. 290. 
 V. Cooke, 4 Dow. 16 ; Wlialley v. Wlial- ^ Pickering v. Lord Stamford, 2 Ves. 
 
 ley, 3 Pligh, 17 ; Cliolmondeley v. Clin- Ji. 683 ; Gregory v. Gregorv, Coop, 
 
 ton, 4 Bli^-h, 1, 95 ; Ciiami)i()n v. Uigby, 201 ; Whalley'w. Whalley, 3 Bligh, 1, 
 
 9L. J. Ch.X. S. 211; Sibhering w. Earl 13; Roberts v. Tunstalj. 4 Ha. 257; 
 
 of Bilcarres, 3 Deg. <fe S. 735; Roberts Life Association of Scotland v. Siddall, 
 
 V. Tunstail, 4 lla. 257 ; Browne v. Cross, 3 D. F. <fe J. 73. See Stewart's Case, 
 
 14 Beav. liiO; Ilarlwell v. Colvin, 16 L. R 1 Ch. App. 513. 
 Beav. 140; Haker v. Read, 18 Beav. ' Life Association of Scotland v. Sid- 
 
 898; Wright v. Vanderplank, 8 D. M. dall, 3 D. F. & J. 1Z,per Turner, L.J. 
 & G. 133 ; Gresley v. Mousley, 4 D. <fe * Lyddon v. Moss, 4 D.&J. 104. See 
 
 J, 78; Lyddon w. Moss, ib. 101; liar- Murray t). Palmer, 2 Sch. <fe Lef. 486 ; 
 
 court V. White, 28 Beav. 312 ; Cleggt-. Archbold v. Scully, 9 H. L. 360 
 Edmondson, 8 I). M. & G. 810; Clan- ' Beckford v. Wade, 17 Ves. 87, 97. 
 
 ricarde v. llenning, 30 Beav. 175; ' Gresley y. Mousley, 4 D. <fe J. 78. 
 
 * Hawley v. Cramer, 4 Cow. 717 ; Rauks v. Judali, 8 Ct. 145; Hallett v.
 
 o06 LOSS OF EIGHT TO IMPEACH 
 
 Gregory/ Sir TV. Grant, M. R., refused to set aside a purchase 
 by a trustee after a lapse of eighteen years. So in Selsey v. 
 Rhoades,^ where a lease was granted to a steward, and eleven 
 years had elapsed, the court refused to set the lease aside, 
 though there were special circumstances in the case. So in 
 Baker v. Reed,^ a bill filed after the lapse of seventeen years, 
 to set aside a purchase of a testator's estate by his executor 
 at an undervalue, was dismissed on the ground of delay.* The 
 question as to delay may be much affected by reference to the 
 nature of the property,^ or to the change of circumstances as 
 to the character or value of the property in the intermediate 
 period.® * A delay which might have been of no consequence 
 in an ordinary case, may be amply sufficient to bar the title of 
 relief, when the property is of a speculative character, or is 
 subject to contingeucies,' or where the rights and liabilities of 
 others have been in the meantime varied.^ If the property is 
 of a speculative or precarious nature, it is the duty of a man 
 complaining of fraud to put forward his complaint at the 
 
 ' Coop. 201. C\egg V. Edmondson, ib. 807; Ernest v, 
 
 » 2 Sim. & St. 41 ; 1 Bligh, N. S. 1. Vivian, 33 L. J. Cli. 513. 
 
 ^ 18 Beav. 398. ° Hickes v. Cooke, 4 Dow. 16 ; Went- 
 
 * See Purcell v. Macnamara. 14 Ves. worth v. Lloyd, 32 Beav. 467 ; llidgway 
 
 91 ; Oliver v. Court, 8Pri. 127 ; Molony v. Newstead, 3 D. F. <t J. 474. 
 
 V. L'Estrange, Beat. 406 ; Gillett v. Pep- ' Attwood v. Small, 6 CI. tfe Fin. 232, 
 
 percorn, 3 Beav. 78; Roberts »'. Tun- 357; Walford v. Adie, 5 Ha. 112; 
 
 stall, 4 Ha. 257 ; Mathew v. Prise, 14 Preiidergast v. Tarton, 1 Y. <fe C. C. C. 
 
 Beav. 343 ; Aspland v. Watte, 20 Beav. 98 ; 13 L. J. Ch 268 ; Clegjj v. Edmond- 
 
 480; Allfrev ". Alllrej', 1 Mac. <fe G. son, 8 D. M. AG. 787 ; Clements v. Hall, 
 
 87 ; Barwell v. Barwell, 34 Beav. 371 ; 2 D. & J. 173 ; Ernest v. Vivian, 33 L. 
 
 Potts V. Surr, ih. 543 ; Proctor v. Robin- J. Ch. 513. 
 
 son, 35 Beav. 335. " Ridgway v. Newstead, 3 D. F. <fe J. 
 
 ^ Hatch V. Hatch, 9 Ves. 292 ; Wrig'it 474. See Hickes v. Cooke, 4 Dow. 16 ; 
 
 V. Vanderplank, 8 D. M. <fe G. 133; Potts -j. Surr, 34 Beav. 543. 
 
 Collins, 10 How. 174 ; Michoud v. Girod, 4 How. 503 ; Boone v. Chiles, 10 
 Pet. 177 ; Coulsoa v. Walton, 9 Pet. 62 ; King v. Morford, Suxton, 274 ; 
 Aylett V. King, 11 Leigh, 486 ; Nelson v. Carrington, 4 Munf. 332 ; Reardon 
 V. Seavy, 1 Litt. 53 ; Obert v. Obert, 1 Beasley, 423. 
 
 * Wagner v. Baird, 7 How. 234 ; Smith ». Thompson, 7 B. Moh. 305 
 Carroll «). Rice, 1 Walker's Ch. 373; M'Donald v. Neilson, 2 Cow. 139; 
 Ferson v. Sanger, Davies, 252.
 
 ON THE GROUND OF FRAUD. 307 
 
 earliest possible time.^ He cannot be allowed to remain 
 passive, prepared to affirm the transaction if tlie concern 
 should prosper, or to repudiate it if that should prove to his 
 advantage.^ * Parties who are in the position of shareholders 
 in companies must, if thej come to the court to be released 
 from their shares on the ground of fraud, come with the 
 utmost diligence and promptitude.* In the case of companies 
 formed under the Companies' Act, 1862, persons who apply 
 for shares on the faith of a prospectus, are bound to ascertain 
 at the earliest possible moment whether the memorandum and 
 articles of association are in accordance with the prosjjectus. 
 If they fail to do so, and the objects of the company are 
 extended beyond those described in the prospectus, the persons 
 who have so taken shares on the faith of the prospectus will be 
 held bound by acquiescence.* 
 
 The question as to delay may be also materially affected 
 by reference to the relation which subsists between the parties. 
 If. for instance, the transaction be between solicitor and client, 
 a delay which would be fatal in other cases may be permitted, 
 for the solicitor must know that the onus of supporting the 
 transaction will rest on him, and that, if he desire it to be 
 upheld, he must preserve the evidence which will be required 
 to uphold it." 
 
 The rules of the court as to lapse of time being a bar in 
 
 ' Jennin2;s v. Broughton, 6 D. M. & Co. of Venezuela v. Kisch, L. E. 2 App. 
 
 G. 126; Ernest v. Vivian, 33 L. J. Ch. Ca. 125. 
 
 513. ' Peel's Case, L. R, 2 Ch. App. 684; 
 
 " Walford v. Adie, 5 Ha. 112 ; Pren- Cakes v. Turquaiul, L. R. 2 App. Ca. 
 
 dergast v. Turton, 13 L.J. Ch. 268; Z^2, per Lord Chehnsford. 
 
 Cowell V. Watts, 19 L.J. Ch. 455 ; Law- ' Gresley v. Mou-ley, 4 B. & J. 78. 
 
 rence's Case, L. R. 2 Ch. App. 425. See M'Donald v. M'iJonald, 1 Bligh, 
 
 'Reese River Silver Miniri;^ Co., 315; Morgan ?j. Lewes, 4 Dow. 29, 45 ; 
 
 Smitli's Case, L. R. 2 Ch App. 613; Champion w. Rigby, 9 L. J. Ch. N. S. 
 
 Denton v. Macneil, L. R. 2 Eq. 352; 211; Alllrey «;. Allfrey, 1 Mac. <fe G. 87. 
 
 Taite^' C.se, L. R. 3 Eq. 795 ; White- Comp. Lyddon v. Moss, 4 D. <fe J. 104. 
 house's Case, ib. 794 ; Central Pkuilway 
 
 * Banks v. Judah, 8 Ct. 145; Pintard v. Martin, 1 Smed. & Mar. 126; 
 Rogers v. Saunders, 18 Me. 94.
 
 308 LOSS OF RIGHT TO IMPEACH 
 
 equity, apply to casea of constructive trust,^ * and even to 
 transactions between trustee and cestui que trust in respect of 
 the trust estate,^ as well as to ordinary transactions. Length 
 of time can, however, have no effect between trustee and 
 cestui que trust, except the trusts are properly executed.' 
 There is a wide distinction between trusts which are actual 
 and express, and constructive trusts. A trust by which a man 
 undertakes to hold and apply property for the benefit of 
 anotlier is widely different from the case of ownership, subject 
 to the claims of another, if he thinks proper to enforce it.* 
 In the case of continuing express trusts, created by act of 
 parties, no time is a bar, for from the privity existing between 
 the parties, the possession of the one is the possession of the 
 other, and there is no adverse title.^ f ISTor is length of time a 
 
 * Hovenden v. Lord Annesley, 2 Sch. * Toft v. Stephenson, 7 Ha. 15. 
 & Lef. 633 ; Beckford v. Wade, 17 Ves. * Cholmondeley v. Clinton, 4 Bligh, 
 97; Ex-parte Ilasell, 3 Y. & C. 617; 1 ; Wedderburn i;. Wedderburn, 2Keen, 
 Clegg V. Edniond^on, 8 D. M. & G. 787 ; 749, 4 M. <fe C. 41 ; Knight v. Bowyer, 
 Clanricardc v. Ilemiing, 30 Beav. 180. 2 D. <fe J. 421, 443 ; Clanricarde v. Hen- 
 See Rol e V. Gregory, 34 L. J. i h. 275. ning, 30 Beav. 175. See Att.-Gen. v. 
 
 ^Gregory v. Gregory, Coop. 201; Fishmongers' Co., 5 M. & C. 16; Life 
 
 Roberts v. Tunstall, 4 Ha. 257 ; Baker Association of Scotland v. Siddall, 3 F. 
 
 V. Reid, 18 Beav. 398 ; Barwell v. Bar- & J. 58, 73; M'Donnell v. White, 11 H 
 
 well, 34 Beav. 371 ; but see Smith v. L. 570. See Franks v. Bollans, 37 L. 
 
 Bakes, 20 Beav. 568. J. Ch. 155. 
 
 •Franks v. Bollans, 37 L. J. Ch. 155. 
 
 * Farnam v. Brooks, 9 Pick. 212 ; Boone v. Chiles, 10 Pet. 177 • El- 
 mendorf v. Taylor, 10 Wheat. 152; Beaubien v. Beaubien, 23 How. 190- 
 Tate V. Connor, 2 Dev. Eq. 224 ; Locke v. Armstrong, 2 Dev. & Bat. Eq. 
 247. 
 
 t Michoud V. Girod, 4 How. 503 ; Seymour ®, Freer, 8 Wall. 202 ; De- 
 couche V. Swetier, 3 Johns. Ch. 190 ; Cook v. Williams, 1 Green's Ch. 209* 
 State V. McGowen, 2 Ired. Eq 9 ; Pinson v. Ivey, 1 Terg. 296 ; Lexington 
 V. Linds ly, 2 A. K. Marsh 443 ; Lindsay v. Lindsay, 1 Dessau. 150. 
 
 Limitations begin to run against a trust only from the time when it ig 
 openly disavowed by the trustee, who insists upon an adverse light and 
 interest, which is fully and unequivocally made known to the cestui que 
 trust. Oliver « Piatt, 3 How. 333 ; Eane -o. Bloodgood, 7 Johns. Ch. 90 • 
 Boone v. Chiles, 10 Pet. 90 ; Taylor v. Benham, 5 How. 233 ; Wade v. 
 Green, 3 Humph. 547.
 
 ON THE GROUND OF FRAUD. 309 
 
 bar where a debt lias accrued in consequence of a violation of 
 confidence bestowed in a fiduciary cliaracter.^ But if the trust, 
 though express, be not continuous, and the case be one of gross 
 laches, the genei*al rule of equity, that encouragement is not to 
 be given to stale demands, is equally applicable.^ 
 
 If there be laches on both sides, the ordinary rules as to 
 delay and acquiescence may not apply .^ 
 
 Time, however, does not begin to run against a man in 
 cases of fraud, until he has knowledge of the fraud. Time be- 
 gins to run only from the discovery. * * The Statute of Limita- 
 tions is no bar in equity in cases of fraud.^ The right of the 
 party defrauded is not aflfected by lapse of time, or, generally 
 speaking, by anything done or omitted to be done, so long as 
 he remains, without any fault of his own, in ignorance of the 
 fraud that has been committed.® Lapse of time imputed as 
 
 ' Teed v. Beere, 5 Jur. N. S. 381. Ph. 360 ; Allfrey v. Allfrey, 1 Mac. & 
 
 ' Brijrht V. Legerton, 2 D. F. & J. J. 99 ; Walsham v. Stainton, 1 D. J. <fe 
 
 606. See M'Donnell t;. White, 11 H. G. 678; Re Reese Silver Mining Co., 
 
 L. 570. Smith's Case, 1/ R. 2 Ch. App. 613. 
 
 ' Hiclcs V. Morant, 2 Dow <fe CI. 414. ' Sturgis v. Morse, 24 Beav. 541. 
 
 * Blennerhasset v. Day, 2 Ba. &. Be. * Rolfe v. Gregory, 84 L. J. Ch. 275 
 
 129 ; Blair v. Bromley, 5 Ha. 559, 2 See Allfrey v. Allfrey. 1 Mac. & G, 99 
 
 ♦ Veazie v. Williams, 8 How. 1 34 ; Wamburzee v. Kennedy, 4 Dessau. 
 474 ; Longworth v. Hunt, 11 Ohio St. R. 194 ; Pendleton v. Galloway, 9 
 Ohio, 178; Haywood «. Marsh, 6 Yerg. 69; Harrell ». Kelly, 2 McCord, 
 426 ; Huston v. Cantril, 11 Leigh, 136 ; Eigleberger v. Kibler, 1 Hill's Ch. 
 113; Steele v. Kinkle, 3 Ala. 352. 
 
 No case can be found in which a court of equity has refused to give 
 relief within the lifetime of either of the parties upon whom the fraud is 
 proved, or within thirty years after it has been discovered, or becomes 
 known to the party whose rights are affected. Michaud v. Girod, 4 How, 
 503. 
 
 The rule only applies where the trust is clearly established, and where 
 the facts have been fraudulently and successfully concealed by the trustee 
 from the cestui que trust. Badger r. Badger, 2 Wall. 87. 
 
 Where a party by Lis own fraudulent acts and representations has al- 
 layed all reasonable suspicion of his original fraud, and thus attempted to 
 obtain an unconscious advantage by the lapse of time, a court of equity
 
 310 LOSS OF RIGHT TO IMPEACH 
 
 laches may be excused by tlie obscurity of the transaction, 
 whereby a man is disabled from obtaining full information of 
 his rights.^ Time does not begin to run against a man, so as 
 to bar the remedy, until he has full information of his rights 
 and injuries,'^* or has in his possession the means of knowl- 
 
 ' Murray v. Palmer, 2 Sch. & Lef. v. Charter, 4 L. J. Ch. N. S. 209; 
 
 486. Charter v. Trevelyan, 11 Cl. & Fin. 
 
 * Salkeld v. Vernon, 1 Eden, 64; V14 ; Browne w. Cross, 14 Beav. 106; 
 
 Blennerhasset ?i. Da}', 2 Ba. <t Be. 104, Parker v. Bloxain, 20 Beav, 295; 
 
 119 ; Whalley v. Whalley, 3 Bligh, 1 ; Savery v. King, 5 H. L. 627. 
 O'Neill V. Hamill, Beat. 618 ; Trevelyan 
 
 will disregard the statute of limitations. Phalen v. Clark, 19 Ct 421; 
 McClure T. Ashby, 7 Rich. Eq. 430. 
 
 Where there is a separate and distinct chancery jurisdiction, the ques- 
 tion of fraud as a means of preventing the eflfect and operation of the 
 Btatute of limitations must be referred to that jurisdiction, and is not to 
 be relied on by -nay of rei:)]ication to the plea of the statute in a court of 
 law. Franklin v. Waters, 8 Gill, 322. 
 
 Fraud can not be replied to a plea of the statute of limitations in a 
 court of law. Troupe e. Smith, 20 Johns. 33 ; Leonard t\ Pitney, 5 Wend. 
 80; Callis v. Waddy, 2 Munf 511 ; Rice v. AVhite, 4 Leigh, 474 ; Miles v. 
 Barry, 1 HUl (S. C), 296; Hamilton v. Smith, 3 Murph. 115 ; Ruddick v. 
 Leggatt, 3 Murph. 539 ; Baines v. Williams, 3 Ired. 481 ; Franklin v. 
 Waters, 8 Gill, 322; Smith v. Bishop. 9 Vt. 110; Lewis ®. Houston, 11 
 Tex. 642 ; Campbell v. Vining, 23 HI. 525 ; Way v. Cutting, 20 N. H. 187 ; 
 DuYall V. Stafford, 4 Bibb, 318. Contra, Mass. Turnpike Co. ®. Field, 3 
 Mass. 201; Livermore v. Johnson, 27 Miss. 284; Cole v. McGlathry, 9 
 Greenl. 131 ; Jones v. Conoway, 4 Teates, 109 ; Harrisburg Bank v. Foster, 
 8 Watts, 12; Bucker «. Lightner, 40 Penn. 139; Raymond v. Simonson, 4 
 Blackf. 85 ; Mitchell v. Thompson, 1 McLean, 85 ; Sherwood v. Sutton, 5 
 Mason, 143 ; Cocke v. M"Giuniss, 1 Mart. & Yerg. 361; Fee « Fee, 10 Ohio, 
 460 ; Conyers v. Kenans, 4 Geo. 308 ; Persons v. Jones, 12 Geo. 371 , Har- 
 rell V. Kelly, 2 McCord, 26. 
 
 The fraud that will be sufficient to remove the bar of the statute of 
 limitations must be actual, not constructive fraud. Farnam v. Brooks, 9 
 Pick. 212. 
 
 The plaintiff can not excuse his negligence by the fact that the defend- 
 ant knew all along that he was in the wrong. Whatever the character of 
 the injuiT, and whether committed in good or bad faith, the statute bases 
 itself on time. Humbert v. Trinity Church, 7 Paige, 195; s. c. 24 Wend. 
 587. 
 
 * Munson v. Hallowell 27 Tex. 457 ; Tate, v. Tate. 1 Dev. & Bat. Eq. 22; 
 Croft V. Arthur, 3 Dessau. 223.
 
 ON THE GROUND OF FRAUD. 311 
 
 edge,^ * or, at least, has sufficient notice to put liim on in- 
 quiry ,^f and, in cases where the transaction has taken place 
 under pressure, or the exercise of undue influence, is emanci- 
 pated from the dominion under which he stood at the date of 
 the transaction.^ The objection of time is removed, so long as 
 a man remains, without any fault of his own, in ignorance of 
 his rights and injuries,* or is under a legal disability,^;}: or so 
 long as the dominion or undue influence which vitiated the 
 transaction is in full force.® The mere fact, however, of the 
 poverty or pecuniary embarrassment of the injured or de- 
 frauded party, is not a sufficient excuse for delay ;'§ nor will 
 the mere notice or assertion of a claim, unaccompanied by 
 
 ' Baker v. Read, 3 W. R. 118. & Fin. 714; Allfrey v. Allfrey, 1 Mac. 
 
 *Clanricarde v. Ilennin^, 30 Beav. <fe G. 87; Bromley v. Blair, 16 L. J. 
 175 ; Spademan's Case, 34 L. J. Ch. Ch. 108 ; Mathew v. Biise, 14 Beav. 
 321, 326 ; Stanhope's Case, L R. 1 Ch. 343 ; Rolfe v. Gregory, .34 L. J. Cb, 
 App. 161. See Dosrgett w. Emerson, 3 275; Spademan's Case, »6. 320; Stan- 
 Story (Amer.), 733; Comp. Partridge hope's Case, L. R. 1 Ch. Ap. 101. 
 V. Usborne, 5 Russ. 195, 232 ; Re Reese ' Duke of L 'eds v. Lord Amherst, 2 
 River Silver Mining Co., Smith's Case, Ph. 117; Neesom v. Clarkson, 2 Ha. 
 L. R. 2 Ch. App. 612. 163 ; Wright v. A''anderplank, 8 D. M. 
 
 'Gregory v. Gregory. Coop. 201; & G. 133; Gresley v. Slousley, 4 D. <fe 
 
 Dawson v. Massey, 1 B. & B. 219; J. 78. 
 
 Roche V. O'Brien, ^ib. 338 ; Avlward v. ' Wright v. Vanderplank, 8 D. M. <fe 
 
 Kearney, 2 B. <fe B. 408; O'Neill v. G. 133; Gresley ?'. Mousley, 4 D. & J. 
 
 Hamill.'Beat 618; Addis v. Campbell, 78; Sharp v. Leach, 31 Beav. 491, See 
 
 4 Beav. 401 ; Champion v. Rigby, 9 L. Gregory v. Gregory, Coop. 201 ; Addia 
 
 J. Ch. N. S. 211 ; Bellamy v. Sabine, 2 v. Campbell, 4 Beav. 401. 
 Ph. 425; Grosvenor v. 'Sherratt, 28 'Roberts v. Tuns^all. 4 Ha. 257; 
 
 Beav. 659; Sharp v. Leach, 31 Beav. Champion v. Rigby, Taml. 421 ; 9 L.J. 
 
 491. Ch. N. S. 211. See Hovenden v. Lord 
 
 * Trevelyan v. Charter, 4 L. J. Ch. Annesley, 2 Sch. & Lef. 607, 639. 
 N. S. 209 ; Charter v. Trevelyan, 11 CI. 
 
 * Famam v. Brooks, 9 Pick. 212 ; Hite v. Hite, 1 B. Mon. 177 ; Shannon 
 V. "White, 6 Rich. Eq. 96; Buckner v. Ciilcote, 28 IVIiss. 432; Parkham 
 V. McCrary, 6 Rich. Eq. 140. 
 
 t Maxwell v. Kennedy, 8 How. 210; Edmonds v. Goodwin, 28 Geo. 38 ; 
 Smiths. Talbot, 18 Tex. 774; Smith v. Fly, 24 Tex. 345; Whaley v. Eliott^ 
 1 A. K Marsh. 343. 
 
 I Odder V. Walker, 2 H. & G. 323 ; Carr v. Bob, 7 Dana, 417 ; Fall v. 
 Torreance, 2 Hawks, 490. 
 
 There is no equity from a disability that was voluntary and self-im- 
 posed. Wagner v. Bird, 7 How. 234. 
 
 § Perry v. Crary, 3 Mo. 31G ; Locke v. Armstrong, 2 Dev. & But. Eq. 147.
 
 312 LOSS OF EIGHT TO IMPEACH 
 
 any act to give it eifect, keep alive a riglit which would be 
 otherwise barred.* 
 
 When time has once begun to run against a man, all per- 
 sons who derive their right through him will be affected with 
 the disabilities which affected him.^ Nor can tlie representar 
 tives of a man be in a better position than the man himself.^ 
 A remainder-man may, during the life of the tenant for life, 
 file a bill to impeach a sale under a decree, but he is not bar- 
 red by laches, if he wait until the death of the tenant for life.* 
 
 PUKCHASE FOPt VALUE WITHOUT NOTICE. 
 The right to impeach a transaction on the ground of fraud, 
 has no place as against third parties, who have paid money and 
 acquired a legal right to property, without notice of the fraud. 
 As against a purchaser for valuable consideration without 
 notice, having the legal title, no relief can be had in equity. 
 If a man has paid his money in ignorance of the fact that an- 
 other party has an equitable claim to the property, a court of 
 equity will not deprive him of the benefit of his legal title, 
 even although his equitable claim be of later date than that of 
 the other party .^ * The rule that a man who advances money 
 
 ' Clegg V. Edmondson, 8 D. M. & G. ' Lloyd v. Passingham, Coop. 152 ; 
 
 787; Ernest v. Vivian, 33 L. J. Ch. Att.-Gen. v. Flint, 4 Ha. 156; Blackie 
 
 513.' V. Clark, 15 Beav. 695; Cobbett v. 
 
 " Clanricarde v. Henning, 30 Beav. Brock, 20 Beav. 528 ; Dawson v. 
 
 175 ; Ernest v. Vivian, 33 L. J. Ch. Prince, 2 D. <fe J. 41 ; Dodds v. Hills, 2 
 
 513. See jNInrray v. Palmer, 2 Sch. <fe H. <fe M. 424; Conip. Vorley v. Cooke, 
 
 Lef. 486; Whalley i/. Whalley, 3Bligh, 1 Giff. 230; Ogilvie v. Jeaffreson, 2 
 
 1_ GifF. 379 ; Cottam v. Eastern Counties 
 
 ' ' Skottowe V. Williams, 3 D. F. <fe J. Eailway Co. 1 J. & H. 243. See Pur- 
 
 535. See Bellew v. Russell, 1 Ba. & cell v. Kelly, Beat. 492 ; Eyre v. Biir 
 
 Be. 96. mester, 10 H. L. 90. 
 
 * Bo wen v. Evans, 1 J. & L. 265. 
 
 * Hawley v. Cramer, 4 Cow. 717 ; Green v. Tanner, 8 Met. 411 ; Love v. 
 Braxton, 5 Call, 537; Cressy v. Philips, 2 Root, 420; Wamburzee v. Ken- 
 nedy, 4 Dessau. 474 ; Moore v. Clay, 7 Ala. 742 ; Owin<?s v. Juit, 2 A. K. 
 Marsh. 380 ; Lemmon v. Brown, 4 Bibb, 308 ; Prevo v. Walters, 4 Scam. 
 35. 
 
 A grantee holding property under a fraudulent deed, may convey it so
 
 ON THE GROimD OF FRAUD. 313 
 
 lond fide, and without notice of the infirmity of the title of 
 the seller, will be protected in equity, applies equally to real 
 estate, chattels, and personal estate.^ The rule is subject to no 
 exceptions even in favor of charities.^ 
 
 A purchaser for valuable consideration without notice of 
 any defect in his title, or of the existence of any prior equitable 
 incumbrance at the time when he advanced his money, may 
 buy in or obtain any outstanding legal estate, not held upon 
 express trust for an adverse claimant, or a judgment, or any 
 other legal advantage, the possession of which may be a pro- 
 tection to himself or an embarrassment to other claimants.' 
 
 * Joyce V. De Moleyns, 2 J. <fe L. Z11 ; 458 ; Maundrell v. Maundrell, 10 Ves. 
 
 Dawson v. Prince, 2 D. & J. 49 ; Dodda 246 ; Hughes v. Garner, 2 T. & C. 328 ; 
 
 V. Hills, 2 H. <fc M. 424. See Thorn- Carter v. Carter, 3 K. & J. 61Y ; Bates 
 
 dike V. Hunt, 3 D. &. J. 563 ; Case v. v. Johnson, Johns. 304 ; Sharpies v. 
 
 James, 29 Beav. 512. Adams, 32 Beav. 213; Fagg v. James, 
 
 " Att.-Gen. v. Wilkins, 17 Beav. 293. 8 L. T. N. S. 7. See Prosser v. Rice, 
 
 ' Saunders v. Dehew, 2 Vern. 471 ; 28 Beav. 68 ; Dodds v. Hills, 2 H. <fe M. 
 
 Willoughby v. Willoughby, 1 T. R. 424, 
 
 763; Jerrard v. Saunders, 2 Ves. Jr. 
 
 as to bind the creditors of the grantor. Roberts v. Anderson, 18 Johns. 
 515; s. c. 3 Johns. Ch. 371 ; Neal v. Williams, 6 Shep. 391 ; Green r. Tan- 
 ner, 8 Met. 411 ; Coleman v. Cocke, 6 Rand. 618 ; Bean v. Smith, 2 Mason, 
 253; Dugan ». Vattier, 3 Blackf. 245; Cummings v. McCullougb, 5 Ala. 
 324 ; Boyce v. Waller, 2 B. Mon. 91 ; Agricultural Bank v. Dorsey, 1 Freem. 
 Ch. 338; cotitra, Preston v. Crofut, 1 Day, 527 ; Read «. Slater, 3 Hayw. 
 
 159. 
 
 A person who is by construction turned into a trustee without any 
 knowledge on his part that he is trustee, or of the facts that make him 
 trustee, may be a bond fide purchaser of the share of another tenant in 
 common of the same property. Giddings v. Eastman, 5 Paige, 561. 
 
 The true question is, whether the purchaser has acted in good faith and 
 purchased under circumstances of apparent right in the vendor to convey. 
 A purchase by way of a mere release where, by reason of a priority of 
 estate between the parties, it operates by way of enlarging the estate of 
 the releasee, or of passing the estate of the releasor, may make a lond 
 fide purchaser. Flagg v. Mann, 2 Sumner, 486. 
 
 The rule of la^v', which secures protection to a bond fide purchaser who 
 has dealt in good faith with a fraudulent vendee having the possession, 
 applies with equal force to a case where the original sale and delivery were 
 subject to conditions of which he is ignorant. Hall t. Hinks, 21 Md. 406 ; 
 contra. Coggill v. Hartford «& New Haven R. R. Co., 3 Gray, 545. 
 21
 
 314 LOSS OF EIGHT TO IMPEACH 
 
 The authorities establish that a purchaser from a person in 
 possession, purchasing without notice of any prior charge or 
 trust, and obtaining a conveyance of the legal estate from a 
 trustee of a satisfied term or mortgagee, whose mortgage is 
 satisfied, will be protected in this com't against a prior incum- 
 brance or cestui que trust, provided the party so conveying 
 the legal estate has no notice of the prior trust or incambrance. 
 But it has never been decided that where the party so convey- 
 ing has notice of an express prior trust or incumbrance, the 
 purchaser can protect himself therefrom by means of the legal 
 estate.^ Although a man having notice of an intervening in- 
 cumbrance may get in any outstanding legal estate, which a 
 person without notice of any intervening incumbrance may 
 hondfide assign to him, he cannot procure a conveyance from 
 a person who himself has a duty to perform, and who by such 
 conveyance would, in fact, be making over the estate to protect 
 the former against the very interests which it was his duty to 
 protect.*^ Some of the earlier cases on the subject of purchase 
 for value without notice, have, it may be observed, gone to 
 fm-ther length than would be supported by modern decisions.' 
 
 The protection from getting in the legal estate extends 
 even to eases where the apparent or asserted equitable title is 
 deduced through a forged instrument ; ^ provided the asserted 
 or apparent title of the party from whom it was derived was 
 clothed with possession.^ If the asserted or apparent title is 
 deduced through a forged instrument, or through an instru- 
 ment which has been obtained by a trick or a cheat, the doc- 
 trine of purchase for value without notice cannot apply, unless 
 the party from whom the title is deduced had taken possession, 
 
 'Carter v. Carter, 3 K <fe J. 617, en i>. Evans, 1 J. & L. 264; Lloyd ii. 
 
 640. Attwood, 3 D. ife J. 655 ; Comi). Es- 
 
 « Jh. 642. daile v. La Nauze, 1 Y. & C. 400. 
 
 "76. 636, J9er Wood, L. J. ^ Jones v. Powles, 3 M. & K. 596; 
 
 « Jones ti. Fowles, 3 M. & K. 581; Ogilvie ?;. Jeaffreson, 2 Giff. 380. See 
 
 Dawson v. Prince, 2 D. cfc J. 41. See Cottam v. Eastern Counties Railway 
 
 Lloyd V. Passiugham, Coop. 152 ; Bow- Co., I J. <fe H. 248.
 
 ON THE GROUND OF FRAUD. 315 
 
 and being in possession, as apparent owner, had sold and con- 
 veyed for value.^ * 
 
 To raise the equity of purchase for value without notice, it 
 is not necessary to prove possession. It is enough that the 
 purchase be from an apparent owner who was actually in pos- 
 session.* If, however, an instrument, which pui-ports to con- 
 vey a legal estate or interest, be a forged instrument, no title 
 can be acquired under it. A man who takes under such an 
 instrument has no title at all, and cannot claim as a purchaser 
 without notice.^ If the indorsement on a bill of exchange be 
 forged, it is the same as if there were no indorsement at all ; 
 nor will a i:eal indorsement by the payee after the bill has 
 arrived at maturity, give the holder any title, if the original 
 indorsement was a forgery.* 
 
 The legal estate will not protect a purchaser against the 
 claims of persons whose prior right to its protection was known 
 to him before completion of the purchase, even although the 
 extent of such claims were unknown ; for instance, when A, 
 knowing that B had a charge on the property, accepted a mort- 
 gage of the estate, relying on the mortgagor's covenant, and 
 then got in an old outstanding term of years, it was held that 
 B, having, in respect of A's notice of the first incumbrance, a 
 preferable right to require an assignment of the term, was en- 
 titled to priority not only in respect of such first incumbrance, 
 but also in respect of a subsequent charge of which A had no 
 notice at the date of his advance.* 
 
 ' Ogilvie V. Jeaffreson, 2 Giff. 380. * Esdaile v. La Nauze, 1 Y. <fe C. 899. 
 
 " Wallwynn v. Lee, 9 Ves. 24:; Ogil- ' Willoughby v. Willougliby, 1 T. R. 
 
 vie V. Jeafi'i-eson, 2 GifF. 379. 763. See Sharpies v. Adams, 32 Beav 
 
 ^ Esdaile v. La Nauze, 1 Y. & C. 399. 213. 
 See Cottam v. Eastern Counties Rail- 
 way Co., IJ. & H, 248. 
 
 * Case V. JeDoings, 17 Tex. 661 ; Brower v. Peabody, 3 Kcrnan, 121 
 Caldwell v. Bartlett, 3 D.icr, 341 ; Johnson v. Boyles, 26 Ala. 570 ; Wooster 
 V. Sherwood, 35 N. Y. 278.
 
 316 LOSS OF EIGHT TO IMPEACH 
 
 The doctrine in regard to the effect of notice, does not 
 affect a title derived from another person, in whose hands it 
 stood free from any such taint, A purchaser "W .11 not be affected 
 by notice of an equitable claim, if he purchase from a vendor 
 who himself bought hond fide without notice.^ * So, also, if a 
 person who has notice sells to another who has no notice, and 
 is, also, a lond fide purchaser for valuable consideration, the 
 latter may protect his title, although it was affected with the 
 equity arising from notice in the hands of the person from 
 whom he received it.^ f A person affected by notice has the 
 benefit of want of notice by intermediate purchasers/^ The 
 lond fide purchase of an estate for valuable consideration, 
 purges away the equity from the estate in the hands of all per- 
 sons who may derive title under it, with the exception of the 
 original party, whose conscience stands bound by the meditated 
 fraud. If the estate becomes revested in him, the original 
 equity will attach to it in his hands.* X ^ purchaser, however, 
 having notice, cannot insist on holding the legal estate as 
 against those parties with notice, of whose right that estate 
 was talcen.' A man who has notice of a fact which ought to 
 
 > Harrison v. Forth, Prec. Ch. 51 ; 1 2 Atk. 242 ; Story's Eq. Jur. 409. See 
 
 Eq. Ca. Ab. 331. pi. 6 ; Lowther v. Carl- Dodds ;-. Hills, 2 Ha. <fc M. 424. 
 
 ton, 2 Atk. 242; Brandlyn v. Ord, 1 ^ McQueen v. Farquliar, 11 Vcs. 467. 
 
 Atk. 571 ; Sweet v. Southeote, 2 Bro. ■• Kennedy v. Daly, 1 Sch. ife Lef. 379 ; 
 
 C. C. 66; Andrew v. Wrigley, 4 ib. Story's Eq. Jur. 410: Couip. Carter «. 
 
 125. " See Dart. V. & P. 585. Carter, 3 K. <fe J. 617; Bates v. John- 
 
 " Ferrars v. Cherry, 2 Vern. 384; son, John. 309. 
 
 Mertins v. Jolliffe, Arab. 313 ; Lowther * Allen v. Knight, 5 Ha. 278. 
 V. Carlton, Barnard, Ch. 358; For. 187; 
 
 * Lacy V. Wilson, 4 Munf. 313 ; Fenno v. Sayre, 2 Ala. 458 ; Holmes n. 
 Stout, 3 Green's Ch. 492; City Coimcil v. Page, Spear's Ch. 159; Lindsay 
 V. Rankin, 4 Bibb, 482 ; Bumpass v. Platner, 1 Johns. Ch. 213; Myers v. 
 Peck, 2 Ala. 648. 
 
 t Varick ?). Briggs, 6 Paige, 223; Tompkins v. Pencil, 6 Leigh, 576; 
 Jtlallory v. Stodder, 6 Ala. 801 ; Bracken v. Miller, 4 W. & S. 102 ; Hill v. 
 Paul, 8 Miss. 479 ; Pierce v. Faunce, 47 Me. 507. 
 
 t Filziramons t. Ogden, 7 Cranch, 218; Alexander v. Pendleton, 8 
 Cranch, 462; Jackson v. Henry, 10 Johns. 185.
 
 ON THE GROUND OF FRAUD. 317 
 
 have put liim on inquiry, and which he might have discovijred 
 by using due diligence, cannot claim as a purchaser without 
 notice.^ If a purchaser chooses to rest satisfied without the 
 knowledge which he has a right to require, he cannot claim as 
 a purchaser without notice.^ Nor can a man who has by his 
 own act precluded himself from the means of knowledge, or 
 from information, set up as against persons as innocent as him- 
 Belf, the want of information which he has precluded himself 
 from obtaining.' A purchaser, for example, who buys with 
 notice of circumstances sufficient to invalidate the sale, is not 
 protected by a proviso that the purchaser need not inquire/ 
 So, also, a man who takes the assignment of a lease under a 
 condition not to inquire into the lessor's title, must have im- 
 puted to him the knowledge which, on prudent inquiry, he 
 would have obtained.* Nor are special conditions of sale, limit- 
 ing the extent of title, an excuse for a purchaser not insisting 
 on the production of a deed beyond those limits of which he 
 had notice.' Trustees of a settlement for the benefit of a par- 
 ticular person, cannot stand any higher than the person for 
 whom they are trustees in respect of notice. If he is affected 
 by notice, they cannot claim as purchasers for value without 
 notice.'' 
 
 Purchasers under a decree of the court take with notice of 
 fraud apparent on the face of the decree.^ A decree is no pro- 
 tection against persons of whom the purchaser has actual notice 
 that they ought to have been, but are not, parties to the suit.' 
 But a purchaser under a decree will not be afiected by fraud in 
 
 ■ Jackson v. Rowe, 2 Sim. & St 475; ' Robson v. Flight, 34 L, J. Ch. 226; 
 
 Jones V. Powles, 3 M. & K. 596 ; Ker Clements v. Welles, L. R. 1 Eq. 200. 
 
 V. Lord Dungauiion, 1 Dr. & War. 542; " Peto v. Hammond, 30 Beav. 495. 
 
 Robinson v. Briggs, 1 Sm. <fe G. 188; ' Spaight v. Cowiie, I U. & M. 359. 
 
 Davies v. Thomas, 2 Y. <fe C. 234 ; Jen- * Toulmin v. Steere, 3 Mer. 210; Gort 
 
 kins V. Jones, 2 Giff. 99; Ogilvie v. v. Stackpoole, 1 Dow. 30; cit. 1 J. <fc 
 
 Jeaffreson, ih. 378. L. 257. 
 
 ^ Parker v. Whyte, 1 H. & M. 167. » Colclough v. Sterum, 3 Bligh. 181, 
 
 ' Nicoll's Case, 3 T>. & J. 387. 186; Piers v. Piers, 1 Dr. <fe Wal. 265; 
 
 ♦ Jenkina v. Jones, 2 Giff, 99. Rolleston v. Morton, 1 Dr. & War. 177.
 
 318 LOSS OF RIGHT TO IMPEACH 
 
 the proceedings of wliicli he himself is innocent,* unless it be 
 apparent on the face of the decree.'^ ISTor is a sale impeachable 
 on the ground of its having been the object for which the suit, 
 professedly directed to other purposes, was in fact instituted.^ 
 
 To entitle a man to the character of a hona fide purchaser 
 without notice, he must have acquired the legal title, and have 
 actually paid the purchase money, or parted with something 
 of value by way of payment before receiving notice.** A 
 party claiming to be a purchaser for value without notice 
 under a marriage contract, entered into in pursuance of arti- 
 cles, must show that he had no notice at the time of the settle- 
 ment ; proof that he had no notice at the time of the articles is 
 not sufficient.^ t The protection to which a 1)0110, fide pur- 
 chaser without notice is entitled, extends only to the money 
 which has been actually paid, or to the securities which have 
 been actually aj)propriated by way of payment before notice.* % 
 Notice before actual payment of all the purchase money, 
 
 ' Sug. 110; Dart, '7'74 ; Bowen v. v. Kernan, 2 Dr. & Wai\ 31; Borell v. 
 
 Evansfl J. & L. 178; 2 H. L. 257; Dann, 2 Ha. 440; Raj^ne v. Baker, 1 
 
 Ede-eworlh v. EJgeworth, 12 Jr. Eq. Gifit. 245. See Wliitworth v. Gaugain, 
 
 81. Cr. & Fh. 325 ; Att.-Gen. v. Flint, 4 Ha. 
 
 » Gore V. Stackpoole, 1 Dow. 30; cit. 147, 156. 
 1 J. & L. 257. " Davies v. Thomas, 2 T. «fe C. 234. 
 
 = Bowen i;. Evans, 1 J. & L. 178; 2 * Story v. Windsor, 2 Atk. 630; 
 
 H. L. 257. Hardingham v. Nicliolls, 3 Atk. 304; 
 
 ■* How V. Weldon, 2 Ves. 516; Story Eayne v. Baker, 1 Giff. 245. 
 V. Lord Windsor, 2 Atk. 630; Molony 
 
 * Wormley t. "Wormley, 8 Wheat. 421; Blight v. Banks, 6 Mon. 192; 
 Jackson r. Summerville, 13 Penn. 359; Keitcrease v. Levin, 36 Miss, 569 ; 
 Du"-an t'. Vattier, 3 Blackf. 245 ; Wood t. Mann, 1 Sumner, 500 ; Boswell 
 ■p. Buchanan, 3 Leigh, 365 : Goust v. Martin, 3 S. «& R. 430. 
 
 1 Flagg V. Mann, 2 Sumner, 484 ; Duphey v. Frenage, 5 Stew. «& Port. 
 215 • Ingerson t. Starkweather, AValk. Ch. 346. 
 
 J Jewett «. Palmer, 7 Johns. Ch, 65; Williams v. Holloway, 1 
 Strobh. Eq. 103; Blanchard v. Tyler, 12 Mich. 339; Wells t). Morrow, 38 
 Ala. 125; Jones v. Read, 3 Dana, 540; Pillow v. Shannon, 3 Yerg. 508; 
 Curtis i\ Hitchcock, 10 Paige, 399. 
 
 Where the consideration for an assignment or transfer from a fraudu- 
 lent vendee is such that, after a reclamation and recovery by the vendor, 
 the assioTiee or transferee would remain in the same condition as before
 
 ON THE GROUIJTD OF FRAUD. 319 
 
 althoue-h it be secured/* and tlie execution of the convey- 
 ance,2 is binding in the same manner as notice had before the 
 contract. Although, however, a purchaser after conveyance 
 executed has no remedy at law against the payment of money, 
 for which he has given security, he may come into equity to 
 have the money so secured employed in discharge of newly 
 discovered incumbrances,^ 
 
 It has been held that notice to a purchaser after payment 
 of the purchase money, but before execution of the convey- 
 ance, is sufficient to deprive him of the benefit of the legal 
 
 " Tourville v Naish, 3 P. Wm. 307; Comp. Cregan v. Cullen, 16 Ir. Ch. 339. 
 
 Story V. Lord Windsor, 2 Atk. 630; "Jones v. Stanley, 2 Eq. Ca. Ab. 
 
 Moore v. Mayhow, 1 Ch. Ca. 34 : Har- 685. See Allen v. Knight, 5 Ha. 27^ 
 
 dingham v. Nicholls, 3 Alk. 304; Til- 11 Jur. 527. 
 
 desfey v. Lodge, 3 Sm. & G. 543 ; ' Tourville v. Naish, 3 P. Wm. 306. 
 
 the assignment or transfer, it is not sufficient to make such an assignment 
 or transfer valid against the defrauded vendor. Something of value, m the 
 way of property or money, should be given or advanced ; some service 
 rendered or liability incurred, on tlie foith and credit of the transfer, and 
 as a present reciprocal consideration therefor. It follows that a transfer of 
 property by a fraudulent vendee in consideration of a pre-existing debt, 
 confers no title as against the defrauded vendor. Ratcliffe v. Sangston, 18 
 Md. 383; Frew v. Daenman, 11 Ala. 880; Ingram v. Morgan, 4 Humph. 
 66 ; Dickerson v. Tillinghast, 4 Paige, 215 ; Coddington «. Bay, 20 Johns. 
 637 ; Powell v. JeflFeries, 4 Scam. 387. 
 
 The relinquishment of a valid security for a prior debt is a sufficient 
 consideration. Padget «. Lawrence, 10 Paige, 170. 
 
 Part cash and part past indebtedness is good pro tanto. Pickett o. 
 Barron, 29 Barb. 505. 
 
 If notice is only after a payment of part of the purchase money, the 
 purchaser is entitled to reimbursement as a condition of giving way to the 
 title of the owner. Lewis v. Beatty, 33 Miss. 52 ; Goust v. Martin, 3 
 
 S. & R. 428. 
 
 The payment must be proved by some other evidence than the mere 
 receipt in the deed. Lloyd v. Lynch, 28 Penn. 419; Mitchell v. Pickett 
 
 23 Tex. 573. 
 
 * Notice after payment and execution, but before i-ecording is not suffi- 
 cient. Ely V. Scofield, 35 Barb. 330. 
 
 A purchaser with notice of a prior unrecorded conveyance may, never- 
 theless, hold the legal estate if he has the prior equity. Carr v. Ciillaghan, 
 3 Litt. 305.
 
 320 LOSS OF EIGHT TO IMrEACH 
 
 estate.^ * The point, however, is one which will require much 
 consideration when it arises again.^ 
 
 "When a purchaser, not having got in an outstanding legal 
 estate, has, nevertheless, from having a better equity than the 
 other claimants, the best right to call for it, he will in equity 
 be entitled to its protection.^ But although the court holds 
 that priority will give equity, yet it does not hold that it 
 gives so superior an equity, as between several incumbrances 
 and purchasers, as to enable the anterior claimant to wrest 
 the legal estate from the person who has obtained it without 
 notice of the anterior claim.'* 
 
 The defence of a purchase for value without notice, is a 
 shield as well against a legal title as an equitable title.^ The 
 principle, in other words, applies as well when the right 
 sought to be enforced is a legal right as when it is an equita- 
 ble one.® The court holds that it is not equitable for a person 
 who has bought for valuable consideration without notice, to 
 be deprived of that for which he has paid his money, and will 
 not give any assistance to a party claiming against him, or do 
 anything to prejudice his right,'^ but will leave the parties to 
 their remedies at law.^ In WiUiams v. Lainbe,^ however, it 
 was held by Lord Thurlow that the defence of purchase for 
 value without notice could not be pleaded in bar to a suit for 
 an account of dower, which a widow having a legal title 
 sought to enforce ; and in Collins v. Archer,^^ it was held by 
 Sir. J. Leach, M. E,., that it was no answer to a bill for tithes. 
 
 ' Wi<rg V. Wiffg, 1 Atk. 382. ^ Joyce v. De Moleyns, 2 J. ife L. 377 ; 
 
 " Dart, V. & P. 540. Atl.-Gen. v. Wilkins,' 17 .Beav. 293. 
 
 = Willougliby V. Willoughby, 1 T. R. " 76. 
 
 76>> ; Bowen v. Evaus, 1 J. & L. 265; ' Walwvnn v. Lee, 9 Vcs. 24; Joyce 
 
 Parker i;. Carter, 4 Ila. 410; Dart, V. «. De Moleyns, 2 J. <fe L. 374; Att.. 
 
 <fe p. 641. Gen. p. Wilkins, 17 Beav. 292. 
 
 * Rooper v. Harrison, 1 K. &, J. 108, " Att.-Gen. v. Wilkins. 17 Beav 292. 
 
 ^09 * 3 Bro. C. C. 264 
 
 '» 1 R. & M. 284. 
 
 Peabody v. Fenton, 3 Barb. Ch. 451.
 
 ON THE GROUND OF FRAUD- 321 
 
 The doctrine of these cases, though disapproved of and op- 
 posed to many recent decisions/ has been approved of by 
 Lord Westbury, in Philipps v. Philvpps? But Lord St. 
 Leonards^ does not approve of the reasoning of Lord Westbury 
 in that case, and is of opinion that those cases were not cor- 
 rectly decided. 
 
 The defence of purchase for valuable consideration without 
 notice, will not prevent the court from protecting property by 
 injunction, pending litigation.* 
 
 Questions relating to the defence of purchase for valuable 
 consideration without notice, are much modified by the opera- 
 tion of the .act for rendering unnecessary the assignment of 
 satisfied terms. If the term is gone, it will not stand in the 
 way of the petitioner even at law.^ 
 
 As between persons claiming merely equitable interests, 
 the defence of purchase for value without notice has no place. 
 A party who purchases an equity takes it subject to all the 
 equities which affect it in the hands of the assignor. The 
 first grantee of an equity has the right to be paid first, and it 
 is quite immaterial whether the subsequent incumbrancers had 
 at the time they took their securities and paid their money, 
 notice of a prior incumbrance.^ * 
 
 ' See Payne v. Compton, 2 Y. <fe C. 670; Rooper v. Harrison, 2 K. <fr J. 108, 
 
 461; Bowen v. Evans, 1 J. & L. 178, 109; Ford v. White, 16 Beav. 120; 
 
 264 ; Joyco v. De Moleyns, 2 J. <fe L. Stackhouse v. Countess of Jersey, 1 J. 
 
 374; Att.-Gen. v. Wilkins, 17 Beav. & H. 721; Case v. James, 3 D. F. <fe J, 
 
 2S5; Finch v. Shaw, 19 Beav. 509; 264; Parker v. Clarke, 30 Beav. 54; 
 
 Lane 'v. Jackson, 20 Beav. 535. Cory v. Eyre, 1 D. J. ife S. 167 ; Philipps 
 
 " 31 L. J. Ch. 321, 326 v. Pliilipps, 31 L. J. Ch. 321, 326. See 
 
 ' Sug. V. & P. 790, 796. Liebnian v. Harcourt, 2 Mer. 520 ; Rice 
 
 * Greensiade v. Dare, 17 Beav. 502. v. Rice, 2 Drew. 73 ; Eyre v. Bunues- 
 
 » Finch V. Finch, 19 Beav. 500; ter, 10 H. L. 90 ; Dodds w, Hills, 2 H. 
 
 Corry v. Cremorne, 12 Ir. Ch. 136. & M. 424; Comp. Lane v. Jackson, 20 
 
 ° Frazer v. Junes, 17 L. J. Ch. 353, Beav. 539. 
 
 356; Manningford v. Toleman, 1 CoU. 
 
 * Poillon ». Martin, 1 Sanclf. Ch. 569; Crawford v. Beetliolf, Saxton, 
 458; Jones v. Zollicoffer, 2 Taylor, 214; Piuson o. Ivey, 1 Yorg. 29f»; Du- 
 pont ». Weilicrman, 10 Cal. 354.
 
 322 LOSS OF RIGHT TO IMPEACH 
 
 "Where a party lias nothing more than an equitable in- 
 terest, another party who has a prior equitable interest will 
 generally be preferred, the general rule being that, as between 
 equities, he who is prior in point of time is prior in point of 
 right.^ The maxim, qui prior est tempore potior est jure, 
 always applies between equities, unless there be something to 
 take the parties out of the general rule.^ * The fact that the 
 owner of the equitable interest who sets up the defence of 
 purchase without notice, may be in possession, and has a right 
 to call for the legal estate, does not vary the rule.^ The 
 assignee of a chose in action not assignable at law, cannot set 
 up the defence of purchase for value without notice as against 
 equities which attaclied to the security in the hands of the 
 assignor.* The person liable to the demand may so act as 
 to create against himself an equity preventing the applica- 
 tion of the rule. There may be such dealings between the 
 assignee and the party liable originally as to preclude him 
 from insisting as against the assignee upon rights which he 
 might have claimed as against the assignor ; but, as a general 
 rule, a person who buys a chose in action, which can only be 
 put in suit in the name of the original holder, takes subject to 
 the equities which affect the assignor, even although he be a 
 land fide purchaser without notice.^ Where, accordingly, a 
 man bought in the market, in the ordinary course of business, 
 debentures which had been issued in fraud of a company, the 
 
 > Att.-Gen. v. Flint, 4 Ha. 156. 103 ; Morris v. Li\ne, 1 Y. & 0. .C. 0. 
 
 ' Frazer v. Jones, 17 L. J. Ch. 355; 380; Smith v. Parkes, 16 Beav. 115; 
 
 Bice V. Rice, 2 Drew. 78. Clacli v. Holland, 19 Beav. 262 ; Stack- 
 
 * Philipps V. Philipps, 31 L, J. Ch. house v. Countess of Jerse}', 1 J. cfe H. 
 
 321^ 721 ; Athenieum Life Assurance Society 
 
 "■•Coles V. Jones, 2 Vern. 692 ; Turtoa v. I'ooley, 3 D. <k J. 294. 
 V. Benson, 1 P. Wms. 496; Cator v. ^ How v. Weldon, 2 Ves. 516; Cock- 
 Burke, 1 Bro. C. C. 434; Priddy v. ell v. Taylor, 15 Beav. 103; Athenseuin 
 Rose, 3 Mer. 86 ; Mangles v. Dixon, 3 Life Assurance Society v, Pooley, 3 D. 
 H. l! 702; Cockell v. Taylor, 15 Beav. & J. 294. 
 
 * Halett V. Collins, 10 How. 174; Boone v. Chiles, 10 Pet. 177; Gallion, 
 V. McCaslin, 1 Blackf. 191 ; Craig v. Leiper, 2 Yerg. 193; Napier v. Elam, 
 6 Yerg. 108.
 
 ON THE GROUND OF FRAUD. 
 
 323 
 
 fact that the transfer of the debentures had been registered ia 
 the books of the company, and interest had been paid on 
 them, and that the holder was a hond fide purchaser without 
 notice, was held not to aifect the application of the rule, and 
 the holder of them was restrained from suing at law upon 
 them.i The rule that a man who purchases a chose in action 
 takes it subject to the equities, which attach to it in the hands 
 of the assignor, applies even where the person himself who 
 asserts the equity has created the interest under which the 
 assignee claims it.^ "Where, accordingly, A mortgaged a fund 
 in court to B , and afterwards joined B in a sub-mortgage to 
 C , and it was decided that the mortgage to B was fraudulent 
 and void, it was held void as to C , and that neither A 's con- 
 cm-rence in the first or second mortgage prevented him from 
 insisting on the invalidity of the transaction, he not being 
 aware of his rights.^ 
 
 The rule that a lond fide purchaser, without notice, may 
 buy in, or obtain for his protection against other claimants, an 
 outstanding legal estate, or other legal advantage, is the 
 foundation of the equitable doctrine of tacking, as it is tech- 
 nically called, that is, uniting securities given at different 
 times, so as to prevent any intermediate purchaser from claim- 
 ing a title to redeem, or otherwise to discharge one lien which 
 is prior in date, without redeeming or discharging the other 
 liens also which are subsequent to his own title.^ * Thus, it a 
 
 ' Ih Comp. Thorndike v. Hunt. 3 ris v. Livie, 1 Y. & C. C C 380; Bar- 
 
 D (fe J 508; Ashwin ('. Rurton. 9 Jur. nett v. Sheffield, 1 D. M. & (j. 371; 
 
 K S. 310; 'llulett's Case, 2 J. & II. Stackhouse v. Countess of Jersey, 1 J, 
 
 306; W^oo'lhams w. Anglo-Australian, tfe H. 721. 
 
 <fec Co , 3 Giff. 238, 2 D. J. & S. 1(J8 ; » Cockell v. Taylor, 15 Beav. 119. 
 
 Do'dds*''. Hills, 2 H.AM. 424, See also '76.103. _, 
 
 Pinkett )'. Wrio-ht, 2 Ha. 137. S C. onap- * Jeremy's Eq. Jur. b. 1, c. u, J; 1 '. 
 
 peal ; Murray v. Pinkett, 12 CI. & Fin. Story's Eq. Jur. 412. 
 TSw , iloore v. Jervis, 2 Coll. 60 ; Mor- 
 
 * The doctrine of tacking is never allowed against incumbrances which 
 are recorded. Averill r. Guthrie, s Dana, 82 ; Osborn v. Carr, 12 Ct. 196 ; 
 St. Andrew's Church v. Tomkins, 7 Johus. Ch. 14.
 
 324 EEMEDIES. 
 
 tliird mortgagee, -without notice of. a second mortgagee at tBe 
 time when he lent his money, should purchase in the first 
 mortgage, by which he would acquire the legal title, the 
 second mortgagee cannot redeem the first mortgage without 
 redeeming the third mortgage also. It is immaterial that the 
 third mortgagee may have had notice of the second mortgage 
 at the time of purchasing in the first mortgage, provided he 
 had no such notice at the time he advanced his money .^ The 
 absence of notice at the time of the advance is the ground of 
 the equity.^ The legal estate, accordingly, of the first mort- 
 gagee will not protect subsequent interests purchased with 
 notice of mesne incumbrances. A man purchasing an equity 
 of redemption, cannot set up a prior mortgage of his own, or a 
 mortgage which he has got in against subsequent incumbrances 
 of which he had notice.^ 
 
 SECTION VIL— REMEDIES. 
 
 EE]yiEDIES AT LAW. 
 
 An action on the case for damages in the nature of a writ 
 of deceit, lies at law against a man for making a false and 
 fraudulent representation, whereby another is induced to enter 
 into a transaction, and by so doing sustains damage.* * If the 
 representation be false, it is immaterial that it may have been 
 made without any fraudulent inteiit, or that the party who 
 
 ' March v. Lee, 1 Ch. Ca. 162 ; Mor- ' Brace v. Duchess of Marlborough, 2 
 
 rett V. I'a^ko, 2 Atk. 52 ; Wortley v. P. Wins. 491 ; Hopkinson v. Rolt, 9 H. 
 
 Birkheail, 2 Ves. 571; Lacey v. Ingle, L. 514. 
 
 2 Ph. 419 ; Hooper v. Harrison, 2 K. & ' Toulmin v. Stcere, 3 Mer. 224. 
 
 J. 86 ; Bates v. Johnson, John. 304. See * Pasley v. Freeman, 3 T, li. 62, supra, 
 
 Lloyd V. Attwood, 3 D. <fe J. 614. p. 53. 
 
 * Toung v. Hall, 4 Geo. 95 ; Irwin v. Sherrill, 1 Taylor, 1 ; Patten ■». 
 Gurney, 13 Mass. 182; Weatherforrl ». Fishback, 3 Scam. 170; Fenimore 
 V. United States, 3 Dallas, 357.
 
 REMEDIES. 
 
 325 
 
 made it may have derived no benefit from it.^ * The principle 
 of law is, that fraud accompanied by damage is in all cases a 
 good cause of action.^ A representation, however, honestly 
 believed to be true by the party making it, is not, indepen- 
 dently of a duty cast on him to know the truth, a good cause 
 of action, although it may prove to be untrue.^ f 
 
 If the transaction be a contract, the rule of law with 
 
 ' Polbill V. Walter, 3 B. & A. 114 ; hiU v. Walter, 3 B. & A. 114 ; Foster i-. 
 Foster v. Charles, 7 Biag, 100, supra, Charles, 7 Bing. 106. 
 pp. 55, 56. ^Haycraft «. Creasy, 2 East, 92; 
 
 =" Paslcv V. Freeman, 3 T. R. 52 ; Pol- Thorn v. Bigland, 8 Exch. 726 ; Ormrod 
 
 V. Iluth, 14 M. & W. 651, 
 
 * SmitTi V. Mitchell, 6 Geo. 458 ; Stiles v. White, 11 Met. 356; Toung 
 V. Hall, 4 Geo. 95 ; Hart v. Talmaclge, 2 Day, 381 ; Clopton v. Cogart, 13 
 Smed. & Mar. 363; Collins v. Dcmiisou, 13 Met. 543; West v. Emery, 
 17 Vt. 583; Boyd v. Brown, 6 Barr, 310; Muuson v. Gairdner, 3 Brevard, 
 31. 
 
 t Boyd V. Brown, 6 Barr, 316 ; Weeks v. Burton, 7 Vt. 67 ; Young v. 
 Covell, 8 Johns. 35; Stone v. Denny, 4 Met. 151 ; Tryon v. Whitmarsh, 1 
 Met. 1 ; Russell v. Clark, 7 Cranch, 63. 
 
 Fraud and injury must concur to furnish ground for judicial action. A 
 mere fraudulent intent, unaccompanied by any injurious act, is not the 
 subject of judicial cognizance. Clark v. White, 13 Pet. 178; Garrow v. 
 Davis, 15 How. 373 ; Morgan v. Bliss, 3 Mass. Ill ; Farrar v. Alston, 1 
 Dev, 69. 
 
 If a claim is made for fraud, the representations must not only be false, 
 but false to the knowledge of the party making them. Marshall v. Gray, 
 57 Barb. 414; Pettigrew «. Chellis, 41 K H. 95 ; Staines v. Shore, 16 Pcnn, 
 200 ; Bendurant v. Crawford, 33 Iowa, 40 ; Morton v. Scull, 23 Ark. 289 ; 
 King V. Eagle, 10 Allen, 548 ; Taylor v. Frost, 39 Miss. 528 ; Allen v. AVanu- 
 mak°r, 2 Vroom, 370 ; Bond «. Clark, 35 Vt. 577 ; Zehner v. Kipler, 16 Ind. 
 390 ; Peers v. Davis, 39 Mo. 184 ; Holmes v. Clark, 10 Iowa, 423. 
 
 If a person, with intent to deceive and defraud, asserts a fact as exist- 
 ing of his own knowledge, when he has no knowledge upon the subject, 
 he is liable to the party injured for the falsehood. In that case, there is 
 guilty knowledge, for he claims' to know, and asserts what he does not 
 know. Atwood v. Wright, 29 Ala. 346 ; Bennett v. Judson, 21 N. Y. 238; 
 Craig V. Ward, 36 Barb. 377 ; Sharp v. New York, 40 Barb. 256. 
 
 An action may be sustained for a misrepresentation by which a creditor 
 has been induced to allow the Statute of Limitations to bar his claim. 
 Marshall v. Buchanan, 35 Cal. 264. 
 
 In cases of fraud, it is immaterial whether any or what covenants are
 
 32G REMEDIES. 
 
 respect to false and fraudulent representation applies, notwith- 
 Btanding the contract may have been in writing, and notwith- 
 Btanding the representations, may be no part of the terms of 
 the written contract.^ 
 
 To found an action of deceit, the fraud must be a personal one 
 on the part of the person making the representation, or some 
 fraud which another person has impliedly authorized him to be 
 guilty of. An action of deceit cannot be brought against a 
 principal for the fraudulent representations of his agent, unless 
 he has impliedly authorized him to make the representations.^ 
 An incorporated company cannot, therefore, in its corporate 
 capacity, be called upon to answer in an action of deceit for 
 false representations made by its directors, unless they have 
 authorized the representations. The company cannot be sued 
 as wrong-doers by imputing to them the misconduct of those 
 whom they have employed. An action of deceit may be 
 maintained against the directors personally ; but not against 
 the company.' 
 
 A purchaser may, after conveyance, bring an action in the 
 case for a fraudulent misrepresentation of the property,* * or 
 
 ' Attwood V. Small, You. 40*7, per L. R. 1, Sc. App. Ca. 162; Henderson 
 
 Lord Lyndluirst. v. Lacon, L. R. 5, Eq. 262. 
 
 * New Brunswick <fec. Railway v. " Dobell v. Stevens, 3 B. <fe C. 623 ; 
 
 Conybeare, 9 H. L. 711 ; Henderson v. Mummery v. Paul, 1 C. B. 316 , Fuller 
 
 Lacon, L. R. 5, Eq. 262. v. Wilson, 3 Q. B. 58, 68; Gerhard v. 
 
 ' Western Bank of Scotland v. Addie, Bates, 2 E. <fe B. 476. 
 
 contained in the deed. Wardell v. Fosdick, 13 Johns. 325; Shacldcford p. 
 Handy, 1 A. K. Marsh. 495 ; Bostwick v. Lewis, 1 Day, 250 ; Cravens «. 
 Grant, 2 Mon. 117 : s. c. 4 Mon. 126. 
 
 The simple fact of making representations in regard to the credit of 
 another, which turn out to be untrue, unconnected with a fraudulent design, 
 is not sufficient to support an action. Lord v. Goddard, 13 How. 198 ; 
 Lord V. Colley, 6 K H. 99 ; Young v. Covell, 8 Johns. 25 ; Williams v. 
 Wood, 14 Johns. 12G ; Fooks i: Waples, 1 Earring. 131 ; IIoppc"- u Lisk, 
 1 Smith, 102 ; Upton v. Vail, 6 Johns. 181 ; Allen v. Addington, 7 
 Wend. 1. 
 
 * Mallory v. Leach, 35 Yt. 15G ; Kelly v. Pember, 35 Vt. 183 ; Giffordf. 
 Carvill, 29 Cal. 583 ; Love v. Oldham, 22 Ind. 51.
 
 EEMEDIES. 327 
 
 the title;* or may recover the purchase-money, if the circum- 
 stances of the case entitle him to rescind the contract.^ * 
 
 - Fillmore v. Hood, 5 Bing. N. C. 97. ' Early v. Garrett, 4 M. & R. 687. See 
 
 Dart, V. & P. 612-614. 
 
 * Pearsoll v. Cliapin, 44 Penn. 9 ; Shackleford v. Handy, 1 A. K. Marsh. 
 495. 
 
 Fraud in a contract is no bar to an action upon a contract, unless there 
 is a rescission or offer to rescind the contract within a reasonable tune after 
 the discovery of the fraud. Benton v. Stewart, 3 Wend. 23G ; Bain v. 
 Wilson, 1 J. J. Marsh. 202. 
 
 The defendant in case of fraud is entitled to a deduction of an amount 
 equal to the difference between the value of the property, on the supposi- 
 tion of its corresponding with the representations and its real value. 
 Ward V. Reynolds, 32 Ala. 384; Hinckley v. Hendrickson, 5 McLean, 170; 
 Bischof ?). Lucas, 6 Ind. 26 ; Smith v. Smith, 30 Vt. 139 ; Weinier v. Clem- 
 ent, 37 Penn. 147 ; Cecil v. Spurger, 32 Mo. 462 ; Huckabee v. Hutter, 10 
 Ala. 657; GrofT «. Hansel, 33 Md. 161; Withers v. Greene, 9 How. 230; 
 Berker ». Vrooman, 13 Johns. 302 ; Spalding v. Vandercook, 2 Wend. 432. 
 
 In an action of ejectment, replevin, trover, assumpsit, or other forms 
 of action, for the purpose of recovering back anything, as on the rescission 
 of a contract, the very first thing to be done, after showing that the plaintiff 
 parted with the thing in pursuance of the contract alleged, is to show that 
 the plaintiff has rescinded the contract by doing, or offering to do, all that 
 is necessary and reasonably possible to restore the parties to the condition 
 in which they were before the contract, and thus to show that he had good 
 ground to rescind it. Pearsoll v. Chapin, 44 Penn. 9 ; Putter r. Blake, 2 
 H. & J. 353 ; Norton v. Young, 3 Greenl. 30 ; Sanborn v. Osgood, 16 N.H. 
 112; Weeks v. Rohie, 42 K H. 316 ; Gulth v. White, 35 Barb. 76; Wasson 
 T. Bovet, 1 Denio, 69 ; Thayer r. Turner, 8 Met. 552 ; Ball v. Livelj', 4 Dana, 
 371 ; Kinney v. Kierman, 2 Lans. 46. 
 
 If the thing the consideration of which is sought to be recovered is 
 entirely worthless, there need be no tender of a return. Whenever the 
 question of restoration arises, it is an equitable question, and is to be dealt 
 with on equitable principles. Babcock r. Case, 61 Penn. 427 ; Mahoiie v. 
 Reeves, 11 Ala. 345 ; Smith v. Smith, 30 Vt. 139 ; Phelan v. Cj-osby, 2 Giil. 
 ■402. 
 
 A party can not excuse an omission to return the note of a third person 
 by offering to prove that the maker is insolvent, and the note on that 
 accoinit worthless. Cook v. Gilman, 34 N. H. 556 ; Gushing «. Wyman, 38 
 Me. 589 ; Baker i\ Pvobbins, 2 Denio, 136. 
 
 Leaving a deed of reconveyance with the clerk of the court in which an 
 action is pending, upon the note given as the consideration for the 
 property, is a sufficient restoration. Concord Bank v. Grc"-<r. 14 N. 11. 
 331.
 
 328 REMEDIES. 
 
 If a contract for the sale or pnreliase of goods or chattels be 
 induced by false and fraudulent representations on the part of 
 the other party to the contract, the party defrauded may 
 rescind or avoid the contract, and recover back what he has 
 paid or sold,^ unless he has, after discovery of the fraud, acted 
 upon and treated the contract as binding.^ The right to 
 rescind is not afterwards revived by the discovery of another 
 incident in the same fraud.^ Nor can a contract be rescinded 
 if the circumstances have in the meantime so far changed that 
 the parties cannot be restored to the position in which they 
 
 ' Gompertz v. Denton, 1 Cr. & M. 207; " Campbell v. Fleming, 1 A. & E. 40; 
 
 Load V. Green, 15 M. & W. 220. Selway v. Fogg, 5 M. & W. 86. 
 
 »/6. 
 
 Kthe vendor has taken the vendee's own notes, an offer to return them 
 at the trial is sufficient. They need not be surrendered before bringing 
 suit. Thurston v. Blanchard, 22 Pick. 18; Coghill v. Boring, 15 Cal. 213 ; 
 Duval V. Mowry, 6 R. I. 479 ; Nichols v. Michaels, 23 N. Y. 264 ; Armstrong 
 V. Tufts, 6 Barb. 432 ; Keutgen v. Parks, 2 Sandf. 60 ; Hathorn v. Hodges, 
 28 N. Y. 486 ; Armstrong v. Gushing, 43 Barb. 350 ; White v. Dodds, 18 
 Abb. 250 ; Stevens v. Hyde, 32 Barb. 171 ; Pequeno v. Taylor, 38 Barb- 
 375. 
 
 In case of a sale on credit, if there is any fraud on the part of the 
 purchaser, which avoids the special contract, the vendor may disregard 
 the terms of credit, and bring an action immediately for the goods. Bank 
 V. Gore, 15 Mass. 79; Wilson j-. Fovet, 6 Johns. 110; Roth v. Palmer, 27 
 Barb. 652 ; Kayser v. Sichel, 34 Barb. 84 ; French v. White, 5 Duer, 256 ; 
 Bliss V. Cottle, 32 Barb. 322 ; Wigand ® Sichel, 3 Keyes, 120. 
 
 A fraudulent representation of the quality and value of the thing sold 
 fonns no defense in a suit on a specialty. The traud that may be given 
 in evidence, under the plea of 7ion est factum^ must be confined to fi-aud 
 that relates to the execution of the instrument ; as, if a deed be fraud- 
 ulently misread, and is executed under that imposition, or where there ia 
 a fraudulent substitution of one deed for another, and the party's signa- 
 ture is obtained to a deed which he did not intend to execute. Dorr v. 
 Munsell, 13 Johns. 430; Franchot v. Leach, 5 Cow. 506; Champion w. 
 White, 5 Cow. 509 ; Burrows v. Alter, 7 Mo. 424 ; IMordecai r. Tankersley, 
 1 Ala. 100 ; Anderson v. Johnson, 3 Sandf. 1 ; McKnight v. Kellett, 9 Geo. 
 532 ; Holly ». Young, 27 Ala. 203. Contra, Hazard v. Irwin, 18 Pick. 95; 
 Hoitt V. Holcomb, 23 N. H. 535 ; Herrin ». Libbey, 36 Me. 350. 
 
 Where the defense set up is fraud in the contract of sale, apart from 
 any defect of title, and independent of it. the defense may be made to an
 
 REMEDIES. 329 
 
 stood before or at the time of the cob tract.' * The effect of 
 the av^oidance of an agreement on the ground of fraud, is to 
 place the parties in the same position as if it liad never been 
 made ; and all rights which are transferred or created bj the 
 agreement, are revested or discharged by the avoidance. If, 
 when it is avoided, nothing has occurred to alter the position 
 of affairs, the rights and remedies of the parties are the same, 
 as if it had been void from the beginning ; but if any altera- 
 tion has taken place, their rights and remedies are subject to 
 the effect of that alteration.^ A contract, though induced by 
 fraud, cannot be avoided, if the rights of an innocent vendee 
 have in the meantime intervened.^ If before disaffirmance, 
 the goods or chattels have been resold or transferred, either in 
 whole or in part, to an innocent vendee, the title of such 
 vendee is good against the original vendor.* So, also, where 
 a negotiable instrument is obtained by fraud, the negotiation 
 of the instrument gives a valid title to a transferee, who takes 
 
 'Clarke v. Dickson, El. Bl. & El. ^ Supra, -pp. 49, 512. 
 
 148. MVhite v. Garden, 10 C. B. 919; 
 
 * Queen v. Saddlers' Co., 10 H. L. 420, Kingsford v. Merry, 1 1 Excb. 579, 1 H. 
 
 per Blackburn, J. See Feret v. Hill, 15 & N. 503. 
 C. B. 207. 
 
 action for the price of the land, although the defendant retains possession. 
 Anderson v. Hill, 13 Smed. & Mar. 079 ; Concord Bank r. Gregg, 14ISr. H. 
 331 ; Forster v. Gillam, 13 Ponn. 340 ; Gordon v. Parmelee, 2 Allen, 212 ; 
 Whittier v. Vose, 4 Shep. 403 ; Whitney v. Allaire, 4 Denio, 554. Contra, 
 CulLira V. Branch Bank, 4 Ala. 21 ; Christian v. Scott, 1 Stew. 490 ; Stone 
 e. Gover, 1 Ala. 287. 
 
 An action for deceit will lie for false representations made upon the 
 sale of land, and the fact that the deed does not contain a warranty cover- 
 ing the ground of the representation is immaterial. Coon «. Atwell, 46 N. 
 H. 510; Whitney v. Allaire, 1 Comst. 305; Culver v. Avery, 7 Wend. 380; 
 Wade V. Sherman, 3 Bibb, 583. 
 
 * Denner ®. Smith, 82 Vt. 1 ; Poor v. Woodburn, 25 Vt. 334 ; Buchanan 
 V. Horney, 12 111, 336; Shaw v. Bamhart, 17 Ind. 183 ; Blen v. Bear River 
 &c. Co., 20 Cal. 603; Jemison v. Woodruff, 34 Ala. 143; Kinney v. Kier- 
 man, 2 Lans. 492 ; Pierce v. Wilson, 34 Ala. 596. 
 
 22
 
 330 REMEDIES. 
 
 it without notice of the frand.^ Upon the same principle, 
 where a man has been induced to become a shareholder of a 
 company, through the fraud of the company, he cannot by 
 avoiding his contract with the company, and repudiating his 
 shares, evade his liability to creditors of the company, who 
 dealt with the company whilst he remained a shareholder, and 
 who were not parties to the fraud.^ But, although it may no 
 longer be open to the party defrauded, from the change of cir- 
 cumstances which have taken place in the meantime, to avoid 
 the contract upon the discovery of the fraud, he has a remedy 
 by' action of deceit for damages against the party by whose 
 misrepresentations he has been misled to his injury.' 
 
 The party defrauded may, instead of rescinding the con- 
 tract, stand to the bargain, even after he has discovered the 
 fr^ud, and recover damages for the fraud, or he may recoup in . 
 damages if sued by the vendor for the price. The affirmance 
 of a contract by the vendee after discovery of the fraud, merely 
 extinguishes his right to rescind. His other remedies remain 
 unimpaired.* * 
 
 If a vendee discover that he is insolvent, and that it is not 
 in his power to pay for the goods, the courts have allowed him 
 to rescind the contract, and return the goods to the seller, with 
 his assent, provided he did so before the contract was consum- 
 mated by an absolute delivery, and acceptance, and provided 
 it was done in good faith, and not with the colorable design of 
 favoring a particular creditor. He cannot rescind the contract 
 
 ' Barber v. Richards, 6 Exch. 63 ; Western Bank of Scotland v. Addie, L. 
 
 May V. Chapman, 16 M. & W. 355. R. 1, So. App. Ca. 167. 
 
 * Henderson v. Royal British Bank, 1 * Whitney?;. Allaire, 4 Denio(Araer.), 
 
 E. & B. 356 ; Powis v. Harding, 1 C. B. 551. See Van Epps v. Harrison, 5 Hill 
 
 N. S. 533 ; Oakes v. Turquand, L. R. 2, (Amer.), 68 ; 2 Kent's Comni. 480; B6- 
 
 App. Ca. 325. darride sur Dol., vol. I, p. 248. 
 
 ■' Clarke «. Dickson, El. Bl. & El. 149; 
 
 * Peck V. Brewer, 48 111. 55 ; Horem v. Libbey, 36 Me. 350 ; Whitney 
 -». Allaire, 1 Comst. 305; Weiiner «. Clement, 37 Penn. 147; Herrin », 
 Libbey, 36 Me. 350.
 
 REMEDIES. 331 
 
 after the transit has ceased, and the goods have been actually 
 received in his possession, and the rights of creditors have 
 attached.^ 
 
 If goods are obtained from the vendor by means of a fraud- 
 ulent misrepresentation of the vendee as to his situation and 
 circumstances, the vendor may elect to affirm the sale, and sue 
 for the price, or to avoid the sale and follow the gdods, or the 
 proceeds thereof, into the hands of a third person who has re- 
 ceived them, without paying any new consideration.* But if he 
 proceeds to judgment against the vendee after he is apprised 
 of the fraud, his election is determined, and he cannot after- 
 ward follow the goods into the hands of a third person on the 
 ground of fraud.^ 
 
 If the party by whose misrepresentation a transaction has 
 been induced is not a party to the transaction, the transaction 
 stands good, and cannot be avoided unless one of the parties to 
 the transaction was implicated in the fraud.^ The party de- 
 frauded has his remedy by action of deceit for damages against 
 the party who made the misrepresentations. 
 
 If a specific chattel be sold under a warranty, and the prop- 
 erty has passed to the purchaser, he cannot return the chattel 
 and claim back what he has paid, or resist an action for the 
 price, on the ground of breach of warranty, unless there was a 
 condition to that effect in the contract ; but must have recourse 
 to an action for damages in respect of the breach of warranty.'* 
 The case, however, is different if fraud can be shown. If a 
 
 'Barnes v. Freeland, 6 T. R. 80; 637; Bank of Beloit v. Beale, V Tiff. 
 
 Richardson v. Goss, 3 B. & P. 119; (Amer ) 475. 
 
 Neate v. Ball, 2 East, 117: Dixon v. ' Masters t- Ibberson 8 C. B 100 
 
 Baldwin, 5 ib. 175 ; Saltc v. Field. 5 T. * Street v. B ay 2 B. & Ad. 4o2 ; 
 
 ■^ 211 Dawson v. ( oUis, 10 C. B. o23 : Belin 
 
 '" Lloyd V. Brewster, 4 Paige (Amer.), v. Buruess, 3 B. & S. 755. 
 
 * Powell V. Bradley, 9 G. & J. 220; Heushaw v. Bryant, 4 Scam. 97; 
 Bradberry «. Keas, 5 J. J. Marsh. 44G.
 
 332 REMEDIES. 
 
 representation be made fraudulently, for tlie purpose of induc- 
 ing a party to enter into a contract, the party defrauded is en- 
 titled to avoid the contract on the ground of fraud, and may 
 recover back the price, notwithstanding the warranty of the 
 same matter.* 
 
 RESIEDIES IN EQUITY. 
 
 The common law, however, has not provided the courts of 
 ordinary jurisdiction with the means of enforcing the specific 
 restitution or recovery of property in the ample manner that 
 was afforded by the Roman law. If the execution of a deed 
 or other instrument had been obtained by fraud, or under such 
 circumstances as to require that it should be cancelled and 
 delivered up, the courts of common law were incompetent to 
 afford such a remedy, so that, at law, the party defrauded 
 might be left for an indefinite length of time liable to have the 
 instrument set up against him, when possibly the evidence of 
 the fraud might have become unattainable. The necessity, 
 therefore, for the extraordinary interference of the Court of 
 Chancery, to afford an adequate remedy, became manifest at a 
 very early date.* 
 
 The jurisdiction of the Court of Chancery, by way of re- 
 scinding transactions on the ground of fraud, is exercised either 
 for the purpose of cancelling executory agreements or of setting 
 aside executed agreements, deeds, or conveyances. In the 
 
 ' Street v. Blay, 2 B. & Ad. 462; Murray v. Mann, 2 Exch. 538. 
 
 * The fraud, which is the ground for relief against a contract, is fraud 
 at the time of the execution of the instrument. Chesterman v. Gardner, 5 
 Johns. Ch. 29. 
 
 When a suit has been instituted both at law and in equity, the com- 
 plainant can not be required to elect between the two actions before the 
 filing of the answer. Abel v. Cave, 3 B. Mon. 159; Freeman v. Staats, 4 
 Halst. Ch 814.
 
 REMEDIES. 333 
 
 case of executory agreements, tlie equity of rescission is founded 
 on the injustice of leaving a man exposed, it may be for an in- 
 definite time, to have a fraudulent instrument set up against 
 him. It is not enough that he should be able to plead fraud 
 in bar t'o an action, whenever an action is brought. Complete 
 justice, as understood by courts of equity, requires that the 
 instrument should be delivered up and cancelled. In the case 
 of executed agreements, deeds, or conveyances, the equity of 
 rescission is founded on the injustice of permitting a man who 
 has fraudulently appropriated the property of others to benefit 
 by the fruits of his iniquity. Though pecuniary damages to 
 be obtained at law might be, in some sense, a remedy, com- 
 plete justice, as understood by courts of equity, requires that 
 the transaction should be set aside and avoided.^ 
 
 If a contract has been induced by false representations, or 
 a transaction is in any way tainted by fraud, and the defraud- 
 ing party is a party to the transaction, the transaction will, 
 even after conveyance and payment of the purchase-moneys, be 
 set aside, if the nature of the case and the condition of the 
 parties will admit of it ; ^ or the defrauding party will be com- 
 pelled to make his representation good.^'^ A man whose in- 
 
 ' Evans v. Bicknell, 6 Ves. 182; Case, 25Beav. 515 ; Slim v. Croucher, 1 
 
 Blair V. Bromley, 2 Ph. 3G0. D. F. <fe J. 518. 
 
 "^ Edwards v. M'Cleay, Coop. 308, ' Burrowes v. Lock, 10 Ves. 475 ; 
 
 312, 2 yw. 287; Berry v. Armitstead, Pulsfdrd v. Richards, 17Beav. 87, 96; 
 
 2 Keen, 221 ; Lovell v. Hicks, 2 Y. & Att.-Gen. v. Cox, 3 H. L. 240. See Ellis 
 
 C. 46; Pulsford v. Richards, 17 Bear. v. Colman, 25 Beav. 673. 
 87, 96 ; Bell's Case, 22 Beav. 35 ; Ayre's 
 
 * Bacon v. Bronson, 7 Johns, Ch. 194; Bean v. Herrick, 12 Me. 263; 
 Pollard V. Rogers, 4 Call, 239 ; Campl)eU v. Whittingbam, 5 J. J. Marsh. 
 96. 
 
 Contracts in regard to personal, as Avell as real property, may be re- 
 scinded. Bradberry v. Keas, 5 J. J. Marsh. 446 ; Rumph v. Abercrombie, 
 12 Ala. 64 ; Taymon v. Mitchell, 1 Md. Ch. 496. 
 
 A purchaser in the undisturbed possession of land will not be relieved 
 against the payment of the purchase money cm the mere ground of defect 
 of title, there being no fraud or misrepresentation. In such case he must
 
 334 KEMEDTES. 
 
 terest Las been affected by misrepresentation, has au eqnity to 
 be placed in the same situation as if the fact represented were 
 true.^ If there is nothing in the nature of the case or the con- 
 dition of the parties to prevent the court from getting the 
 transaction set aside, the party defrauded is entitled to have it 
 set aside, and not merely to have the representation made 
 good,^ It is enough, in order to entitle him to have a trans- 
 action set aside, to show a fraudulent representation as to any 
 ]")art of that which induced him to enter into the contract 
 ■N^'hich he seeks to rescind,^ 
 
 The rule being that he who seeks equity must do equity in 
 matters arising out of the transaction in respect of which he 
 
 ' Blair v. Broml-y, 2 Ph. 360. ' Kennedy v. Panama, &c. Co. L. R. 
 
 " Rawlins v. Wickham, 3 D. <fe J. 2, Q. B. 587. 
 322. 
 
 seek hii? remedy at law upon the covenants. If there is no fraud and no 
 covenants to secure title, he is without remedy ; as the vendor selling in 
 good faith is not responsible for the goodness of his title beyond the ex- 
 tent of his covenants in the deed. Patton ». Taylor, 7 How. 133 ; Abbott 
 V. Allen. 3 Johns. Ch. 522 ; Davis v. Bowland, 2 J. J. Marsh. 37 ; Noonan v. 
 Lee, 2 Blackf. 499. 
 
 The question presented by an application for a rescission is different 
 from that presented in an application for specific performance. Applica- 
 tions to rescind must abide the result one way or the other of the stem 
 proof of fraud. In the absence of all proof of snggcstio falsi or suppressio 
 veri, parties must abide by their contracts. Maney v. Eater, 3 Humph. 
 347. 
 
 If the fraud relates to the title to property, it may be removed by a ten- 
 der of a good and valid deed at any time before decree in the absence of 
 proof of special damage Boyce ». Grundy, 3 Pet. 210 ; Davidson v. Moss, 
 5 How. (Miss.) G73 ; Hunt v. McConnell, 1 Mon. 222 ; Wickliflfe v. Lee, 6 
 B. Mon. 5i3 ; Evans v. Boiling, 5 Ala. 550; Ayres v. Mitchell, 3 Smed. & 
 Mar. 683. 
 
 If the fraud relates to the quantity of land, the purchaser may be re- 
 lieved from paying for the deficiency. M'Coun v. Delaney, 3 Bibb, 46 ; 
 Jopping V. Dorlcy, 1 Yerg. 289. 
 
 If the fraud consists in puffing at an auction sale, the excess may be 
 decreed to be refunded. Veazie v. Williams, 8 How. 134. 
 
 If the defect of title relates only to a small portion of the property
 
 REMEDIES. 335 
 
 seeks relief,* tlie court will not rescind a transaction unless the 
 party against whom relief is sought can be remitted to the 
 position in whicli he stood antecedently to or at the time of 
 the transaction.^* On setting aside a transaction, the court 
 proceeds on the ground that, as the transaction never ought to 
 
 ' Hanson v. Keating, 4 Ha. 1 ; Nee- ' Hanson v. Keatina:, 4 Ha. 1 ; 
 
 som V. Clarkson, ib. 101 ; Sober v. Beaden v. King, 9 Ha. 532 ; Savery v. 
 
 Kemp, 6 Ha. 160; Wilkinson v.Fowkes, King, 5 H. L. 627; Western Bank of 
 
 9 Ha. 593 ; Gibson v. Goldsmid, 5 D. Scotland v. Addie, L. R. 1, Sc. App. 
 
 M. & G. 757. Ca. 162. 
 
 wbich did not constitute an inducement to the purchaser, it is more equit- 
 able to decree compensation than to rescind the contract. Buck v. Mc- 
 Caughtry,'5 Mon 216; Tomlinson v. Savage, 6 Ired. Eq. 430. 
 
 Equity will not decree compensation for fraud in a sale when the- 
 vendee retains the property. The remedy is at law. Stone v. Ramsay, 4 
 Mon. 236 ; Cocke v. Hardin, 6 Litt. 374. 
 
 The contract may be rescinded for fraud in relation to the title, al- 
 though there is a covenant of warranty. Woods v. North, 6 Humph. 309 ; 
 English V. Benwoo.l, 25 Miss. 167 ; Prout v. Roberts, 32 Ala. 427 ; More- 
 land V. Atchinson, 19 Tex. 303. 
 
 It is not necessary that there should be an eviction under an outstand- 
 ing title. Parkham v. Randolph, 4 How. (Miss.) 435 ; Napier v. Elam, 6 
 Yerg. 108. 
 
 A vendee can not buy in an outstanding title, and assert it against the 
 vendor. All he is entitled to is a repayment of the money paid out. 
 Hardeman v. Conan, 10 Smed. & Mar. 486 ; Westall v. Austin, 5 Ired, 
 Eq. 1. 
 
 Abandonment of possession is not a necessary prerequisite to entitle 
 the party to recover. Young v. Harris, 2 Ala. 108 ; Coffee v. Newsom, 3 
 Kelly, 442 ; Foster v. Gersett, 29 Ala. 393 ; Garner v. Leorett, 32 Ala. 410. 
 
 The vendee, upon rescission, must offer to return the property. More 
 V. Smedl)urgh, 8 Paige, 600 ; Duncan v Jeter, 5 Ala. 604 ; Abel v. Cave, 9 
 B. Mou. 159 ; Bruen v. Hone, 2 Barb. 586 ; Matta v. Henderson, 14 La. An. 
 473. 
 
 * Garland v. Bowling, 1 Hemp. 710; Johnson v. Jones, 13 Smed. & 
 Mar. 580 ; Pintard v. Martin, 1 Smed. & Mar. Ch. 126 ; Cunningham v. 
 Fithian, 2 Gilman, 650 ; Carroll v. Rice, 1 Walk. Ch. 373. 
 
 The fact lliat the parties cannot be put precisely in statu quo as to the 
 subject-matter of the contract will not preclude a decree for the rescission 
 of the contract. If it would, an executed contract never could be rescinded 
 by a decree of a court, for the parties never could be thus placed. Gatling 
 V. Newell, 9 Ind. 572.
 
 336 REMEDIES. 
 
 have taken place, the rights of the parties are, as far as possihle, 
 to be placed in the same situation in which they would have 
 stood if there had never been any such transaction.^ If the 
 party defrauded has, by his own act, put it out of his power to 
 replace the party against whom relief is sought in the position 
 in which he stood at the time of the transaction,^ or if third 
 parties, without notice of the fraud, have in the meantime ac- 
 quired rights and interests in the matter,^ there can be no re- 
 scission ; aud nothing remains to the party defrauded but a 
 reparation in damages.* Rescission of a transaction or contract 
 cannot in general be had, unless the party seeking it is able 
 himself to rescind it in toto? * Under special circumstances, a 
 transaction may be partially rescinded; but the court will 
 never adopt such a course unless it can see clearly that no in- 
 justice will be done.^ If the transaction is severable, inability 
 to rescind it as to part is not fatal to the right to rescind it as 
 to another part.' The fact, for instance, that a man who has 
 
 * Bellamy v. Sabine, 2 Ph. 425. v. Dickson, El. Bl. <fe El. 148 ; Maturia 
 ''Nicoli's Casd, 3 D. & J. 387; «;. Tredeuiiick, 12 W. R. 740; Western 
 
 Mixer's Case, 4 D. & J. 586. Bank of Scotland v. Addie, L. E.. 1, So. 
 
 ^ SchoUield v. Templer, 4 D. <fe J. App. Ca. 162, s«/jm. 
 
 429 ; Oakes v. Turquand, L. R. 2, App. " Bradley v. Bosley, 1 Barb. (Amer.), 
 
 Ca. 375. 125. 
 
 < Mixer's Case, 4 D. <fe J. 586. ' Matui-in v. Tredeunick, 12 W. R 
 
 * Hanson v. Keating, 4 Ha. 1 ; Clarke 740. 
 
 * Golden v. Maupin, 2 J. J. Marsh. 236 ; Clay «. Turner, 3 Bibb, 52. 
 
 The general rule is, that where the whole contract is contamiuated with 
 fraud, aud Ihe parties can be placed in i<tnt'i quo^ the contract may be 
 rescinded. Where that can not be done, or where the injured party is un- 
 willing to have it done, then the party ag^-rieved must seek his redress 
 exclusively at law. Caldwell ®. Caldwell, 1 J. J. Marsh. 53; Pintard v. 
 Martin, 1 Smed. & Mar. Ch. 136. 
 
 A vendee may have the contract set aside, or compensation for a defect 
 fraudulently concealed from him. The courts will not rescind a part only 
 of an entire contract. Joplin v. Dooley, 1 Yerg. 289; Glasiicll r. Thomas, 
 3 Leigh, 113 ; Hope v. Evans, 1 Smed. & Mar. Ch. 193 ; Step v. Alkire, 2 
 A. K. Marsh. 257 ; Prewitt v. Graves, 5 J. J. i\Iarsh. 114.
 
 REMEDIES. 337 
 
 been induced by fraud to purcliase shares in a particular com- 
 pany, may have sold some of the shares before discovering the 
 fraud, will not deprive him of the right to have the transaction 
 as to the remaining shares rescinded^* Nor is the inability of 
 a man to rescind a transaction as a whole fatal to his right of 
 rescission, if his inability to do so is attributable to the party 
 ajrainst whom he seeks relief. If the latter has entangled and 
 complicated the subject of the transaction in such a manner as 
 to render it impossible that he should be restored, the party 
 defrauded may, on doing whatever it is in his power to do, 
 have the transaction rescinded.^ So also, it is no objection to 
 the rescission of a transaction for the purchase of shares ob- 
 tained by fraud that the shares have fallen in value since the 
 date of the transaction.^f Kor is a man, if the property is of a 
 perishable nature, bound to keep it in a state of preservation 
 until bill filed.*:}: His only duty is to do nothing with the 
 property after the bill filed; and in cases where damage is 
 likely to occur, and might be prevented, he ought, perhaps, to 
 give intimation to the defendant, leaving him to do what he 
 pleased." A party seeking to set aside a sale of shares, is not 
 bound to pay calls on them to prevent forfeiture after filing 
 liis bill.*' It is not fatal to his right of rescission that some of 
 the shares may have been forfeited for non-payment of calls 
 since bill filed.'' 
 
 A sale, however, of several kinds of shares m one transac- 
 tion cannot be set aside for misrepresentation, if the person 
 seeking relief is unable to restore all the shares he has taken.^ 
 
 ' Maturin v. Tredeunick, 12 W. R. * Maturia v. Tredenaick, 2 X. R. 
 
 740. 514 ; 4 N. R. 16 ; 12 W. R. 740. 
 
 ■•' Masson v. Bo vet, 1 Denio (Amer.), ^ lb. 
 
 69. ' Jf>- 
 
 ' Blake v. Mowatt, 21 Beav. 613. ''lb. * 7&. 
 
 ♦ Sliackleford v Handy, 1 A. K. Marsh. 495. 
 t Veazie v- Williams, 8 How. 134. 
 J Scott V. Perrin, 4 Bibb, 360.
 
 338 REMEDIES. 
 
 Wlietlier tlie change of a company from an incorporated 
 into a corporate one, for tlie mere purpose of more conveniently 
 winding np its affairs, renders restitution impracticable, is a 
 difficult question. In Clarke v. Dickson,^ a mining company 
 was, with the plaintiff's consent, registered as a company "with 
 limited liability, and was wound up under the Winding-up Act. 
 In an action for money had and received, to recover back the 
 amount paid for the purchase of the shares, the court held the 
 action not maintainable. Erie, C. J., said : " He has changed 
 the nature of the article ; the shares he received were shares in 
 a company, on the cost-book principle ; the plaintiff offers to 
 restore them after he has converted them into shares in a joint- 
 stock company." The cases show that there is no distinction 
 between cases where the question arises between an alleged 
 shareholder and the creditors of a company, and when it arises 
 between a company and a person who has fraudulently been 
 induced to become a shareholder.^ In Henderson v. Lacon,^ 
 however, "Wood, L. J., held that a man who had been induced 
 by the false representations of the directors of a corajDany to 
 take shares in the company, might, if his bill was filed before 
 an order for winding up was made, sustain a suit for the recov- 
 ery of his moneys, notwithstanding the company was being 
 wound up. So also, it was held by the Lords Justices in 
 Smith's Case, lie Reese River Co.,* that if a bill be filed to set 
 aside a transaction on the ground of false representation, before 
 a winding-up order has been made, a man is entitled to relief, 
 notwithstanding a subsequent winding-up order. The applica- 
 tion in this case was made under the winding up. In the 
 former case, judgment was given on the bill. 
 
 If the parties to the transaction cannot be restored to their 
 
 • El. Bl. A El. 149. ' L. R. 5 ; Eq. 262. 
 
 * Western Bank of Scotland y, Addie, * L. K. 2 ; Cb. App. 604. 
 L. P 1, Sc. App. Ca. 107.
 
 REMEDIES. 339 
 
 original condition, the transaction stands good, and cannot be 
 rescinded. The party defrauded must seek redress in an action 
 on the case at law for the fraud, or, if he is sued on the con- 
 tract, he may recoup in damages.* 
 
 If the false representation by which a contract has been 
 induced was not made fraudulently, but was made through 
 mistake or misapprehension, and the subject-matter of the con- 
 tract, though different in some respects and in certain incidents 
 from what it was represented to be, is not so different in sub- 
 stance from what it was represented to be as to amount to a 
 failure of consideration, the transaction will not be set aside, if 
 the party who made the representation is willing to give com- 
 pensation for the variance,^ and the variance is such as to admit 
 of compensation by a pecuniary equivalent.^ If, however, the 
 misdescription of the property is such that it cannot be estimated 
 by a pecuniary equivalent, there is no case for compensation, 
 and the transaction will be set aside.* 
 
 If the person by whose fraudulent misrepresentation a 
 transaction has been induced, is not himself a party to the 
 transaction, the transaction stands good and cannot be repudi- 
 ated, if the other party to the transaction has not been party 
 or privy to the fraud.^^" The party defrauded must seek re- 
 dress in an action in the case at law, for damages against the 
 party of whose fraud he complains.^ If, for instance, a man 
 
 »Kingv. Hamlet, 2 M. & K. 456; Beav. 612, See Howland v. Norris, 1 
 
 Great Luxemburg Railway Co. v. Mag- Cox, 61. 
 
 nay, 25 Beav. 587. ^ PuLsford v. Richards, IT Beav. 95 ; 
 
 » See Dyer v. llargrave, 10 Vea. 507; Duranty's Case, 26 Beav. 270; Worth's 
 
 Hill t'. Buckley, 17"Ve9. 395; Martin Case, 4 Drew. 529; A'e Felgute's Case, 
 
 r Cotter, 3 J. & L. 496 ; Shackleton v. 2 D. J. & S. 456. 
 
 8utcliffc, 1 Deg. & S. 620; I'ulsford v. " Whitmore v. Mackeson, 16 Beav. 
 
 Richards, 17 Beav. 96. 128 ; Pulsfordi'. Richards, 17 P>eav. 95 ; 
 
 » Infra, pp. 362-366. Ellis v. Colman, 25 Eeav. 673. See 
 
 ♦ Leyland v. lllingworth, 2 D. F. &. J Pasley v. Freeman, 3 T. R. 52. 
 2,48; Earl of Durham v. Legard, 34 
 
 •* Appleton V. Horton, 25 Me. 23 ; Lee v. Vauglian, 1 Bibb, 235.
 
 340 REMEDIES. 
 
 has been induced by the false representations of a third party 
 to deal with another, he cannot have the transaction rescinded, 
 if the other party to the transaction has not been party or privy 
 to the false representation.^ He must seek redress in an action 
 on the case at law, against the party by whose false representa- 
 tions he has been induced to deal.^ * So, also, if a man has 
 been induced to take shares from a company by fraudulent mis- 
 representations made by some person, not by an agent of the 
 company, authorized to make any representations or authorized 
 to deal on behalf of the company, he is bound by his contract 
 with the company, and cannot have it rescinded. He must 
 seek redress in an action on the case at law against the person 
 who made the representation.^ So, also, if a man has been 
 induced to buy shares in a company from a shareholder, on 
 false and fraudulent representations made to him by the seller, 
 the company not being a jjarty or privy to the fraud, he is not 
 entitled to have the transfer set aside as between himself and 
 the company, or to restrain the company from making calls on 
 him, w^hilst he is a shareholder. His remedy is against his 
 vendor, to compel him to accept a re-transfer of the shares, and 
 fur an indemnity for the losses he has sustained in consequence 
 of having taken the shares.^ 
 
 Cases in which a man has been induced by false representa- 
 tions to purchase shares directly from a company, must be dis- 
 tinguished from cases in which the transaction is not with the 
 company, but is between two individuals, meeting in the mar- 
 ket and dealing for their private interests, like the seller and 
 
 'Pulsford V. Richards, 17 Beav, 95; * See Stainbank v. Fernley, 9 Sim. 
 
 Duranty's Case, 26 Beav. 271. 556 ; Selden v. Connell, 10 Sim. 58, 79 ; 
 
 9 7o. Matiirin v. Tredennick, 2 N. K. 514; 4 
 
 ' Brockwell's Case, 4 Drew. 205 ; Ni- N. R. 1 5 ; Duranty's Case, 26 Beav. 271, 
 
 coil's Case, 3 D. <fe J. 427. 273 ; Worth's Case, 4 Drew. 529. 
 
 * Woodman v. Freeman, 25 Me. 531.
 
 REMEDIES. 341 
 
 purchaser of transferable shares. If a man "be induced by 
 false representations on the part of the directors of a company, 
 to purchase shares in the company from an actual shareholder, 
 who has not been himself a party or privy to the false repre- 
 sentations, the shares cannot be forced back on the vendor, be- 
 cause on his part the transaction has been lonci fide^ nor can 
 the transaction be set aside as between the purchaser of the 
 shares and the company ; for the contract has been between in- 
 dividuals, and the company stands in point of law in the rela- 
 tion of a third party. The purchaser of the shares must seek 
 his remedy at law against the parties by whose false representa- 
 tions he has been misled.^ 
 
 All that equity can do where a man has been induced to 
 enter into a transaction by the false and fraudulent representa- 
 tions of a person who is not a party to the transaction, is to 
 make him make good his assertion as far as is possible.^ And 
 the court can do this in many cases. Where, accordingly, upon 
 a treaty for marriage, a person, to whom the intended husband 
 was indebted, was asked by the father of the lady to make out 
 a list of the debts of the intended husband, and, in doing so, 
 omitted the debt which was due to himself, on the representa- 
 tion made to him by the intended husband, that, if the debt 
 were disclosed, the marriage would be prevented taking place, 
 he was, after the marriage, restrained by perpetual injunction 
 from enforcing the debt against the husband.^ So, also, where 
 upon a treaty of marriage, a brother, in order to make it ap- 
 pear that his sister had a fortune of £500, whereas she had only 
 £350, gave her a sum of £150, so as to make up £500, and she 
 
 ' Dnranty's Case, 26 Bear. 273, 274 ; 17 Beav. 229 ; Stephens v. Venables, 31 
 
 Tnglis V. Lumsden, 21 Dee. of Ct. of Beav. 127; Yeomans v. Williams, L. R. 
 
 Session, 2d series, 200. See Worth's 1 Eq. 185; Comp. Ellis v. Colraan, 25 
 
 Case, 4 Drew. 529. Beav. 673. 
 
 * PuMord w. Richards, 17 Beav. 87, ' Neville v. Wilkinson, 1 Bro. C. C. 
 
 95. See Ilobbs I). Norton, 1 Vern. 135 ; 543. See Dalbiac ?». Dalbiac, 16 Ves. 
 
 Arnot w. Biseoe, 1 Ves. 95 ; Burrowes 124; Vauxhall Bridge Co. v. Lord 
 
 «. Lock, 10 Ves. 470 ; Busbby v. Ellis ; Spencer, Jac. 67.
 
 342 REMEDIES. 
 
 gave liim a bond for the amount, and the marriage took place 
 upon the faith of the representation, it was held that the bond 
 could not be enforced, and it was ordered to be delivered up to 
 be cancelled.^ So, also, where a man had made a false repre- 
 sentation as to the value of property, which he had agreed to 
 charge as security for another person, his representatives were 
 held bound to make it good.^ So, also, where a marriage was 
 contracted, and a settlement made on the faith of representa- 
 tions by the executor of a will, under which a certain sum of 
 money was left to the intended husband, that the legacy was 
 substantial and safe and would be paid at a future time, the 
 estate of the executor was held to have thereby become in- 
 debted for the whole amount.^ So, also, where a father pre- 
 viously to the marriage of his daughter, promises to the in- 
 tended husband to leave her a sum of money, and the promise 
 amounts to a distinct engagement or undertaking, and the mar- 
 riage takes place on the faith of such representation, the court 
 will give effect to it against the estate of the father.^ So, also, 
 the trustee of a fund, who, having received notice of an in- 
 cumbrance on the fund, had represented to a creditor of the 
 beneficiary that the fund was unincumbered, and that the ben- 
 eficiary had a right to make an assignment, was held bound to 
 make up the deficiency.'^ So, also, a solicitor who has made to 
 his client untrue representations respecting a property on which 
 his client is about to advance money, may be compelled to 
 make good his representations.^ * 
 
 ' Gale V. Lindo, 1 Yern. 475. See Alt, 4 GifF. 84. See Jameson v. Stein, 
 
 MonU'fiori v. Montefiori, 1 W. Bl. 363. 21 Beav. 5 ; Kay v. Crook, 3 Sm. & G. 
 
 Ingram v. Thorpe, 7 Ila. 67. 407 ; Trole v. Soady, 2 Giff. 1 ; Stephens 
 
 ' Hutton V. Rossiter, 7 D. M. & G. 9. v. Venabk-s, 31 Beav. 128. 
 
 ^ ILimmcrsley v. De Bid, 12 CI. & 'Burrowes v. Lock, 10 Ves. 470" 
 
 Fin. 45 ; Barkworth v. Young, 4 Drew. Slim v. Croucher, 1 L). F. & J. 518. 
 
 1 ; ]Maunsell v. Hedges, 4 II. L. 1039; " Cleland i;. Leech, 5 Ir. Ch. 478. 
 Layer v. Fielder, 32 Beav. 1 ; Alt v. 
 
 * Bacon v. Johnson, 7 Johns. Ch. 194.
 
 REMEDIES. 34t5 
 
 Though, where one person states a fact to be true, on the 
 faith of which another acts, a court of equity will often com- 
 pel him to make his assertion good, it does not follow that 
 where a man has given a general character respecting another, 
 the person to whom the representation was made can come 
 into equity to compel him to make good his representation. 
 Though a person who misrepresents the character or the credit 
 of another, is liable for the damage occasioned by such repre- 
 sentation, the amount can only be determined in a com't of 
 law by an action for damages.-^ 
 
 The rules with respect to sales by the court are not less 
 stringent than in ordinary cases.^ If a sale has taken place 
 under a decree of the court, and there has been false represen- 
 tation or undue concealment in the conditions or particulars of 
 sale, or a good title cannot be shown, the sale will be set aside 
 if application be made before conveyance is executed.^ If the 
 conveyance be executed, the purchaser must take the conse- 
 quences, and can only rely on the covenants.* 
 
 The court will not rescind a transaction without requiring 
 the party in whose favor it interferes, to restore the party 
 against whom relief is sought, as far as possible, to that which 
 shall be a just situation, with reference to the rights which he 
 held antecedently to the transaction.^* The terms on which a 
 
 ' Whitmore v. Mackoson, 16 Eeav. ■'Thomas v. Powell, 2 Cox, 894; 
 
 128. M'CuUoch V. Gregory, 1 K. tfe J. 286. 
 
 ^ Laclilan v. Reynolds, Kay, 55. ^ Bellamy v. Sabine, 2 Ph. 425; King 
 
 ^ Jb. McCiilloch V. Greo-ory, 1 K. & v. Savery, 5 11. L. 627. 
 
 J. 286. See Ward v. Tratlie, 14 Sim. 
 
 82; Linehan v. Cotter, 1 Ir. Eq. 176. 
 
 * The rules of law relating to specific performance and those applied 
 to the rescission of contracts, although not identically the same, have 
 a near affinity for each other. Boyce v. Grundy, 3 Pet. 210 ; Beck v. 
 Simmons, 7 Ala. 71 ; Walker v. Collins, 11 Ohio, 31 ; Jackson v. Ashton, 
 11 Pet. 229. 
 
 Mere deterioration of the property is no objection to a rescission of the
 
 344 REMEDIES. 
 
 transaction will be rescinded vary with the particular circum- 
 stances of the case. In some cases deeds have been absolutelj 
 rescinded ^ by tlie court decreeing them to be delivered up to 
 be cancelled ; ^ but the usual course of the court in setting 
 aside a transaction, is to proceed on the maxim, that, he who 
 seeks equity must do equity.^ Instruments, accordingly, are 
 either set aside on repayment of the actual consideration with 
 interest thereon at a reasonable rate,^ * or are directed to stand 
 as a security for the moneys actually advanced, with interest 
 thereon at a reasonable i*ate,^ or for what upon investigation 
 shall be ascertained to be really due.^ f If the property is 
 personal, a decree for the repayment of moneys, or the delivery 
 up and cancellation of the instrument, will be complete relief, 
 
 ' Bates w. Graves, 2 Ves. Jr. 287. Marlboroug-h, 2 Sw. 166; Peacock v. 
 
 "See Jackman v. Mitchell, 13 Ves. Evans, 16 Ves. 512; Colcloun-h v. Bol- 
 
 586. ger, 4 Dow. 64 ; King v. Hamlet, 2 M. 
 
 ' Wilkinson v. Fowkes, 9 Ha. 594. & K. 456 ; 3 CI. <fe Fin. 218 ; Earl of 
 
 * Barnadiston v. Lingood, 2 Atk. Aldboioiigh v. Trve, ^ CI. & Fin. 436, 
 
 133; Lawley v. Hooper, 3 Atk. 278; 462; Carter v. Palmer, 8 CI. & Fin. 
 
 Gwynne v. Heaton, 1 Bro. C. C. 1 ; 657, 11 Bligh, 39Y; Pillage v. Southee, 
 
 Lovell V. Hicks, 2 Y. & C. 55; Wilson 9 Ha. 540; Baker v. Bradley, 7 D. M. 
 
 V. Short, 6 Ha. 384 ; Ingram v. Thorp, & G. 597 ; Croft v. Graham, 2 D. J. & 
 
 1 Ha. 67. S. 155. 
 
 ^ Proof z».Hines, Forrest, 111; Crowe "Wharton v. May, 5 Ves. 27; Pur- 
 
 V. Ballard, 3 Bro. C. C. 120; Kewnian cell v. Macnamara, 14 Ves. 91; Watt v. 
 
 V. Payne, 2 Ves. Jr. 199; Byne v. Grove, 2 ^ch. <fe Lef. 492; Longmate v. 
 
 Vivian, 5 Ves. 604; Davis v. Duke of Ledger, 2 Gifif. 157. 
 
 contract. Veazie v. Williams, 8 How. 134; Buck v. McCaughtrey, 5 Mon. 
 216 ; Glover «. Smith, 1 Dessau. 433. 
 
 When a jjortion ef the property has passed to the hands of a lona fide 
 holder, the court may enter a decree against the defendant for its value, 
 and compel a surrender of the balance. McNeil «. Turner, 6 Munf. 316. 
 
 A decree for a rescission of the contract without a restoration of the 
 property, is erroneous. Camplin v. Burton, 2 J. J. Marsh. 216; Waters «. 
 Lemmon, 4 Ohio, 229. 
 
 A vendee who has bought in an adverse claim cannot obtain a rescis- 
 sion of the contract without surrendering the property. Grundy v. Jack- 
 son, 1 Litt. 11. 
 
 * Gardner v. Ogden, 22 N. Y. 327 ; Wellford «. Chancellor, 5 Gratt. 39; 
 Miles r. Irvin, 1 McCord's Ch. 524. 
 
 t Smith «. Lansing, 22 N. Y. 520; Owing's Case, 1 Bland, 370; Currie 
 «. Coules, 6 Bosw. 452.
 
 REMEDIES. 345 
 
 altliougli the legal interest should have been conveyed.* But 
 if the subject-matter of the transaction be real estate, it is 
 usual to direct a reconveyance, because if this is not done, a 
 question may arise as to what has become of the real estate.^ 
 If, however, the deed is not merely voidable, but wholly void, 
 no reconveyance is necessary.^ 
 
 The terms on which a reconveyance will be ordered, are 
 the repayment of the purchase-moneys and all sums laid out 
 in improvements and repairs of a permanent and substan- 
 tial nature, by which the present value is improved, with 
 interest thereon from the times when they were actually dis- 
 bursed.* On the other hand, charges for the deterioration of 
 
 ' See 1 Ves. 376 ; Williamsou v. Clark v. Malpas, 31 L. J. Ch. 696 ; but 
 
 Gihon, 2 Sch. & Lef. 35*7; Eastabrook see Hoghton v. Hoghton, 15 Beav. 278; 
 
 V. Scott, 3 Ves. 455; Cooper v. Joel, 1 Alt. Gen. v. Magdalen College, 18 Beav. 
 
 B. F. <fej. 240; Slim v. Croucher, 'i6. 255 
 520. ^ Ogilvie v. Jeaffreson, 2 Giff. 381. 
 
 '^Pickett V. LoggoD, 14 Ves. 231; 
 
 * Harding v. Handy, 11 Wheat. 103 ; Brooke v. Berry, 2 Gill, 83 ; 
 Moseley i). Buck, 3 IMunf. 332 ; Tyler v. Black, 13 How. 230 ; Glass t. 
 Brown, 6 Mon. 356 ; Ellis v. Graves, 5 Dana, 119 ; Bullock v. Beemis, 1 A- 
 K. Jrarsh. 433 ; Caldwell v. White, 5 J. J. Marsh. 207. 
 
 If the vendee buys up a better title than that of the vendor, and the 
 vendor is not guilty of fraud, he can only be compelled to refund to the 
 vendee the amount paid for the better title and a reasonable compensation 
 for trouble and expenses. Galloway v. Finlcy, 12 Pet. 264. 
 
 The purchaser will not be compelled to account for rent -when he is 
 liable to others for it. Glass v. Brown, Mon. 356. 
 
 The use of the property by the vendee is generally held to balance the 
 interest on the purchase money. Talbot v. Subree, 1 Dana, 56 ; Williams 
 V. Rogers, 2 Dana, 374 ; Williams v. Wilson, 4 Dana, 507. 
 
 The rule does not apply to improductive lauds. Shields v. Bog- 
 liolo, 7 Mo. 134. 
 
 A grantee, in case of constructive fraud, is not responsible for profits. 
 When, however, there is actual fraud, the grantee may be charged with 
 profits. Backhouse v. Jetts, 1 Brock, 500. 
 
 There is no instance of any reimbursement or indemnity aflPorded by a 
 court of equity to a particeps criminis in a case of positive fraud upon 
 creditors. Sands v. Codwise,4 Johns. 336; Borland v. Walker, 7 Ala. 269; 
 White V. Graves, 7 J. J. Marsh. 523; Weedon v. Hawes, 10 Ct. 50. 
 23
 
 346 REMEDIES. 
 
 tlie property mnst be set off against the allowances for perma- 
 nent improvements. The party in possession must also 
 account for all rents received by him and for all profits, such 
 as moneys arising from the sale of timber, or from working 
 mines, with interest thereon, from the times of the receipt 
 thereof. He must also pay an occupation rent for such part of 
 the estate as may have been in his actual possession.'^ Allow- 
 ance for lasting improvements can only be for such as were 
 made during the period of accounting for the rents.^ The 
 account of rents and profits on the one side, and of lasting 
 improvements on the other, must be carried back to the same 
 time.^ The decree is eiToneous if it directs the account of 
 rents and profits to begin at one time, and the account of 
 lasting improvements at another, unless there is some special 
 reason for doing so.* The party in possession would also, it is 
 conceived, be required to reinstate premises which he had ma- 
 terially altered ; e. g. & private residence into a shop.** 
 
 'Savage v. Tavlor, Forrest, 234; London, lOH. L. 26; Stepney v. Bid- 
 
 Att.-Gen. v. Balliol College. 9 Mod. diilph, 13 W. R. 576; 5 N. R. 506; 
 
 412; York Buildings Co. v. M'Kenzie, Dally v. Wonham, 33 Beav. 162. See 
 
 3 Pat. So. App. Ca. 398, 579, 3 Ross's L. Douglas v. Culverwell, 31 L. J. Ch. 
 
 C. Sc. 305 ; Ward v. Ilartpole, cit. 3 543 ; Cooper v. Phibbs, L. R. 2 App. 
 
 Bligh, 470; Ex-parte Hughes, 6 Ves. Ca. l7l. 
 
 617; Ex-parte Bennett, 10 Ves. 381; '^ Att.-Gen. v. Earl of Craven, 21 
 
 Murray v. Palmer, 2 Sch. & Lef. 490; Beav. 411. 
 
 Edwards o. M'Cleay, Coop. 308, 2 Sw. ^ 2seesom v. Clarkson, 4 Ha. 103. 
 
 287; Donovan v Fricker, Jac. 165; * 76. See as to allowance for im- 
 
 Trevelyan v. Charter, 4 L. J. Ch. N. S. provements of charity property, Att.- 
 
 214; trevelyan v. White 1 Bear. 588; Gen. v. Kerr, 2 Beav. 429; Att.-Gen. v. 
 
 Mulliallen v. "Marum, 3 Dr. &. War. 337; Magdalen College, 18 Beav. 254; Att.- 
 
 Gibson v. D'Este, 2 Y. & C. C. C. 581 ; Gen. v. Davey, 19 Beav. 527. 
 
 Mill V. Hill, 3 H. L. 828; Davey v. Dur- ° Donovan v. Fricker, Jac. 165. 
 rant, 1 D. i: J. 554 ; Tyrrell v. Bank of 
 
 Reimbursement may be allowed wlicn there is only constractive and 
 no actual fraud. Gardiner Bank «. Wheaton, 8 Greenl. 373 ; Parker v. 
 Holmes, 2 HilFs Ch. 95 ; Cummings v. McCullough, 5 Ala. 324. 
 
 If a party has allowed his name to be used in a fraudulent assignment, 
 and suffered the property to be squandered, he will be compelled to 
 account for its value to the creditors. Hughes v. Bloomer, 9 Paige, 269.
 
 REMEDIES. 317 
 
 The value of permanent and substantial improvements of 
 all kinds, by whicli the present value of the property is im- 
 proved, such as for the erection of a mansion house, and for 
 plantations of shrubs, will be allowed.^ * But no allowance 
 will be made for moneys which liave been expended by the 
 party in. possession, as a matter of taste or personal enjoy- 
 ment.^ JSTor will allowance be made for moneys which have 
 been expended upon the property with the view of rendering 
 it impossible for the real owner to recover his estate, and so 
 improving him out of it, as it may be called.^ 
 
 A purchaser who seeks to set aside a transaction on the 
 ground of fraud, should specially pray in his bill for the repay- 
 ment of repairs and improvements. He will be credited with 
 the amount of repairs and improvements, executed before the 
 discovery of the defect in title, if their repayment is specially 
 prayed by the bill;* and, probably, of necessary repairs exe- 
 cuted during or pending litigation, if specially prayed.' 
 
 In a case where a purchase was set aside for fraud, and the 
 purchaser was decreed to pay an occupation rent, receiving 
 back his purchase moneys with interest, there being a consider- 
 able excess of the rent over the interest, annual rests were 
 directed, until the principal should be liquidated;^ but a 
 special case must be shown to warrant such a direction.' 
 
 > York Piuilditif^s Co. v. M'Kenzie, 3 Stepney v. Biddulph, 5 N. R. 505, 13 
 
 Pat. Sc. App. 398, 579 ; 3 Ross. L. C. W. R. 576, Sug. V. <fe P. 287. See 
 
 So. 305; Stepney v. Biddulph, 13 W. Pelly v. Bascombe, 4 Giff. 390. 
 
 R 576 5 N. U. 506. ■* See Edwards v. M'Cleav, 2 Sw. 289. 
 
 '•^York Buildings Co. v. M'Kenzie, 3 "bug. V. & P. 279; Dart. V. & P. 
 
 Pat. Sc. A p. 398, 579, 3 Ross. L. C. Sc. 523. 
 
 305; Att.-Gen. t\ Kerr, 2 Beav. 429 ; ° Donovan ?j. Fricker, Jac. 165. 
 
 Mill'*'- Hill, 3 H. L. 828. '' See Neesom v. Clarkson, 4 Ila. 97. 
 
 'Kenney v. Brown, 3 Ridg. 518; 
 
 * Miclioucl B. Girod, 4 ITow. 503 ; Leary \\ Cox, 2 Dana, 4G9. 
 
 Losses incurred in making improvements and constructing -works in a 
 saltpetre, cave which has been misrepresented, can not be allowed. Pey- 
 ton -y. Butler, 3 Hey, 141.
 
 348 REMEDIES. 
 
 It is not tlie course of the court to direct an account of wil- 
 ful nef^lect and default, in cases where the possession is not 
 primarily referable to the character of mortgagee.^ When 
 persons, though in fact mortgagees, enter into possession of 
 rents and profits in another character, they cannot be subjected 
 to that special liability.'^ The rule may be different if a special 
 case of fraud be made out.^ 
 
 If there has been long delay in filing the bill, the ac- 
 counts of rents and profits will be limited to the time of filing 
 the bill/* 
 
 If the transaction complained of is one in which a trustee 
 or agent, employed to purchase, has sold property of his owu 
 surreptitiously, to his cestui que trust or principal, the right 
 of the latter is not merely to rescind the contract in toto, or to 
 abide by it in its integrity, but to hold the property, and to 
 pay no more for it than the trustee or agent himself had paid.^ 
 If the agent sells to his principal property of his own for 
 which he has paid nothing, the principal can only retain the 
 property upon the terms of paying its proper value.^ 
 
 If the trustee, or other person, filling a fiduciary character, 
 has purchased surreptitiously from the person towards whom 
 he stands in such relation, and the latter does not wish for a 
 
 ' Murray v. Palmer, 2 Sch. & Lef. ' Parkinson v. Hanbury, L. R. 2 App, 
 
 486- Trevelvan v. Charter, 4 L. J. Ch. Ca. 1. 
 
 N. S. 214; Miirpby v. O'Shea, 2 J. <fe ' Howell v. Howell, 2 M. & C. 478 
 
 L. 422 ; Sherwin v. Shakespeare, 5 D. Adams v. Sworder, 2 D. J. <fe S. 44 
 
 M <fe G. 531 ; Lord Kensington v. Bou- Parkinson v. Hanbury, L. R. 2 App. Ca, 
 
 verie, 7 D. M. & G. 134, 156, 157; Par- 15. 
 
 kinson ». Hanbury, 2 D. J. & S. 450. * Pickett v. Loggon, 14 Ves. 231 
 
 See decree in Gresley v. Mousley, 4 D. Mulhallen v. Marura, 3 Dr. <fe War. 317 
 & J. 101 ; but see decree in Murray v. ° Bank of London v. Tyrrell, 10 H 
 
 Palmer, 2 Sch. & Lef. 489; Gibson?;. L. 26. 
 
 D'Este'2 Y. & C. C. C. 581. ^ Great Luxemburg Railway Co. v. 
 
 Magnay, 25 Beav. 695. 
 
 * "WTien an account consists of numerous items, rests are proper substi- 
 tutes for a computation of interest on each item. Harding v. Handy, 11 
 Wheat. 103.
 
 REMEDIES. 349 
 
 reconveyance of tlie property, tlie former will be held strictly 
 to his bargain, if it be beneficial to the estate. If it be not 
 beneficial to the estate, the property will be ordered to be re- 
 sold and reconveyed to another purchaser, if a better can be 
 found ; otherwise, he will be held to his purchase ; if a better 
 purchaser be found, he will be regarded as a trustee for the 
 profit on the resale,^ and will be held responsible for any loss 
 which his interference with the gale may have occasioned.^ In 
 a case where an estate sold under a decree of the court was 
 purchased by a solicitor in the cause without leave of the court, 
 the court, after the purchase had been confirmed, ordered the 
 estate to be again offered for sale at the price at which he had 
 purchased it ; and, if there should be no higher price, that he 
 sliould be held to hi^ purchase.' In Williamson v. Seaber,* 
 where permanent improvements had been made, the estate 
 was put up at its improved value, subject to the question 
 whether he should be allowed the value of such improvements. 
 But the usual course is to order that the expense of repairs 
 and improvements, not only substantial and lasting, but such 
 as have a tendency to bring the estate to a better sale, after 
 making an allowance for acts that deteriorate the value of the 
 estate, shall be added to the purchase-moneys, and that the 
 estate shall be put up at the accumulated sum.^ If the trustee, 
 or other person filling a fiduciary character, who has purchased 
 property surreptitiously from the person towards whom he 
 stands in such relation, has resold the property at a profit, he 
 must account for such profit with interest.® 
 
 ' Ex-pnrte Reynolds, 5 Ves. 707 ; ^ Ex-parte Reynolds, 5 Ves. 707 ; Ex- 
 
 Ex-payte llugliea, 6 Ves. 617 ; Randall parte Lacey, 6 Ves. 625, 629; Ex-parte 
 
 V. Erriiii^ton, 10 Ves. 42s ; Ex-partc Bennett, 10 Ves. 381. 
 
 Mor<:;an,'l2 Ve3. 6; Ex-parte Lewis, 1 ° Fox v. Macreth, 2 Bro. C. C. 400; 
 
 Gl. tk Ja. 69. Hall !'. Ilailett, 1 Cox, 134; Ex-jmrit 
 
 ' Ex-parie Lewis, ih. Reynolds, 5 Ves. 707 ; Brooknian v. 
 
 'Sidney v. Ranker, 12 Sim. 118. Rotliscliild, 3 Sim. 153; Rdthscliild «. 
 
 See Neltiiorpe v. Peunyman, 14 Ves, Brookmnn, 2 Dow <fe Cl. 188. See 
 
 517. Bank of London v. Tyrrell, 10 II. L. 
 
 * 3 y. (fe C. 717. 26.
 
 350 EEMEDIES. 
 
 In a case where a servant took an agresraent for a lease of 
 premises in liis own name, "but really as the agent of liis master, 
 and having afterwards denied the agency, claimed to hold the 
 premises for his own benefit, he was decreed by the court to 
 be a trustee for his master,^ 
 
 Where a transaction is set aside on the ground of fraud 
 the party complaining will be allowed all costs, charges, and 
 expenses properly incurred in respect of and incident to the 
 transaction, including the costs of conveyance.^ 
 
 In taking the accounts between the parties, interest at the 
 rate of £4 per cent, per annum, will be allowed on all moneys 
 expended in lasting and substantial improvements by the party 
 in possession. The same rate of interest will, as a general 
 rule, be debited to him in respect of moneys, &c., &c., received 
 by him, and of costs, charges, and expenses properly incurred 
 by the complaining party .^ If, however, there has been a 
 breach of duty, and violation of trust, he will be debited with 
 interest on moneys received, or profits made by him, at tbe 
 rate of £5 per cent.* If there has been negligence on the part 
 of the complaining party, interest will not be allowed.' 
 
 In ordinary cases, when the court sets aside a transaction, 
 the defendant has a right to insist upon an account before he 
 is called upon to reconvey ; ® * but a defendant who is in pos- 
 
 " Earl of Stamford v. Dawson, 15 W. Browne, 2 Coll. 1 T ; Att-Gen. v. Al- 
 
 R. 89G. foi-cl. 4 D. M & G. 843 ; Mayor, <fec., of 
 
 ' Edwards v. M'Cleay, 2 Sw. 289; Berwick v. Murray, 7 D. M. & G. 513; 
 
 Berry v. Armitstead, 2 Keen, 221; and is someti nes even now allowed; 
 
 MuUiallen v. Marum, 3 Dr. <fe War. Stepney t'. Biddulpli, 13 W. R. 576. 
 317; Gibson v. D'Este, 2 Y. & C. C. 0. " Benson v. licalhorn, 1 Y. & 0. C. 
 
 581 '; Slim v. Crouclier, 1 D. F. cfe J. C. 340; Mayor, &c., of Berwick v. 
 
 520; Cartledge v. Radbourn, 14 W. R. Murray, 7 D. M. & G. 518; Bank ol 
 
 6(^)4 ' London v. Tyrrell, 10 H. L. 63. See 
 
 'Gibson v. D'Este, 2 Y. & C. C. C. St. Aubyn v. Smart, L. R. 5 Eq. 183. 
 581; Sharp v. L'.'ach, 31 Beav. 503; * M'CuUocli v. Gregory, 1 X. <fe J. 
 
 Maturin v. Tredennick, 12 W. R. 740. 286. 
 
 See Lovell v. Hicks, 2 Y. <fe C. 53 ; £5 « Murray v. Palmer, 2 Sch. & Lef. 
 
 per cent, was formerly allowed, see 490 ; Gibson v. D'Este, 2 Y. <t C. C. C. 
 
 Jac 166, 179; sec also Edwards v. 581 ; Wilkinson t;. Fowkes, 9 Ha 594. 
 
 ♦ Miller v. Colton, 5 Geo. 341 ; Bibb v. Pratber, 1 Bibb, 313.
 
 REMEDIES. 351 
 
 session under a pretended purchase cannot, if tlie court shall 
 be of opinion that there has been in fact no pnrcli use, insist 
 upon an account of moneys paid by, or owing to him, which he 
 alleged, but failed to prove, w^as the consideration agreed upon 
 for such purchase.* If a reconveyance is ordered, and an ac- 
 count of rents and payment of the balance is ordered, but no 
 lien for such balance is given on the estate, the conveyance 
 must be made at once, without waiting for the result of the 
 accounts.^ 
 
 In one case the purchaser, obtaining a decree for rescinding 
 a contract, on the ground of fraud, was allowed to follow the 
 stock in which part of the purchase-money had been invested.* 
 
 If the transaction into W'hich a man had been induced by 
 fraud to enter is a partnership, the terms of rescission will be 
 that his partner or copartners repay him whatever he may 
 have paid, with interest thereon, and indemnify him against 
 all claims and demands which he may have become subject to 
 by reason of his having entered into the partnership ; he, on 
 the other hand, accounting for what he may have received 
 since his entry into the concern.* 
 
 If a man has been induced by false representations in the 
 prospectus of a company to take shares from the company, he 
 is entitled to recover his money, and to have his name removed 
 from the register.^ If he has received dividends before dis- 
 covering the fraud, the terms of rescission are, that his name 
 shall be removed from the register, and that an account shall 
 be taken of what sums have been paid to him by the company 
 and of what sums he has received with interest at a reasonable 
 rate, and that the balance shall be paid to him with all costs.® 
 
 * Wilkinson v. Fowkes, ib. Estates Investment Co., L. R. 3 Eq. 
 'Trevelyan V. Charter, 9 Beav. 140. 122; Fox's Case, 37 L. J. Ch. 257; 
 •Small V. Attwood, Younj^e, 507. Chester v. Spargo, 16 W. 11. 576. 
 
 * Liiidl. on Tart. p. 929. ' " Kent v. Freehold Land and Brick- 
 
 * Blake's Case, 34 Beav. 639 ; Ross v. making Co., L. R. i Eq. 598.
 
 352 REMEDIES. 
 
 "Where a person, in order to defraud his creditors, has 
 transferred stock to a fictitious person, upon proof of the fact, 
 it will be ordered that the fictitious name shall be erased from 
 the register, and that the name of the real owner be inserted.^ 
 
 If a case for rescission be not made out, the bill may be 
 dismissed, without prejudice to any action at law that the 
 plaintifi" may bring.'' 
 
 If an instrument be founded on fraud, there can be no 
 rectification. The com-t can reform an instrument only where 
 its incorrectness arises from mistake, Irom ignorance, or acci- 
 dent, and does not go to impeach the general fairness of the 
 transaction.^ 
 
 If a man's name has been placed on the register of share- 
 holders of a company, without his consent, through the false 
 representations of a third party, and an order to wind up the 
 company has been subsequently made, the court will order it 
 to be removed from the register.* 
 
 In cases where a man has fraudulently appropriated to 
 his own use moneys belonging to another, the appropriate 
 remedy of the Court of Chancery is by declaring him a 
 trustee of such moneys, and ordering him to make them 
 good.^ 
 
 A court of equity will relieve against fraud in judicial 
 proceedings. If a party has been induced by fraud to consent 
 to a decree, or if fraud in obtaining a decree has been prac- 
 ticed on the court, the court will grant relief on being satisfied 
 that the conduct of the party himself has not deprived him of 
 his title to relief, and that the relief can be given with due 
 regard to the just interests of others.® 
 
 » Green v. Bank of England, 3 Y. <fe * Re Patent File Co., Ex-parte Wliite, 
 
 C T22 ; Arthur v. Midland Kailway 15 W. R. 754. 
 
 Co., 3 K. & J. 204. " Rolle v. Gregory. 34 L. J. Ch. 274 ; 
 
 *'Bartlett v. Salmon, 6 D. M. & G. 33. Charlton v. Coombs, 4 Giif. 385. 
 
 See Evans v. Bicknell, 6 Yes. 191. " Barnesly v. Powell, 1 Yes. 120, 285; 
 
 ^ Watt V. Grove, 2 Sch. <t Lef. 502. Davenport v. Stafford, 8 Beav. 622, 
 
 See Hartopp v. Hartopp, 21 Beav. 259. supra, p. 43.
 
 EEMEDIES. 353 
 
 "Wliere any fraud or collusion Las been practiced, a sale and 
 conveyance cannot be held valid, altbougli tliey have the color- 
 able protection of a decree of a court of equity.^ * The orders 
 of the court cannot, however, be set aside on grounds less 
 strong than those which would be recpiired to set aside trans- 
 actions between competent parties.^ To set aside, on the 
 ground of fraud, a decree signed and enrolled, actual positive 
 fraud must be shown. There must be on the part of the 
 person chargeable with it, the Qnalus animus, the mala mens 
 putting itself in motion, and acting in order to take an undue 
 advantage for the purpose of actually and knowingly commit- 
 ting a fraud. The fraud must be a fraud which can be ex- 
 plained and defined upon the face of the decree. Mere irreg- 
 ularity, or the insisting upon rights which, upon a due 
 investigation of those rights, might be found to be overstated 
 or overestimated, is not the kind of fraud which will authorize 
 the court to set aside a decree.' 
 
 Though the court cannot set aside the judgment of a 
 common law court obtained against conscience, it will consider 
 the person who has obtained the judgment as a trustee, and 
 will decree him to reconvey any property that he may have 
 become possessed of under the judgment, on the ground of 
 laying hold of his conscience, so as to make him do that 
 which is necessary to restore matters as before.* With 
 respect to fines which had been obtained by fraud, the court 
 would not absolutely set aside a fine so obtained, nor would 
 
 ' Colclough V. Bolger, 4 Dow. 64. ' Patch v. Ward, L. R. 3 Ch. App. 
 
 " Brooke v. Lord Mostyn, 2 D. J. «fe S. 203. 
 416 • * Barnesly v. Bowell, 1 Ves. 120, 285, 
 
 * Galatian v. Envin, 1 Hopk. 48. 
 
 A purchaser who has oblaintd a decree rescinding the deed, and 
 directing a reconveyance and repayment of the purchase-money, can not 
 secretly recrrd a deed of conveyance and sell the property under an 
 execution, without delivering possession. Buckner v. Forker, 7 Dana, 
 60.
 
 354 REMEDIES. 
 
 it send the party aggrieved to tlie court of Common Pleaa 
 to get it vacated. The course of the court was, to consider all 
 persons taking an estate under the fine, with notice of the 
 fraud, as trustees for the party defrauded, and to decree a 
 reconveyance of the land, on the general ground of laying 
 hold of the conscience of the parties to make them do that 
 which was necessary for restoring matters to their former 
 position.^ 
 
 Though a court of equity has no jurisdiction to relieve 
 against fraud in obtaining the setting up or execution of a 
 will,^ it may relieve against a probate obtained by fraud by 
 convertino- the party taking under the instrument into a trustee 
 for the party defrauded.^ 
 
 " The cases," said Lord Lyndhurst, in Allen v. Maepher- 
 son,* " in which this court has declared a legatee or executor 
 to be a trustee for other persons, have been cases in which 
 there have been either questions of construction,^ or cases in 
 which the party has been named as trustee, or has engaged to 
 take as such,6 or in which the Court of Probate could aiford 
 no adequate or proper remedy." ' A legacy given to a person 
 in a character which the legatee does not fill, and by the 
 fraudulent assumption of which character the testator has been 
 deceived, will not take effect. A false character, however, 
 attributed by a testator to a legatee, will not affect the validity 
 of the legacy, unless the false character has been acquired by 
 a fraud which deceived the testator.^ 
 
 A charter which has been obtained from the crown by 
 
 ' Crm?=e Dig. tit. XXXV, c. xiv, § 12. * 1 H. L. 214. 
 
 See Pickett v. Lougon, 14 Ves. 234; ' Kennell v. Abbott, 4 Ves. 802. 
 
 Hamiison v. ILiinpson, 3 V. <fe B. 42 ; * Thj-nn v. Thynn, 1 Vern. 296 ; Ken- 
 
 Langlcy v. Fisher, 9 I'eav. 100; Tarle- nell v. Abbott, 4 Ves. 802 ; PoJmore v. 
 
 ton V. Liddeil, 17 Q. B. 414. Gunning, V Sim. 660; supra, p. 274, 
 
 * Allen V. Macpherson, 1 H. L. 191 ; 275. 
 
 supra p 44. ' ' See Segrave v. Kirwan, Beat. 157 j 
 
 ■^ Baniesley v. Powell, 1 Ves. 287 ; Cbarlton v. Coombs, 4 Giff. 385 ; Wil- 
 
 Allen V. Macpherson, 1 Ph. 145 ; 1 II. kinsim v Jongbiii, L. R. 2 Eq. 319. 
 
 L 213. " Giles v. Giles, 1 Keen, 692.
 
 EEMEDIES. 355 
 
 fraud, may be repealed by sci.fa.j but so long as it remains 
 unrepealed, its validity cannot" be disputed.^ 
 
 The appropriate remedy of tlie Court of Chancery against 
 fraud may, under the peculiar circumstance of the case, be by 
 way of injunction. An injunction may be had either to 
 restrain proceedings at law upon an instrument which is 
 vitiated by fraud, or to restrain a man from doing acts which 
 amount to a fraud, in the extensive signification in which that 
 term is understood by a court of equity. Although a man 
 may have a good defence at law to an action on an instrument 
 which is vitiated by fraud, he is not precluded from proceieding 
 in equity to restrain the action.^ If there be an equitable case 
 stated by the bill, there is jurisdiction to interfere by way of 
 injunction, if necessary, and also by way of ordenng the 
 instrument to be delivered up.^ * 
 
 In restraining by injunction acts which are fraudulent in 
 the sense of a court of equity, the court exercises a most 
 extensive jurisdiction. Injunctions may be had upon a proper 
 case being made out, to restrain a man from parting with or 
 transferring property, or paying or receiving moneys, tfec, &c.,* 
 from negotiating securities,^ from selling property,^ &e., &c. 
 
 'See Macbride v. Lindsay. 9 Ila. 5Y4. ' Traill v. Baring, 33 L. J. Ch. 52 Y, 
 
 See as to setting aside letters patent -per Turner, L. J. mpra, p. 4*7 ; Kerr on 
 
 obtained by fraud, Att.-Geu. v. Vernon, luj. 33. 
 
 I Vern. 3fi9. '' Kerr on Inj. 695, 
 '' Ferny] lough v. Leader, 15 L. J. Ch. ' Hk 
 
 458; Londdn Assurance Co. v. Moses, ° 76. 592. 
 
 II L. T. 532. 
 
 * Possession alone is a protection against a title obtained by fraud. 
 Niles V. Anderson, 5 How. (Miss.) 365. 
 
 A party seeking to enjoin a judgment upon a fraudulent contract, must 
 assign reasons why the defence was not made at law. Allen v. Hopson, 1 
 Freem. 27(5. 
 
 A parly may be enjoined from claiming more under a deed than would 
 pass according to his representations. Harding v. Randall, 15 Me. 332. 
 
 If on account of a contract between A and B. A gave bis note to C. 
 who is a creditor of B. A can not be relieved from his note because of a 
 fraud connnitted by B in his contract with A. Williamson i\ liaunej', 1 
 Freem. Ch. 113.
 
 336 EEMEDIES. 
 
 So, also, injunctions may be had to restrain the piracy of trade 
 marks.^ So, also, if a man has by his conduct encouraged 
 another to expend moneys on property, or deal in a matter of 
 interest, a court of equity will restrain him from derogating 
 from the interest in which that other has been induced to deal, 
 or from enforcing his legal right against him, unless the latter 
 has received the benefit which he contemplated at the time he 
 was induced to alter his condition.^ Where, accordingly, a 
 lessor, pending an agreement for a building lease, represented 
 to the intended lessee that he could not obstruct the sea view 
 from the houses to be built by the lessee, pursuant to the 
 proposed lease, because he himself was a lessee under a lease 
 for 999 years, containing covenants which restricted him from 
 60 doing ; but after the building lease had been taken, and the 
 houses built upon the faith of the representation, the lessor 
 surrendered his 999 years' lease, and took a new lease, omitting 
 the restrictive covenants, the court restrained him, by injunc- 
 tioil, from building so as to obstruct the sea view.^ So, also, 
 where on one of two partners retiring from business, it was 
 left to arbitration to determine what was to be paid to the 
 retiring partner for the good-will of the business ; and the 
 arbitrators, on the clear understanding of the parties that the 
 retiring partner would not set up trade in the vicinity, allowed 
 him £500 as his share of the good-will, but the award was 
 silent on the subject ; the court, nevertheless, upon parol 
 evidence of the understanding on which the award was made, 
 restrained him from carrying on trade in the same vicinity.* 
 So, also, a man who has permitted the owner of the adjoining 
 premises to rebuild them to a greater height than they were 
 before, and to alter his ancient lights, and to open new ones, 
 
 » Kerr on Tnj. 474-489. * Pigcrott v. Stratton, John. 359, 1 D. 
 
 " Supra, p. 126. F. & J. 33. 
 
 * Harrison v. Gardiner, 2 Madd. 198.
 
 REMEDIES. 357 
 
 will be restrained by injunction from interrupting the lights 
 after tbej are completed.^ 
 
 Where the aid of a court of equity is sought by way of 
 specific performance of a contract, the principles of ethics 
 have a more extensive sway than when a contract is sought 
 to be rescinded. The court is not bound to decree specific 
 performance in every case where it will not set aside a con- 
 tract, or to set aside every contract that it will not specifically 
 perform.'^ When the reseision of a contract is sought, a case 
 must be made out showing that the transaction is not only 
 unfit to be acted on in equity, but is also unfit to be acted 
 on at law,;^ but it does not follow, though a contract be good 
 in point of law, that it must be carried into execution in 
 equity. Many circumstances may operate to induce a court of 
 equity to refuse its assistance, though the agreement may 
 stand the test of a court of law.* * The court in such cases 
 simply refuses to interfere, leaving the parties to such conse- 
 quences as may follow from the legal rights which the contract 
 may have given them.^ f Specific performance rests with the 
 discretion of the court upon a view of all the circumstances^ ^ 
 
 ' Cotching V. Bassett, 32 Beav. 101. * Martin v. Mitchell, 2 J. <fe W. 420; 
 
 Seefurther,sT(^m, 127-133; KeiT on Inj. Bartlett v. Salmon, 6 D. M. <fe G. 33 ; 
 
 201-205, 349. Ilisgins v. Samels, 2 J. & 11. 4f)0. 
 
 ^Cadman v. Horner, 18 Ves. 10; ^Bellamy v. Sabine, 2 Ph. 449; 
 
 Vi"-ers v. Pike, 8 CI. & Fin. 645; Wilde Myers v. Watson, 1 Sim. N. S. 529. 
 
 V. "Ijibson, 1 H. L. 007 ; Rawlins v. '" White v. Damon, 7 Ves. 33 ; Rad- 
 
 Wickham,'3 D. & J. 322. cliffe v. Warrington, 12 Ves. 331 ; 
 
 ' Vi"-ers v. Pike, 8 01. & Fin. 645. Falcke v. Gray, 4 Drew. 659 ; Watson 
 
 See wlllan v. Willan, 2 Dow. 275, v. Marston, 4 JD. M. & G. 230. 
 
 * Henderson v. Hays, 3 Watts. 148 ; McWhorter v. McMahon, 1 Clark.e, 
 400 ; Frisby v. BalluTiec, 4 Scum. 289 ; Gould v. Womack, 2 Ala. 83. 
 
 t King V. Hamilton, 4 Pet. 311; Eastland v. Vanarsdale, 3 Bibb, 274; 
 Rice V. Rawlings, Meigs, 496 ; Hall v. Ross, 3 Hey, 200. 
 
 I Pratt r, Carroll, 8 Cranch, 471 ; Reinicker v. Smith, 2 H. & J. 421 ; 
 Perkins v. Wright, 3 H. «& McH. 324 ; Leigh v. Crump, 1 Ired. Eq. 299 ; 
 Clitherall v. Ogilvie, 1 Dessau. 256. 
 
 A court of equity will not set up a deed which has been suppressed as
 
 358 REMEDIES. 
 
 and with an eye to the substantial justice of the ease.^ * Where 
 5> party calls for specific performance, he must, as to every 
 part of the transaction, be free from every imputation of fraud 
 or deceit. An agreement affected by misrepresentation, or 
 tainted by deceit, is incapable of being made the subject of the 
 interference of a court of equity in order to compel its specific 
 performance.^ t Tliere can be no specific performance if a 
 material and important fact be untruly stated.^ It is no 
 answer, in a suit for specific performance, to the fact of the 
 plaintiff having made a false representation, to say that the 
 defendant was imprudent. A man who calls for specific per- 
 formance must be able to show that his conduct has been 
 clear, honorable, and fair.* It is a principle in equity that the 
 com-t must see its way very clearly before it will decree 
 specific performance, and that it must be satisfied as to the 
 integrity and good faith of the party seeking its interference.' 
 Misrepresentation as to a small portion only of the property, 
 the subject of the contract, will, if the misrepresentation is 
 intentional, prevent a man from coming to the court to have 
 
 ^ King V. Hamilton, 4 Peters (Amer.), 3 D. F. <fe J. YlS ; Colby v. Gadsden, 16 
 
 311 W. R. 1185. 
 
 » Harris v. Kemble, V L. J. Ch. 83 ; 5 ^ Price v. Macaulay, 2 D. M. & G. 
 
 Bligh, 730. See Philipps v. Duke of 339. 
 
 Bucks, 1 Vern. 227; Ellard v. Lord ^ Cox v. Middleton, 2 Drew. 220; 
 
 Llandaff, 1 Ba. & Be. 241; Brealey v. Walters v. Morgan, 3 D F. & J. 718. 
 
 CoUins, You. 317; "Walters v. Morgan, ^ Brealey v. Collins. You. 327; Wal- 
 ters V. Morgan, 3 D. F. & J. 718. 
 
 a justifiable guard against fraud and injustice naeditated agcainst the 
 grantor. Chapman v. Chapman, 4 Call, 436. 
 
 When a vendor has fraudulently led a vendee to suppose that more 
 land would pass under a deed than did pass, he may be compelled to give 
 a deed for the residue. Wiserall v. Hall, 3 Paige, 313; Tyson v. Passmore, 
 2 Barr, 122. 
 
 * Western R. R. Co. v. Babcock, 6 Met. 346 ; Quick v. Stuyvesant, 3 
 Paige, 84 ; Hopkins v. Stump, 2 H. & J. 301 ; Ellis v. Burden, 1 Ala. 458. 
 
 t Thompson i\ Tod, Pet. C. C. 380; Slack r. McLagan. 15 111. 242; 
 Clement r. Reid, 9 Smed. & 3Iar. 535; Fuller v. Perkins, 7 Ohio, 196; Car- 
 berry V. TannehiU, 1 H. & J. 224.
 
 REMEDIES. 359 
 
 the contract enforced. It is not sufficient that tlie vendor 
 offer to waive tlie portion affected by tlie representation.* The 
 effect of a partial misrepresentation is not to alter or modify 
 the agreement pro tanto, but to destroy it entirely, and to 
 operate as a personal bar to the party making the application.^ 
 Misrepresentation of a material fact, although innocently made, 
 will be a bar to the application.'* If a prospectus be issued 
 containing material representations, and a person accepts 
 shares on the faith of the representations, the party who made 
 the representations cannot, if they prove to be untrue, compel 
 the other party to accept the shares, although he believed 
 what he stated to be true.* It is a defence to a bill for specific 
 performance that the plaintiff has made inaccurate representa- 
 tions with respect to the property, the subject of the contract, 
 although these representations proceeded upon and had refer- 
 ence to sources of information which were equally open to all 
 parties, and might have enabled the defendant to detect the 
 alleged inaccuracies, if the evidence shows that they could not 
 have been easily detected.^ There may, however, be specific 
 performance, although the description of the property, the 
 subject of the; contract, be incorrect, if it appear that the pur- 
 chaser knew at the time of the purchase that the representa- 
 tion was untrue, or inspected the property before making the 
 purchase, and so acted upon his own judgment in the matter ;" 
 
 » Viscount Clermont v. Tasburfifh, 1 * Ilarris v. Kcmble, 1 L. J. Ch. 85 ; 5 
 
 J, & W. 119, 120. Bligh, '730. See Rawlins v. Wickham, 
 
 ' 'lb. Stewart v. Alliston, 1 Mer. 26. 3 I). «fe J. 318; Higgins v. Samels, 2 J. 
 
 See Rawlins v. Wickham, 3 D. <fe J. & H. 468; Colby v. Gadsden, 15 W. R. 
 
 321. 1185. 
 
 ' Ainslee v. Medlycott, 9 Ves. 13, 21 ; * Dyer v. Hargravc, lO Vcs. 505 ; 
 
 Higginson v. Clowes, 15 Ves. 524; Grant ?>. Munt, Coop. 177 ; Lord Brooke 
 
 Stewart v. Alliston, 1 Mer. 26; Price v. v. Roundthwaite, 5 Ha. .306; Haywood 
 
 Macaulay, 2 D. M. & G. 339; Higgins v. Cope, 25 Beav. 140; Clarke v.Mack- 
 
 V. Samefs, 2 J. <fe H. 460; Comp. White intosh, 4 Giff. 134; Henderson v. Hud- 
 
 V. Bradshaw, 16 Jur. 738; Hume v. son, 15 W. R. 860; Comp. Higgins >: 
 
 Pocock, L. R. 1 Ch. A])p. 379. Samels, 2 J. & H. 468 ; Vivers y. Tuck, 
 
 " New Bi-unswk;k, &c., Railway Co. 1 Moo. P. C. K S. 526. 
 V. Muggeridge, 1 Dr. <ic Sm. 363, 382.
 
 360 REMEDIES. 
 
 or if there were circumstances in the case wliicli demanded fur- 
 ther investigation, for which the vendor afforded every facility ;* 
 or if the representations which have been made are vague in 
 their terms, and merely amount to a statement of value or 
 opinion.^ 
 
 There cannot be specific performance if the description of 
 the property is of so ambiguous a nature that it cannot with, 
 certainty be known what it was the purchaser imagined him- 
 self he was contracting for.^ A vendor of property who makes 
 statements respecting the property, is bound to make them 
 free from all ambiguity ; and the purchaser is not bound to 
 take upon himself the peril of ascertaining the true meaning 
 of the statements.* A definite representation upon a fact 
 affecting the value of the subject of sale will entitle the pur- 
 chaser, if the representation be untrue, to resist specific per- 
 formance.^ It is the duty of every vendor to state all the cir- 
 cumstances connected with the property he is selling, and the 
 incidents to which it is subject, in such a manner that they can 
 be understood by a person of ordinary intelligence, and not 
 merely in such a way that only a skilled lawyer would be able 
 to ascertain the nature of the title under which he is pur- 
 chasing.* If leasehold property, which is sold in separate lots, 
 is held under one lease, it is incumbent on the vendor to state 
 the fact in plain and distinct language.' 
 
 If there be unusual covenants in a lease, and the seller is 
 silent as to their existence, he will not be able to enforce spe- 
 cific performance against a purchaser buying in ignorance of 
 the covenants.^ 
 
 » Clarke v. Mactintosh, 4 Giff. 134. Drysdale v. Mace, 5 T>. M. & G. 101; 
 
 "Scott V. Hanson, 1 R. & M. 128; Swaisland i;. Dearsley, 29 Beav. 430. 
 Jolinson V. Smart, 2 Giflf. 151, supra, p. * Lord Brooke v. Roundtliwaite, 5 Ha, 
 
 82, 85. 304. 
 
 ' Stewart v. AUiston, 1 Mer. 26 ; Ley- ' Sheard v. Venables, 36 L. J. Ch. 
 
 land V. lllingworth, 2 D. F. & J. 253. 922. 
 
 * Martin v. Cotter, 3 J. & L. 496, 507; ' lb. 
 
 ^ Martin v. Cotter, 3 J. & L. 506.
 
 REMEDIES. 301 
 
 A purchaser cannot, however, on the application for specific 
 performance, take advantage of small circumstances of varia- 
 tion in the description of the thing contracted for.^ Although 
 the description of the property, the subject-matter of the con- 
 tract, may be inaccurate in some particulars, or may be differ- 
 ent in some respects and in certain incidents from what it was 
 represented to be, specific performance will be decreed if the 
 property is not difierent in substance from what it was repre- 
 sented to be, and the misrepresentation has been made inno- 
 cently or through mistake, and not wilfully, upon the terms of 
 the vendor making good his representation or allowing or giv- 
 ing compensation.^ If, for instance, the property be subject to 
 incumbrances concealed from the purchaser, the seller may 
 have specific performance on making good his assertion and 
 redeeming those charges. So also, if the property is subject to 
 a small rent not stated, or the rental is somewhat less than it 
 was represented to be,^ or if the property is smaller than it was 
 represented to be,* or is not in the state and condition in which 
 it was represented to be,^ there may be specific performance on 
 the terms of the vendor allowing a sufficient deduction or 
 abatement from the purchase-money.' The principle on which 
 the court proceeds in such cases is, that if the purchaser gets 
 substantially that for which he has contracted, a slight varia- 
 tion or deficiency will not entitle him to recede from his con- 
 tract when compensation can be made in money for the differ- 
 ence.' A purchaser cannot, however, be compelled, upon the 
 
 ' Poole V. Shergold, 1 Cox, 274 ; Stew- * Hill w. Buckley, 11 Ves. 395 ; Winch 
 
 art V. Alliston, 1 Mer. 26. V.Winchester, 1 V. & B. 375 ; Portinan 
 
 =* Howland v. Norris, 1 Cox, 59; Drewe v. Mill, 2 Russ. 570 ; King v. Wilson, 6 
 
 V. Corp, 9 Ves. 368 ; Ilillv. Buckley, 17 Beav. 124 ; Frost v. Brewer, 3 Jur. 165 ; 
 
 Ves. 394 ; Pulsford v. Richards, 17 Beav. Ayles v. Cox, 16 Beav. 23. Comp. Price 
 
 87, 96 ; Price v. Mn.caulay, 2 D. M. & v. North, 2 Y. <fe C. 620. 
 
 G. 344. * Dyer v. Hargrave, 10 Ves. 508; 
 
 ^Puisford V. Richards, 17 Beav. 87, Grant v. Munt, "Coop. 173; Scott v. 
 
 9Q,per Lord Romilly ; Hughes i'. Jones, Hanson, 1 R. <fe M. 131. 
 
 3 D. F. & J. 307. See Howland v. Nor- " See further. Dart, V. & P. 694. 
 
 ris, 1 Cox, 61 ; Pope v. Garland, 4 Y. <fc ^ Howland v. Norris, 1 Cox, 61 ; Dyer 
 C. 394. 
 
 24
 
 362 REMEDIES. 
 
 principle of compensation, to take something substautiallj or 
 materially different from tliat for which he contracted.^ There 
 can be no specific performance if the description be inaccurate, 
 and the court feels that it cannot measure the difference be- 
 tween tliat which was promised and the actual fact, so as to 
 found a proper basis for compensation.'^ If, for example, a man 
 has contracted for the purchase of a freehold, he will not be 
 compelled to take a leasehold (though held for a very long 
 term),' or a copyhold ; * nor can a man who has contracted for 
 a copyhold be compelled to take a freehold;^ nor will a man 
 be compelled to take property held in a different manner from 
 that which is expressed or implied in the contract, as the 
 assignment of an underlease instead of an original lease,* or of 
 a redeemable instead of an absolute interest,' or of an improved 
 instead of a ground rent.^ Kor can a man who has contracted 
 for an estate in possession be compelled to a reversion expect- 
 ant on a life estate,^ or on a subsisting or a fortiori a rever- 
 sionary lease.^° Nor will a man, who has been led by the repre- 
 sentations of the vendor to believe that the property, the 
 subject of sale, was in the possession of a tenant of the vendor, 
 be compelled to take a mere right of entry." Xor can a man 
 be compelled to take an estate where incumbrances or liabili- 
 ties exist which would materially affect its enjoyment.-*^ The 
 court will not compel a man to take compensation for that 
 which can hardly be estimated by pecuniary value.^^ Several 
 
 ». Hargrave, 10 Ye3. 50*7 ; Magennis v. '' Corerley v. Burrell, Sug. Y, <& P. 
 
 Fallon, 2 Moll. 588. 299 ; Dart, V. <fe P. 689. 
 
 ' Drewe v. Corp, 9 Ves. 368 ; Magen- ^ Stewart v. Alliston, 1 Mer. 26. 
 
 nis V. Fallon, 2 Moll. 588. » Collier v. Jenkins, You. 398. 
 
 * Lord Brooke V. Roundthwaite, 5 Ha. "" Linelian t'. Cotter, 7 Ir. Eq. 176; 
 298; Cox v. Coventon, 31 Beav. 388. Dart, V. & P. 689. 
 
 " Drewe v. Corp, 9 Yes. 368. " Laclilan v. Reynolds, Kay, 54. 
 
 * Twining v. Morice, 2 Bro. C. C. 331 ; " Dart, Y. & P. -690, 691. 
 
 Hick V. Phillips, Prec. Cb. 575. See " Dj-er r. Hargrave, 10 Yes, 507; 
 
 Earl of Durham v. Legard, 34 Beav. Magennis v. Fallon, 2 Moll. 588 ; Fews- 
 
 612. ter v. Turner. 6 Jur. 144. See Knateh- 
 
 *'Ayles V. Cox, 16 Beav. 23. bull v. Grueber, 1 Madd. 153. 
 
 * Madeley v. Booth, 2 Deg. 4 S. 718.
 
 EEMEDIES. 3G3 
 
 of tlie cases to he found in tlie books have carried tlie subject 
 of compensation farther than at the present time it would be 
 carried.^ 
 
 "When upon the sale of land, represented to consist of a 
 certain specified number of acres, there proves to be a deficiency 
 in quantity, such deficiency is properly the subject for compen- 
 sation, if the deficiency be not too great. If the difi'erence be 
 great, there is no case for compensation. The party prejudiced 
 by the error may, if he pleases, avoid the contract ; but he 
 cannot have specific performance unless he is willing to perform 
 the contract without compensation.^ 
 
 Conditions of sale providing for compensation in cases of 
 error or mistake apply only to accidental slips, and not to cases 
 where the subject-matter of the contract is materially difierent 
 in substance from what it was represented to be.^ 
 
 A false representation as to the value of property may be 
 enough to induce the court to withhold specific performance.* 
 
 Mere inadequacy of consideration is not a ground for resist- 
 ing specific performance;^* but if the inadequacy is very 
 great, specific performance will not be decreed.® 
 
 ' Howland V. Norris, 1 Cox, 61; Dyer Hallett, L. R. 2 Ch. App. 29. Comp. 
 
 V. Hai'grave, 10 Ves. 50*7; Knatchbull Leslie i). Tompson, 9 Ha. 268; Painter 
 
 V. Grueber, 1 Madd. 15:3; Magennis v. v. Newby, 11 Ha. 30. 
 
 Fallon, 2 Moll. 588; Collier v. Jenldns, * Buxton v. Lister, 3 Atk. 386; Shir- 
 
 You. 298; Madeley v. Booth, 2 Deg. «fe ley v. Stratton, 1 Bro. C. C. 440; Wall 
 
 S. 722. V. Stubbs, 1 Madd. 81. 
 
 " Earl of Durham v. Legard, 34 Beav. ' ^ Abbott v. Sworder, 4 Deg. & S. 456 ; 
 
 612. See Price v. North, 2 Y. & C. 620. Bower v. Cooper, 2 Ha. 408; Borell v. 
 
 * Stewart v. AUiston, 1 Mer. 26; Dann, i6. 440, ^er Wigram, V. C. ; Hay- 
 
 Shackleton v. Sutcliffe, 1 Deg. & S. 620 ; wood v. Cope, 25 Beav. 140. 
 
 Miuk'ley V. Bootli, 2 Deg. & S. 722 ; " Falcke v. Gray, 4 Drew. 659. 
 Aylcs V. Cox, 16 Beav. 23; Dimmockv. 
 
 I 
 
 * "Wlien the parties stand upon equal grounds with equal means of in- 
 formation and not in any confidential relation and without any artifice 
 practiced, inadequacy is no ground for refusing specific performance. Sey- 
 mour r. Delaney, 3 Cow. 445; s. c. 6 Johns. Ch. 223 ; Harrison v. Tenn, 17 
 Mo. 237; Shepperd v. Bevis, 9 Gill. 32; Whiteford v. McLeod, 2 Bay, 380; 
 Knobb V. Lindsay. 5 Ohio, 572. 
 
 If to any unfairness great inequality between price and value be added,
 
 364 EEMEDIES. 
 
 It is no defence to a bill for specific performance by the 
 vendor tbat during the treaty he falsely assumed the character 
 of agent for another, when in fact he was dealing on his own 
 behalf, and that he thereby deceived the purchaser as to the 
 j)arty with whom he was dealing, provided the purchaser does 
 not show that the deception induced him to enter into the con- 
 tract, or occasioned any loss or inconvenience to him other- 
 wise.* 
 
 Though a written agreement, if there be no fraud or mis- 
 take, binds according to its terms, although verbally a provision 
 was agreed on which has not been inserted in the document, 
 either of the parties, if sued in equity for a specific perform- 
 ance of the agreement, is entitled to ask the court to remain 
 neutral, unless the party suing him will consent to the per- 
 formance of the omitted term.^ As, for instance, when the 
 vendor refused to perform his agent's engagement that im- 
 provements should be executed on the adjoining property ; ^ or 
 when the lessor of a house verbally promised the lessee before 
 he executed the lease to put the house into complete repair.* 
 But if the vendor offer to perform the agreement with, if the 
 defendant so desire, the parol variation or addition, this is suf- 
 
 'Fellowes v. Lord GwydjT, 1 R. & v. Winchester, 1 V. <fc B. 378; Martin?;. 
 
 M. 83. See Nelthorpe v. Holgate, 1 Pycroft, 2 D. M. & G. 795. 
 
 Coll. 203. ' Myers v. Watson, 1 Sim. K S. 523, 
 
 » Clarke v. Grant, 14 Ves. 524 ; Winch 529. 
 
 • * Chappell V. Gregory, 34 Beav. 250. 
 
 the contract will not be enforced. Cathcart v. Eobinson, 5 Pet. 264 ; 
 Burtch V. Hogge, 1 Ilarring. Cli. 31 ; Gargu v. Small, 2 Strobh. Eq. 72 ; 
 Young V. Frost, 5 Gill. 287 ; Trigg v. Read, 5 Humph. 529. 
 
 Fluctuations in the value of property caused by events subsequent to 
 the making of the contract, are no grounds for refusing specific perfonn- 
 ance if it was fair at the time it was made. Low v. Treadwdl, 3 Fairf. 
 441. 
 
 The subsequent discovery of a mine is not, in the absence of fraud, a 
 good ground for refusing specific performance. Bean v. Valle, 2 Mo. 126.
 
 PLEADINa. 365 
 
 ficient, and tlie defendant cannot set up the want of a perfect 
 written contract.^ S|)ecific performance will not, however, be 
 decreed with the parol agreement superinduced upon it, unless 
 the party praying for the specific performance has conducted 
 himself with perfect good faith.^ 
 
 As, on the one hand, a court of equity will not, at the suit 
 of a vendor of property, enforce specific performance of a con- 
 tract for the sale thereof, if the property is difierent in some 
 material particulars from what it was represented to be, unless 
 upon the terms of his allowing compensation, so, on the other 
 hand, specific performance of a contract for the sale of prop- 
 erty which has been inaccurately described through iunocent 
 mistake, will not be enforced at the suit of the purchaser, un- 
 less upon the terms of his submitting to allow compensation 
 to the vendor.* 
 
 SECTION VIII.— PLEADING— PARTIES— PROOF. 
 
 PLEADING. 
 In suits instituted for the purpose of impeaching transac- 
 tions on the ground of fraud, it is essential that the nature of 
 the case should be distinctly and accurfitely stated. A mere 
 general charge of fraud, without alleging specific facts, is not 
 sufficient to sustain the bill. It must be shown in what the 
 fraud consists, and how it has been eff'ected. The fraud alleged 
 must be set forth specifically in particular and in detail, so that 
 the person against whom it is charged may have the opportu- 
 nity of knowing what he has to meet and of shaping his de- 
 
 » Martin v. Pycrott, 2 D. M. & G. 785. ^ Leslie v. Tompson, 9 Ila 268 ; 
 
 » Walters V. Morgan, a D. F. & J. Paiuter v. New by, 11 Ha. 30. 
 125.
 
 366 PLEADING. 
 
 fence accordingly.^ * Fraud is a conclusion of law ; and it is 
 whollv immaterial and insufficient to allege tliat an instrument 
 lias been obtained by fraud, unless the things done constituting 
 the fraud are stated on the face of the bill.'^ If the transaction 
 sought to be impeached be between solicitor and client or prin- 
 cipal and agent, the bill should allege that the defendant was 
 the solicitor or agent at the time of the purchase, if such be 
 the ground on which his equity is based.^ If the case is not 
 60 stated in the j)leadings, evidence to prove it cannot be ad- 
 mitted.^ f In imputing fraud against a man, the term itself 
 need not be used : it is sufficient if the facts stated amount to 
 a case of fraud.^ 
 
 ' East India Co. v. Henchman, 1 Ves. Drew, 2 Macq. 120; Smith w. Kay, YH. 
 
 Jr. 287 ; Small v. Attwood, 6 CI. & Fin. L. 750 ; New Brunswick, &c., Railway 
 
 233 ; Wilde v. Gibson, 1 H. L. 607; Sib- Co. v. Conybeare, 9 H. L. 711. 
 
 son V. Edgeworth, 2 Deg. & Sm. 73 ; * Gilbert v. Lewis, 1 D. J. <& S. 38, 
 
 Munday V. Kni:;bt, 3 Ha. 497; Curzon 49, j»pj- Lord Westbury. 
 
 V. Belworthy, 11 Jur. 916 ; Chadwick v. * Williams v. Llewellyn, 2 Y. «fe J. 68. 
 
 Chadwick, 18 Jur. 691 ; Kelly v. Rogers, * Ih. See Montesquieu v. Sandys, 18 
 
 1 Jur. N. S. 514 ; Bothomley v. Squires, Ves. 301. 
 
 ib. 694; Bainbridge v. Moss, 3 Jur. N. ' Att.-Gen. v. Corporation of Poole, 4 
 
 S. 58 ; Ri.bson v. Lord Devon, 4 Jur. N. M. & C. 28; Marshall v. Slodden, 7 Ha. 
 
 S. 245 ; Irvine v. Kirkpatiick, 7 Bell, 444 ; Bromley v. iSmith, 26 Beav. 671. 
 Sc. Ap. 186; National Exchange Co. v. 
 
 * Harding v. Handy, 11 Wlieat. 103; Conway v. Ellison, 14 Ark. 360; 
 Pendleton v. Galloway, 9 Ohio, 178 ; Spence v. Buren, 3 Ala. 231 ; Bell v. 
 Henderson, 6 How. (Miss.) 311. 
 
 t Forey v. Clark, 3 Wend. 637 ; Fisher v. Boody, 1 Curt. 203 ; Thomp- 
 son?). Jack«)n, 3 Rand. 504; Booth v. Booth, 3 Litt. 57. 
 
 In order to constitute the ground for relief against a contract, fraud 
 must be distinctly averred, otherwise it will not be in issue. Gouvemeur 
 V. Elmendorf, 5 Johns. Ch. 79 ; Fitzpatrick v. Beatty, 1 Gilman, 454. 
 
 When the bill sets up a case of actual fraud, and makes that the ground 
 for relief, the plaintiff will not be entitled to a decree by establishing some 
 of the fads quite independent of fraud, but which might of themselves 
 create a case under a totally distinct head of equity from that which would 
 be applicable to the case of fraud originally stated. Eyre v. Potter, 15 
 How. 42. 
 
 A bill asking for a rescission of a contract need not aver that the 
 plaintiff can restore the prop'jrty. Veazie v. Williams, 8 How. 134. 
 
 An allegation of the facts and circumstances constituting fraud is suf-
 
 PLEADING. 367 
 
 A man who seeks equitable relief by injunction against 
 fraud is not bound as tlie price of such interference to bring 
 the whole matter into equity.^ * 
 
 If a bill charges notice, it is sufficient to do so generally, 
 without averring facts as evidence of the charge. It is not, 
 however, necessary to charge notice in a bill to which a plea 
 for valuable consideration without notice might be pleaded.^ 
 
 A decree or order of the court may be impeached for fraud 
 by original bill.' 
 
 There may be a prayer in the bill that certain transactions 
 may be declared fraudulent, and also an alternative prayer for 
 relief, upon the supposition of such transactions not being set 
 aside on the ground of fraud.* 
 
 It is not necessary that there should be an express prayer 
 in the bill that a transaction should be set aside for fraud. A 
 transaction will be set aside for fraud under the prayer for gen- 
 eral relief.^ 
 
 ' Stewai-t V. Great Western Railway * Bowen v. Evans, 2 H, L. 280. Sea 
 Co., 2 D. J. & S. 319. Bennett v. Vade, 9 Mod. 312; Cruik- 
 
 * Hughes V. Garner, 2 Y. & C. 328. shank v. M'Vicar, 8 Beav. 100. 
 
 - Biuoke V. Lord Mostyn, 2 D. J. & ° Williams v. Smith, 7 L. J. Ch. 129. 
 S. 373. 
 
 ficient without charging fraud by name. Kennedy v. Kennedy, 2 Ala. 571 ; 
 Skiine v. Simmons, 11 Geo. 401 ; Faraam v. Brooks, 9 Pick. 213. 
 
 A bill alleging fraud cannot be supported by proof of mistake, but the 
 facts may be so alleged that relief may be granted on the latter ground. 
 Stebbins ®, Eddy, 4 Mason, 414 ; Smith v. Babcock, 2 Wood & Min. 246; 
 White c. Denman, 1 Ohio St. R. 110; Williams v. Sturdevant, 27 Ala. 
 598. 
 
 When a party seeks to avoid the statute of limitations on the ground 
 of fraud, the bill must be specific in stating the facts which constitute the 
 fraud and the time when it was discovered. Moore v. Green, 19 How. 69; 
 Sterns «. Page, 7 How. 819; Beaubien v. Beaubien, 23 How. 190; Badger 
 «. Badger, 2 Wall. 87 ; Williams v. First Presbyterian Society', 1 Ohio St. 
 R. 478. 
 
 * A party who has bought land and been let into possession, and who 
 seeks to enjoin a suit for the purchase money on the ground of fraud 
 or failure of title, must pray for a rescission of the contract. Markham ». 
 Todd, 2 J. J. Marsh. 307 ; Williamson v. Raney, 1 Freeman, 113.
 
 368 PLEADING. 
 
 If a case of fraud is alleged in respect of the formation of 
 a company, it must be set up by bill, and not by proceedings 
 under a winding-up order.^ 
 
 A defendant is not justified in omitting to demur to a bill 
 on the ground that it contains charges of fraud against him.^ * 
 
 Assignees of a bankrupt cannot at the hearing insist on a 
 case of fraudulent preference, unless they have raised it in the 
 pleadings.^ 
 
 When the same person has been induced to part with his 
 property at an undervalue at two different times, through the 
 misrepresentations of two diiferent agents of the same princi- 
 pal, one bill may be brought to set aside botli transactions, al- 
 though in themselves wholly distinct, and the same will not be 
 demurrable for multifariousness/ 
 
 If a case of fraud be presented, a bill is not demurrable 
 
 > Leifchild's Tase, L. R. 1 Eq. 231. ' Holderness v. Rankin, 2 D. F. <fe J. 
 
 » Nesbitt V. Berridge, 11 W . R. 446 ; 258. 
 
 1 N. R. 345. Comp. Botliomley v. * Walsham v. Stainton, 1 D. J. <fe S. 
 
 Squires, 1 Jur. N. S. 694, 6Y8. 
 
 * An allegation of fraud in a bill must be answered, and a general de- 
 murrer cannot be allowed. The allegtitiou of fraud must be denied by 
 answer, whatever defence may be adopted as to other parts of the 
 bill. Stovals ®. Northern Bank of Mississippi, 5 Smed. & Mar. 17; 
 Ross V. Vestncr, 1 Freeman's Ch. 5b7 ; Niles v. Anderson, 5 How. (Miss.) 
 
 365. 
 
 K the defendant pleads to a bill containing an allegation of fraud, he 
 must still deny the fraud by answer as well as by averment in the plea. 
 Niles V. Anderson, 5 How. (Miss.) 3C5 ; Crawley v. Timberluke, 1 Ired. 
 
 346. 
 
 A plea at law setting forth the facts without averring fraud, is insuffi- 
 cient. Clark V. Partridge, 2 Burr. 13. 
 
 A plea at law containing a general allegation of fraud, without setting 
 forth the facts, is insuflicient. Giles v. Williams, 3 Ala. 31G ; Clay v. Dennis, 
 3 Ala. 375 ; Hynson v. Dunn, 5 Pike, 395 ; Pemberton v. Staples, 6 Mo. 59; 
 contra, Hoitt «. Holcomb, 23 N. H. 535. 
 
 When the facts set forth in a plea at law do not constitute fraud, the 
 intention to defraud must be averred. Fraud consists in the intention. 
 Moss V. Riddle, 5 Cranch, 351.
 
 PLEADING. 369 
 
 merely as being brouglit for tlie recovery of money .^ lu Colt 
 V. "Woollaston ^ it was held that persons, wlio bad been induced 
 by misrepresentation on the part of the promoters of a public 
 company to subscribe for shares, may obtain their money back 
 by a bill in equity, although an action at law might have been 
 brought for the same jDurpose with success. This doctrine has 
 ever since been recognized as coi'rect, and it has been fre- 
 quently acted on.^ So also a bill averring a combination of 
 several defendants, against some of whom the plaintiff may 
 have a direct remedy at law, while against others he may have 
 no remedy at law, or no remedy except by as many actions of 
 deceit as there are parties defendants to the suit, is mamtain- 
 able ; * though a bill of the same sort against a single individ- 
 ual would be demurrable,' except, perhaps, in cases where the 
 amount of damage was ascertained, or capable of being easily 
 ascertained.' 
 
 The defence of purchase for value without notice cannot be 
 admitted, unless it is pleaded.' * 
 
 "When a party relies upon the plea, he must, in his plea, 
 aver expressly that the person who conveyed was seised, or 
 pretended to be seised, when he executed the conveyance, and 
 that he was in possession, if the conveyance purported an im- 
 mediate transfer of the possession at the time when he executed 
 the deed.* It must aver the consideration,^ and actual pay- 
 ment of it. A consideration secured to be paid is not suffi- 
 
 ' Ingram v. Thorpe, 7 Ha. 67 ; Barry ' Darry v. Crosskey, 2 J. <fe H. 30. 
 
 V. Crosskey, 15. & H. 1. ' Ih. 
 
 "^ 2 P. Wms. 154. » liii;Tnm v. Tliorpe, Y ITa. 07. 
 
 ' Greon v. Barrett, 1 Sim. 45; Blair ' Lyne v. Lyne, 27 L. T. 208; Phil- 
 V. Ai^ar, 2 Sim. 289; Stainbank )'. ij^ps y. Philipps, 31 L. J. Ch. 321. 
 Fcriiley, 9 Sim. 550 ; Cridland v. De " Jackson v. Rowe, 4 Ru.-s. 514, Mitf. 
 Mauley, 1 Deg. & Sm. 459; Beeching Plead. 320. See as to case where pur- 
 V. Llo^'d, 3 Drew. 227 ; Henderson v. chase is of a reversion, IIu 'hes v, 
 Lacon, L. R. 5 Eq. 202; but sec Garth, Ambl. 421. 
 Thompson v. Barclay, 9 L. J. Ch. 219, " Millard's Case, 2 Freem. 43; War- 
 per Lord Brougham. staff v. Read, 2 Ch. Ca. 156. 
 
 * Snelgrove v. Snelgrove, 4 Dessau, 274 ; High v. Batte, 10 Yerg. 335.
 
 370 PLEADING. 
 
 cient.* Tlie plea must also deny notice of the plaintiff's title 
 or claim previous to tlie execution of the deeds and payment 
 of tlie consideration,^ * and the notice so denied must be notice 
 of the existence of the plaintiff's title, and not merely notice of 
 the existence of a person who could claim under that title.^ 
 
 ^Notice must be denied whether it be charged in the bill or 
 not.*f ISTotice must be denied by way of averment in the plea, 
 otherwise the fact of notice will not be in issue/ But it is 
 sufficient to deny notice generally ; for it is not the office of a 
 plea to deny particular facts, unless they are specially charged 
 as evidence of notice. If, however, particular facts are speci- 
 ally charged as evidence of notice, the plea must be accom- 
 panied by an answer denying the facts as specially and parti- 
 cularl}^ as they are charged in the bill, so that the plaintiff may 
 be at liberty to except to its sufficiency.^ 
 
 *Hardingham v. Nicholls, 3 Atk. borough, 2 P. "Wms. 491; Hughes v. 
 
 304; Molonv v. Kernan, 2 Dr. & War. Garner, 2 Y. <fe C. 328. 
 
 31, Mitf. Plead. 320. ^ Harris v. Ingledew, 3 P. Wms. 94, 
 
 = Moore v. Mayhow, 1 Ch. Ca. 34; Mitf. Plead, o 21. 
 
 Tourville I'. Naisli, 3 P. Wms. 307, Mitf. "Pennington v. Beechey, 2 Sim. <fe 
 
 Plead. 320. St. 282; Ovey v. Leighton, ib. 234; 
 
 ^Kelsall V. Bennett, 1 Atk. 522, Hardman v. Ellames, 5 Sim. 650 ; 2 M. 
 
 Mitf. Plead. 321. &. K. 732 ; Kennedy v. Green, 6 Sim. 1 ; 
 
 * Aston V. Curzon, 3 P. Wms. 244 Lord Portarlington v. Soulby, 7 Sim, 
 
 (n.) f. ; Brace v. Duchess of Marl- 23; Gordon «;. Shaw, 14 Sim. 393. 
 
 * Boone v. Chiles, 10 Pet. 177 ; Galatian v. Erwin, 1 Hopk. 48 ; Brinker- 
 hoflf t. Lansing, 4 Johns, Ch. 65 ; Harris v. Fly, 7 Paige, 421 ; Nantz y. Mc- 
 Pherson, 7 Men. 597 ; Jenkins «. Bodley, 1 Snied. & Mar. Ch. 338. 
 
 t Manhattan Co. v. Evertson, 6 Paige, 457 ; WoodruflF v. Cook, 2 Edw. 
 Ch. 259; Frost v. Beekman, 1 Johns. Ch. 288 ; Leftwich^. Omc, 1 Freeman 
 Ch. 207 ; Wilson r. Hillyer, Saxton, 63 ; Moore v. Clay, 7 Ala. 742 ; Heri-ing 
 «. Winans, 1 Smed. & Mar. Ch. 466 ; Baynard v. Norris, 5 Gill. 468. 
 
 The defence may be raised by answer as well as by plea. Donnell v. 
 King, 7 Leigh, 393 ; Baynard v. Norris, 5 Gill. 468. 
 
 The fact of notice, and the knowledge of every circumstance from 
 ■which notice can be inferred must be denied. Murray «. Ballou, 1 Johns. 
 Ch. 566 ; Leftwich v. Ome, 1 Freem. Ch. 207 ; "Wilson t. Hillyer, Saxton, 
 63. 
 
 "Where a purchaser with notice relies ujpon the ignorance of a prior
 
 PARTIES. 371 
 
 If a purcliaser without notice neglects to protect himself by 
 plea, he may defend himself by answer,^ hut if he submits to 
 answer, he must answer fully, although he might by demurrer 
 or plea have protected himself.^ A defendant, who puts in 
 answer but does not set up the defence of purchase for value 
 without notice, cannot afterward insist on that defence.' 
 
 PARTIES. 
 
 The heir at law of a person seised in fee, may maintain a 
 suit to set aside a transaction into which his ancestor has been 
 induced; by fraud, to enter.* * He is not precluded from suing 
 to set aside the sale, by the circumstance of the party defrauded 
 having, by will, bequeathed to a third party the balance of the 
 purchase money remaining due at his death. ^ If, however, the 
 bill alleges that the purchase money is unpaid, the personal 
 representatives must be made parties, as being interested in 
 maintaining the validity of the contract.® 
 
 The executor of a party defrauded may file a bill to have a 
 transaction set aside.' So, also, may a devisee file a bill to set 
 aside a transaction which lias been fraudulently obtained from 
 his testator. The heir at law is not a necessary party .^ 
 
 » Att.-Gen. t>. Wilkins, 17 Beav. 285, v. Malpas, 31 Beav. 88, 31 L. J. Ch. 
 291. 696 ; Longmate v. Ledger, 2 Giff. 157. 
 
 * Lancaster v. Evors, 1 Ph. 352. " Bellamy v. Sabine, 2 Ph. 425. 
 
 « Philipps V. Philipps, 31 L. J. Ch. * Wilkinson v. Fowkes, 9 Ua. 193. 
 
 321. ' Walsliam v. Staiuton, 1 D. J. <fe S. 
 
 * Bellamy v. Sabine, 2 Ph. 425 ; Hoi- 678. 
 
 man v. Loynes, 4 D. M. & G. 270 ; " Uppington v. Bullen, 2 Dr. & War. 
 
 Gresley v. Mousley, 4 D. <fe J. 78 ; Clark 184 ; llarrison v. Guest, 6 D. M. & G. 
 
 424. 
 
 purchaser, fhrongh whom the title has passed, he must aver want of 
 notice in his grantor, and such denial may be made on information and lie- 
 lief. Griffith r. Griffith, 9 Paige, 315; Gallatian v. Cunningham, 8 Cow. 
 3G1 ; Woodriiflf r. Cook, 2Edw. Ch. 259 ; Galatian v. Erwin, 1 Ilopk. 48. 
 
 * A fraud is an individual and personal thing, and does not form a 
 claim on behalf of a stranger to the transaction not claiming under the 
 party defrauded. Comstock v. Ames, 3 Keycs, 357; Beesley v. Hamilton, 
 5 lib 88.
 
 372 PARTIES. 
 
 So, also, may a remainder man, under a settlement, file a 
 bill to set aside a transaction, into wliicli Ms predecessor in 
 title, under the settlement, lias been induced by fraud to 
 enter .^ If fraud lias been practiced on a tenant in tail, andbas 
 been carried into eifect by barring the entail, and lie dies 
 without issue, and without confirming the transaction, the next 
 remainder man may file a bill to set it aside ; but not, if there 
 were an independent intention to bar the entail, and the fraud 
 applied only to some part of the transaction, distinct from that 
 
 object.* 
 
 If several persons have been induced, by false and fraudu- 
 lent representations, to take shares in, or subscribe to, an 
 undertaking, each one may institute a suit on his own behalf 
 for a rescission of the contract, or for a return of the moneys 
 which he has advanced. It is not necessary that the other 
 persons defrauded should be parties to the suit, or be repre- 
 sented therein.^ In Macbride v. Lindsay,* where a biU was 
 filed by a man, who alleged that he had been induced by the 
 fraudulent representations of the directors of a company to be- 
 come a member of the company, praying, amongst other things, 
 a return of the money, a demurrer was allowed on the ground 
 that the fraud of which the plaintiff complained gave him no 
 rio-ht to rescind his contract, except a right common to himself, 
 and others who were not represented in the suit. So, also, it 
 was considered in Beeching v. Lloyd,^ that the subscribers to 
 a company have such a community of interest in the funds 
 subscribed, as to entitle them to sue jointly for their return.* 
 But these cases cannot be reconciled with some very recent 
 
 'Ward ).'. Hartpole, 3 Blig-li, 490; Kisch, L, R. 2 App. Ca. 112; Smith's 
 
 BrTcl"-i'S V Braiifil, 12 Sim. 369. Case, lie lieese Silver Mining Co., L. 
 
 'i Bell.iniv V. Sabine, 2 Pli. 425. See R. 2 Ch. App. 604. 
 
 Tarlet-.n v." Lidddl, 17 Q B. 390. * 9 Ha. 574. 
 
 » Coll V. Woollaston, 2 P. Wm^. 154; '3 Drew. 242. 
 
 Green v. I'airett, 1 Sim. 45 ; Cridland * See Williams v. Smith, 7 L. J. Ch. 
 
 V. De Mauley, 1 Deg. & Sm. 459; Cen- 129. 
 tral Railway Company of Venezuela v
 
 PARTIES. 373 
 
 cases, in wliich it has been held that a man, who has been in- 
 duced by false representations in the prospectus of a company 
 to take shares in the company, may maintain a suit on his own 
 behalf against the company and its directors, for a rescission 
 of his contract to take shares.'^ The law, therefore, upon this 
 subject, must be considered as still open to discussion, but the 
 better opinion would seem to be, that each person, who has 
 been defrauded, has a distinct and separate ground of relief, 
 and that, therefore, a suit by one of them on behalf of himself 
 and the others, is irregular, and cannot be maintained.^ 
 
 A suit may, however, be properly instituted by one or 
 some of a number of partners, on behalf of himself, or them- 
 selves, and all othei's whose interest is identical with his or 
 their own, when the object of the suit is to make an officer of 
 the company account for a secret benefit or advantage ob- 
 tained by him, in breach of the good faith owing to those 
 whose affairs he conducts ; ^ or to rescind a contract into which 
 the partnership has been induced to enter, by Mse and fraud- 
 ulent representations.* 
 
 The right to bring an action of deceit at law, or to have 
 relief in equity, on the ground of misrepresentation, is not 
 confined to the person to whom the false representation has 
 been made, but extends to third persons, provided it appear 
 that the representation was made with the intent that it 
 should be acted on by such third persons, or by the class of 
 persons to whom they may be supposed to belong, in the 
 manner that occasions the loss or injury.' 
 
 ' Central Railway Co. of Venezuela Lund v. Blanshard, 4 Ha. 9 ; Beck v. 
 
 V. Kisch, L. R. 2 App. Ca. 112; Smith's Kantorowicz, 3 K. <fe J. 230; Attwood 
 
 Case, Re Reese River Silver Mining v. Merry weather, 37 L. J. Ch. 35. 
 
 Co. L. R. 2 Ch. App. 004. ^ See' Small v. Attwood, You. 407. 
 
 "Jones V. Garcia del Rio, T. <fe K. * Clifford v. Brooke, 13 Ves. 132 
 
 297; Crosskey v. Bank of Wales, 4 Langridge v. Levy, 2 M. & W. 519 
 
 Giflf. 314. Longmeid v. Holliday, 6 Exch. 761 
 
 * Hichens v. Congreve, 4 Russ. 562; Bedford v. Bagsliaw, 4 H. <fe N. 538 
 
 Taylor v. Salmon, 4 M. <fe C. 134; Ben- Blakemore v. Bristol and Exeter Rail' 
 
 son V. Heathorn, 1 Y, «fe C. C. C. 326; way Co. 8 E. «fe B. 1035; National Ex-
 
 374 PAETIES. 
 
 A party, partially interested in an estate, may maintain a 
 suit to set aside a conveyance of such interest fraudulently ob- 
 tained from him, without making the otiier parties interested 
 in the estate parties.'^ 
 
 It is a general rule that a court of justice will not interpose 
 actively in favor of a man who is particej)s criminis in an 
 illegal or fraudulent transaction.^* The court will take the 
 objection as to the illegality of the transaction, even although 
 the defendant himself does not.^ Where both parties are 
 equally offenders against the law, the maxim potior est con- 
 ditio jposside7itis, prevails, not because the defendant is more 
 favored, where both are equally criminal, but because the 
 plaintiff is not permitted to approach the altar of justice with 
 unclean hands.* f If, accordingly, a deed has been executed, 
 or a conveyance made, to enable a party to contravene the 
 provisions of an act of Parliament, no suit in equity will lie to 
 set aside the deed or recover the estate. The party executing 
 
 change Co. v. Drew, 2 Macq. 103; man v. Ramsey, San. <fe Sc. 459 ; Hamil- 
 Scott V. Dixon, 29 L. J. Excli. 63 n.; ton v. Ball, 2 Ir. Eq. 191, 194; M'Kin- 
 Bagshaw v. S^eymour, 18 C. B. 903; nell v. Robinson, 3 M. A W. 439; Bar- 
 Davidson V. TuUoch, 3 Macq. 783 ; nard v. Sutton, '7 Jur. 685, per Lord 
 Barry v. Crosskey, 2 J. & H. 1. Lyndluirst. 
 
 ' Henley v. Stone, 3 Beav. 355. '^ Hamilton v. Ball, 2lr. Eq. 191, 194. 
 
 ^ Cecil V. Butcher, 2 J. <fe W. 572 ; * Nellis v. Clark, 4 Hill. (Amer.), 426. 
 Doe V. Roberts, 2 B. «fe Aid. 369 ; Bate- 
 
 * Creath ®. Sims, 5 How. 193 ; Nellis t\ Clarke, 20 Wend. 24 ; Boyd v. 
 Barclay, 1 Ala. 34 ; Warburton v. Aikeu, 1 M'Leao, 460 ; Wheeler v. Sage, 
 1 Wall. 518; Wyatt v. Ayers, 2 Port. 157; Randall ®. Howard, 2 Blackf. 
 585; Haunay v. Eve, 3 Crancli. 242; Bartle «. Natt, 4 Pet. 184; Sims «. 
 Steele, 5 Munf. 29 ; Steele v. Worthington, 2 Ohio, 182. 
 
 Although the parties have been engaged in business, either malum in 
 ae, or merely prohibited by law, yet if the cause of action is unconnected 
 with the illegal act, and is founded upon a distinct and collateral consid- 
 eration, it will not be affected by their former conduct. Phalen v. Clark, 
 19 Ct. 421. 
 
 t Bolt V. Rogers, 3 Paige, 154; Furris v. Dunham, 5 Mon. 397: Lucas v. 
 Mitchell, 2 A. K. Marsh. 244 ; M'Clure v. Puicell, 3 A. K. Marsli. 61 ; Cun- 
 ningham V. Shields, 4 Hey. 44.
 
 PARTIES. 375 
 
 it cannot be heard to allege his own fraudulent purpose. He 
 is estopped from confining the operation of his deed within 
 the limits of his intended fraud.'^ In a case where a man, in 
 order to give his brother a colorable qualification to kill game, 
 conveyed some land to him, it was held that his widow could 
 not avoid the conveyance in an action of ejectment against her 
 by the brother.^ So, also, if a man, with a view of defeating 
 his creditors, makes a conveyance of his real and personal 
 estate to another, no suit is, in general, maintainable by him 
 against that other for the recovery of the property.^ * 
 
 A distinction has been taken between cases where a deed 
 executed, or a conveyance made, for an illegal purpose, has 
 performed its office, and been accompanied by the completion 
 of the purpose, and cases where the deed or conveyance has 
 not been used for the purpose for which it was executed. In 
 
 ' Curtis V, Perry, 6 Ves. 141; Brack- "Doe v. Roberts, 2 B. & Aid. 369. 
 
 enbury v. Brackeiibury, 2 J. cfe W. 391; See Philpotts v. riiillpotts, 10 C. B. 85. 
 
 Cecil V. Butcher, ib. 572; Groves v. ^ Ncllis c. Clark, 4 Hill (Amer.)426; 
 
 Grooves, 3 Y. <fe J. 163; Comp. Childers Ford v. Harrington, 2 iSmitli (Aiuer.), 
 
 ?;. Childers, 1 D. <fc J. 482; Davies i;. 285; Comp. Barnard v. Sutton, 7 Jur. 
 
 Otty, 35 Beav. 208. 686. 
 
 * Fitzgerald v. Forristal, 48 111. 328 ; White v. Wbite, 5 J. J. Marsh. 
 444 ; Bryaut v. Mansfield, 22 Me. 3G0 ; Dorsy v. Sinithson, 6 H. & J. Gl ; 
 Osborne v. Moss, 7 Johns. 161 ; Coltrains v. Causey, 3 Ired. 248 ; btickney 
 «. Bosnian, 2 Barr, 67 ; James v. Bird, 8 Leigh. 510; "Warren v. Hall, 6 
 Dana, 450 ; Buchler v. Gloninger, 3 Watts, 226. 
 
 A suit may be maintained upon notes given as consideration for a 
 fraudulent conveyance. Stanton v. Green, 34 Miss. 576. 
 
 Ejectment may be maintained by the fraudulent grantee. Stark v. 
 Littlei^uge, 4 Rand. 368. 
 
 A note secured by a fraudulent mortgage cannot be enforced against 
 the maker. Walker v. McConnico, 10 Ycrg. 338. 
 
 No suit in equity is maintainable by the grantee against the grantor. 
 Mason v. Baker, 1 A. K. Marsh, 208. 
 
 Equity will not lend its aid to enforce a mortgage given for a fictitious 
 debt, in order to defraud creditors. Jones v. Comer, 5 Leigh. 350, 
 
 Although the mortgage is void, the original debt may be recovered. 
 Haven v. Low, 3 N. H. 13.
 
 376 PARTIES. 
 
 Platamone v. Staple,* the Yice-Chancellor appears to liave con- 
 sidered, that the circumstance of the purpose for which the 
 deed was made not having been accomplished, made a material 
 distinction.^ But the distinction does not seem sound. If a 
 grantor, so far as he can, completes the transaction for an 
 illegal purpose, and leaves it in the power of the grantee to 
 make at his pleasure the illegal use of the instrument origi- 
 nally intended, he merits the consequences attached to the 
 illegality of his act.^ It is difficult to see upon what principle 
 it can be contended that a man, who intends to commit a 
 fraud, shall not have relief if he succeed in his attempt, but 
 shall be relieved if he fails or hesitates to proceed, because he 
 fears a failure. His intention is as fraudulent in the one case 
 as in the other.* 
 
 A distinction has also been taken between cases where the 
 conveyance has been made with the privity of, or the deed has 
 been delivered to, the grantee, and cases where the convey- 
 ance has not been communicated to the grantee, nor the deed 
 parted with by the grantor.^ But there is a preponderance of 
 authority in support of the proposition that, although a volun- 
 tary deed is made without the knowledge of the grantee, and 
 has been kept in the hands of the grantor, a court of equity 
 will not relieve against it.^ In Brackenbury v. Brackenbury,' 
 the grantor had never parted with the possession of the deed, 
 nor had it been used for the fraudulent purpc^e with a view to 
 which it was executed. After the death of the grantor, the 
 grantee obtained possession by deceit, and under a promise to 
 return it immediately, yet the court refused to relieve. Inas- 
 
 * Coop. 251. * Bateman v. Ramsay, San. & Sc. 
 " See Barnard v. Sutton, 1 Jur. 685. 478. 
 
 • Cecil V. Butcher, 2 J. & W. 578 ; " Ward v. Lant, Free. Ch. 182; Birch 
 Doe «. Roberts, 2 B. <fc Aid. 369 ; Rob- v. Blagrave, Arab. 264; Groves v 
 erta v. Roberts, Dan. 143; Groves v. Groves, 3 Y. & J. 163. 
 
 Groves, 3 Y. & J. 163. See Bracken- " CecU v. Butcher, 2 J. & W. 578. 
 
 bury V. Brackenbury, 2 J. <fe W. 391. ' lb. 391.
 
 PAETIES. 377 
 
 much as it is -vrell established law that a man who executes a 
 voluntary settlement passes the estate out of himself, though 
 he retains the deed in his own possession,* it is impossible 
 to contend that the distinction attempted to be made is a 
 sound one. 
 
 The rule that a court of justice will not actively interpose 
 m favor of a man who is particcps crimhiis in an illegal or 
 fraudulent transaction, like most other general rules, admits of 
 exceptions. An exception to the rule takes place where the 
 party seeking relief, although particeps criminis, is not in 
 pari delicto with his associate in the matter. There may be, 
 and often ,are, very different degrees of guilt of parties who 
 concur in an illegal act. One party may act under circum- 
 stances of oppression, imposition, undue influence, of great 
 inequality of age or condition, so that his guilt may be far less 
 in degree than that of the other party .^ * 
 
 Other cases which form an exception to the general rule 
 are cases where the act or deed in which the parties concur is 
 against the principles of morality or public policy. In such 
 cases there may be on the part of the court itself a necessity 
 of supporting the public interest or policy, however reprehen- 
 
 ' Roberts v. Williams, 4 lis. 130. borne v. Williams, 18 Ves. SYO; Palmer 
 
 " Siiiitli V. Bromley, 2 Doiio-. 696 n. ; v. Wheeler, 2 Ba. <fe Be. 31 ; Reynell «;, 
 
 Bosanqiiet v. Dashwood, Ca. t. Talb. 41 ; ISprye, 1 D. M. <fe G. (,18, 679. 
 
 Browning v. Morris, Cowp. 'ZOO; Os- 
 
 *Freelove «, Cole, 41 Barb. 318; Prewitt v. Copwood, 30 Miss. 369; 
 Austin ^'. Winston, 1 Hen. & M. 33; Dismukes v. Terry, Walk. 197; 
 Dertley v. Murphy, 3 A. K. Marsh, 472 ; Long v. Long, 9 Md. 348. 
 
 The rule does not apply to a case where the defendant fii'st conceived 
 the fraud for his own benefit, and, either by his artifice or influence, 
 induced the complainant to concur. Cook v. Collyer, 3 B. Mon. 71. 
 
 If a person is capax doK, or rather, cnpax fraudis, the rule applies, 
 although the other party is greatly superior in intellect and of more 
 prudent habits, for, as there is no rule by which a court of equity can 
 measure the grades of intellect of different men possessed of legal capacity, 
 it must hold them to be of equal capacity. Smith v. Elliot, 1 Pat. & 
 Heath. 807. 
 
 25
 
 378 PARTIES. 
 
 sible the conduct of the parties themselves may be.^ * Al- 
 though, for instance, a court of equity will not relieve a man 
 who assigns property to another with the view of defeating 
 his creditors, the case is diiFerent if the person who assigns 
 the property is a client, and the person to whom it has been 
 assigned is his attorney. The rule of public policy which 
 prohibits an attorney from obtaining any advantage in trans- 
 actions must prevail, and the attorney must reconvey the 
 property.^ So, also, the purchase of a bankrupt's estate 
 secretly, by a person for the benefit of the solicitor to the 
 assignees was set aside at the suit of the bankrupt, after his 
 bankruptcy had been annulled, though there was evidence to 
 show that the bankrupt had been privy to the transaction.' 
 
 "When a party to an illegal or immoral contract comes him- 
 self to be relieved from that contract, or its obligations, he 
 must distinctly and conclusively state such grounds of relief 
 as the court rcan legally attend to. He should not accompany 
 his claims to relief, which may be legitimate, with claims and 
 complaints, which are contaminated with the original immoral 
 purpose.* A distinction will be taken between cases where a 
 party has actually accomplished the bad purpose to which a 
 deed was auxiliary, and cases in which he had not participated 
 in the bad purpose which it was the very object of the deed 
 to procure.^ In Sismey v. Eley,^ where a plaintiff sought to 
 be relieved from a deed by which he had agreed to pay an 
 annuity to a woman, on the ground that the consideration for 
 it was a promise made to him to live with him as his mistress, 
 
 » Law V. La-w, Ca. t, Talb. 140; St. " Batty v. Chester, 5 Beav. 103. 
 
 John V. St. John, 11 Ves. o'So. ' Smyth v. Griffin, 13 Sim. 254; Ben. 
 
 ' Ford V. Harriugton, 2 Smith (Amer.) yon v. Kettlefold, 17 Sim. 56. 
 
 285. 
 
 " Adams v. Sworder, 2 D. J. <fe S. 44. 
 
 lb. I. 
 
 * Ford V. Harrington, 16 N. Y. 285 ; Giimes v. Hoyt, 2 Jones' Eq. 271; 
 Johnson v. Cooper, 2 Yerg. 524.
 
 PARTIES. 370 
 
 a dtmurrer to the bill was overruled, as it did not appear that 
 the plaintiff had availed himself of the promise. 
 
 A distinction is taken in equity between enforcing illegal 
 contracts, and asserting title to moneys arising from an illegal 
 contract. If the transaction alleged to be illegal is completed 
 and closed, so that it will not be in any manner affected by what 
 the court is asked to do, the party to the transaction, who has 
 possessed himself of the moneys arising out of the transaction, 
 cannot be permitted to set up the illegality of the transaction 
 against the otherwise clear title of the other. One of two 
 partners, or joint adventurers, therefore, who has possessed 
 liimself of the property, common to both, cannot be permitted 
 to retain it, by merely showing that in realizing it some pro- 
 visions in an act of Parliament, or in the fiscal law of a foreign 
 Btate, may have been violated.^ So, also, and upon a similar 
 principle, if two trustees are equally guilty of a breach of 
 trust, but one has received the moneys, the other may main- 
 tain a bill against him to recover the amount.^ 
 
 In all cases of fraud, the hand of the court is not arrested 
 by the death of the wrongdoer ; but the same relief shall be 
 had against his executors, and satisfaction will be given out of 
 his estate after his death.^ The fact of the surviv^or of two 
 partners having been sued at law, will not free the estate of 
 the deceased partner from liability in equity, where alone that 
 estate can be reached.* The estate of a deceased partner of a 
 firm of solicitors is liable for a fraud committed by the surviv- 
 ing partner.' 
 
 A third party who has been privy to a fraud, may be made 
 
 • Sharp V. Taj-lor, 2 Ph. 801 ; M'Elair v. O'Brien, 2 Ea. & Re. 221 ; Ingralmra 
 
 V. Gibbes, 17 How. (Amer.) 2.32. 8ee v. Thorp, 7 Ila. 67; Eawlins v. U ick- 
 
 also Nash v. Ash, 1 Eden. 378; Mince ham, 3 D. <fe J. 304; Greeley v. Moua- 
 
 V. PeterH, liarg. MSS. No. 112, p. 86 ; ley, 4 D. & J. 78; Walsham v. Staiutoa, 
 
 Watts V. Brooks, 3 Ves. 612; Kuowles 1 D. J. <fc S. 690. 
 
 r. Hon2;hton, 11 Ves. 168. * Rawlins v. Wickhara, 3 D. cfe J. 
 
 " Baynard v. WooUey, 20 Beav. 583. 322. 
 
 ' Garth v. Cotton, 3 Atk. 757 ; Cur- ' Sawyer v. Goodwin, 30 L. J. Ch. 
 
 tis V. Curtis, 2 Bro. C. C. 620; Falkner 578.
 
 380 PARTIES. 
 
 a j)arty to the bill.^ If third parties Lave aided the directors 
 of a company in misapplying tlie funds of the company, a 
 bill seeking relief both against them and the directors is not 
 multifarious.^ So, also, a man who has been guilty of a fraud, 
 in concert with one of several trustees, may be joined in a 
 bill for relief against the trustees generally." If a man has 
 abetted a fraud, the absence of a personal benefit resulting 
 from it is no excuse ; he may be justly nfade responsible for 
 its results, and even if no other relief can be had against him, 
 he may be compelled to pay the costs of the suit.* Solicitors, 
 or attorneys, who have abetted their clients in a fraud, or have 
 prepared deeds to carry it out, may be made parties to a bill, 
 to set the fraudulent transaction aside, and are liable to pay 
 the costs, even though they may have derived no personal 
 benefit therefrom.' A solicitor, who is implicated in a case of 
 fraud, may be made a party to a bill seeking relief in respect 
 of that fraud, merely for the purposes of discovery, the only 
 relief asked being that he should be ordered to pay costs.' 
 The case of course is all the stronger, if the solicitor has 
 gained a personal benefit from a fraudulent transaction into 
 which he has induced his client to enter.' 
 
 A person filling a position of a fiduciary character, as an 
 agent, is liable for a breach of duty, though he may have 
 derived no benefit from it. Where two agents concur in a 
 fraud, and one of them only derives benefit from the fraud, 
 the other is also liable in equity for the benefit so derived.^ 
 Those who, having a duty to perform, represent to others, who 
 are interested in the performance of it, that it has been per- 
 
 ' Tnrqnand v. Knight, 14 Sim. 644 ; Berry v. Armitstead, 2 Keen, 227. See 
 
 Lnnd V. Blansliard, 4 Ha. 9; Charlton Cory v. Eyre, 1 D. J. & S. 167. 
 V. Coombs, 4 Giff. 385. 'Gilbert v. Lewis, 1 D. J. <fe S. 52. 
 
 " Luud V. Blansliard, 4 ITa. 9. ' Bennett v. Vade, 2 Atk. 327 ; Proc- 
 
 • Att.-Gcn. V. Cradock, 3 M. & C. 85. tor v. Robinson, 35 Beav. 335. See 
 
 • Seddon v. Connell, 10 Sim. 85. Brent v. Brent, 10 L. J. Ch. 84. 
 
 • Bowles V. Stewart, 1 Scli. & Lef. " Walsbam v. Stainton, 1 D. J. & S. 
 227; Beadles ». Burch, 10 Sim. 332; 678. 
 
 I
 
 PAKTIES. 381 
 
 formed, make themselves responsible for all tlie consequences 
 of the non-performance.^ 
 
 If a man has been induced hj the false representations or 
 fraud of a particular shareholder in a company to purchase 
 shares, the only necessary party to a bill filed for the return of 
 purchase-money and for an indemnity, is the person who sold 
 the shares.^ 
 
 It is not necessary that all the parties charged with fraud 
 should be made parties.^ 
 
 A man who has released the principal actor in a fraud, can- 
 not go on against the other parties who would have been liable 
 only in a secondary degree.* 
 
 In a suit to set aside a settlement of real and personal estate 
 for fraud, or undue influence on the part of the trustees, one 
 or more of the parties beneficially interested is or are necessary 
 parties.* 
 
 A partner, being liable for the fraud of his copartner, 
 when acting within the proper scope of the partnership busi- 
 ness,* a firm of bankers or solicitors is liable for fraud prac- 
 ticed upon a client by a member of the firm.* The client, or 
 principal, is entitled to relief against the other partners, not 
 only if the case is one in which he might have recovered 
 
 ' Blair v. Bromley, 2 Ph. 360. * Read v. Trest, 1 K. <fe J, 183. 
 
 ' Stainbank ?;. Fernley, 9 Sim. 656; ' Brydges v. Brantill, 12 Sim. 369; 
 
 Mare «. Malachy, 1 M. & C. 559; Tur- Sadler v. Lee, 6 Bear. 33ii; Blair v. 
 
 ner v. Hill, 11 Sim. 1. Bromley, 6 lla. 542, 2 Ph. 354; St. Au- 
 
 » Soddnn V. Conncll, 10 Sim. 79. byn v. Smart, L. R. 5 Eq. 183. 
 
 * Thompson v. Harrison, 2 Bro. C C. 
 164 ; I Cox, 346. 
 
 * Locke 1). Stevens, 1 Met. 560. 
 
 Two joint owners are proper parties to a suit for a misrepresentation by 
 one who was employed to sell the joint property. White v. Sawyer, 16 
 Gray, 586. 
 
 A joint action may be maintained acjainst two persons, if both made 
 false representations at the time of the sale, although one onlv was inter- 
 ested in tlie property. Stiles v. White, 1 Met. 356.
 
 382 PEOOF. 
 
 against such other partners, but also if the remedy at law 
 against the other partners is barred by lapse of time.^ Tlie 
 original liability of one partner for the fraud of a copartner 
 is continued as well after as before the dissolution of the 
 partnership.^ A fraud, however, committed by a partner 
 whilst acting on his own separate account, is not imputable to 
 the firm, although, had he not been connected with it, he might 
 not have been in a position to commit the fraud.* 
 
 The infancy of the defrauding party will not exempt him, 
 for though the law protect him from binding himself by con- 
 tract, it gives him no authority to cheat others.* 
 
 A suit which has been instituted for the purpose of setting 
 aside a transaction on the ground of fraud, will not fail merely 
 because the bill may have incorrectly and untruly alleged a 
 third person to have been a participator and joint actor in the 
 fraud, although such incorrect mode of stating the case may 
 affect the costs.' 
 
 PROOF. 
 
 A man who alleges fraud must clearly and distinctly 
 prove the fraud he alleges. The o?i%is probandi is upon him 
 to prove his case as it is alleged by the bill.^ If the fraud is 
 not strictly and clearly proved, as it is alleged, relief cannot 
 be had, although the party against whom relief is sought may 
 not have been perfectly clear in his dealings.' Fraud will not 
 be carried by way of relief one tittle beyond the manner in 
 
 ' Blair v. Bromley, 2 Ph. 354. * Burton v. Blakemore, 2 Jur. 1062 ; 
 
 " //,. Bellamy v. Sabine, 2 Ph. 425, 448; 
 
 * Fx-pnrte Evre, 1 Ph. 227 ; Coomer Blair v. Bromley, 5 Ha. 559 ; Curzon v. 
 V. Bromley, 5 Dea:. & Sm. 5S2; Bishop B hvorthy, 11 Jiir. 916; Jenninsjs v. 
 V Countess of Jersey, 2 Drew. 143. Broughton, 17 Bear. 239; Wilde*. 
 
 * Evroy v. Nicholas, 2 Eq. Ca. Ab. Gibson, 1 H. L. 605 ; Robson v. Earl of 
 488 ; I'ory v. Gertchen, 2 Madd. 40 ; Devon, 4 Jur. N. S. 248 ; Lomax v. Rip- 
 Overton v Bannister, 3 Ha. 503 ; Stike- ley, 24 L. J. Ch. 254 ; Smith v. Kay, 7 
 man v. Dawson. 1 Deg. & Sm. 90. H. L. 750. 
 
 * Reynell v. Sprye, 1 D. M. <fe G. 684. ' Mowatt v. Blake, 31 L. T. 387 
 
 I
 
 PROOF. 383 
 
 which it is proved to the satisfaction of the court.* If a case of 
 actual fraud is alleged bj the bill, relief cannot be had on the 
 bill by proving only a case of constructive fraud.^* 
 
 If the bill alleges a case of fraud, and the title to relief 
 rests upon that fraud only, the bill will be dismissed if the 
 fraud as alleged is not proved. It cannot be allowed to be 
 used for any secondary purpose. But if the case does not 
 entirely rest upon the proof of fraud, but rests also upon 
 other matters, which are sufficient to give the court jurisdic- 
 tion, and the case of fraud is not proved, but the other matters 
 are proved, relief will be given in respect of so much of the 
 bill as is proved.^ 
 
 The rules of evidence are the same in equity as at law.^ 
 "Whether certain facts as proved amount to a fraud, is a ques- 
 tion for the court as well at law as in equity.f The facts to 
 constitute a fraud must be proved at law by the jury.* In 
 equity they are found by the court ; but a court of equity is 
 not justified in finding such facts upon any less or different 
 
 >Lnffv. Lord, 11 Jur. K S. 50, 52, Espey v. Lake, 10 Ha. 260; Baker v. 
 
 per Lord Westhnry. Bradley, 7 D. M. & G. 597 ; Traill v. 
 
 ' I'arr v. Jewell, 1 K. <fe J. 671. Baring, 33 L. J. Ch. 521 ; Ilickson v. 
 
 ' GlascDtt V. Lanij, 2 Ph. 310; Wilde Lombard, L. R. 1 App. Ca. 324. 
 
 V. Gii)son, 1 ILL. 607; Archbold v. ■• Manning v. Lechmere, 1 Atk. 453 ; 
 
 Commis3i'iner3 of Charitable Beqviests, Man v. Ward, 2 Atk. 229; Glyn i;. Bank 
 
 2 H. L. 440; Price v. Berringt)n, 3 of England, 2 Ves. 41 
 
 Mac. & G. 4fsG; Parr v. Jewell, 1 K. <fe ^ Murray v. Mann, 2 Exch. 539. 
 J. 671; Billage v. Southee, 9 Ha. 535; 
 
 * Eyre v. Potter, 15 How. 43 ; Gibson v. Randolph, 2 Munf. 310 ; Gerdo 
 V. Hawkins, 3 Dev. Eq. 393; Bkisdell v. Cowell, 3 Shep. 370. 
 
 Allegations without proof, or proof without allegations, can never be 
 the foundation of a decree. Brock v. McNaughtrey, 5 Mon. 216. 
 
 An allegation of fraud is not sustained by proof of a mistake of law. 
 Gerde v. Hawkins, 3 Dev. Eq. 393. 
 
 Evidence of intoxication can not be introduced under a bill charging 
 misrepresentution. Hutchinson v. Brown, 1 Clarke, 408. 
 
 t Petlibone v. Stevens, 15 Ct. 19; Beers v. Botsford, 13 Ct. 146. 
 
 Fraud is not to be con.sidcred as a single fact, but a conclusion to be 
 drawn from all the circumstances of a case. Brogden v. Walker, 3 H. & J. 
 285.
 
 3S4 PROOF. 
 
 kind of proof tluan would be required to satisfy a jury. The 
 law in no case presumes fraud. The presumption is always in 
 favor of innocence, and not of guilt. In no doubtful matter 
 does the court lean to the conclusion of fraud. Fraud is not 
 to be assumed on doubtful evidence. The facts constituting^ 
 fraud must ba-clearly^nd_c onclusively established.^ "'^ .Oxcu^z 
 jtauces of mere sus picion wil l not warrant the conclu_sioQ__gf 
 frau^i^:-^ If the case made out is consistent with Jaitilealiag.^ 
 and honesty, a charge of fraud fails.' 
 
 It is not, however, necessary, in order to establish fraud, 
 that direct affirmative or positive proof of fraud be given." In 
 matters that regard the conduct of men, the certainty of 
 mathematical demonstration cannot be expected or required. 
 Like much of human knowledge on all subjects, fraud may 
 be inferred from facts that are established. Care must be 
 taken not to draw the conclusion hastily from premises that 
 will not warrant it ; but if the facts established aiford a suffi- 
 cient and reasonable ground for drawing the inference of fraud, 
 the conclusion to which the proof tends must, in the absence 
 
 ' Bowen v. Evans, 2 H. L. 257 ; Pike ' Hamilton v. Kirwan, 2 J. <fe L. 401; 
 
 V. Vitrers, 2 Dr. & Wal. 267. Pares v. I'an-s, 33 L. J. Ch. 218. 
 
 ' fi-enchard v. Wanley, 2 P. Wms. " Llewc-llin ;•. Mackworth. 2 Atk, 40; 
 
 166; Bath and Montaiju's Case, 3 Ch. Yilliers ?;. Villiers, i6. 71 ; Man i'. Ward, 
 
 (a. 114; Townspnd f. Low^ield, 1 Ves. ih.220; East India Co. v. Donald, 9 
 
 35, 3 Atk. 536 ; M'Queen v. Farquhar, Ves. 282 ; Stikemaii v. Dawson, 1 I leg. 
 
 11 Ves. 467; Walker v. Symonds, 3 <fe Sm. 105 ; Pickles «;. Pickles, 9 W. R. 
 
 Sw. 61 ; Hamilton v. Kirwan, 2 J. d' L. 397 ; 31 L. J. Ch. 146. 
 401; Smith v. Pawson, 25 L. T. 40. 
 
 * Teaclde r. Bailey, 2 Brock, 43 ; Sanbome v. Stetson, 3 Story, 481 , 
 Christmas v. Spink, 15 Ohio, 600 ; Buck v. Sherman, 2 Doug. 176; Casey 
 V. Allen, 1 A. K. ]Marsh. 465 ; Hamilton v. Beal, 2 H. & J. 414 ; Petrie v. 
 Wright, 6 Smed. & Mar. 642. 
 
 When the fraud relates to title, the nature of incumbrances and out- 
 standing titles must be shown, so that the court may judge of their valid- 
 ity. Ayres r. Mitchell, 3 Smed. & M.ir. G83; Moss v. Davidson, 1 Smed. & 
 Mar. 112 ; Wilson v. Leaffoor, 1 J. J. Marsh. 6. 
 
 t Clark t). White, 12 Pet. 178; Phettiplace v. Sayles, 4 Mason, 812;
 
 PROOF. 385 
 
 of explanation or contradiction, be adopted.^ * It is enougli 
 if facts be established from whicb it would be impossible, 
 upon a fair and reasonable conclusion, to conclude but that 
 there must have been fraud.^ The motives with which an 
 act is done may be, and often are, ascertained and determined 
 by circumstances connected with the transaction, and the 
 parties to it. Yarious facts and circumstances evince, some- 
 times with unerring certainty, the hidden purposes of the 
 mind.» " A deduction of fraud," says Kent,* " may be made 
 not only from deceptive assertions and false representations, 
 but from facts, incidents, and circumstances, which may be 
 trivial in themselves ; but may, in a given case, be often 
 decisive of a fraudulent design." ' 
 
 Though the proof of fraud rests on the party who alleges 
 it, circumstances may exist to shift the burthen of proof from 
 the party impeaching a transaction on the party upholding it. 
 If the evidence establishes a prima facie case of fraud, or 
 shows that an instrument is false in any material part, the 
 
 'Rex V. Burclett, 4 B. <fe Aid. IGl, 295; Ilennequiu v. Naylor, 10 Smith 
 
 102 ; ^tikeman v. Dawson, 1 Deg. &. Sm. (Amer.), 141. 
 
 105: lluuiblirey v. Giver, 28 L. J. Ch. * 2 Comm p. 484. 
 
 406, " See Clai-kson o. llanway, 2 P. Wm. 
 
 ''Pickles V. Pickles, 9 W. R. 397; 31 205; Bennett v. Vade, 9' .M..d. 315; 
 
 L.J. Ch. 146; Re Marsdea's Trust, 4 Hubbard v. Briggs, 4 Till". (Amer.), 
 
 Drew. 599. 538. 
 
 * ivicliuls V. Pinner, 4 Smith (Amer.), 
 
 Taylor v. Fleet, 4 Barb. 95 ; White v. Trotter, 4 Smccl. & ]\Iar. 30 ; Gregg 
 n. Sayrcs, 8 Pet 244. 
 
 This means no more tban that the proof must be such as to create 
 belief, and not merely suspicion. A rational belief should not b3 dis- 
 carded because it is not conclusively established. Watkius v. Wallace, 19 
 Mich. 57. 
 
 * Reed v. Noxon, 48 111. 323 ; M'Conike r. Sawyer, 12 N. H. 396 ; 
 pope V. Andrews, 1 Sraed. «fc Mar. 135 ; Denton i\ McKenzie, 1 Dessau. 
 289. 
 
 Influence is not susceptible of direct i^roof. Conant v. Jackson, 16 
 Vt. 835.
 
 386 PEOOP. 
 
 burthen, of showing that the transaction was fair lies upon 
 the party w'ho seeks to upliold it.^ If, for example, it appear 
 that the donee of a power of appointment had at any time, 
 before the exercise of the power, the intention to derive a 
 personal benefit from its exercise, the burthen rests on those 
 who support the appointment to show that the intention had 
 been abandoned at the time of the execution of the appoint- 
 ment.^ So, also, if a man fraudulently mingles moneys 
 belonging to another with moneys of his own, it lies on him 
 to sever the portion which is afiTected by the fraud, from that 
 which is not affected by the fraud.^ * Upon the same prin- 
 ciple, if it appear that a fiduciary or confidential relation exist 
 between the parties to a transaction,* or if it be established by 
 evidence that one of the parties possessed a power of influence 
 over the other,® the burthen of proof lies upon the party filling 
 the position of active confidence, or possessing the power of 
 influence, as the case may be, to establish, beyond all reason- 
 able doubt, the perfect fairness and honesty of the transaction. 
 Parol evidence is admissible in such cases to prove the fairness 
 of the transaction ; but it is to be received and weighed with 
 the most scrupulous accuracy, and to be dealt with as having 
 its weight afiected by the circumstances under which the 
 parties stood.® 
 
 When a party is under the obligation of showing that an 
 
 ' "Watt V. Grove, 2 Sch. & Lef. 502; son v. Heathorn, 1 Y. <fe C. C. C. 340; 
 
 Prince of Wales Assurance Co. v. Pal- Allfrey v. Allfrey, 1 Mac. <fe G. 99 ; Bil- 
 
 iner, 25 Beav. 005; Russell v. Jackson, lage v. Southee, y Ha. 540; Mooi-e v. 
 
 10 Ha. 218 ; Cottam v. Eastern Coun- Prance, ib. 303 ; supra, pp. 104, 116. 
 
 ties Railway Co., 1 J.&H. 243; Dowle * Cooke v. Lamotte, 15 Beav. 240; 
 
 V. Sauiulers, 2 H. <fe M. 250. Kay n. Smith, 7 H, L. 750; supra, pp. 
 
 ' Humphrey v. Olver, 28 L. J. Ch. 132, 138. 
 
 40G. " Be Holmes's Estate, 3 Giff 347 ; 
 
 » Russell V. Jackson, 10 Ha. 213. Walker v. Smith, 20 Beav. 394. 
 
 ♦Gibson v, Jeyes, 6 Ves. 278; Ben- 
 
 * Steers v. Hoagland, 50 HI. 277 ; Well v. Silverston, 6 Busli 698 ; 
 Brackenridge v. Holland, 2 Blackf, 377.
 
 PROOF. 387 
 
 unprofessional person understood the contents of a deed or 
 instrument wliich he executed, the mere proof of its having 
 been read over to him, unaccompanied with proper explana- 
 tions, is not sufficient to satisfy the court that the person hear- 
 ing it read understood it.^ It must be proved by those who 
 claim under it, upon satisfactory evidence, that the nature, 
 effect, and contents of the deed were explained to, and per- 
 fectly understood by him.^ * 
 
 The intervention of an independent third party or adviser 
 is an important ingredient in showing the fairness of a trans- 
 action.' If a solicitor be employed, there is always strong 
 prima facie evidence that the party for whom he was acting 
 knew the nature of the transaction;* in all cases, indeed, 
 where an independent legal adviser or solicitor is employed, 
 the evidence that everything which was necessary to be known 
 had been brought to the knowledge of his employer would bo 
 conclusive.' The intervention, however, of another solicitor or 
 adviser, who, with the knowledge of the other party to the 
 transaction, a former solicitor of his employer, neglects, or does 
 not properly discharge his duty, is not sufficient to support a 
 transaction between them.' 
 
 ' Hoghton V. Hoghton, 1 5 Beay. 311; Dayies, 4 Giff. 417 ; Cartledge v. Rad- 
 
 Moore v. Prance, 9 Ha. 304. See Sliarp bourne, 14 W. R. 604. 
 
 V. Leach, 31 Beav. 503 ; Toker v. Toker, ' Cooke v. Lamotte, 15 Beav. 240. 
 
 ib. 629 ; 32 L. J. Ch. 325. " Denton v. Donuer, 23 Beav. 291. 
 
 " Moore v. Prance, 9 Ha. 304 ; Ander- * De Montmorency v. Devereux, 7 CL 
 
 ecu V. Ellsworth, 3 Giff. 154 ; Davies v. & Fin. 188, 
 
 « Gibba v. Daniel, 4 Giff. 1. 
 
 * Owing's Case, 1 Bland, 370 ; Selden v. Mirers, 20 How. 506. 
 
 A court of equity will not commonly act upon the ignorance of a deed 
 by a person who can read and write ; but requires evidence of a contriv- 
 ance in the opposite party to have the instrument drawn wrong, and keep 
 the maker in the dark. Michael v. Michael, 4 Ired. Eq. 349. 
 
 "When a grantor undertakes to road a deed, he must read it correctly; 
 and if he does not, it is a fraud. That the grantee is capable of reading 
 it himself makes no difference. Stamps v. Bracy, 1 How. (]\Iiss.) 313. 
 
 The iDresimiptiou that a person who can read knows the contents of
 
 388 PROOF. 
 
 A party is not estopped from avoiding his deed, by proving 
 that it was executed for a fraudulent, illegal, or immoral 
 purpose,'^ l!^otwithstanding the solemnity and force which 
 the law ascribes to deeds, and all the strictness with which it, 
 in general, prohibits the introduction of extrinsic evidence to 
 prove that an instrument goes beyond, or does not fully con- 
 tain, or incorrectly exhibits, the terms of the contract, which 
 it was written and signed for the purpose of expressing and 
 recording; the rule is settled, and not merely in courts of 
 equity, that a deed, on its face just and righteous, may be 
 vitiated and avoided, by alleging and adducing extrinsic evi- 
 dence to prove that it was founded on a consideration, or had 
 a view or purpose contrary to law or public policy.^ Although 
 a party may thus, in certain cases, be enabled to take advantage 
 of his own wrong,^ this evil is of a trifling nature in compari- 
 son with the flagrant evasions that would, in many cases, result 
 from the adoption of a difierent rule,* 
 
 If a person be induced by fraudulent statements to enter 
 into a written contract, it is competent for him to prove fraud 
 by evidence aliunde, although the wi'itten contract, or the 
 deed of conveyance, is silent on the subject to which the 
 fraudulent representation refers.''* So, also, fraud, whether 
 
 ' Collins V. Biantern, 2 Wils. 341 ; 1 " Reynell v. Sprye, 1 D. M. <fe G. 672, 
 
 Smith's L. C. 825 ; Paxton v. I'opliauj, per Knight Bruce, L. J. 
 
 9 East, 421 ; Gas Li^ht and Cuku Co. v. ' Doe v. Ford, 3 A. & E. 654; Doe«. 
 
 Turner, 5 I'ing. N. C. 666; 6 Bin2:. N. Ilowells, 2 B. <fe Ad. 747. 
 
 C. 324 ; Stratford and Moreton Railway * Benyon v. Nettlefold, 3 Mac. & G. 
 
 Co. V. Straiion, 2 B. ct Ad. 518; Hill v. 102. iSee Mallalieu v. Hodgson, 16 Q. 
 
 Manchester Waterworks Co., ?6. 5o2, B. 689; Bowes v. Foster, 2 H. «fe K 
 
 553; D..e i;. Howells, ib. 747; Benyon 779. 
 
 V. iSTettlefold, 17 Sim. 56 ; 3 I\Iac. & G. ^ Dobell v. Stevens, 3 B. <fe C. 623; 
 
 94 ; Ilorton v. Westminster Improve- Wright v. Crookes, 1 Sc. N. R. 685, 
 
 me'nt Commissioners, 7 Exch. 780. 698; Hotson v. Browne, 9 C. B. N. S. 
 
 442. 
 
 the instrument which he executes, only stands until proof to the contrary 
 is produced. Harris v. Dehimar, 3 Ired. Eq. 213. 
 
 * Boyce «. Grundy, 3 Pet. 210 ; Brainerd v. Brainerd, 15 Ct. 575 ; Hol- 
 b?ook v. Burt, 22 Pick. 346 ; Flagler v. Preiss, 3 Rawle, 345 ; Kennedy «. 
 Kennedy, 2 Ala. 571 ; "Wilson v. Watts, 9 Md. 356.
 
 PROOF. 380 
 
 in a record or deed, or writing imder seal, may be proved by 
 parol evidence.^ So, also, if it appear from tbe written evi- 
 dence, that tlie agreement really made between the parties 
 is not stated by the deed, parol evidence is admissible to 
 explain it.^ 
 
 The testimony of one single witness, unless supported by 
 circumstances, cannot be allowed to prevail against a positive 
 denial by the answer. If a defendant positively, plainly, and 
 precisely denies the assertion, and one witness only proves it 
 as positively, clearly, and precisely as it is denied, and there is 
 no circumstance attaching to the assertion to overbalance the 
 credit due to the denial, as a positive denial, a court of equity 
 will not act upon the testimony of thart witness. Where, ac- 
 cordingly, a man positively denies notice, and one witness is 
 adduced to prove the fact of notice, the court will place as 
 much reliance on the conscience of the defendant, as on the 
 testimony of a single witness, without some circumstance at- 
 taching a superior degree of credit to the latter.® * 
 
 'Filmer v. Gott, 4 Bro. P. C. 230; C. C. 52; Lord Cranstown v. Johnson, 
 
 Robinson v. Lord Vernon. 7 C. B. N. S. 3 Ves. 170; East India Co. v. il'Don- 
 
 231; Rogers v. lladlej^ 2 H. & C. 227. aid, 9 Ves. 275; Pilling v. Armitage, 
 
 * Cripps c. Jee, 4 Bro. C. C. 472. 12 Ves. 80. See Whit worth v. Gaugain, 
 
 ' Evans v. Bicknell, 6 Ves. 183, per Cr. & Ph. 325. 
 Lord Eldon ; Pember v. Mathers, 1 Bro. 
 
 * Garrow v. Davis, 15 How. 273 ; Flagg v. Mann, 2 Sumner, 486 ; 
 Thompson v. Sanders, 6 J, J. Marsh, 94 ; Green v. Tanner, 8 ]\Iet. 411 ; 
 Miller v. Tolleson, 1 Hai-p. Ch. 143. 
 
 One witness and coiToborating circumstances amounting to a violent 
 presumption are sufficient to overcome the denial. McCormick v. Malin, 
 5 Black f. 509 ; Denton v. M'Kenzie, 1 Dessau, 289. 
 
 To have this effect, the answer must be direct, positive, and unequiv- 
 ocal. Farnam v. Brooks, 9 Pick. 213. 
 
 A denial according to the best of the defendant's recollection and be- 
 lief is not sufficient. Town v. Nccdham, 3 Paige, 546. 
 
 If the facts admitted by the answer establish fraud, they must be held 
 to outweigh the denial. Cunningham r. Freeborn, 3 Paige, 557 ; Dick v.
 
 390 COSTS. 
 
 COSTS. 
 
 The general rule with respect to costs, being that costs fol- 
 low tho event, and that, prima facie, he who succeeds ought 
 to have them ; Mf a transaction is set aside,^ or a bill for the 
 specific performance of a contract is dismissed,^ on the ground 
 of misrepresentation, concealment, undue influence, or any 
 other species of fraud, the successful litigant is, as a general 
 rule, entitled to the costs. So, also, if a bill be filed for the 
 rescission of a transaction, on the ground of fraud, and the 
 charge of fraud fails, the dismissal is, in general, with costs.* 
 So, also, wlien the specific performance of a contract is resisted 
 on the ground of fraud, and the charge of fraud fails, the de- 
 cree is, in general, with costs.^ So, also, when a purchaser ob- 
 tains specific performance, with compensation, it will be, in 
 general, with costs.® 
 
 ' Townsend v. Champernowne, 3 T. * Langley v. Fisher, 9 Beav. 91 ; 
 
 & C. 527 ; Parr v. Lovegrove, 4 Jur. N. Loader v. Clark, 2 Mac. & G. SS^ ; 
 
 g 500. ' Pulsford v. Kichards, 17 Beav. 87; 
 
 '^Edwards v. M'Cleay, 2 Sw. 289; Jennings v. Broughton, ib. 239; Dol- 
 
 Bellamy v. Sabine, 2 Ph. 42.5 ; Dent v. man v. Nokes, 22 Beav. 402 ; New 
 
 Bennett, 4 M. & C 269 ; Gibson v. Brunswick, &c. Railway Co. v. Cony- 
 
 D'Este 2 y. &, C. C. C. 681 ; Mulhallen beare, 9 II. L. 735; Luff v. Lord, 11 
 
 V. Marum, 3 Dr. & War. 317 ; Waters v. Jur. N. S. 50; Straker v. Ewing, 34 
 
 Thorn, 22 Beav. 561 ; 8liin v. Cruncher, Beav. 147. 
 
 1 D. F. & J. 520 ; Dally v. Wonham, 33 ^ Abbutt v. Sworder, 4 Deg. & G. 
 
 Beav 162; Baker v. Monk, ib. 425; 460 ; Haywood v. Cope, 25 Beav. 140; 
 
 Davi?'S V Davies, 4 Gift. 417. Clarke v. Mackintosh, 4 Giff. 1;:14. 
 
 'Vancouver v. Bliss, 11 Ves. 463; " Leyland v. lllingworth, 2 D. F. <fe 
 
 Lord Brooke w. Roundthwaite, 5 Ha. J. 248 ; Gedge v. Duke of Montrose, 26 
 
 306 ; Myers v. Watson, 1 Sim. N. S. Beav. 45. 
 529; Cox v. Coventon, 31 Beav. 38S. 
 
 Grissom 1 FreemaB, 428 ; Gardiner Bank v. WTieaton, 8 Greenl. 373 ; Gran- 
 nis V. Smith, 3 Humph. 179 ; Gazzam v. Poyntz, 4 Ala. 374. 
 
 Mucli reliance should not be placed upon loose conversations or con- 
 fessions of the party to overbalance Ms solemn denial in his answer. 
 Flagg V. Mann, 2 Sumner, 486. 
 
 When an executor or administrator, answering in his representative 
 character alleges facts of which he can have no personal knowledge, his 
 answer -will be allowed its due weight only, and is not entitled to the full 
 influence of the answer of a man speaking of the facts which may be 
 within his own knowledge. Clark v. Van Riemdyke, 9 Cranch, 153; 
 Dugan V. Gittings, 3 Gill, 139.
 
 COSTS. 391 
 
 Though the general rule is that, prima facie, he wlio suc- 
 ceeds ought to have the costs, costs in equity do not always 
 follow the event.^ There may be often circumstances of an 
 equitable nature to exempt the unsuccessful party from the 
 payment of costs.** When, for instance, a bill for the recis- 
 sion of a transaction on the ground of misrepresentation was 
 dismissed, the dismissal was without costs, the court being 
 satisfied, although the charges as to misrepresentation had 
 failed, that the property had not been correctly described.^ So, 
 also, where a bill for the rescission of a transaction, on the 
 ground of undue influence, or of.advantage taken of a fiduciary 
 position, was dismissed on the ground of acquiescence, or de- 
 lay in instituting the suit, or even on the merits, the dismissal 
 was without costs, the court being satisfied that the plaintiff 
 had a reasonable cause of suit, or that the conduct of the de- 
 fendant had rendered an investigation not unreasonable.* So, 
 also, if there has been negligence on the part of the plaintiff, 
 he will not have his costs, althougli he succeed in the suit.' 
 So, also, although a bill is dismissed, it will be without costs 
 if there has been negligence.® So, also, in a case where relief 
 was given against a transaction on the ground of undue in- 
 fluence, costs were not given to the plaintiff, as her conduct 
 
 * Staines v. Morris, 1 V, cfe B.. 16. Montmorency v. Devereux, 7 CI, & Fin 
 "Vancouver v. Bliss, 11 Ves. 463; 188; Salmon v. Cutts, 4 Deg. <fe Sm 
 
 Townsend V. Champernowne, 3 Y. <fe C. 125; Baker v. Read, 18 Beav. 398 
 
 527; Grove v. Bastard, 1 D. M. <fe G. Hartopp v. Ilartojjp, 21 Beav. 274 
 
 78 ; Lyon v. Home, 16 W. R. 824. Wright v. Vanderplank, 2 K. A J. 18 
 
 ' Bartlett v. Salmon, 6 D. M. <fe G. Clegg v. Edmondson, 8 D. M. & G. 806 
 
 40; Hallows v. Fernie, L. R. 3 Eq. 520. Clanricarde v. Heniiing, 30 Beav. 175, 
 
 * Montesquieu v. Sandys, 18 Ves. Toker v. Toker, 31 Beav. 629, 32 L. J 
 301 ; Champion v. Rigby, 9 L. J. Ch. N. Ch. 326. 
 
 S. 211; Fyler v. Fyler, 3 Beav. 550; " Allen v. Knight, 5 Ha. 280. 
 
 Edwards v. Meyrick, 2 Ha. 75 ; De ° Evans v. Bicknell, 6 Ves, 173. 
 
 * M'Donald v. Neilson, 2 Cow. 139; Bradley «. Chase, 22 Me. 511; 
 White i\ IVIcday, 2 Edw. Ch. 48G ; Pearce r. Chastain, 3 Kelly, 220; Sut- 
 phen V. Fowler, 9 Paige, 280; Reiuick v. Smith, 2 II. & J. 471; Spencer v. 
 Spencer, 11 Paige, 21)9.
 
 392 COSTS. 
 
 was not free from blame.* So, also, althongli a transaction is 
 set aside, the rescission may be without costs, if the defendant 
 is free from moral blame.'^ So, also, where the plaintiff is 
 partice2)s criminis, and seeks to set aside a security on the 
 ground of public policy, the decree will be without costs.* So, 
 also, although specific performance be decreed, the decree will 
 be without costs, if the party resisting performance had a fair 
 and reasonable ground for doing so.* In Higgins v. Samels,^ 
 where a bill for the specific performance of a contract was dis- 
 missed, on the ground of misrepresentation, the dismissal was, 
 under the circumstances of the case, without costs. The court 
 always exercises its discretion in dismissing a bill for specific 
 performance, and with costs, on the ground of circumstances 
 which would not be sufficient to cancel the agreement on the 
 ground of fraud.® If, on the other hand, the defendant has 
 been to blame in the matter, or has by conduct contributed to 
 the litigation, the dismissal of a bill for specific performance 
 will be without costs.' 
 
 As a general rule, where costs have been occasioned by the 
 conduct of either party, the party who occasioned the costs 
 must bear them ; and where by the misconduct of both parties, 
 neither has his costs : and where a suit has been rendered ne- 
 cessary by the misconduct of either party, still a part of the 
 costs may have been rendered necessary by the other party.® 
 If, accordingly, a man succeeds in obtaining the relief prayed 
 
 'Lyon V. Home, 16 W. R. 824. but see Jackman v. Mitchell, 13 Vcs. 
 
 " Ward 't>. Hartpole, 3 Bligh, 490; 581. Comp. Davies i>. Otty, 35 Beav. 
 
 Wood V. Abrey, 3 Madd. 423 ; Groves v. 208. 
 
 Perkins, 6 Sim. 576 ; Baker D. Carter, 1 * Burrowes v. Lock, 10 Ves. 4*70; 
 
 Y. & C. 250; Stanton v. Tattersall, 1 Vancouver v. Bliss, 11 Ves. 463; Fen. 
 
 Sm. & G. 536 ; Prideaux v. Lonsdale, 1 ton v. Browne, 14 Ves. 150. See 
 
 D. J. & S. 439. Jn particular cases, M'Queen i'. Farquliar, 11 Ves. 482. 
 
 the plaintiff may have to pay the costs, ^ 2 J. <fe H. 460. 
 
 although the transaction is "set aside, if ® Davis v. Sj-raonds, 1 Cox, 402. 
 
 the defendant be free from moral ' Walters v. Morgan, 3 D. F. <fe J. 
 
 blame. Davies v. Otty, 35 Beav. 208. 718. 
 
 ' Debenh;ira v. Ox, 1 Ves. 276 ; IMor- " Parr v. Lovegrove, 4 Jur. N. S. 601, 
 
 gan V. Bruen, LI. <t G. temp. Sug. 180; per Kindersley, V. 0.
 
 COSTS. 393 
 
 for, and has the costs of the suit generally, but fails to establisli 
 allegations of fraud in the bill, he must pay the costs occasioned 
 by such allegations being introduced,* or, for the sake of sim- 
 plicity, no costs will be given to either side when, but for the 
 allegations of fraud, the plaintiff would have been entitled to 
 the costs.^ In Khodes v. Bete,^ the defendant was not ordered . 
 to pay costs, though the transaction was set aside, inasmuch as 
 the case of the plaintiff failed to a considerable extent, and in- 
 asmuch as in so far as it succeeded, it was by force of the law 
 of the court, and not by any merits of his own, the evidence 
 adduced by him being also irrelevant and overcharged. In 
 Staniland v. TTillot,* where charges of fraud in the bill were 
 neither supported nor repelled by evidence on either side, the 
 costs were not thereby affected, as it did not appear that any 
 costs were specially occasioned by such charges. In Fyler v. 
 Fyler,' however, a bill containing unproven charges of fraud 
 was dismissed without costs, because the defendants, by mixing 
 up their personal interests in the transactions in question, had 
 rendered an investigation not unreasonable. In like manner, 
 charges of fraud made by defendants will, if unsubstantiated, be 
 visited with costs, even though the defendant gets the costs of 
 the suit generally.® So, also, the bill will be dismissed without 
 costs, if the conduct of the defendant has not met with the ap- 
 proval of the court.'' 
 
 Where plaintiff succeeds in a suit on the ground of fraud^ 
 he will be entitled to all the costs occasioned by it, and, there- 
 fore, in Stanley v. Bond,^ a bill for the delivery of securities 
 
 » Blest V. Browne, 8 Jur. K S. 602 ; * 3 Mac. & G. 664. 
 
 Joues V. Ricketts, 10 W. R. 576. ^ce " 3 Beav. 550. 
 
 Harvey v. Mount, 8 Beav. 439 ; Shackle- * Wright v. Howard, 1 Sim. & St. 
 
 ton V. Sutcliffe, 1 Deg. & Urn. 623 ; 205 ; Warrin v. Thomas, 2 W. R. 442 ; 
 
 Bromley v. Smith, 26 Beav. 670 ; St. Pledge v. Buss, John. 666 ; Theyer v. 
 
 Albyn v. Harding, 27 Beav. 11 ; Baker Tombs, 12 W. R. 512. 
 
 V. Bradley, 7 D. M. & G. 620. ' Leather Cloth Co. v. Americaa 
 
 » Culliiigworth v. Lloyd, 2 Beav. Leather Cloth Co., 33 L. J. Ch. 199. 
 
 385 ; Rawlins v. Wickham, 1 Giflf. 356. ' 6 Beav. 423. 
 
 « L. B. 1 Ch, App. 262. 
 
 26
 
 304 COSTS. 
 
 fraudulently obtained, being taken jpro confesso, the plaintiff 
 was held entitled to the costs of an action at law, com- 
 menced on the securities, though not specifically prayed for by 
 the bill. 
 
 If a bill containing allegations of fraud be demurrable, and 
 the defendant do not demur, his not having demurred will be 
 a reason for refusing him his extra costs at the hearing.* 
 
 If acts are charged against a party, which are in them- 
 selves fraudulent, the court, upon the question of costs, always 
 considers the bill as imputing fraud, although the word fraud 
 be not used in the bill.^ 
 
 Although a suit cannot be maintained, the court may dis 
 miss it before the hearing, even without costs, if the defendant 
 has been guilty of gross fraud.^ 
 
 A solicitor, or legal adviser, who has abetted or mixed 
 himself up in that character, in a fraudulent transaction, may 
 be made a party to the suit, for the mere purpose of having 
 the costs paid by him.* He cannot excuse himself from the 
 payment of costs, on the ground that he acted as his clieiit's 
 adviser.' In a case where a solicitor was free from all moral 
 blame, and took no benefit from the transaction, the costs of a 
 suit to set aside the transaction were, nevertheless, thrown on 
 him, because he had not explained to his client the nature of 
 the instrument.^ Although costs may not be given against a 
 solicitor who has mixed himself up in a fraudulent transaction, 
 costs will not be given to him.' In Harvey v. Mount,^ a 
 solicitor who acted as such in a transaction which was im- 
 peachable on the ground of fraud, but was himself free from 
 
 * Nesbitt V. Berridge, 1 N. R. 345. • Moore v. Prance, 9 Ha. 303. See 
 '■'Marshall v. Sladden, 7 Ha. 444. Beadles v. Burch, 10 Sim. 332; Ber- 
 => Elscy V. Adama, 2 D. J. & S. 147. ry v. Armitstead, 2 Keen, 227 ; Gil- 
 
 * Marshall v. bladden, 7 Ha. 443. bert v. Lewis, 1 D. J. <fe S. 52, supra. 
 See Br nt v. Brent, 10 L. J. Ch. 84. p. 312. 
 
 " Bennett v. Vade, 2 Atk. 324; Har- ' Roddy v. Williams, 3 J. <fe L. 23. 
 
 vey V. Mount, 8 Beav. 439. ^ 8 Beav. 439.
 
 COSTS. 395 
 
 moral culpability, was ordered to pay his own costs, as lie bad 
 not acted with proper prudence in the matter. So, also, in 
 Fyler v. Fyler,^ where a solicitor, by mixing up his personal 
 interest in his client's transactions, rendered an investigation 
 not unreasonable, the bill was dismissed against him without 
 costs, though it contained unproven charges of fraud. 
 
 The costs of a suit to set aside a deed for fraud, will not be 
 given against a solicitor, or party to the fraud, if they are not 
 specifically prayed by the bill.^ If they are not sj)ecifically 
 prayed by the bill, a demurrer will lie.^ 
 
 If a man be accessory to a fraud on creditors, as being the 
 trustee of a voluntary settlement, he will not be allowed his 
 costs on setting aside the deed, although he may have derived 
 no benefit from it.* 
 
 In a case where the name of a man had, by the false repre- 
 sentations of a third party, been inserted on the register of the 
 shareholders of a company, it was held that tlie company, 
 though innocent, must bear the costs of the application.^ 
 
 The Consolidated Orders 38, r. 2, reg. 2, do not contem- 
 plate the cause of fraud, so that, although the value of the 
 subject-matter of the suit at the time of filing the bill may be 
 considerably less than £1,000, the costs will be allowed on the 
 higher scale .^ 
 
 ' 3 Beav. 550. * Townsend v. Westacott, 4 Bear. 
 
 "Beadles v. Biirch, 10 Sim. 338; 68; Turquand t). Knight, 14 Sim. 64-t. 
 Eoddy V. Williams, 3 J. & L. 16. '' Re Patent File Co., 15 W. R. 754. 
 
 ' Beadlea v. Burch, 10 ISlm. 338, ° Earl of Stamford v. Dawaou, 15 W. 
 
 £. 896.
 
 CHAPTER II. 
 
 MISTAKE. 
 
 Mistake is a ground for relief in equity. Mistake raay 
 be said to be some unintentional act, omission, or error arising 
 from unconsciousness, ignorance, forgetfulness, imposition, or 
 misplaced confidence.^ There is mistake if a man through 
 ignorance be induced to do a thing which he would not have 
 done, had he not been in error. ^ 
 
 Mistake may be either in matter of law or in matter of 
 fact.' 
 
 The rule that mistake in matter of law cannot be admitted 
 as a valid excuse either for doing an act prohibited by the law, 
 or for the omission of a duty which it imposes, is common to 
 all systems of law. Regula est juris ignorantiam cuique 
 nocere, is the language of the Pandects.* Ignorantia juris 
 non excusat, is the maxim of the common law. " It is to be 
 presumed," says Manwood, as reported by Plowden,^ " that no 
 subject of this realm is miscognizant of the law whereby he is 
 governed. Ignorance of the law excuseth none." ® The rule 
 is not only expedient, but is absolutely necessary. If igno- 
 rance of law were admitted as a ground of exemption, the 
 court would be involved in questions which it were scarcely 
 possible to solve, and which would render the administration 
 of justice next to impracticable, for in almost every case igno- 
 rance of law would be alleged, and the court would, for the 
 
 » story's Eq. Jur. 110. * See Manser's Case, 2 Co. Rep. 3 a, 
 
 'Jeremy's Eq. Jur. Bk. 2, pt. 2, p. b; Cook v. Wotton, 4 Leon. 190; 
 
 358. Stevens v. Lynch, 12 East, 38; Teede 
 
 = Dig. Lib. 22, tit. 6. v. Johnson, 11 Exch. 840; Pooley v. 
 
 * Dis. Lib. 22, tit. 6, leg. 9. Brown, 11 C. B. K 6. 566. 
 •» 1 Plowd. 342.
 
 MISTAKE. 397 
 
 purpose of determining the point, be often compelled to enter 
 upon questions of fact, insoluble and interminable.^ 
 
 The rule is the same in equity. Mistake in matter of law 
 cannot in general be admitted as a ground of relief in equity.' * 
 
 ' Austin's Jur., vol. II, p. 172. v. Duke of Devonshire, 16 Beav. 257; . 
 
 'Maiden v. Menill, 2 Atk. 8; Mar- Teed v. Johnson, 25 L. J. Exch. 110; 
 
 shall V. CoUett, 1 Y. <fe C. 232 ; Denys Midland Great "Western Co. of Ireland 
 
 V. Shuckburgh, 4 Y. & C. 42 ; Mellers v. Johnson, 6 H. L. 798. 
 
 * Bank of United States o. Daniel, 12 Pet. 33 ; Hunt «. Rousmrmier, 2 
 Mason, 342; s. c. 1 Pet. 1; s. c. 8 Wheat. 174; McMurray v. St. Louis &c. 
 Co., 33 Mo. 377 ; Peters v. Florence, 38 Penn. 194 ; Gwynn v. Hamilton, 
 29 Ala. 233; Smith v. McDougal, 2 Cal. 586; State v. Rcigart, 1 Gill. 1; 
 Dill t\ Sbahan, 25 Ala. 694 ; Mellich v. Robertson, 25 Vt 603 ; SLafer v. 
 Davis, 13 HI. 395 ; Lyon v. Sanders, 23 Miss. 530 ; Gilbert ®. Gilbert, 9 
 Barb. 532; McAnincb. v. Laughlin, 13 Penn. 371; Cooper v. Crosby, 3 
 Gilman, 506; Hinchman r. Emaus, Saxton, 100; Drake v. Collins, 5 How. 
 (Miss.) 253; Trigg v. Read, 5 Humph. 529 ; Storrs r. Barker, 6 Johns. Ch. 
 1(56; Bryant v. Mansfield, 22 Me. o60 ; Lyon v. Richmond, 2 Johns. Ch. 
 00 ; Brown v. iVrmistead, 6 Rand. 594 ; Gunter v. Thomas, 1 Ired. Eq. 
 195; Fergerson v. Fergerson, 1 Geo. Decis. 135; Shotwell v. Murray, 1 
 Johns. Ch. 512 ; Wintermute v. Snyder, 2 Green's Ch. 489 ; Good v. Herr, 
 7 W. & S. 253 ; Bell ®. Steel, 2 Humph. 148 ; Pettes' Bank v. AYhitehall, 
 17 Vt. 435 ; Heilbrou r. Bissell, 1 Bailey's Ch. 430 ; Proctor t. Thrall, 22 
 Vt. 262; Dow r. Ker, Spears' Ch. 413. 
 
 "Where parties upon deliberation and advice reject one species of in- 
 struments, and agree to select another under a misapprehension of law as 
 to the nature of the instrument selected, a court of equity will not on the 
 ground of such misapprehension, and the insufficiency of such instrument, 
 direct a new instrument of a different character to be ^iven. Hunt r. Rous- 
 mauier, 1 Pet. 1; s. c. 8 "Wheat. 174; Broadwell v. Broadwell, 1 Gilman, 
 599; Leavitt t. Palmer, 3 Comst. 19; Arthur v. Ailhm-, 10 Barb. 9; 
 Durant v. Durant, 2 Beasley, 201. 
 
 The fact that a decision upon which the parties relied has been sub- 
 sequently overruled, is no ground for relief. Kenzon v. Weltz, 20 CaL 
 637. 
 
 A mistake as to the legal effect of a statute is no ground for relief 
 State T. Paup, 13 Ark. 129. 
 
 A mistake in regard to the existence of a clause in the charter of a 
 corporation reserving the right of appeal, is ground for relief. King v. 
 Doolittle, 1 Head. 77. 
 
 When a party, through his attorney's mistake of the law, has bound
 
 398 MISTAKE. 
 
 The maxim, juris ignorantia non excusat^ is not, liowerer, 
 iiniversallj applicable in equity.^ If the word jus is used in 
 the sense of denoting general law, the ordinary law of the 
 country, no exception can be admitted to the general applica- 
 tion of the maxim ; but it is otherwise when the word jus is 
 used in the sense of denoting a private right.^ If a man 
 through misapprehension or mistake of the law, parts with or 
 gives up a private right of property, or assumes obligations 
 upon grounds upon which he would not have acted but for 
 such misapprehension, a court of equity may grant relief, if, 
 under the general circumstances of the case, it is satisfied that 
 the party benefited by the mistake cannot in conscience retain 
 the benefit or advantage so acquired.^ 
 
 ' Naylor v. Winch, 1 Sim. & St. 555 ; According to the Roman law there 
 
 Watson V. Marston, 4 D. M. & G. 230, were certain clnsses of persons " qulbus 
 
 236 ; Stone v. Godfrey, 5 D. M. & G. permissam est jus ignorare."' Dig. Lib. 
 
 '76, 90. 22, tit. 6, leg. 9. They were exempt 
 
 ' Cooper V. Phibbs, L. R. 2 App. Ca. from liability (at least for certain pur- 
 
 \^iO,per Lord Westbury. poses), nut by reason of their general 
 
 ' See Cann v. Cann, 1 P. Wms. '72'7 ; imbecility, but because it was presumed 
 
 Pusey V. Desbouverie, 3 P. Wms. 320; that their capacity is not adequate to a 
 
 Cocking, V. Pratt, 1 Ves. 400; Farewell knowledge of the law. Such were 
 
 V. Coker, cit. 2 Mer. 353 ; Naylor v ■women, soldiers, and jDersons who had 
 
 Winch, 1 Sim. & St. 555 ; Macartliy v. not reached the age of twenty-live. 
 
 Decaix, 2 R. & M. 614; Clifton v. Cock- Ignorance of law, considered per se, 
 
 burn, 3 jNI. & K. 99 ; Sturge v. Sturoe, was in these cases considered a ground 
 
 12 Beav. 2-9; Davis v. Morier, 2 Coll. of exemption. In such cases it was 
 
 30s ; Rejmell )■. Sprye, 8 Ila. 222, 255 ; presumed from the sex, or from the 
 
 Cox V. Bruton, 5 W. R. 544; Stone «. age, or from the profession of the party, 
 
 Godfrey, 18 Jur. 162 ; Cooper v. Phibbs, that the part}- was ignorant of the law, 
 
 17 Ir. Ch. 82 ; D'Aguesseau, vol. IX, and that the ignorance was inevitable, 
 
 p. 629; TpuUier's Cod. Civ. Liv. Ill, Austin's Jur, vol. II, p. 174. The per- 
 
 tit. 3, c. 2, §62; Larombiere, Theorie sons," ijulbus pcnnist^um est jus umorare" 
 
 des Oblig., vol. I, pp. 43, 57. The mis- could nut, however, allege with effect 
 
 apprehension of rights under a deed, their ignorance of the law in case they 
 
 not arising from the misconstruction of violated those parts of it which were 
 
 the deed, is, it has been said, a mistake founded on the jus gentmm. For the 
 
 in fact ; and is consequently relievable persons in question are not generally 
 
 ia equity. Denya v. Shuckburgh, 4 Y. imbecile, and the jus gentnim was 
 
 <fe C. 42. 'kQ.owahl&iialuiali rati one. With regard 
 
 himself farther than he wa3 legally liable, he may in a proper case obtain 
 relief. Fitzgerald v. Peck, 4 Litt. 125 ; contra^ Magniac v. Thomson, 3 
 Wall. Jr. 209. 
 
 A party hai-ing constructive though not actual notice of judgments 
 over wliicli he has priority by virtue of a mortgage, and taking an as-
 
 MISTAKE. 
 
 399 
 
 Mistake in law, to be a ground for relief in equity, must 
 be of a material nature, and tlie determining ground of the 
 transaction.* 
 
 Mistake of law may be a misapprebension of the law, or 
 of their private rights to property by both parties to a trans- 
 action, both of them making substantially the same mistake ; 
 or it may be a misapprehension of the law or of his private 
 right by one of the parties alone. 
 
 If an agreement be entered into between two parties in 
 mutual mistake as to their relative and respective rights, 
 either of these is entitled to have it set aside.^ Where, for 
 instance^ a party entered into an agreement with another to 
 take a lease of what in fact was his own property, both parties 
 being under a common mistake as to their respective rights, 
 the transaction was set aside.^ So also where a man had sold 
 
 to the jvs civile, or to those parts of ' Stone v. Godfrey, 5 D. M. & G. 76, 
 
 the Roman law wliich were peculiar to infra, p. 340. -r t^ « . r^ 
 
 the system, they might allege with ef- ^ Cooper v. Phibbs, L. R. 2 App. Ca, 
 
 feet their ignorance of the law. Au- 149. 
 
 stin's Jm-., vol. II, p. lib; see Liudl. 
 on Jur., p. 24 
 
 lb. 
 
 Bignment of the equity of redemption, and thereby merging the mortgage, 
 acts under a mistake as to his legal rights, and can not have relief. 
 Campbell v. Carter, 14 HI. 286. 
 
 The presumption that every man knows the law, may be rebutted by 
 proof, and relief granted against a mistake of the law. Evarts v. Strode, 
 11 Ohio, 480. 
 
 Where the legal principle is confessedly doubtful and one about 
 which ignorance may well be supposed to exist, a person, acting under a 
 misappr'^ehension of the law, will not forfeit any of his legal rights by 
 reason of such mistake. Lammott v. Bowly, 6 G. & J. 500 ; Cumberland 
 Coal Co. r. Sherman, 20 Md. 117 ; Champlin v. Laytin, 10 Wend. 407; s. 
 c, 1 Edw. Ch. 467 ; s c. 6 Paige, 189; Garner v. Garner, 1 Dessau. 437; 
 Lowndes v. Chisolm, 2 McCord's Ch. 435; Mortimer v. Pritchard, 1 Bai- 
 ley's Ch. 505; Freeman v. Curtis, 51 Me. 140; Jordan v. Stevens, 51 Me. 
 78; Moreland v. Atchinson, 19 Tex. 303 ; Green v. Morris &c. R. U. Co., 1 
 Beasley, 105 ; Iludon v. Ware, 15 Ala. 149 ; Cooke v. Nathan, 16 Barb. 
 342 ; Reservoir Co. v. Chase, 14 Ct. 123.
 
 400 MISTAKE. 
 
 anotlier an estate wliicli in triitli belonged to him, equity will 
 order the purchase-moneys to be refunded.^ So also where the 
 second of three brothers having died, the eldest, who had 
 entered upon his deceased brother's share, agreed to divide it 
 with his youngest brother, upon the representation of a third 
 party whom the two brothers had consulted, that, as land 
 could not ascend, the youngest brother was heir to the second, 
 and executed a conveyance accordingly. Lord King relieved 
 the eldest brother against the instrument.^ 
 
 If the mistake of law, or as to his private right be that of 
 one party only to a transaction, it may be either that the mis- 
 take was induced or encouraged by the misrepresentation of 
 the other party, or that, though not so induced or encouraged, 
 it was known to and perceived by him, and was taken advan- 
 tage of, or it may be that he was not aware of mistake. Wiiat- 
 ever may be circumstances of the case, a court of equity may, 
 under the peculiar circumstances of the case, grant relief.* 
 But if it appear that the mistake was induced or encouraged 
 by the misrepresentation of the other party to the transaction,^ 
 
 ^ Bingham v. Bingham, 1 Ves. 126. ' Scholfield v. Terapler, John. 166; 
 
 " Lansdowne v. Lansdowne, Mose. Cooper v. Phibbs, L. R 2 ; App. Ca. 
 864; cit. 2 J. <fe W. 205. 149, supra, pp. 12, 48. 
 
 * Skillman v. Teeple, Saxton, 233 ; Bigelow v. Barr, 4 Ohio, 358; "Wil- 
 liams T. Champion, 6 Ohio, 1G9; Sparks v. White,? Humph. 86; Lawrence 
 V. Beaubien, 2 Bailey, 623. 
 
 When a contract is made in ignorance of the existence of any right or 
 title in the party, it may be set aside. So also if it is made with the 
 knowledge of the existence of some right, but in ignorance of any material 
 fact aiiecting the matter or value of the right or title, essential to the 
 character of the contract and an efficient cause in its concoction. Trigg 
 r. Read, 5 Humph. 529. 
 
 The case in which an interference would be proper where a party has 
 entered into an agreement under a mistake in regard to the construction 
 of an instrument upon which his rights depended, must show a very 
 plain clear mistake. Winterniute v. Snyder, 2 Green's Ch. 489 ; Dupre v. 
 Thompson, 4 Barb. 279 ; Clayton v. Bumey, 30 Geo. 946 ; Burt v. Wilson, 
 28 Cal. 633.
 
 MISTAKE. 401 
 
 or was perceived by liim and taken advantage of, tlie court 
 will be more disposed to grant relief than in cases where it 
 does not appear that he was aware of the mistake.^ In 
 Broug-hton v. Hutt,=^ where the heir-at-law of a shareholder in 
 a company, the shares in which were personal estate, suppos- 
 ing himself, through ignorance of law, to be liable in respect 
 of the shares, had executed a deed taking the liability on him- 
 self, it was held that he was entitled to have the deed can- 
 celled. So also where a man having a legal security gave it 
 lip in exchange for another security, upon the faith that the 
 right which he gave up would be secured to him by the sub- 
 stituted - security, but the substituted security proved to be a 
 mere nullity in law, relief was given.^ So also where a woman 
 renewed a note, believing that she was liable on the original 
 note, relief was given/ So also where a sister, being ignorant 
 of her rights under a settlement, released her rights to a 
 brother, the release was held not binding on her.^ So also 
 where the daughter of a freeman of London accepted of a 
 legacy left her by her father, and released her orphanage part 
 according to the custom of London, and it did not appear, 
 though she was told she might elect between the legacy and the 
 orphanage part, that she knew she had a right to inquire into 
 the value of the personal estate and the quantum of the orphan- 
 age part before making her election, the release was set aside.* 
 The same considerations should, it would seem, apply to 
 the case of the payment of money under a mistake of law;' 
 but it appears from the authorities to be established in equity 
 as well as at law, that money paid under a mistake of law, with 
 
 ' Cocking V. Pratt, 1 Ves, 400 ; v. Spencer, 1 Vern. 32 ; Mildmay v 
 
 M'Carty v. Docaix, 2 R. & M. 614 ; Hunserford, 2 Vern. 243. 
 
 Sturge V. Sturge, 1 2 Beav. 229 ; * Coward v. Hughes, 1 K. & J. 443. 
 
 Broughton v. Hutt, 3 D. <fe J. 501 ; see ' Ramsden v. Hylton, 2 Ves. 304. 
 
 Worsley v. Frank, 11 L. T. 392. * Pusey v. Desbouvcrie, 8 P. W. 315. 
 
 " 3 I). <fe J. 501. ' See Clifton v. Cockburn, 3 M. & K. 
 
 * lie Saxon Life Assurance Co., 2 J, 99 ; Davis v. Moricr, 2 Coll. 308 ; Cooper 
 
 A H. 408; 1 D. J. <fe S. 29. See Gee v. Pliibbs, 17 Ir. Ch. 82.
 
 402 MISTAKE. 
 
 full knowledge of the facts, is not recoverable, and that even 
 a promise to pay, upon a supposed liability, and in igno- 
 rance of the law, will bind the party .^ * But the rule is liable 
 to a qualification, if the man to whom money has been paid 
 has been accessory to the error of the other party, or has got 
 some one to misinform him of the law.^ If the law mistaken 
 is the law of a foreign state, the mistake is regarded as a mis- 
 take of fact.' 
 
 In Davis v. Morier,* where a person had by mistake re- 
 ceived for some years a less income than he was entitled to 
 under a marriage settlement, it was held that he was under the 
 circumstances of the case entitled to have the difference paid 
 to him out of the estate of the deceased settler. 
 
 ^ Bilbie v. Lumley, 2 East, 469 ; Ste- lowed out of the subsequent payments. 
 
 vens V. Lynch, 12 East, 38 ; Brisbane v. Nicholls v. Lesson, 3 Atk. 573. So, also, 
 
 Dacres, 5 Taunt. 143 ; Goodman v. Say- where an executoi- had paid interest for 
 
 ers, 2 J. (fe W. 263 ; Currie v. Goold, 2 seventeen years without deducting the 
 
 Madd. 163; Drewry v. Barnes, 3 Russ. property-tax, it was held he could not 
 
 94 ; Webb v. Brookes, 1 L. J, Ch. N. S. afterwards deduct out of the future in- 
 
 191 ; Great Western Railway Co. v. terests due the amount of property-tax 
 
 Cripps, 5 Ha. 91 ; Piatt v. Bromage, 24 on such precedent payments. Currie v. 
 
 L. J. Exch. 63; Bate v. Hooper, 5 D. Goold, 2 Madd. 163. 
 
 M. & G. 338; Stafford v. Stafford, 1 D. ^ Dixons v. Monkland Canal, 5 Wills. 
 
 & J. 197; Saltmarshe v. Barrett, 31 L. & Sh. Sc. Ap. 445 
 
 J. Ch. 783. Se • Moore v. Moore, 1 Coll. ^ Haven v. Foster, 9 Pick. (Amer.) 
 
 64. Where money had been paid for 112. See Leslie «/. Baillie, 2 Y. <fe C. C. 
 
 many years without deducting the land- C. 91. 
 
 tax, no deduction was afterwards al- ■* 2 Coll. 303. 
 
 * Elliott V. Swartout, 10 Pet. 137; Bank of United States v. Daniel, 13 
 Pet. 32; Haven v. Foster, 9 Pick. 112; Wheaton «. Wlieaton, 9 Ct. 96; 
 PinkLam r. Gear, 3 N. H. 163; Hubbard v. Martin, 8 Yerg. 498; Ege ». 
 Koontz, 3 Barr, 109; Jones v. Watkins, 1 Stew. 81; Lyou ®. Talkaadge, 
 14 Jolins. 526 ; Clark i\ Dutcher, 9 Cow. 674. 
 
 When money is paid by one under a mistake of his rights and his 
 duty, and which he was under no legal or moral obligation to pay, and 
 which the recipient has no right in good conscience to retain, it may be 
 recovered back whether such mistake be one of law or of fact. Northrop 
 V. Graves, 19 Ct. 548. 
 
 Payment by an administrator under a mistake of law to a person not 
 entitled, does not relieve him from liability, although the party really en- 
 titled knew of the payment and made no objection. Davis v. Bayley, 40 
 Geo. 181.
 
 MISTAKE. 403 
 
 Whether money paid under mistake of law can be reclaimed 
 is a subject which has led to much difference of opinion among 
 civilians and the commentators on the Roman law. The old 
 school of lawyers were of opinion that money paid under mis- 
 take of law might be recovered back. But Cujas maintained 
 an opposite opinion, and he was followed by Pothier and 
 others ; Yinnius, however, Iluber and D'Aguesseau supported 
 the doctrine of the earlier school.^ The framers of the Code 
 ]!!^apoleon adopted their opinion, and declared, in general terms, 
 that money paid under mistake may be recovered back, making 
 no distinction, in this respect, between mistake of law and mis- 
 take of fact.' The earlier authorities on the Scottish law are 
 in favor of the doctrine that money paid under mistake of law 
 may be recovered back.^ In two cases, however,* Lord 
 Brougham laid it down that at Scotch law money paid under 
 mistake of law is not recoverable. But there is much reason 
 to doubt whether the rule so laid down by him can be accepted 
 as a sound exposition of the Scotch law. His judgment was 
 founded solely on two English common-law authorities.® 
 
 Mistake in law is not a ground for setting aside a compro- 
 mise, if the parties to the transaction were in difficulty and 
 doubt, and wished to put an end to disputes, and to terminate 
 or avoid litigation. If one or more parties, having, or sup- 
 posing they have, claims upon a given subject matter, or claims 
 against each other, agree to compromise these claims, and the 
 knowledge, or means of knowledge, of each of them with 
 respect to the mode in which, and the circumstances under 
 which, his claim arises, stand upon an equal footing, and there 
 is an absence of fraud or misrepresentation, the transaction is 
 
 ' See Pothier, Obi. translatod by 398 ; Dixons v. Monldand Canal Co., 5 
 
 Evans, App. vol. II, pp. 408-437. "Wills. & Sh. 445. 
 
 ' Co:l. Civ. 1377. * liilbie v. Lumlej', 2 East, 409 ; Bris- 
 
 ' Mor. Diet. Dec. 2930, 2931. bane v. Dacies, 5 Taunt. 143. 
 * Wilson V. iSiuclair, 4 Wills. & Sh.
 
 404 MISTAKE. 
 
 binding, although, the conclusion at which the parties may have 
 arrived is not that which a court of justice would have arrived 
 at had its decision been sought. The real consideration which 
 each party receives under a compromise being, not the sacrifice 
 of the right, but the settlement of the dispute, and the aban- 
 donment of the claim, it is no objection to the validity of the 
 transaction that the right was really in one of the parties only, 
 and that the others had no right whatever. If, for instance, 
 two parties claim adversely to each other the inheritance of a 
 deceased person, and, in order to avoid litigation, agree to 
 divide the inheritance, it is no ground for setting aside the 
 agreement that only one was heir, and that the other gave up 
 the right which he really possessed. The fact that the one may 
 have had no claim is immaterial, if he was honestly mistaken 
 as to his claim. It is enough if at the time of the compromise 
 he may have believed he had a claim, and that the parties have, 
 by the transaction, avoided the necessity of goiug to law.* * 
 To render valid the compromise of a litigation, it is not even 
 necessary that the question in dispute should really be doubt- 
 ful, if the parties hond fide consider it to be so. It is enough 
 to render a .compromise valid, that there is a question to be 
 decided between them.^ A compromise of doubtful rights will 
 not be set aside on any other ground than fraud.^ 
 
 ' Stapilton v. Stapilton, 1 Atk. 10 ; 8T ; Partridge v. Stephens, 9 Jur. N. S. 
 
 Gordon v. Gordon, 3 S\v. 463; Leonard '742; Trig^e v. Lavallee, 15 Moo. P. C. 
 
 V. Leonard, 2 Ba. <fc Be. 179; ivaylor t). 2T0; Bullock v. Downes, 9 H. L. 1; 
 
 Wincli, 1 Sim. & St. 553, Y L. J. Ch. 6; 1; Brooke v. Lord Mostyn, 2 D. J. «fe 
 
 Harvey v. Cooke, 4 Kuss. 34 ; Attwood S. 373 ; Lord Belhaven's Case, 3 D. J. 
 
 y. , 5 Russ. 149 ; Stewart v. Stew- «fe S. 41. 
 
 art, 6 CI. & Fin. 969 ; Pickering v. Pick- " Ex-parte Lucy, 4 D. M. & G. 356. 
 
 erino-, 2 Beav. 56 , Reynell v. Sprye, 8 See Neale v. Neale, 1 Keen, 672. 
 Ha. ^222, 254 ; Ex-parte Lucy, 4 D. M. ' Brooke v. Lord Mostyn, 2 D. J. <b 
 
 <fe G. 356; Lawton v. Campion, 18 Beav. S. 373, supra, pp, 79, 80. 
 
 * A compromise made under a mistake of law may be set aside if there 
 is undue influence. "Wheeler v. Smith, 9 How. 55. 
 
 A compromise made under a mutual mistake of fact may be set aside. 
 Nabours v. Cocke, 24 Miss. 44.
 
 MISTAKE. 405 
 
 Tlie jurisdiction of equity over mistake is exercised mucli 
 more liberally where the mistake is iu matter of fact, than 
 where it is in matter of law. The admission of ignorance of 
 fact as a ground of relief, is not attended with those incon- 
 veniences which seem to be the reason for rejecting ignorance 
 of law as a valid excuse. Whether the ignorance really existed, 
 and whether it was imputable or not to the inadvertence of the 
 party, is a question which may be solved by looking at the 
 circumstance of the case. The inquiry is limited to a given 
 incident, and to the circumstances attending that incident, and 
 is, therefore, not interminable.'^* 
 
 According to Savigny, ignorance has not, as such, any 
 effect upon the legal consequences of an act or transaction in 
 which it occurs. The effect gensrally attributed to ignorance 
 is properly attributable to the negligence which is the cause of 
 it. Ignorance which is not the effect of gross negligence is not 
 prejudicial to the ignorant party, but ignorance which is the 
 effect of such negligence is prejudicial to him. "Whether ig- 
 norance be or be not the result of gross negligence, depends on 
 
 ' Austin Jur. vol. II. p. 1*72. 
 
 * Kctchnm v. Catlin, 21 Vt. 191 ; Wheadon v. Olds, 2 Wend. 174 ; Mer- 
 chants' Bank v. Mclntyre, 2 Sandf. 431 ; Miles v. S .evens, 3 Barr. 21. 
 
 No person can be presumed to be acquainted with all matters of fact, 
 nor is it possible by any degree of vigilance in all cases to acquii-e that 
 knowledge; and for this reason a court of equity is liberal in granting re- 
 lief to prevent injustice where the party asking it cannot be charged with 
 culpable negligence. Jenks v. Fritz, 7 W. & S. 201. 
 
 A court of equity will relieve against a material mistake as to the 
 quantity of land purporting to be conveyed by a deed. "Wiley v. Fitz- 
 patrick, 3 J. J. Marsh. 552 ; Crane v. Prather, 4 J. J. Marsh. 75. 
 
 When the contract is for a definite quantity, and the vendor makes a 
 mistake as to the mode of measurement, there can be no relief by injunc- 
 tion against the greater use, although the vendee was under the same mis- 
 apprehension. McKelway v. Cook, 3 Green's Ch. 103. 
 
 When a skilliul parson, in the performance of a mere ministerial duty, 
 makes an error in the admeasurement of land, tiie mistake may be corrected. 
 Jenks r. Fritz, 7 W. & S. 201; Whalcy y. Elliott, 1 A. K. Marsh. 343; 
 Gilmore v. Morgan, 2 J. J. Marsh. 65.
 
 400 MISTAKE. 
 
 circumstances ; it is presumed to be so when a man is ignorant 
 of the general laws of his country, or of his own affairs, but it 
 is not so presumed when he is iguoraat of other matters. The 
 presumption which arises in each of these cases is rebuttable, 
 but is conclusive if not rebutted by the person against whom 
 it arises. Ignorance of matters of law and ignorance of mat- 
 ters of fact, are thus placed on the same footing ; both are pre- 
 judicial when the result of gross negligence ; both are harm- 
 less when not so.^ 
 
 Mistake of fact is a mistake not caused by the neglect of 
 legal duty on the part of the person making the mistake,^ 
 and consisting in an unconsciousness,^ ignorance,* or forgetful- 
 ness^ of a fact past^ or present,'^ material to the transaction ; or 
 in the belief in the present existence of a thing material to the 
 transaction, which does not exist,^ or in the past existence of a 
 thing which has not existed.^ 
 
 In " fraud," as distinguished from " mistake," there is, ne- 
 cessarily, a misapprehension or mistake in the party defrauded, 
 which alone would not vitiate his dealings with others ; but 
 there is the additional circumstance that the party with whom 
 he deals intentionally causes the mistake for the purpose of 
 effecting the dealing, and this precludes the party so occasion- 
 incr the mistake from holdins; the other bound to it.^'^ 
 
 What is the nature or degree of mistake which is relievable 
 in equity, as distinguished from mistake which is due to negli- 
 
 'LindleyonJur. App. p. 19. 275; "Willan v. 'Willan, 16 Ves. 72; 
 
 » New York Civil Code, Art. 762. M'Carthy v. Decaix, 2 R. <fe M. 614. 
 
 ' See Kelly v. Solari, 9 M. & W. 54. ' See Cocking v. Pratt, 1 Ves. 400 ; 
 
 * See Cocking v. Pratt, 1 Ves. 400; Hore «^. Becher, 12 Sim. 465; Coiyer «. 
 East India Co. v. Neave, 5 Ves. 173; Clay, 7 Beav. 188; Broughton v. Hutt, 
 East India Co. v. Donald, 9 Ves. 275 ; 3 D. <fe J. 501. 
 
 Hore V. Becher, 12 Sim. 465; Bell v. * See Hitchcock v. Giddings, 4 Pri. 
 
 Gardiner, 4 M. & G. 11. 135; Colj^er v. Clav, 7 Beav. 188; Has. 
 
 'Kelly V. Solari, 9 M. & W. 54;'Lu tie v. Couturier, g^Exch. 102 ; 5 H. L. 
 
 cas V. Worswick, 1 Moo. <fe R. 293. 673; Strickland v. Turner, 7 Exch. 208; 
 
 • See East India Co. v. Neave, 5 Ves, Cochrane v. Willis, L. R. 1 Ch. App. 58- 
 173; East India Co. v. Donald, 9 Ves. * See New York Civil Code, Art. 762 
 
 '• Leake on Contracts, 182.
 
 MISTAKE. 407 
 
 geiice,* and therefore not relievable, cannot well be defined so 
 as to establish a general rule, and must, in a great measure, de- 
 pend on the discretion of the court under all the circumstances 
 of the case. Though a court of equity will relieve against 
 mistake, it will not assist a man whose condition is attributable 
 only to that want of due diligence which maybe fairly expected 
 from a reasonable person.^ * Parties, for instance, who, having 
 a good defence, or plain and complete remedy at law, have 
 neglected to avail themselves of it there, cannot come to equity 
 for relief.^ Nor has a purchaser who is evicted by reason of a 
 defect in title, which his legal adviser has overlooked, an equity 
 to recover his purchase money/ Nor can relief be had against 
 a forfeiture, where a man who is charged with a legal obliga- 
 tion neglects to perform it.^ So also where a sum of money 
 was paid by the purchaser of an estate to persons supposed to 
 be entitled in remainder, to procure their concurrence in a 
 recovery, which was suffered accordingly, Lord Nottingham 
 refused to direct the money to be refunded.^ 
 
 ^ Supra, -pp. 93,94. Facti ignorantia key w. Vernon, 2 Cox, 12; Stevens v. 
 
 ita demum cuique non nocet, si uon ei PraeJ, 2 Ves. Jr. 529 ; Batemau v. Will 
 
 Bumma negligentia objiciatur. Quid loe, 1 Sch. & Lef. 201 ; Hare v. Har- 
 
 enim si omnes in civitate sciant quod wood, 14 Ves. 31 ; Drewrj- v. Barnes 3 
 
 ille solus ignorat. Dig. Lib. 22, tit, 6, Russ. 94. See Marquis of Breadalba'ne 
 
 1. 9. V. Marquis of Chandos, 2 M. & C. 719; 
 
 * Duke of Beaufort v. Neeld, 12 CI. & Henderson v. Cook, 4 Drew. 306. 
 
 Fin. 218, 286; Leuty v. Hillas, 2 D. <fe * Urmston v. Pate, 3 Ves. 235, n. See 
 
 J. 110; Wild V. Hillas, 18 L. J. Ch. ITO. Cator v. Lord Pembroke, 1 Bro. C. C. 
 
 See Trigge v. LavaUee, 15 Moo. P. C. 301 ; 2 Bro. C. C. 282 ; Thomas v. Pow- 
 
 270. ell, 2 Cox, 394. 
 
 ' Stephenson v. Wilson, 2 Vern. 325 ; ^ Gregory v. Wilson, 9 Ha. 683, 689. 
 
 Blackhall v. Coombs, 2 P. W. 70; Hoi- ' Maynard v. Moseley, 3 Sw. 651. 
 worthy v. Mortlock, 1 Cox, 141 ; Han- 
 
 * Western R. R. Co. v. Babcock, 8 Met. 346 ; Ferson v. Sanger, 1 Wood 
 
 & Min. 138; Wood v. Patterson, 4 Md. Ch. 335; Capebart t-. Moon, 3 
 
 Jones' Eq. 178 ; Diman v. Providence «fec. R. R. Co., 5 R. I. 130 ; Lamb v. 
 
 Harris, 8 Geo. 546. 
 
 I Where the means of inqiiiiy are equally open to both parties, if a mis- 
 
 I take occur without any fraud or falsehood, no relief can be granted on 
 
 ^ account of the mistake alone. Daniel t. Mitchell, 1 Story, 173; Warner
 
 408 MISTAKE. 
 
 Mistake in matter of law or matter of fact, to be a ground 
 for equitable relief, must be of a material nature, and must be 
 the determining ground of tlie transaction. A man who seeks 
 relief against mistake, must be able to satisfy the court that 
 his conduct has been determined by the mistake. Mistake in 
 matters which are only ineideutal to, and are not of the essence 
 of a transaction, and without, or in the absence of which it is 
 reasonable to infer that the transaction would nevertheless have 
 taken place, goes for nothing.* If the mistake has not been 
 the only cause by which the conduct of a man has been in- 
 duced, but another motive has intervened, the mistake cannot 
 be set up as a ground for relief.^ Nor, indeed, does the cir- 
 cumstance that the mistake may be in a material matter always 
 of itself entitle a man to the interposition of the court. The 
 law does not go the length of requiring that parties who deal 
 with each other at arms' length, should be on the same level as 
 to information and knowledge. If parties stand upon an equal 
 footing, and the means of information and knowledge are open 
 to them both, either of them is entitled to the benefit of his 
 own judgment, skill, and sagacity. If the parties act other- 
 wise fairly in the transaction, and it is not a case in which one 
 of them is bound, upon the ground of confideuce, or other- 
 
 > Stone V. Godfrey, 5 D. M. & G. 76 ; 1 ; Domat. Liv. 1, tit. 18, sec. 1, art, 
 
 Carpniiiel v. Fowis, 10 Beav. 39; Trigge 13-17 ; Toull. Cod. Civ. Liv. 3, c, 2, s, 
 
 V. Lavalli'>e, 15 Moo. P. C. 276. See 2, art. 1-4. 
 Poth. Oblig. part 1, c. 1, s. 1, art. 3, s. 
 
 V. Daniels, 1 Wood & Min. 90 ; Hill v. Busb, 19 Ark. 523; Jouziu v. Toul- 
 inin, 9 Ala. 662. 
 
 A misunderstanding between a party and his attoraey resulting in a 
 failure to file a plea, is gross negligence, and not good ground for relief. 
 Kite V. Lumpkin, 40 Geo. 506. 
 
 * MTerran v. Taylor, 3 Cranch, 268 ; Weaver v. Carter, 10 Leigh, 37; 
 Sefur t). Fingley, 11 Ct. 134; Trigg v. Read, 5 Humph. 529; Harrod ». 
 Cowan, Hardin, 543. 
 
 A mutual mistake in regard to the title to property is a ground foi 
 rescinding a contract. Haddock v. Williams, 10 Vt. 570.
 
 MISTAKE. 409 
 
 wise, to make a disclosure to the other of matters affecting the 
 subject-matter in respect of which they are dealing, the court 
 will not interfere. A man cannot have relief on the ground 
 of mistake, unless the party benefited by the mistake is 
 disentitled in equity and conscience from retaining the advan- 
 tage which he has acquired.^ * 
 
 Mistake of fact may be the mistake of one party only to a 
 contract, or there may be a mistake of both parties respecting 
 the same matter; and thus there arise two different conditions 
 of the questions, which are governed by considerations of a 
 different character. 
 
 The mistake of one party only is attended by different 
 consequences, accordingly as the other party is or is not 
 cognizant of the mistake. 
 
 The law judges of an agreement between two persons 
 exclusively from those expressions of their intention, which 
 are communicated between them ; consequently, an agreement 
 cannot be affected by the mistake of either party in expressing 
 his intention, or in his motives, of which the other party has 
 no knowledge ; and the party who has entered into an agree- 
 ment under such a mistake, is bound by the agreement 
 actually made, and cannot assert his mistake in avoidance of 
 the agreement at law,^ or in equity.^ f 
 
 ^ 1 Fonb. Eq. B. 1, c. 2, § T; Story '^ Leake on Contracts, 168. 
 
 Eq. Jur. 14*7, 151 ; Warner V. Daniels, 'See Stapylton v. Scott, 13 Vesw 
 
 1 Wood & Min. (Amer.) 90, supra, pp. 427 ; Alvanley v. Kinnaird, 2 Mac. & 
 
 53, 54, 57. G. V ; Cox v. Bruton, 5 W. R. 544. 
 
 * McCobb T). Richardson, 24 Me. 83 ; Crowder v. Laugdon, 3 Ircd. Eq. 
 476 ; Hunter v. Goudy, 1 Ohio, 449. 
 
 t Lies r. Stubb, 6 Watts, 48; Farley v. Bryant, 33 Me. 474; Coffing ». 
 Taylor, 16 111. 457. 
 
 It is not enougli to show the sense and intention of one of the parties 
 
 to the contract. It must be shown incontroveitibly that the sense and 
 
 intention of the other party concurred in it; in other words, it must be 
 
 proved that they both understood the contract, as it is alleged it ought to 
 
 27
 
 410 MISTAKE. 
 
 TJpoii this principle it is not competent, in the case of a 
 written agreement, for either of the parties to Avoid its efiect 
 by merely showing that he nnderstood the terms in a different 
 sense from that which they bear in their grammatical con- 
 struction and legal effect.^ In special cases, however, and 
 under special circumstances, a court of equity may, as has 
 been already stated, relieve a party who has, under a mis- 
 take of his private rights, been induced to part with his 
 property.'' 
 
 When a party is mistaken in his motives for entering into 
 a contract, or in his expectations respecting it, such mistake 
 does not affect the validity of the contract. K a man pur- 
 chases a specific article, believing that it will answer a 
 particular purpose to which he intends to put it, and it fails 
 to do so, he is not the less on that account bound to pay for 
 it.^ In Cumherlege v. Lawson^ where a person executed a 
 
 ' Leate on Contracts, 169. 399 ; Ollivant v. Bayley, 5 Q. B. 288; 
 
 * Meadows v. Meadows, 16 Beav. Leake on Contracts, 109, supra, p. 63. 
 404, supra, p. 333. M C. B. K S. 709. 
 
 ' Clianter v. Hopkins, 4 M. <fe W, 
 
 have 1)6611, and in fact it was, but for the mistake. If it be clearly shown 
 that the intention of one of the parties is mistaken and misrepresented by 
 the written contract, that cannot avail unless it be further shown that the 
 other party agreed to it in the same way, and that the intention of both 
 of them was by mistake misrepresented by the contract. Lyman v. Utica 
 Ins. Co., 17 Johns. 373; Nevius v. Dunlap, 33 N. Y. 676; Wemple v Stew- 
 art, 23 Barb. 154; Ruffner v. McConnell, 17 111. 212; Gordere i\ Downing, 
 18 111. 492. 
 
 When parties have a different understanding of the import of their 
 contract, the appropriate relief is not to reform the contract but to set it 
 aside. Bellows v. Steno, 14 N. H. 175. 
 
 A court of equity can not insert a stipulation which was intentionallj 
 omitted from the contract. Betts v. Gunn, 81 Ala. 219. 
 
 When the clause sought to be inserted is not one that has been omitted 
 by mistake, but is merely one that ought, as a matter of propriety, to be 
 inserted, no relief can be granted. Thompson Scale 3Ianuf. Co. xi. Osgood, 
 20. Ct. 10.
 
 MISTAKE. 
 
 411 
 
 deed in tlic belief that another person Tvould also execute it, 
 but did not deliver it as an escrow, conditional upon such 
 execution, and was not betrayed into executing it b.y any 
 fraud or misrepresentation, he was held bound by the deed, 
 although the person expected by him to execute it failed to do 
 60.^ So also when a person being desirous of becoming a 
 freeholder in Essex, contracted to purchase a house on the 
 north side of the river Thames, which he supposed to be in 
 that county, but which proved to be in Kent, the contract was 
 held binding, and he was compelled in equity to complete the 
 TDurchase.^ 
 
 A court of eqnity will, however, in many cases refuse to 
 grant a plaintiff the peculiar remedy of specific performance of 
 a contract, which the defendant has entered into under a mis- 
 take, although the plaintiff was not privy to the mistake, or 
 implicated in its origin. A man who seeks to take advantage of 
 the plain mistake of another, cannot come to a court of equity 
 to assist him in doing so, but must rest satisfied with the 
 remedies which a court of law will give him.^* A court of 
 eouity will not enforce specific performance of an agreement 
 more favorable to the one party than the other, and involving 
 hardship upon him, if there be reasonable grounds for doubt- 
 ing whether he entered into it with a knowledge of its nature 
 and consequences.* The court will not compel a man speci- 
 fically to perform a contract which he never intended to enter 
 into, or which he would not have entered into, had its true 
 
 ' Comp. Evans v. Bremrulge, 2 K. & 516. See Manser v. Back, 6 Ila. 443, 
 
 J. Hi; a D. M. & G. 100. 447 ; Alvanley v. Kinnaird, 2 Mac. & 
 
 ' * Shirley v. Davis, cited 6 Ves. 678, G. 7 ; Watson v. Marston. 4 D. M. ikG. 
 
 7Ves. 270; but .sre 1 Bro. C. C. 440. 230; Falcke v. Gray, 4 Drew. 059; 
 
 » Manser v. Back, 6 Ila. 448 ; Wood Slirewsbury and Birinin;;h:iiii Kailway 
 
 V Scarth, 2 K. &. J. 33. See Stapylton Co. v. Nortb-Westeru Kaihvay Co. 6 11. 
 
 V. Scolt, 13 Ves. 427. L. 113. 
 
 * Vivers v. Tuck. 1 Moo. P. C. N. S. 
 
 * Coles V. Brown, 10 Paige, 526 ; Carberry v. Tannchill, 1 H. & J. 224.
 
 412 MISTAKE. 
 
 effect been understood,^ * If tlie description of tlie property, 
 tlie suLject-matter of the sale, or the terms of tlie contract are 
 anibiguons, so that the one party may have reasonably made a 
 mistake, as to the subject-matter or the terms of the con* 
 tract, or may have reasonably put a different construction on 
 the contract from that which was contemplated by the other, 
 the court will not assist either of them in enforcing the con- 
 tract against the other.' If the person who seeks the aid of 
 the court is the author of the ambiguity, or has in any way 
 misled the other, the rule applies with peculiar force.^ But 
 the author of the ambiguity may himself have the benefit of 
 the rule.* Specific performance may be refused, even when 
 there has not been any impropriety of conduct on the. part of 
 the party seeking specific performance, and the mistake is 
 purely the mistake of the person against whom relief is 
 sought, if, under the circumstances of the case, it appears 
 inequitable that there should be specific performance.^ A 
 defendant, for instance, may resist specific performance of an 
 agreement, by showing that he had made a mistake in stating 
 the terms of the agreement in a letter.^ 
 
 ' Harnett v. Yeilding, 2 Sch. & Lef. Railway Co. v. Donnington Hospital, L. 
 
 549; Watson v. Marston, 4 D. M. & G. R. 1 Ch. App. 268. 
 
 230; Wood v. Scarth, 2 K. <fe J. 33; * Mason v. Armitage, 13 Ves. 373; 
 
 Baxendale v. Seale, 19 Beav. 601 ; Higginson v. Clowes, 1 V. <fe B. 524 ; 
 
 Webster v. Cecil, 30 Beav. 64; Hoodz>, Moxey v. Bigwood, 8 Jur. N. S. 803, 10 
 
 Oglander, 34 Beav. 518. Jur. N. S. 597. 
 
 '^^ Calverly v. Williams, 1 Ves. Jr. * Neap v. Abbott, C. P. C. 333 ; 1 
 
 210; Jenkinson v. Pepys, cit. 15 Ves. Coop. C. C. temp. Cott. 382; Manser v. 
 
 521, 1 V. & B. 528; elowes v. Higgin- Back, 6 Ha. 443. 
 
 son,' 1 V. & B. 524; Neap t'. Abbott, C. ^ Malins v. Freeman, 2 Keen, 25; 
 
 P. C. 333 ; 1 Coop. C. C. temp. Cott. Alvanley v. Kinnaird, 2 Mac. <fe G. V ; 
 
 382 ; Manser v. Back, 6 Ha. 447 ; Bax- Webster v. Cecil, 30 Beav. 64. See 
 
 endale v. Scale, 19 Beav. 601 ; Swais- Fairhead v. Southee, 9 Jur. N. S. 764. 
 
 land 1). Dearsley, 29 Beav. 430; Moxey •* Wood v. Scarth, 2 K. <fe J, 33; 
 
 V. Bigwood, 8 Jur. N. S. 803 ; Parker v. Webster v. Cecil, 30 Beav. 64. 
 Taswell, 2 D. & J. 559. See Wycombe 
 
 * Ely V. Perrine, 1 Green's Ch. 396 ; Greer v. Boone, 5 B. Mon. 554 ; 
 Trigg V. Read, 5 Humph. 529.
 
 MISTAKE. 413 
 
 If tlie terms of tlie contract are not ambiguous, or there 
 appears to liave been no reasonable ground for the mistake, it 
 is not sufficient, in order to resist specific performance, for the 
 purchaser to swear that he has made a mistake, or did not 
 understand what he was about.^ 
 
 If the mistake cannot be established without evidence, 
 equity will allow a defendant to a bill for specific performance 
 to support a defence founded on this ground by evidence 
 dehors the agreement.^ 
 
 If the mistake be of one party alone to a contract, and i<- 
 be known to the other at the time of making the contract, the 
 fact that, the latter knew of the mistake may have an im- 
 portant bearing on the validity of the contract.* 
 
 If the one party has, by misrepresentation, caused the mis- 
 take for the purpose of obtaining the contract, his conduct may 
 amount to fraud.' 
 
 If he knew of the mistake of the other, but is not respon- 
 sible for causing it, and in making the agreement merely re- 
 mains silent, the question depends on the nature of the mistake 
 and the general circumstances of the ease. 
 
 If the mistake is in the expression of the agreement, one of 
 the parties cannot in equity hold the other bound to an ex- 
 pression of intention which he knew to be not in accordance 
 with his real intention.* f Where, for instance, a man supposes 
 
 ' Swaifiland v. Dearsley, 29 Beav. ' Supra, pp. 13, 15-26. See "Wors- 
 
 430. Sec Nock v. Newinau, 1 L. J. Ch. ley v. Frank, 11 L. T. 392; Shearman 
 
 N. S. 175; Leiity v. Hillus, 2 D. & J. v. JSIacg-regor, 11 Ha. 106. 
 110. ' Garrai'd v. Frankel, 30 Bear. 445. 
 
 » Manser v. Back, 6 Tla. 448; Wood 
 ». Scartli, 2 K. & J. 33. 
 
 * Cathcart v. RoLinson, 5 Pet. 2G4 ; Read v. Cramer, 1 Green's Ch. 277; 
 Botsford V. McLean, 45 Barb. 478. 
 
 t Greer v. Caldwell, 14 Geo. 207 ; Leitensdorfer v. Delphy, 15 3Io. 160 ; 
 Wyclie V. Green, 16 Geo. 49 ; Harding v. Randall, 15 Me. 3:52. 
 
 A court of equity will rescind a written contract, whether executed or 
 executory, within or without the statute of frauds, a conveyance of realty
 
 414 MISTAKE 
 
 that he has entered into a contract for a lease at one rent, and 
 it turns out that the rent specified in the agreement is of a 
 different amount, the contract will be set aside, unless the 
 party against whom relief is sought, shall agree to accept the 
 rent which he knew it was the intention of the plaintiff to 
 give.^ So also where in a conveyance of messuages the plan 
 on the deed comprised a piece of land not intended by the 
 vendor to be included, a decree was made to vary the deed, an 
 option being given to the purchaser to have his contract an- 
 nulled.^ 
 
 If the mistake is not in the expression of the agreement, 
 but in some fact materially inducing it, the mere knowledge 
 in the one party of a mistake in the other party, does not in 
 the absence of a duty to disclose, or other special circum- 
 stances, constitute a sufficient ground in equity for avoiding 
 the agreement.^ If parties are at arm's length, either of them 
 may remain silent, and avail himself of his superior knowledge 
 as to tiicts and circumstances equally open to the observation 
 
 'i6. See also Worsley v. Frank, 11 ' Harris ti. Pepperell, L. R. 5 Eq. 1. 
 
 L. T. 392. * Supra, p. 57, 58. 
 
 or of personalty, to let in an equity arising from facts perfectly distinct 
 from the construction of the instrument itself; and whatever doubts may 
 at one time have existed to the contrary, it is now established that relief 
 may be had against a mistake in a written instrument; that such mistake 
 may be shown by parol proof and relief granted to the injured party 
 whether he sets up the mistake affirmatively by a bill, or as a defence or 
 to rebut an equity. "Wyche v. Green, 11 Geo. 159. 
 
 A court of equity will not interfere where the instrument is such as the 
 parties themselves designed it to be, for if they voluntarily clioose to ex- 
 press themselves in the language of the instrument, they are bound by it. 
 McElderiy v. Shipley, 2 Md. 25; Leavitt «. Palmer, 3 K Y. 19; Stoddard 
 V. Hart, 23 N. Y. 556 ; Gamer v. Bird, 57 Barb. 277. 
 
 The choice must be such a voluntary choice as the law considers a 
 Eufficiently free exercise of the wUl to constitute an agreement, a valid 
 instrument in the absence of fraud, and not a choice made undL-r undue or 
 fraudulent influence. Wilson i-. Watts, 9 Md. 356.
 
 MISTAKE. 415 
 
 of both, or equally -within the reach of their ordinary dili- 
 gence, and is under no obligation to draw the attention of the 
 other to circumstances affecting the property, the subject-mat- 
 ter of the contract, although he may know him to be under a 
 mistake with respect to them.^ The case, however, is other- 
 wise if there be a duty to disclose. A party who is under a 
 duty to disclose, and who, there is reason to believe, knows 
 more about the subject-matter of the agreement than the other 
 party, will not be permitted by a court of equity to hold the 
 latter to the agreement.^ Relief may indeed be at times had 
 in equity, even though no fiduciary relation appears to subsist 
 between, the parties, when, under the special circumstances of 
 the case, it appears inequitable that the one party should hold 
 the other to his engagement.^ Relief, accordingly, was given, 
 where an instrument had been delivered up under the ignor- 
 ance of one party, and with the knowledge of the other as to a 
 fact, upon which the rights attached.* 
 
 Money jjaid voluntarily, under mistake of fact, is recover- 
 able both at law and in equity, unless it be clear that the party 
 making the payment intended to waive all inquiry into the 
 facts. It is not enough that he may have had the means of 
 learning the truth if he had chosen to make inquiry. The 
 only limitation is that he must not waive all inquiry.^* 
 
 By the general rule of the common law, if there be a con- 
 
 ' Supra, p. 54. * lb. 
 
 «Co(kiiii,r v. Pratt, IVes. 400; Millar Mvelly v. Solari, 9 M. & W. 54 ; 
 
 V. Crai:;, 6 Bcav. 433; Meadows v. Townscnd v. Crowdy, 8 0. B. N. S. 
 
 Meadiiws, 10 Beav. 404; Cox V. Bi'uton, 477. See Gva^Qvy v. Pilkington, 8 D. 
 
 6 W. R. 544. M. <fc G. 616; Shand v. Giaut, 15 C. B. 
 
 ' East India Co. v. Donald, 9 Yes. N. S. 324. 
 275. 
 
 * Scott V. Warner, 2 Livns. 49 ; Boon v. Miller, 16 Mo. 457; Aslibrook o. 
 Wattins, 3 Mon. 82. 
 
 The payment of a check retained beyond the time fixed by the rules of 
 the clearing-house by mistake, is p;iyment under a mistake of fact. Mer- 
 chants' National Bank v. National Eagle Bank, 101 Mass. 281.
 
 416 MISTAKE. 
 
 tract wliicli has been reduced into writing, verbal evidence ia 
 not allowed to be given of wbat passed between tlie parties, 
 either before the written instrument was made, or during the 
 time it was in a state of preparation, so as to add or subtract 
 from, or in any manner to vary or qualify, the written con- 
 tract.^ A court of equity, however, admits such evidence, 
 whether the purpose of the suit be to rectify or rescind an 
 agreement.^ * But the court will not act upon such evidence, 
 unless the proof be clear and conclusive. In all cases where 
 such evidence is given, great attention will be paid to what is 
 stated by the other party to the instrument.® 
 
 The mistake may be common to both parties to a trans- 
 action, and may consist either in the expression of their agree- 
 ment, or in some matter inducing or influencing the agree- 
 ment, or in some matter to which the agreement is to be ap- 
 plied.* f 
 
 ' Goss V. Lord Nugent, 5 B. & Ad. ' Bentley v. Mactay, 31 L. J. Ch. 
 
 68. 709, hifra, p. 421. 
 
 * Bentley v. Mackay, 31 L. J. Ch. * Leake oq Contracts, p. 172. 
 ^09 ; Garrard v. Frankel, 30 Beav. 451. 
 
 * Gillespie v. Moon, 3 Johns. Ch. 585 ; Washburn v. Merrills, 1 Day, 
 139 ; Graves v. Mattingly, 6 Bush. 361. 
 
 t Allen V. Hammond, 11 Pet. G33 ; s. c. 2 Sumner, 387; Thompson v. 
 Jackson, 3 Rand. 504 ; Carr v. Callaghan, 3 Litt. 365 ; Glassell v. Thomas, 
 3 Leigh, 113 ; Chamberlaine v. Marsh, 6 Munf. 283. 
 
 Nothing is more clear in equity than the doctrine that a contract 
 founded in a mutual mistake of the fticts constituting the very basis or 
 essence of it will avoid it. Daniel v. Mitchell, 1 Story, 173 ; Marvin ®. 
 Bennett, 8 Paige, 312 ; Leger v. BonaflFe, 2 Barb. 475 ; Irick v. Fulton, 
 8 Grat. 193; Miles v. Stevens, 3 Barr, 21. 
 
 Where the mistake is of so fandameutal a character that the miuds of 
 the parties have never, in fact, met, or where an unconscionable advantage 
 has been gained by mere mistake or misapijrehensions, and there has 
 been no gross negligence in falling into error, relief may be granted. 
 Brown r. Lamphear, 35 Vt. 252; Allen v. Hammond, 11 Pet. 63; Williams 
 T. Shaflford, 8 Pick. 250; Connor v. Henderson, 15 Mass. 31!); Winston v. 
 Gwathmey, 8 B. ilon. 23; Greene v. Batemau, 2 Woodb. & M. 359. 
 
 A mutual mistake in regard to the title of the vendor is ground foi
 
 MISTAKE. 417 
 
 The rule at law is that an agreement cannot be varied by 
 external evidence, and that the parties are bound by the docu- 
 ment, which they have signed and accepted as their agree- 
 ment,^ unless there be error on the face of it so obvious as to 
 leave no doubt of the intention of the parties, without the as- 
 sistance of external evidence. If there be mistake or error on 
 the face of an instrument, a court of law can correct it.^ * 
 
 The strict rule at law is, however, largely tempered by 
 the doctrine and practice of courts of equity, for a court of 
 equity will not speciiically enforce a contract which has been 
 drawn up by mistake, in terms not in conformity with the real 
 agreement of the parties, and will, in many cases, reform or set 
 aside the mistaken agreement. 
 
 The defence that the contract sought to be enforced is not 
 in conformity with the real agreement between the parties, but 
 has been drawn up incorrectly by mistake, may be set up by 
 parol evidence in answer to a bill for specific performance.' f 
 If the defendant can show that the instrument does noi repre- 
 sent the real agreement between the parties, the plaintiff can- 
 not have specific performance, unless he consent to the vari- 
 
 ' Hitchin V. Groom, 6 0. B. 515. 'Joynes v. Statham, 3 Atk. 388; 
 
 "^ Wils >n V. Wilson, 5 II. L 66; per Garrard v. Grinliiic;, 2 S\v. 2-14; Lord 
 
 Lord ISt. Leonards; Leake on Contracts, Gordon v. Marquis of Hertford, 2 Mada. 
 
 173. 100. 
 
 relief. Smith v. Robertson, 23 Ala. 313 ; Hyne v. Cami^bell, 6 Mon. 286 ; 
 Boulin V. Pollock, 7 Mon. 20. 
 
 If a judgment is confessed under a clear mistake, a court of law will 
 set it aside if application be made, and the mistake shown while the judg- 
 ment is in its power. An agreement to confess judgment is not stronger 
 than the confession itself. If the judgment is no longer in the power of 
 the court, relief may be obtained in chancery. These i^i'lnciples are of 
 universal justice, and universal application. The Hiram, 1 Wheat. 440. 
 
 * liarr «. Broadway Ins. Co. 10 N. Y. 209 ; Cries x. Withers, 20 Md. 
 653. 
 
 t Cathcart v. Robinson, 5 Pet. 204; Bradbui-y v. White, 4 Green!. 391; 
 Voorhees v. De Meyer, 2 Barb. 37.
 
 418 MISTAKE. 
 
 ation as set np by the defendant. If the plaintiff will not ac- 
 cept specific performance with the variation as set up and 
 proved by the defendant, his bill will be dismissed ; ^ and spe- 
 cific 2)erformanee of the agreement, with the variation proved, 
 may be tlecreed at the instance of the defendant without a 
 cross bill.^ Athough a defendant may show by parol that the 
 written instrument does not represent the contract between 
 the parties, a plaintiff cannot have a decree for specific per- 
 formance of a written contract with a variation upon parol 
 evidence, for the Statute of Frauds is a bar to the relief.^ * 
 Parol evidence is admissible on the part of the party resisting 
 specific performance, not to vary the terms of the agreement, 
 but to show that it is unconscientious in the plaintiff to seek 
 specific performance, without submitting to the variation set 
 up and proved by the other.* 
 
 If parties enter into an agreement, but there is an error 
 in the reduction of the agreement into writing, so that 
 the written instrument fails through some mistake of the 
 draftsman, either in matter of law ^ f or of fact, to represent 
 
 'Joynes v. Statham, 3 Atk. 388; Squire v. Campbell, 1 M. <fe C. 459, 480, 
 
 Clarke v. Grant. 14 Yes. 519; Rams- per Lord Cottenham; Att.-Gen. ». Sit- 
 
 bottom V. Gosden, 1 V. & B. 165; well, 1 Y. <fe C. 559; Davies v. F'ltUm, 
 
 London and Birmingham Railway Co. 2 Dr. & War. 225 ; Manser v. Back, 6 
 
 V. Winter, Cr. & Ph. 57 ; Martin v. Ha. 443, 447 ; Wilson v. Wilson, 5 H. 
 
 Pycrofr, 2 D. M. & G. 785; Fallon v. L. 6o.per Lord St. Leonards. 
 
 Robins, 16 ir. Ch. 428. "Clowes v. Higginson, 1 V. & R, 
 
 * Fife V. Clayton, 13 Yes. 54C. 524. 
 
 8 Woollam v. Ilearn, 7 Yes. 211 ; ' Wake v. Harrop, 1 H. & C. 202. 
 Clinan v. Cooke, 1 Sch. & Lef. 22, 39 ; 
 
 * A court of equity may, in tlie same suit, at tlie instance of tlie plaintifi^ 
 rectify an instrument, aud decree specific iDerformance. Gillespie v. Moon, 
 2 Johns. Ch. 535 , Kerssilbrack v. Livingston, 4 Johns. Ch. 144; Moale «. 
 Buchanan, 11 G. & J. 314 ; Mosby v. Wall, 23 Miss. 81 ; Ballance v. Under- 
 hill, 3 Scam. 453; Huson v. Pitman, 2 Hayw. 331; Willis v. Henderson, 4 
 Scam. 13; Smith v. Allen, Saxton 43; Bellows v. Stone, 14 N. H. 175; 
 co7itr(i, Osboi-ne v. Phelps, 19 Ct. (J2; Elder v. Elder, 10 Me. 80; Thoma? v. 
 McCormick, 9 Dana, 108. 
 
 t Beardsley r. Knight, 10 Vt. 185 ; Goodell v. Field, 15 Vt. 448 ; Wash- 
 bmn V. Merrill, 1 Day, 139 ; Alexander v. Newton, 2 Grat. 2GG ; Parham
 
 MISTAKE, 419 
 
 the real agreement of the parties, or omits or contains terms 
 or stipulations contrary to the common intention of the parties, 
 a court of equity will correct and reform the instrument, so as 
 to make it conformable to the real intent of the parties.** 
 So also if a conveyance, executed for the purpose of giving 
 effect to and executing an agreement, should by mistake give 
 the purchaser less than the agreement entitled liim to, he may 
 call on the court to rectify the defective conveyance, and give 
 him all that the agreement comprehended.'' f The principle 
 
 » Beaumont v. Bramley, T. <fe R. 41 ; wood, 32 Beav. 436 ; 33 L. J. Ch. 106; 
 
 Cockerell V. rholniclej-. Taml. 435; Druiff e-. Parker. L. R. 5 Eq. 137. 
 Asliluirst V. Mill, 7 Ha. 502 ; Barrow v. ^ Monro v. Taylor, 3 Mac. & G. 718 ; 
 
 Barrow, 18, Beav. 529; lilurray i: Par- Leuty v. Ilillas, 2 D. & J. 120; 4 Jur. 
 
 ker, 19 Beav. 308; Reader. Armstrong, N. S. 1167. See Cox v. Bruton, 5 W. 
 
 7 Ir. Ch. 375; Malinesbury v. Malmes- R. 544. 
 bury, 31 Beav. 407 ; Scbolfield v. Lock- 
 
 V. Parham, 6 Humph 287 ; Rogers v. Atkinson, 1 Kelly, 12 ; Collier v. 
 Lanier, 1 Kelly, 238 ; Larkins x. Biddle, 21 Ala. 252 ; Stedwell v. Anderson, 
 31 Ct. 139. 
 
 * Baynard v. Norris, 5 Gill, 468 ; Wooden v. Haviland, 18 Ct. 101 ; 
 Savage v. BeiTy, 2 Scam. 545 ; Hunt v. Freeman, 1 Ohio, 226 ; Finley v, 
 Ljan, 6 Cranch, 238 ; Scott v. Duncan, 1 Dev. Eq. 403 ; Aldridge v. Weems, 
 2G. &J. 36; Manz v. Beekman Ii'on Co., 9 Paige, 188; Newcomer v. 
 Kline, 11 G. «& J. 457; Peterson v. Grover, 20 Me. 363; Chamberlain v. 
 Thompson, 10 Ct. 243 ; Keyton v. Branford, 5 Leigh, 39 ; Desell v. Casey, 
 3 Dessau. 84 ; Bass «. Gilliland, 5 Ala. 761 ; Leonard r. Austin, 2 How. 
 (Miss.) 888 ; Gelton v. Hawkins, 2 J. J. Marsh. 1 ; McMillin v. McMillin, 7 
 Mon. 560. 
 
 t Tilton V. Tilton, 9 K H. 385 ; Riemer v. Cantillon, 4 Johns. Ch. 85 ; 
 Blessing v. Beatty, 1 Rob. 287 ; Gardner v. Gardner, 1 Dessau. 137 ; Blod- 
 gett f. Hobart, 18 Vt. 414 ; McKay v. Simpson, 6 L-ed. Eq. 452; Blair y. 
 McDonnell, 1 Halst. Ch. 327. 
 
 A mistake may be corrected betw^een the original parties, or those 
 claiming under them in priority, as heirs, devisees, legatees, assignees, 
 voluntary grantees, or judgment creditors, or purchasers from them with 
 notice. Simmons v. North, 3 Smed. & Mar. 67; Wall v. Arrmgton, 13 Geo. 
 88 ; Strang v. Beach, 11 Ohio St. R. 283. 
 
 A bill will not lie to correct a mistake, unless, on application, those 
 having power to rectify it refuse to do so. Lamkin v. Reese, 7 Ala. 170 ; 
 Beck V. Simmons, 7 Ala. 71. 
 
 The omission of a statutory requirement may hs supplied. Beards) ey 
 e. Knight, 10 Vt. 185 ; Watson v. Wells, 5 Ct. 468.
 
 420 MISTAKE. 
 
 Tipou wliicli tlie court acts in correcting instruments, is, that 
 the parties are to be placed in the same situation as they would 
 have stood in if the error to be corrected had not been com- 
 mitted. When a deed as drawn up goes beyond the in struc- 
 tions and the intention of the parties, it will be rectified.^ "* 
 
 * Walker v. Armstrong 8 D. M. & G. 544. 
 
 "When tliere is an omission of some statutory requirement in the deed 
 of a feme covert, the mistake can not ba corrected. Dickinson v. Glenney, 
 27 Ct 104 ; Grapengether v. Fejervary, 9 Iowa, 183. 
 
 If an instrument is prepared according to the intentions of the parties, 
 but read incorrectly, it will be valid. White v. Williams, 2 Green's Ch. 
 376. 
 
 A penal bond left in blank may be filled up. Gray v. Rumph, 2 Hill's 
 Ch. 6. 
 
 The omission of, a seal may be supplied. Montville v. Haughton, 7 Ct 
 542 ; Rutland v. Paige, 24 Vt. 181. 
 
 The omission of words of inheritance may be corrected. Rutledge v. 
 Smith, 1 Busbee's Eq. 283 ; Wright v. Delafield, 23 Barb. 498 ; Colchester 
 V. Culver, 29 Vt. Ill; Sprmgs v. Harven, 3 Jones' Eq. 96 ; Cromwell ». 
 Winchester, 2 Head. 389. 
 
 The word " dollars " may be inserted in a sealed note. Newcomer v. 
 Kline, 11 G. & J. 457. 
 
 An instrument may be corrected against sureties, as well as against 
 others. Butler r. Durham, 3 Ired. Eq. 589 ; Huson v. Pitman, 2 Hey. 331 ; 
 Newcomer v. Kline, 11 G. & J. 457. 
 
 A deed may be corrected so as to bind the fii'm, instead of one part- 
 ner. McNaughton v. Partridge, 11 Ohio, 223. 
 
 A mistake in an application for an insurance policy may be corrected, 
 even after a loss has occurred. Harris v. Columbiana County Ins. Co., 18 
 Ohio, 116. 
 
 A mistake in an insurance policy may be rectified. Fireman's Ins. Co. 
 V. Powell, 13 B. :Mon. 311 ; National Fire Ins. Co. v. Crane, 16 Md. 260. 
 
 A lon'i fide purchaser may have a deed corrected as to the description, 
 so as to discharge the land from a judgment lien that attached aftL'r the 
 execution of the defective conveyance. Gouverneur v. Titus, 1 Edw. Ch. 
 477 ; Simmons v. North, 3 Smed. & Mar. 67 ; ^Vhite v. Wilson, 6 Blackf. 
 448 ; Barr v. Hatch, 3 Ohio, 527. 
 
 An omission with knowledge, and reliance on a parol promise that the 
 omitted portion shall be carried out, is not a mistake or ground for relief, 
 Ligon T. Rogers, 12 Geo. 281. 
 
 A court of equity will rot correct a mistake in a voluntary couvey&nce. 
 Minturn v. Seymour, 4 Johns. Ch. 497. 
 
 ♦ Tilton ^.Tilton, 9 N. H. 385 ; Le Roy v. Piatt, 4 Paige, 77 ; Watson
 
 MISTAKE. 421 
 
 Relief upon a defective instrument is tlie more recadily afforded 
 when tlie party to "be charged thereon is liimself the person 
 who prepared or perfected it.* The fact, however, that the 
 defective instrument may have been drawn up by the party 
 seeking relief is immaterial, if a proper case be made 
 out* 
 
 A person, however, who seeks to rectify an instrument, on 
 the ground of mistake, must be able to prove not only that 
 there has been a mistake, but must be able to show exactly 
 and precisely the form to which the deed ought to be brought, 
 in order that it may be set right according to what was I'eally 
 intended, and must be able to establish, in the clearest and 
 most satisfactory manner, that the alleged intention of the 
 parties to which he desires to make it conforijiable, continued 
 concurrently in the minds of all parties down to the time of 
 its execution. The evidence must be such as to leave no fair 
 and reasonable doubt upon the mind that the deed does not 
 embody the final intention of the parties."* If, upon a per- 
 sonal agreement for a life assurance, a policy be drawn by the 
 
 ' Ex-parte Wright, 19 Ves. 257 ; Col- Rooke v. Lord Kensington, 2 K. <fe J. 
 
 lett V. Morrison, 9 Ha. 176. 764 ; Fowler v. F()wlerr4 D. &. J. 265 ; 
 
 * Ball V. Storie, 1 Sim. & St. 218. Earl of Bradford v. Earl of Romnej', 30 
 
 'Lord Townshend v. Stangroom, 6 Beav. 4-31; Bentley t>. Mackav, 31 L. J. 
 
 Ves. 334 ; Beaumont v. Bramley, T. & Ch. 709 ; Sells v. Sells, 1 Dr. & Sm. 42. 
 
 R. 41, 50 ; Marquis of Breadalbane v. See Lloyd v. Cocker, 19 Beav. 144. 
 
 Marquis of Chaados, 2 M. & C. 740 : 
 
 ». Cox, 1 Ired. Eq. 389 ; Davis v. Phelps, 7 Mon. 632 ; Richardson v. Blight, 
 8 B. Mon. 580. 
 
 * United States v. Munroe, 5 Mason, 573 ; Lyman v. Little, 23 Vt. 576 ; 
 Lyman «. United States Ins. Co., 17 Johns. 373 ; s. c. 2 Johns. Ch. 630 ; 
 Triplett v. Bailey, 8 Humph. 230 ; Farly v. Bryant. 33 Me. 474 ; Reese v. 
 Wyman, 9 Geo. 430 ; Mosby v. Wall, 23 Miss. 81 ; Beard v. Hubble, 9 Gill, 
 420 ; Brantley v. West, 27 Ala. 542. 
 
 If the mind of the court is satisfied, the requirement is complied w-ith. 
 Gillespie v. Moon, 2 Johns. Ch. 585; Sharman v. IMiller, 6Md. 479; Tucker 
 V. Maddin, 44 Me. 200 ; Hillman v. Wright, 9 Ind. 126 ; Davidson v. Greer, 
 3 Sneed, 384 ; Ruffner v. McConnell, 17 111. 217.
 
 422 MISTAKE. 
 
 insurance office in a form which differs from the tenns of the 
 agreement, and varies the rights of the parties assured, equity 
 will interfere and deal with the case on the footing of the 
 agreement, and not on that of the policy.^ If it appear that 
 there was a change of intention, by which the circumstance 
 that the instrument does not follow the terms of the original 
 contract might be explained, there can be no rectification ; ' so, 
 also, if it appear tliat the parties took different views of what 
 was intended, there would be no contract between them which 
 could be carried into effect by rectifiying the instrument.^ 
 There can be no rectification, if the mistake be not mutual or 
 common to all parties to the instrument,* or if one of the 
 parties knew of the mistake at the time he executed the deed. 
 Rectification can only be had where both parties have executed 
 an instrument under a common mistake, and have done what 
 neither of them intended.^ A mistake on one side may be a 
 ground for rescinding, but not for correcting or rectifying an 
 agreement.* 
 
 In Harris v. Pepperell,' Lord Romilly, M. R., said that the 
 rule that the court will not rectify an instrument on the 
 ground of mistake, except the mistake be mutual, is liable to 
 an exception in a case between vendor and purchaser. But 
 the distinction is not supported by the authorities, and does 
 not seem sound. Garrard v. Franke ^ and Harris v. Pepperell,^ 
 were, there is no reason to doubt, correctly determined ; but 
 the principle upon which they are to be upheld is, that the 
 court in these cases merely abstained from setting the agree- 
 ment aside, on the consent of the defendant to submit to the 
 
 ' Collett ?,'. Morrison, 9 Ha. 162. * Eaton v. Bennett, 34 Ecav. 196; 
 
 " Marquis of Breadalbane v. Marquis Fallon v. Robins, 16 Ir. Ch. 422. 
 
 of Chandos, 2 M. & C. 740. " Mortimer v. Shortall, 2 Dr. & War. 
 
 ' Bentley v. Mackay, 31 L. J. Ch. 3'72; Fowler v. Fowler, 4 D. <fe J. 265. 
 
 709. ' L. R. 5 E.|. 1. 
 
 * Roolce V. Lord Kensington, 2 K. <fe " 30 Beav. 451. 
 
 J. 753 ; Fowler v. Fowler, 4 D. <fe J. " L. R. 5 Eq. 1. 
 205 ; Sells v. Sells, 1 Dr. & Sm. 42.
 
 MISTAKE. 423 
 
 variation alleged by tlie plaintiff. In cases of rectification, 
 properly so called, the court does not put it to the defendant 
 to submit to the variation alleged by the plaintiff, but makes 
 the instrument conformable to the intent of the parties with- 
 out any such offer or submission. 
 
 Although, however, the court will not rectify a transaction 
 between two or more parties, unless on the ground of mutual 
 mistake, a deed poll by way of appointment may be rectified 
 on the ground of mistake, if the mistake is clearly proved on 
 the part of the person making it.^ 
 
 Parol evidence is admissible on the application to rectify 
 an instrument to show what the intention of the parties really 
 was.^ In most, if not in all, the cases in which the court has 
 reformed an instrument, there has been something beyond the 
 parol evidence, such, for instance, as a rough draft of the 
 agreement, written instructions for preparing it, or the like; 
 but the court will act where the mistake is clearly established 
 by parol evidence, even though there is nothing in writing to 
 which the parol evidence may attach.^ If, however, there is 
 not anything in writing beyond the parol evidence to go by, 
 and the defendant, by his answer, denies the case set up by 
 the plaintiff, the plaintiff will often be without a remedy, 
 though, even in such cases, the parol evidence may be so 
 conclusive as to justify the court in granting the reliel 
 prayed."* 
 
 If the original agreement is of doubtful construction, and 
 the conveyance is definite and unequivocal, it is not easy to 
 
 ' Wriglit V. GofT, 22 Beav. 214. See Mortimer v. Shortall, 2 Dr. & T\'ar. 375 ; 
 
 Wilkinson v. Nelson, 7 Jur. N. S. 481. Lackersteen v. Lackersteen, (5 Jur. N. S. 
 
 'Alexander i. Crosbie, LI. <fe G. temp. 1111; Tomlison v. Leigh, llJur. N. S. 
 
 Sag. 145 ; Mortimer v. Shortall, 2 Dr. 902. 
 
 & War. 36:3 ; Burrow v. Barrow, 18 Beav. ■* lb. ; Beaumont ?;. Bramley, T. A R. 
 
 532; Lackersteen V. Lackersteen, 6 Jur. 52; Fowler v. Fowler, 4 D. & J. 273; 
 
 N. S. 11 1 1. Beutley v. Mackay, 31 L. J. Ch. 709. 
 , • Alexander v. Crosbie, LI. <fe G. 149 ;
 
 424 MISTAKE. 
 
 avoid the conclusion that the latter may be the best evidence 
 of the terms of the actual ag-reement.^ 
 
 Where a document has been sio^ned as an a2:reement in a 
 common mistake as to its contents, and it appears that no real 
 agreement was come to between the parties, according to which 
 it might be rectified, the court will set it aside.^ There can be 
 no rectification, if one of the contracting parties never heard of 
 that which is said to be the real agreement.^ 
 
 Where the instrument sought to be rectified on the ground 
 of mistake was a marriage settlement, the doctrine in the older 
 cases Avas, that where the articles and settlements were both 
 before marriage, the court would not interfere, unless the 
 settlement was expressed to be made in pursuance of the arti- 
 cles, for, without such a recital, the court supposed that the 
 parties had altered their intentions as regarded the terms of 
 the contract.* The later authorities, however, dispense with 
 the necessity of a reference to previous articles in the settle- 
 ment.^ Where a settlement purports to be in pursuance of 
 articles entered into before marriage, and there is any variance, 
 then no evidence is necessary to have the settlement corrected ; 
 and although the settlement contains no reference to the arti- 
 cles, yet if it can be shown that the settlement was intended 
 to be in conformity with the articles, and there is clear and 
 satisfactory evidence showing that the discrepancy had arisen 
 from a mistake, the court will reform the settlement, and make 
 it conformable to the real intention of the parties.^ 
 
 In some cases, where the fact of the mistake can be fairly 
 implied from the nature of the transaction, relief will be given, 
 
 " Hnmpliries v. Ilorne, 3 Ha. 277. ' Fowler v. Scottish Equitable Life 
 
 ^ Calverley v. Williams, 1 Ve3. Jr. Assurance Society, 28 L. J. Ch. 228. 
 
 210; Price v. Ley, 4 Giff. 235; aff. 11 * Bold v. Hutchinson, 5 D. M. <fc G. 
 
 W. R. 473 ; Fowler v. Scottish Equit- 566. 
 
 able Life Assurance Society, 28 L. J. * lb. 
 
 Ch. 228. See Cox v. Brutbn, 5 W. R. « lb. 568, 
 
 544.
 
 MISTAKE. 425 
 
 although the fact of the mistake is not estabh'shed by direct 
 evidence. Thus, in cases where there has been a joint loan of 
 money to two or more obligors, and they are by the instrument 
 made jointly liable, but not jointly and severally, the court has 
 reformed the instrument and made the obligation joint and 
 several, so as to charge the estate of a deceased obligor, upon . 
 the reasonable presumption, from the nature of the transaction, 
 that it was so intended by the parties.^ * The debt being 
 joint, the natural, if not the irresistible, inference in such cases 
 is, that it is intended by all the parties that, in every event, the 
 responsibility should attach to each obligor, and to all equally. 
 This can be done only by making the bond several as well as 
 joint ; for otherwise, in case of the death of one of the obligors, 
 the survivor or survivors only would be liable at law for the 
 debt.^ Indeed, it is now well established, as a general prin- 
 ciple, that every contract for a joint loan is, in equity, to be 
 deemed, as to the parties borrowing, a joint and several con- 
 tract, whether the transaction be of a mercantile nature or not ; 
 for, in every such case, it may fairly be presumed to be the 
 intention of the parties that the creditor should have the 
 several, as well as the joint, security of all the boiTowers for 
 the payment of the debt.^ Hence, if one of the boiTOwers 
 should die, the creditor has a right to proceed for immediate 
 relief out of the assets of the deceased party, without claiming 
 any relief against the surviving joint contractors, and without 
 showing that the latter are unable to pay by reason of their 
 insolvency.* 
 
 * Simpson v. Vaughan, 2 Atk. 31, 32 ; * Gray v. Chiswell, 9 Ves. 118 ; ^x- 
 
 Bishop V. Church, 2 Ves. 100, 371; paWfi Kendall, 17 Ves. 525. 
 Thomas v. Frazer, 3 Ves. 399 ; Under- ' Thorpe v. Jackson, 2 Y. & C. 553. 
 
 hill V. Ilorwood, 10 Ves. 227 ; Devaynea * lb.; Williamson v. Henderson, 1 M. 
 
 V. Noble, Sleech's Case, 1 Mer. 564 ; & K. 582. 
 Thorpe v. Jackson, 2 Y. «fe C. 553. 
 
 * Weaver e. Shryork, S. & R. 263; Barnes v. Camart, 1 Barb. S94; 
 Hyde v. Tanner, 1 Barb. 84.
 
 42G MISTAKE. 
 
 But, where tlie inference of a joint original debt or liability 
 is repelled, a court of equity will not interfere ; for in sucli a 
 case there is no ground to presume a mistake. The doctrine 
 has been thus stated by Sir "W. Grant, in Sumner v. Powell : ^ 
 " Where the obligation exists only in virtue of a covenant, its 
 extent can be measured only by the words in which it is con- 
 ceived. A partnership debt has been treated in equity as the 
 several debt of each partner, altliough at law it is only the 
 joint debt of all. But then all the partners have had a benefit 
 from the money or the credit given ; and the obligation of all 
 to pay exists independently of any instrument by which the 
 debt may have been secured. So, where a joint bond has 
 in equity been considered as several, there has been a credit 
 previously given to the different persons who have entered 
 into the obligation. It is not the bond that first created the 
 liability." 
 
 It is upon the same ground that a court of equity will not 
 reform a joint bond against a mere surety, so as to make it 
 several against him, upon the presumption of a mistake from 
 the nature of the transaction ; but it will require positive 
 proof of an express agreement by him that it should be 
 several, as well as joint.'' So where an obligee of a joint and 
 several bond elected to take a judgment against all the 
 obligors, and thus at law lost his right of a several remedy, 
 a court of equity refused him a remedy against the personal 
 assets of a deceased obligor, who was only a surety.^ So also 
 in cases where the obligation or covenant is purely matter of 
 arbitrary convention, not growing out of any antecedent 
 liability in all or any of the obligors or covenantors to do 
 what they have undertaken (as, for example, a bond or cove- 
 nant of indemnity for the acts or debts of third persons), a 
 
 » 2 Mer. 36. ' United States v. Price, 9 How. 
 
 * lb.i Rawstone v. Parr, 3 Russ. 539. (Amer.) 83.
 
 MISTAKE. 427 
 
 court of equity will not by im2)licatioii extend the responsi- 
 bility from that of a joint to a joint and several nndertaking.^* 
 But if there be an express agreement to the effect that an ob- 
 ligation or other contract shall be joint and several, or to any 
 other effect, and it is omitted by mistake in the instrument, a 
 court of equity will, under such circumstances, grant relief as 
 fully against a surety or guarantee, as against the principal 
 party .^ f 
 
 The equity for rectification on presumptive evidence is 
 applied also to a mortgage by husband and wife of the wife's 
 estate, which has limited the equity of redemption to the 
 husband. If the instrument does not recite an intention to 
 do more than make a mortgage, the presumption is that 
 nothing more was intended; and the instrument will be 
 reformed by restoring the equity of redemption to the wife. 
 And, in like manner, it is held that if a lease be made by a 
 tenant for life, under a power created by a settlement, and 
 a rent reserved to the lessor and his heirs, these words shall 
 be interpreted by the prior title, and applied to the re- 
 mainderman under the settlement, and not the heir of the 
 lessor.^ 
 
 The principle upon which the court reforms and corrects 
 an instrument on the ground of mistake, will not apply in a 
 case in which a matter has been completely overlooked on 
 both sides ; and the agreement is a substantial agreement, 
 which speaks in sufficiently clear terms for itself, and contains 
 no reference to any other instrument, or to any pre-existing 
 
 ' Sumner v. Powell, 2 Mer, 36, 37 ; 2 Mer. 36 ; Rawstone v. Parr, 3 Russ. 
 
 Clarke v. Bickers, 14 Sim. 639. 539. 
 
 " Crosby v. Middleton, Prec. Ch. 309; ' Innes v. Jackson, 1 Bligli, l(i4, 114; 
 
 2 Eq. Ca. Ab. 188; Sumner v. Powell, Clark v. Burgh, 2 Coll. 221. 
 
 * "Warb V. Webber, 1 "Wash. 274 ; Harrison v. Mirgc, 2 Wash. 130. 
 t Berg V. Radcliffe, 6 Johns. Ch. 302 ; Wiser v. Blackley, 1 Johns. Ch. 
 607.
 
 428 MISTAKE. 
 
 relation ; ^ or in a case where the instrument is in accordance 
 with the expressed intention of the parties, and has been 
 prepared with full knowledge of their rights, but has failed 
 onlj because the parties have been ill-advised as to the way of 
 giving effect to their intention.^ * !N^or will the court make a 
 settlement conformable with what it is alleged it would have 
 been if all the material points had been present to the minds 
 of the parties at the time thej executed it.^ Nor will the 
 court, under the name of rectiiication, add to the agreement a 
 term which had not been determined upon, or was not agitated 
 between them. There can be no rectification if the agreement 
 executed is in accordance with the proposals.'* Xor can there 
 be rectification, if it was by the intention of the parties that 
 the written instrument did not comprise all the terms of the 
 actual agreement.^ 
 
 Though the court will rectify an instrument which fails 
 through some mistake of the draughtsman in point of law to 
 carry out the real agreement between the parties,* it is not 
 sufficient, in order to create an equity for rectification, that 
 there has been a mistake as to the legal construction, or the 
 legal consequences of an instrument. The proper question 
 always is, not what the document was intended to mean, or 
 how it was intended to operate, but what it was intended to 
 be. For example, where an annuity had been sold by the 
 plaintiff, and was intended to be redeemable, but it was 
 agreed that a clause of redemption should not be inserted in 
 
 » Parker v. Taswell, 2 D. & J. 559. * Lord Irnham v. Child, 1 Bro. C. C. 
 
 • Farr v. SherifFe, 4 Ha. 513. 92; Lord Portmore v. Morris, 2 Bro. C. 
 'Barrow v. Barrow, IS Beav. 534; C. 219; Lord Townshend v. StangrooTn, 
 
 Wilkinson v. Nelson, 7 Jur. N. S. 481. 6 Ves. 332 ; Harbidge v. Wogan, 5 Ha. 
 
 See Hills v. Rowland, 4 D. M. <fe G. 258. 
 
 430. 8 Wake v. Harrop, 1 H <fe C. 202, 
 
 * Elwes V. Elwes. 3 D. F. <fe J. 667. 
 
 * Hunt V. Rousmanier, 1 Pet. 1 ; Durant v. Bacot, 3 Beasley, 201,
 
 MISTAKE. 429 
 
 the deed, because both parties erroneously supposed tliat its 
 insertion would make the transaction usurious, it was held 
 that the omission could not be supplied in equity, for the 
 court was not asked to make the deed what the parties in- 
 tended, but to make it that which they did not intend, but 
 which they would have intended if they had been better 
 informed.^ So also where a party making a voluntary deed 
 supposes that he will have a power of subsequent revocation, 
 though no such j)ower is reserved, the deed cannot after- 
 wards be rectified by inserting the power, the evidence 
 merely showing that the power had been omitted under the 
 erroneous, belief that it was not necessary to insert it, not that 
 the power was intended to be inserted, but was left out by 
 mistake.^ 
 
 I^or can there be rectification, although both parties may 
 have been under a mistake, if the mistake be in respect of a 
 matter materially inducing the agreement,' 
 
 The court will not rectify a voluntary deed, unless all the 
 parties consent. If any object, the deed must take its chance 
 as it stands.* I^or can a voluntary deed be reformed, except 
 with the consent of the settler, if it fails to carry out the 
 intention of the parties. A voluntary deed may, however, be 
 set aside after the death of both donor and donee, if there is 
 evidence to show that the donee complained of the deed and 
 took steps to annul it.^ 
 
 The court will not reform a deed or instrument upon 
 petition or motion, but only upon a regular bill for that pur- 
 pose ; and until a deed or instrument is reformed, the court is 
 bound to act upon it as it exists.* 
 
 If parties enter into an agreement conditionally, and in 
 
 ' Irnham v. Child, 1 Bro. C. C. 92; * Brown v. Kennedy, 33 Beav. 133. 
 
 Townslieiul v. i^tiingroom, 6 Vcs. 328. * I'liilipson v. Kerry, 32 I)( av. 628. 
 
 * Worrall v. Jacob, 3 Mer. 270. See Co.x v. Bruton, 5 VV. R. 0-14. 
 ' Carpmael v. Powis, 10 Beav. 86. • He Malet, 30 Beav. 407.
 
 430 MISTAKE. 
 
 contemplation of or with reference to a supposed actual state 
 of things, and it turns out that, by the mutual mistake of the 
 parties, the supposed actual state of things does not in fact 
 subsist, the consideration for the agreement fails, and the 
 agreement is consequently void as well at law as in equity.^ 
 A conlract, for instance, for the sale of a cargo, supposed by 
 both parties to be on board a particular ship, is at end if the 
 cargo had at the time ceased to exist.^ So also a contract for 
 the sale of an annuity, during the life of a person, is condi- 
 tional upon his being alive at the time of the sale ; so that he 
 having previously died, and purchase-money having been 
 paid in ignorance of the fact, the sale is void, and the pur- 
 chaser is entitled to recover back his money.^ So, also, where 
 a policy of insurance was renewed during the days of grace 
 allowed after the expiration of the policy and acceptance of 
 the premiums, both parties being ignorant that the life 
 insured had previously died during the days of grace, it was 
 held that, the renewal being conditional upon the insured 
 being then alive, it was void/ So also where an agreement 
 was made for the sale of a remainder in fee expectant on an 
 estate tail, and a bond was given to secure the purchase- 
 moneys ; but it appeared that at the time of the sale the tenant 
 in tail had suffered a recovery and destroyed the remainder, 
 of which both parties were ignorant, the agreement was held 
 void, and the bond was cancelled, upon the ground that the 
 parties had contracted upon the supposition that a recovery 
 had not then been suffered.® So also where an agreement 
 was made between the assignee of the tenant for life of an 
 estate and the person entitled in remainder, respecting the 
 
 * See Stnpylton v. Scott, 13 Ves. ^ Strickland v. Turner, 7 Exch. 208. 
 
 42*7; Robinson v. Dickenson, 3 Russ. ■• Pritchard v. Merchants' Life In- 
 
 413; Cooper v. Phibbs, L. R. 2 App. sur nee Society, 3 C. B. N. S. 622. 
 Ca. 149. ' Hitchcock v. Giddings, 4 PrL 135. 
 
 = Couturier v. Hastie, 9 Exch, 102, 5 
 H. L. 673.
 
 MISTAKE. 431 
 
 timber on the estate, under tlie supposition that the tenant for 
 life was then alive and entitled to cut the timber, hut he was 
 in fact then dead, it was held that the agreement was void, 
 both in equity and at law.^ So also where a fund was settled 
 on two persons for life, with benefit of survivorshij) between 
 them, and one of them sold his reversionary interest ; but it 
 turned out that at the time of the sale the other person was 
 dead, so that the interest, which was supposed to be a rever- 
 sionary one, had become an interest in possession, and the 
 fact was unknown to both parties, it was held that the sale 
 could not stand.^ So also where a party having a claim upon 
 another party, discharged the executors of the latter after his 
 death from all claims, and there was a recital in the deed of 
 release, that the party deceased had before his death possessed 
 himself of a certain fund, which had been set apart to secure 
 the claim, the release was set aside on it turning out that the 
 recital was false, and that the fund had been paid in by him 
 to a bank.^ So also where a party had, upon a compromise, 
 executed a general release in respect of partnership matters, it 
 was held that he was entitled to relief, on the ground of a 
 large item in which he was interested having been omitted by 
 mistake in the account.* 
 
 Similar considerations apply where a vendor, through 
 innocent mistake, makes a misrepresentation as to the subject- 
 matter of the sale. If the subject-matter of the sale is so 
 difierent in substance from what it was represented to be as to 
 amount to a failure of consideration, the agreement will be set 
 aside.^ 
 
 So also if the vendor, in fixing the price, has altogether 
 relied on information furnished to him by the purchaser, and 
 
 ' Cochrane v. Willis, L. R. 1 Ch. * Pritt v. Clay, 6 Bcav. 503. 
 
 App. 58. ' Sajira, p. 15, 24; Earl of Durham 
 
 * Colyer v. Clay, 7 Bpav, 188. v. Legard, 34 Beav. 611. 
 
 ' Horc V. Becher, 12 Sim. 4G5.
 
 432 MISTAKE. 
 
 8ucli information turns out to have been (even unintentionally) 
 incorrect, this may entitle the vendor, even after conveyance, 
 to relief in equity.^ 
 
 But a contract may be unconditional, although the parties 
 are under a mistake respecting some matter which induces 
 the contract. Thus, if the contract be absolute, and not with 
 reference to collateral circumstances, as, for instance, if a ship 
 on a voyage be sold, and the ship, at the time of the contract, 
 be seriously damaged, to the ignorance of both parties, still 
 the contract is valid.^ 
 
 So also although there be a mutual mistake respecting the 
 subject-matter of the agreement, yet if both parties are aware 
 that the subject-matter is, from its nature, doubtful or uncer- 
 tain, or is of a speculative or contingent character, the mistake 
 goes for nothing either at law or in equity. A contract for 
 the sale of a thing, the extent or value of which is understood 
 to be unknown to both parties, or which is, from its nature or 
 character, doubtful or uncertain, is valid and binding.' If a 
 bargain depends on a contingent event, or the subject-matter 
 of a contract be an uncertain thing, and the contingency or 
 chance be known to both parties, neither of them can resist 
 specific performance because the reality has tm'ned out to be 
 different from what he anticipated.* 
 
 There is mutual mistake which will vitiate a contract, or 
 which at least will render it incapable of being specifically 
 enforced in equity, if the one party does not think he is 
 selling what the other thinks he is buying.^ 
 
 Care must, however, be taken in distinguishing cases, 
 
 ' Carpmael v. Powis. 10 Beav. 36. 156 ; Baxendale v. Scale, 19 Beav. 601. 
 
 « Barr v. Gibson, 3 M. & W. 390. See Monro v. Taylor, 3 Mac. & G. 718. 
 
 'Mortimer v. Capper, 1 Bro. C. C. 'Hitchcock v. Giddings, 4 Pri. 135; 
 
 156; Ridgway v. Sneyd, Kay, 627; Cochrane v. Willis, L. R. 1; Ch. App. 
 
 Baxendale )'. Seale, 19 i3eav. 601. See 58; Butterworth «;. Walker, 13 \V. 
 
 Davi3 V. Shepherd, L. R. 1 Ch. App, R. 168; Baxendale?^. Seale, 19 Beav. 
 
 410. 601. 
 
 * Mortimer v. Capper, 1 Bro. C. C.
 
 MISTAKE. 433 
 
 where the parties are under a mutual mistake as to the 
 subject-matter of a contract, from cases where there is no 
 doubt as to the subject-matter ; but the one has, in fact, sold 
 more than he thought he was selling, and the other has got 
 more than he expected. In such cases relief cannot he had in 
 equity, if there has been no unfairness on either side.^ Where, 
 for instance, that which the vendor intended to sell, and the 
 purchaser to buy, was a leasehold interest, erroneously sup- 
 posed to have a shorter time to run than it in fact had to run, 
 it was held that the vendor had, after conveyance, no equity 
 for relief^ So also where a man entitled to an interest in a 
 residuary estate, assigns all his interest to a creditor, he is not 
 entitled to relief if it afterward appear that the residuary 
 estate consisted partly of a fund, the existence of which was 
 not known to either of the parties at the time of the execution 
 ofthedeed.8 
 
 ]^or where several persons have joined in conveying an 
 estate to a purchaser for a full consideration, can one of them 
 be afterward heard to say that he was under a misapprehen- 
 sion as to the extent of his interest in the property/ 
 
 The same considerations which apply to the case of agree- 
 ments entered into under a mutual mistake of the parties as to 
 fact, apply to the case of compromises. A compromise which 
 is founded on a mutual mistake of fact cannot be supported. 
 If, for instance, a compromise is founded on the genuineness 
 of an instrument which turns out to be forged, or if a suit 
 which it is the object of a compromise to determine, turns out 
 to have been already decided in favor of one of the parties, or 
 if a compromise be founded on a will, which turns out to have 
 been revoked by another will of which the parties are ignorant, 
 
 * O'Neill V. "Wiiittaker, 1 Deg. & Sm. 372 ; Comp. Grieveson v. Kirsopp, 5 
 83, 2 Ph. 338. Beav. 287. 
 
 •^ lb, " Maiden v. Mcnill, 2 Atk. 8. See 
 
 • Uowkins v. Jackson, 2 Mac. & G. Marsliall v. Collett, 1 Y. «fe C. 232; 
 
 Evans v, Jones, Ivay, 29.
 
 434 MISTAKE. 
 
 tlie transaction cannot be supported.^ But the case is different 
 if the fact in respect of which there is a mistake be incliided 
 in the compromise, and be not .the very foundation on which 
 the compromise rests.^ If one or more parties having, or sup- 
 posing they have, claims upon a given subject-matter, or claims 
 upon each other, agree to compromise those claims, and to 
 come to a general settlement of the matters in dispute between 
 them without resorting to litigation, and they act with good 
 faith, and stand on an equal footing, and have equal means of 
 knowledge as to the facts, the compromise is binding in 
 equity.^ It is not enough to invalidate the transaction that 
 one of the parties may have been in error as to a fact included 
 in it. A compromise cannot, however, be supported, unless it 
 is fairly entered into, and after due deliberation.* 
 
 The principles which apply to the case of ordinary com- 
 promises between strangers, do not equally apply to the case 
 of compromises in the nature of family arrangements. Family 
 arrangements are governed by a special equity peculiar to them- 
 selves, and will be enforced, if honestly made, although they 
 have not been meant as a compromise, but have proceeded 
 from an error of all parties, originating in mistake or ignorance 
 of fact as to what their rights actually are, or of the points on 
 which their rights actually depend.^ 
 
 Where an agreement is capable of being applied to different 
 
 •Tonll. Cod. Cid. Liv. 3, tit. 3, c. 2. Lavall^e, 15 Moo. P. C. 270; Staintoa 
 
 See Asliurst v. Mill, 7 Ha. 502; Lawton v. Carron Co., 30 L. J. Ch. 713, supra, 
 
 V. Campion, 18 Beav. 87; Trigge v. p. 79, 336. 
 Lavallee, 15 Moo. P. C. 276. •• Scott v. Scott, 11 Ir. Eq. 75. 
 
 ' See Trigge v. Lavallee, 15 Moo. P. ' Stockley v. Stockley, 1 V. A B. 23; 
 
 C. 276. Dunnage y.' White, 1 Sw. 137; Gordon 
 
 ' Attwood V. , 1 Russ. 353; 5 ?;. Gordon, 3 Sw. 400; Neale ?\ Neale, 1 
 
 Russ. 149; Roche v. O'Brien, 1 Ba. &, Keen, 072; Westby v. Westby, 2 Dr. 
 
 Be. 330; Leonard v. Leonard, 2 Ba. & & War. 502; Stewart v. Stewart, 6 CL 
 
 Be. 171 ; Naylor v. Winch, 1 Sim. & St. &, Fin. 911 ; Persse v. Persse, 7 CI. & 
 
 555; Pickering «>. Pickering, 2 Beav. 31, Fin. 279; Houghton v. Lees, 1 Jar. N. 
 
 56; Pritt v. Clay, 6 Beav. 503; Stew- S. 862; Williams v. Williams, 2 Dr. & 
 
 art V. Stewart, 6 Cl. & Fin. 911 ; Davis Sm. 378. 
 V. Chanter, 3 W. R. 321; Trigge v.
 
 MISTAKE. 435 
 
 things, or in different ways, and is accepted by eacli party witli 
 a different application, there is no real agreement between 
 them, and consequently no contract.^ If the one party in- 
 tends to sell upon one set of terms, and the other party intends 
 to buy upon a different set of terms, and the contention of 
 either party is, under the circumstances of the case, reasonable, 
 there is in reality no contract between them, or, at least, not 
 such a contract as a court of equity will specifically enforce.*^ 
 
 It is not competent to a party to an agreement to assert an 
 application of the agreement inconsistent with the terms 
 agreed upon as expressing the common intention ; but he is at 
 liberty to show that it was understood by him to apply in a 
 manner consistent with its terms, but different from the ap- 
 plication accepted by the other party .^ In such case, the 
 agreement is said to contain a latent ambiguity, or one which 
 appears only in the course of applying it.'* A latent ambiguity 
 is where it is shown that words equally apply to two different 
 things or subject matters, and then evidence is admissible to 
 show which of them was the thing or subject-matter in- 
 tended.^ 
 
 "What is called a patent ambiguity, that is, a doubt or un- 
 certainty appearing in the terms of the agreement as expressed 
 by the parties themselves, cannot be altered or explained by 
 extrinsic evidence ; and if it is incapable of a rational inter- 
 pretation, the agreement, at least to the extent of the ambi- 
 guity, is necessarily void.® 
 
 The application for relief on the ground of mistake must 
 
 * Leake on Contracts, p. 178. See ' Leake on Contracts, p. 173. 
 
 Falck V. Gooch, 4 F. <fe F. 589, 591; * lb. 
 
 West V. De Wezele, ib. 596. 599. ' Smith v. Jeffryes, 15 M. & W. 561. 
 
 ' Higginson v. Clowes, 15 Ves. 516; 562, per Alderson, B. See Ruffles v. 
 
 Clowes V. Higgiiison, 1 V. <fe B. 524 ; Wichelhaus, 2 H. & C. 906. 
 
 Neap V. Abbott, 1 C. P. Coop. temp. ' See Coles v. Hulme, 8 B. & C. 568: 
 
 Cott. 382, 383; Baxeudale v. Scale, 19 Alder v. Boyle, 4 C. B. 635. 
 Beav. 601.
 
 436 MISTAKE. 
 
 be made witli due diligence.^ In cases of mistake, as in cases 
 of frand, time runs from the discovery.^ 
 
 The jurisdiction to relieve against mistake being an equit- 
 able one, it is exercised upon equitable principles. Transac- 
 tions, although impeachable on the ground of mistake, are 
 nevertheless subject to all real and just equities between the 
 parties. The court will not set aside a transaction without 
 restoring the party against whom it interferes, as far as possi- 
 ble, to that which shall be a just situation with reference to the 
 rights which he had antecedently to the transaction.^ If the 
 court sees that it can restore the parties to their former condi- 
 tion, or place them in the same situation in which they would 
 have stood but for the mistake, without interfering with any 
 new right acquired by others, on the faith of the altered con- 
 dition of the legal rights, the jurisdiction will be exercised.^ 
 A court of equity will not, however, relieve against a mistake, 
 unless it is fully satisfied that it can make ample compensation.^ 
 If the court sees that the parties cannot be restored to that 
 which shall be a just situation with reference to the rights 
 which they had antecedently to the transaction, or that the 
 mistake cannot be corrected without breaking in upon, or 
 affecting the rights of innocent parties, who were not aware of 
 the existence of the mistake, when their rights accrued, relief 
 cannot be given.' As against l)07id fide purchasers for value 
 without notice, no relief can be had in equity.^ But if lands 
 
 ' Beaumont v. Bramley, T. <fe R. 43 
 Denj-s V. Slmckburgh, 4 Y. <fe G. 53 
 Stone V. Godfrey, 5 D. M. & G. 76 
 
 Dacre v. Gorges, 2 Sim. & St. 454 ; su- 
 pra, p. 295. 
 
 " Maiden v. Menill, 2 Atk. 8 ; Clifton 
 
 Bentley v. Mackay, 31 Beav. 143; 31 v. Cockburn, 3 M. & K 76; Blatkie v. 
 
 L. J. Ch. 709; supra, p. 241. Clark, 15 Beav. 595 ; Re Saxon Life In- 
 
 ^ Brooksbank v. Smith, 2 Y. & Co. surance Co., 2 J. & H. 408 ; Bateman v. 
 
 60 ; snpra, p. 247. Boynton, L. 11. 1 Ch. App. 359 ; mpra, 
 
 ' Supra, p. 276. p. 249. Comp. Broughtoa v. llutt, 3 
 
 * M'Alpine v. Swift, 1 Ba. & Be. 293; D. <fe J. 501. See, also, Domat. Liv. 1, 
 
 Dacre v. Gorges, 2 Sim. & St. 454. See tit. 18, s. 1, art. 13-17. 
 Millar ?'. Craig, 6 Beav. 433; I\kadows " Maldeu v. Menill. 2 Atk. 8; War- 
 
 ?;. Meadows, 16 Beav. 404; Scliolfield. rick i). Warrick, 3 Atk. 293; suj}ra,T^. 
 
 V. Templcr, John. 165. 249. 
 
 » Macalpice v. Swift, 1 Ba. & Be. 293 ;
 
 MISTAKE. 437 
 
 eliown to a purchaser are accepted in the conveyance under a 
 name by wliicli lie did not know them, he may, by getting in 
 an outstanding legal estate, hold them, even as against a sub- 
 sequent purchaser for valuable consideration, and without 
 notice.^ 
 
 If the subject-matter of the transaction be real estate, 
 and there has been a conveyance, a reconveyance "vrill be 
 ordered, if a case be made out for the interference of the 
 com-t,'' * 
 
 On setting aside a transaction on the ground of mistake, 
 the court may, with the view of putting the parties in the 
 position in .which they have an equity to stand, annex condi- 
 tions to the decree. In a case, for example, where, by a mis- 
 take in drawing up an instrument, the rent named as payable 
 upon the lease of premises was considerably less than the 
 amount actually agreed upon between the parties, and the mis- 
 take was known to one of the parties at the time of the execu- 
 tion of the instrument, but not to the other, the court gave 
 the lessee an election to continue in the tenancy, on consenting 
 to pay the amount of rent, which ought to have been inserted 
 in the instrument, or to abandon the lease, and pay for use 
 and occupation during the period he had been in possession of 
 tlie premises at the higher rate, being compensated for all 
 repairs of a permanent character, but not for the expense of 
 taking possession of the premises and establishing himself in 
 
 ' Oxwick V. Brockett, 1 Eq. Ca, Ab. v. Malmesbury, 31 Beav. 418, supra, p. 
 
 855. 277, 278. See as to terms of reconvey- 
 
 * Cox V. Bruton, 5 W. R. 544 ; Leuty ance, supra, pp. 278-282 
 V. Hillas, 2 D. & J. 120; Malmesbury 
 
 * A court of equity alone can reform a written instrument. However a 
 mistake may have been induced, it can find no recognition until tlie con- 
 tract has been reformed and made to conform to the real intention of 
 the pai-ties. Boyer v. Wilson, 33 Md. 122 ; Holmes v. Barker, 3 Johns. 
 506.
 
 438 MISTAKE. 
 
 business. It was also held that the lessor was responsible to 
 refund the moneys advanced to the lessee upon the security of 
 the lease, with costs; the lessee being liable over to the 
 lessor for repayment of the same, on the ground that, if the 
 lease were rejected, the premises must stand as a security 
 for the money so advanced ; and if the lease was accepted, it 
 was primarily liable for the repayments of the same to the 
 lessor.^ 
 
 Courts of equity have jurisdiction on the ground of mis- 
 take to relieve against the defective execution of a power. If 
 the formalities required by a power are not strictly complied 
 with, an appointment under the power is invalid at law, 
 and the property which is the subject of the power will go as 
 in default of appointment. In equity, however, if an inten- 
 tion to execute the power be sufficiently declared, but, by 
 reason of some informality, the act declaring the intention 
 is not an execution of the power, the court will, in favor 
 of certain parties, aid the defective execution, by compelling 
 the person seised of the legal estate to do that which was 
 intended to be done.^ The supplying the surrender of a 
 copyhold, and the supplying the execution of a power which 
 is defective in form, go hand in hand. "Wherever there is 
 a decision that the court will supply a surrender, it follows 
 that the conrt will also supply the defective execution of a 
 
 power.^ 
 
 The powers to which the equity extend are those which 
 
 have been created by way of use, as distinct from bare author- 
 ities conferred by law. Acts done under authorities of this 
 latter kind — as, for example, leases or conveyances by a tenant 
 in tail — are only binding when regular and complete. The 
 
 ' Garrard V. Franlcel, 30 Beav. 445. ^ Sayer v. Sayer, 7 Ha. 387; per 
 
 " Chapman v. Gibson, 3 Ero. 0. C. Wigrain, V.-C. ; Chapman v. Gibson, 3 
 
 229 ; Shannon v. Bradstreet, 1 8ch. & Bio. C. C. 229. 
 
 Lef. G3 ; Sayer v. Sayer, 7 Ha. 377.
 
 MISTAKE. 439 
 
 principle of the distinction appears to be, that powers limited 
 by use are mere reservations out of the original ownership, 
 constituting the donee a quasi owner, and the remainderman 
 a quasi heir ; and, consequently, that in conformity with this 
 hypothesis, the donee's contracts for value ought to bind the 
 remainderman, and his meritorious intention, if unaltered, 
 ought to have the same effect.^ The soundness of this equity 
 has been questioned by Sir "William Grant, and its principle 
 seems difficult to sustain. For the power given, though 
 doubtless, in some sense, a modified ownership, does not 
 confer an absolute right to dispose of the property, but a right 
 to do so in a specific way ; and the chance that the power may 
 never be executed, or that it may not be executed in the 
 manner prescribed, is an advantage given to the remainder- 
 man. If, therefore, his interest is to be regarded, it is difficult 
 to see why he should be bound by any other than the prescribed 
 act, for he is a stranger to any equity between the donee of the 
 power and the party in whose favor it is intended* to be exe- 
 cuted. If, on the other hand, his interest is subordinate to the 
 intention of the donee of tlie power, the intention of such 
 donee ought to be sustained, whatever be the consideration on 
 which it rests.^ 
 
 Whatever opinion may, however, be entertained as to the 
 original soundness of the equity, there is no question that it 
 is established by precedent ; but it is confined to cases of 
 execution formally defective, or of contract amounting to such 
 defective execution.^* If there be no such execution or con- 
 tract, the court cannot interpose ; for unless where the power 
 
 ' Adams' Doct. Eq. 99. » Adams' Doct. Eq. 100. 
 
 "Holmes V. Togliill, 7 Ves. 506; 12 
 Ves. 200 ; Adams' Doct. Eq. 99. 
 
 * Howard v. Carpenter, 11 Md. 239; Lines v. Darden, 5 Fla. 51; 
 Mitchell V. Denson, 39 Ala. 337; Lii^pincott v. Stokes, 3 Halst. Cli. 123.
 
 440 MISTAKE. 
 
 is in the nature of a trust, the donee lias his choice whether to 
 execute it or not ; and if he does not execute, or attempt to 
 execute, there is no equity to execute it for him, or to do that 
 for him which he did not think fit to do himself.^ ]^or can 
 an execution be aided in equity, if the defect be not formal, 
 but in the substance of the ]Dower, for such aid would defeat 
 the intention of the donor. If, for example, a tenant for life 
 has power to lease with the consent of trustees or others, an 
 agreement by the tenant for life alone to lease will not be 
 aided.^ 
 
 The only persons in whose favor equity will interpose to 
 supply the defect in the execution of a power are, a hond fide 
 purchaser for valuable consideration,^ a creditor,^ a charity,' a 
 wife, or a legitimate child.® To no other persons, except a 
 wife and legitimate child, will the aid of the court be granted 
 upon the ground of a meritorious consideration.'' The equity 
 does not extend to the case of a defective execution by a wife 
 in favor of her husband ; ^ nor to a defective execution in 
 favor of a natural child, a father, mother, brother, sister, 
 nephew, or cousin : d fortiori it does not extend to a voluu- 
 ■teer.® 
 
 The character of purchaser, creditor, wife, or child, must 
 be borne by the party claiming relief in relation to the 
 donee of the power and not to the person creating the 
 power.^" 
 
 In Wilkinson v. Kelson," a deed of appointment in favor 
 of some of the objects of a power, was rectified by the inser- 
 
 • Toilet V. Toilet, 2 P. Wms. 489. Medwin v. Sandham, 3 Sw. 686 ; Proby 
 ' Lawrenson v. Butler, 1 Sch. & Lef. v. Lander, 28 Beav. 504 ; White <fe Tud- 
 
 13. L. C. vol. I, p. 211. 
 
 = Hughes V. Wells, 9 Ha. 769 ; Affleck ' Moodie v. Reid, 1 Madd. 516. 
 
 V. Affleck, 3 Sm. <fe G. 394 ; Sug. Few. « lb. 
 
 533,534; White & Tud. L. C. Vol. I, p. ° Sug- Pow. 535, and cases cited: 
 
 209. "White <fe Tud. L. C. vol. I, 212. 
 
 " Sug. Pow. 533, 534. " Sug. Pow. 537. 
 
 ' Innes v. Sayer, T Ha. STY. " 7 Jur. N. S. 481. 
 
 * Hervey v. Hervey, 1 Atk. 567;
 
 MISTAKE. 441 
 
 tion of a hotchpot chiuse, the court being satisfied that the in- 
 tention of the donee of the power was to produce equality, and 
 that the clause had been omitted by mistake. 
 
 It is not sufficient in order to constitute a case entitling a 
 party to relief in equity on the ground of the defective execu- 
 tion of a power that there should be a mere intention on the 
 part of the donee to execute the power, without some steps 
 taken to give it a legal effect. Some steps must be taken or 
 some acts must be done with this sole and definite intention, 
 and such steps or acts mnst be properly referable to an inten- 
 tion to execute the power.^ A mere parol promise or agree- 
 ment to execute the power is not sufficient.^ * But if an in- 
 tention to execute the power appears clearly by some paper or 
 instrument in writing, equity will aid a defect which arises 
 from the instrument itself being informal or inappropriate ; * 
 as, for instance, where the donee of a power covenants,* or 
 merely enters into an agreement, not under seal, to execute 
 the power,^ or when by his will he desires the remainderman 
 to create the estate authorized by the power,^ or if he promises 
 by letter to grant an estate which he could only do by the exer- 
 cise of his power.' In all these and the like cases equity will 
 supply the defect. So also a recital by the donee of a power, 
 in the marriage settlement of one of his daughters, who was 
 one of the objects of the power, that she was entitled to a 
 share of a sum to which she could only be entitled by his ap- 
 pointment, has been held sufficient evidence of his intention to 
 execute the power, so as to be aided in equity,^ and even an 
 
 ' Sug. Pow. 550, 551. "Vernon v. Vernon, Amb. 3; Sug. 
 
 * Carter v. Carter, Mose. 370; Shan- Tow. 550. 
 
 non V. Bradstreet, 1 Sch. <fe Lef. 72. ' Campbell v. Leach, Amb. 740; Sug. 
 
 » Bayer v. Sayer, 7 Ha. 377. Pow. 550. 
 
 * Siig. Pow. 550. " Wilson v. Piggott, 2 Ves. Jr. 351. 
 ' Shannon v. Bradstreet, 1 Sch. <fe See Poulson v. Welling, 2 P, Wms. 633 
 
 Lef. 52; Dowell v. Dew, 1 Y. <fe C. C. 
 C. 345 Sug. Pow. 550. 
 
 * Mitchell V. Denson, 39 Ala. 327; Barr v. Hatch, 3 Ohio, 537. 
 29
 
 442 MISTAKE. 
 
 answer to a bill in eliancerj stating tliat the party does appoint 
 and intend by a writing in due form to appoint, will be an 
 execution of the power for this pnrjjose,'^ So also if the 
 power ought to be executed by deed, but it is executed by will, 
 the defective execution will be supplied.*^ 
 
 The like rule prevails, wdiere there has been a defective 
 execution of a power by a formal or appropriate instrument : 
 as, for instance, if a deed be required by the power to be exe- 
 cuted in the presence of a certain number of witnesses, and it 
 be executed in the presence of a smaller number of witnesses : 
 or if it is required to be signed and sealed, and sealing is omit- 
 ted.^ In wills not coming within the operation of the Wills 
 Act, 1 Yict. c, 26, a defect in the execution of a power, con- 
 sisting in the want of the number of witnesses required by the 
 power, was supplied in equity/ But the power to assist de- 
 fective executions of appointments within the statute has 
 ceased as to wills made on or after the 18th January, 1838. 
 The validity of an appointment by w411, so far as regards exe- 
 cution and attestation, now wholly depends on the Statute 
 Law.* 
 
 . Equity will in no case aid a defective execution of a power, 
 if the intention of the person creating the power would be 
 thereby defeated. Although a power will be aided, if it has 
 been executed by a will, when it ought strictly to have been 
 executed by deed,^ the case is otherwise, if a power, required 
 to be exercised by will, has been executed by deed.' The in- 
 tention of a poM'er to appoint by will being to reserve to the 
 donee of the power a certain control over the estate, until the 
 
 ' Carter v. Carter, Moso. 365. tino: the power, 22 <fe 23 Vict. c. 35, s. 
 
 " ToUet V. Toilet, 2 P. Wms. 489, 12." 
 
 « Wade V. \\v;;ci, 1 Bro. V. C. 363; ' W^ilkie v. Holmes, 1 Sch. & Lef. 60 
 
 CoekereU ?'. Cliolmeley, 1 R. tfe M. 424. n.; Lucena v. Lucena, 5 Beav. 249; 
 
 An apjiointment by deed is now ren- Sug. Pow. 547. 
 
 dered valid in many cases, altliough not ' Sug. Pow. p. 559. 
 
 executed or attested with all the solera- "Sxpra, p. .372. 
 
 nities required by the iustrumeut crear ' Pieid v. Shergold, 10 Ves. 878, 380.
 
 MISTAKE. 443 
 
 moment of the deatli of the clouee, if the douee of such a 
 power should execute an appointment or a conveyance of the 
 estate by an absolute deed, it will be invalid, because such an 
 appointment or conveyance, if it avail to any purpose, must 
 avail to the destruction of the power, since it would be no 
 longer revocable, as a will would be. The distinction between 
 this case and the case of a power executed by will, tliough re- 
 quired to be executed by deed, is marked and obvious. An 
 act done not strictly according to the terms of the power, but 
 consistent with its intent, may be upheld in equity. But an 
 act which defeats the intention of the person creating the 
 power, and determines the control over the property, which 
 was meant to rest in the donee, is repugnant to it, and cannot 
 be deemed in any just sense to be an execution of it.^ 
 
 In all cases, however, where the aid of the court is sought 
 for the purpose of aiding the defective execution of a power, 
 the party seeking relief must stand upon some equity superior 
 to that of the party against whom he seeks it.* There can be 
 no relief, if the aid of the defective execution would be in- 
 equitable to other parties, or if it is repelled by some counter- 
 equity .^ As against a purchaser for valuable consideration 
 without notice, equity will in no case aid the defective execu- 
 tion of a power.^ But as against a remainderman, who takes, 
 although by purchase, subject to the power,^ and also in gen- 
 eral as against an heir-at-law or customary heir,'' relief may be 
 had against the defective execution of a power. Whether, 
 however, equity will afford its aid as against an heir totally un- 
 provided for, seems doubtful upon the authorities.' 
 
 ' lb., Sug. Pow. 560, 561. See, also, » Toilet v. Toilet, 2 P. "Wms. 489 ; 
 
 Cockei-ell v. Cholmeley, 1 11. & Jl. 424 ; Shannon v. Bradstreet, 1 Scli .t Lef. 52! 
 
 2 E. & M. 751 ; bat see, 22 <fe 23 Vict. " ^^Hth v. Asliton, 1 Cli. Ca. 263, 264. 
 
 <=• 35, 8. 13. ' Chapmaa v. Gibson, 3 Ero. C. C. 
 
 " Sug. Pow. 541 ; 2 Chanc. Pow. 502, 229; Hills v. Downton, 5 Ves. 564; 
 
 -504, 507. Braddick v. Maftock, 6 Madd. 363; 
 
 = Supra, pp. 366, 367. .KodgcTS v. MarsliMll, 17 Ves. 294 ; Sug. 
 
 1 Foub. Eq. Bk. 1, ch. 1, s, 7, n. Pow. 545; WLite <fe Tud. L. C. vol I, 
 
 (4 pp. 212, 213.
 
 444 MISTAKE. 
 
 In cases of defective execution of powers a distinction exists 
 between powers which are created bv private persons, and those 
 which are specially created bj, or come within, a statute. The 
 latter are construed wdth more strictness, and whatever formal- 
 ities are required by the statute must be punctually complied 
 with.* In the case of powers which are in their own nature 
 statutable, equity must follow the law, be the consideration 
 ever so meritorious. Thus the power of a tenant-iu-tail to 
 make leases under a statute, if not executed in the requisite 
 form prescribed by the statute will not be made available in 
 equity, however meritorious the consideration may be ; * and, 
 indeed, it may be stated as generally true, that the remedial 
 power of courts of equity does not extend to the supply of 
 any circumstances, for the want of which the legislature has 
 declared the instrument void, for otherwise equity would de- 
 feat the very policy of legislative enactments.^ 
 
 Although a court of equity will not in general aid the de- 
 fective execution of a power in favor of a volunteer except in 
 particular cases,^ the defective execution of a power will be 
 aided in favor of a volunteei", when a strict compliance with 
 the power has been impossible, from circumstances beyond the 
 control of the party, as when the prescribed witnesses could 
 not be found ; or where an interested party having possession 
 of the deed creating the power, has kept it from the sight of 
 the party executing the power, so that he could not ascertain 
 the formalities required.* 
 
 So also although a court of equity will in no case aid the 
 non-execution of a power, as distinguished from its defective 
 
 ' Darlington v. Piiltenej', Cowp. 267; 624, 625; Thompsons. Smith, 1 Madd. 
 
 2 Chanc. Pow. 541-545 ; Sug. Pow. 209. 395. 
 
 M Fonb. Eq. Bk. ], ch. l,3.1,T).{t); » /SMjora, p. 370. 
 
 Curtis V. Perry, 6 Ves. 739, 745, 746, * 1 Fonb. Eq. Bk. 1, ch. 5, s. 2, n. (k). 
 747 ; Mestaer v. Gillespie, 11 Ves. 621, 
 
 * Bright V. Boyd, 1 dtory, 478 ; McBride v. WUkinson, 29 Ala. 663.
 
 MISTAKE. 445 
 
 execution,^ tlie case is otherwise, if tlie executiou of a power 
 has been prevented by fraud, as where the deed creating the 
 power has been fraudnlently retained by the person interested 
 in its non-execution. In such and similar cases equity will 
 grant relief on the ground of fraud.^ 
 
 In like manner, as equity will give relief against mistake 
 in written instruments, so also it will grant relief and supply 
 defects when, by mistake, parties have omitted any acts or 
 circumstances necessary to give effect and validity to written 
 instruments. Thus equity will supply any defect of circum- 
 stances in conveyances occasioned by mistake : as of a surren- 
 der in the case of copyholds : so also misprision and omission 
 in deeds, awards, and other solemn instruments, whereby they 
 are defective at law.^ It will also interfere in cases of mistake 
 in judgments, and in matters of record injurious to the right 
 of the party.* 
 
 The equity for supplying surrenders of cop^yholds, origi- 
 nates in the doctrine that a copyhold does not pass by grant or 
 devise, but by a surrender into the hands of the lord to the 
 use of the grantee or the will. In the one case the grantee is 
 entitled to immediate admission; in the other, the person 
 designated in the will is entitled to admission on the testator's 
 death. If a grant or devise were made without a previous 
 surrender, it was formerly inoperative at law; but if it were 
 made for a valuable consideration, and in particular cases, if it 
 were made for a meritorious consideration, the surrender 
 might be supplied in equity.'* The supplying the surrender of 
 a copyhold and the sui)plying the execution of a power which 
 
 ' Toilet V. Toilet, 2 P. Wms. 480 ; the (ground of mistake, Cannan v. Rey- 
 
 Pi"-Colt V. Penric3, Com. 250, Gilb. Eq. nokls, 5 E. & B. 301. 
 
 R^n 138. Mlogers v. Marshall, 17 Ves. 294; 
 
 ^'Supra, p. 211, 212. but see as to case of meritorious con- 
 
 * 1 Fiinb. Eq. Bk. 1, ch. 1, s. Y. sideration, Jefferys v. JefFerys, Cr. <fe 
 
 * Jeremy Eq. Jur. p. 492, Story, Eq. I'h. 138 ; Tatliain v. Vernon, 29 Beav. 
 Jur. 166. See as to jurisdiction of 604 ; White & Tud. L. C, voL I, p. 
 courts of law over their own records oa 209.
 
 446 MISTAKE. 
 
 is defective in form, go hand in hand. Wherever there is a 
 decision that the court will supply the one, it follows that it 
 will also supply the other.'^ 
 
 The jurisdiction to supply a surrender existed whether the 
 gift were by deed or will,^ but it was ordinarily called into 
 exercise in the case of wills. It has, however, been rendered 
 of little practical importance by the enactment that all real 
 estate may be devised by will, and that copyholds shall be 
 included under that description, notwithstanding that the 
 testator may not have surrendered them to the use of his will, 
 nor have even been himself admitted to them.^ 
 
 In like manner, as equity will give relief against mistakes 
 in written instruments, will it give effect to the real intention 
 of the parties, as gathered from the objects of the instrument 
 and the circumstances of the case, although the instrument 
 may be drawn up in a very inartificial and untechnical man- 
 ner. For, however just the general rule may be, quoties in 
 verlis nulla est ambiguitas, ihi nulla expositio contra verba 
 fienda est,^ yet that rule shall not prevail to defeat the mani- 
 fest intent and object of the parties where it is clearly discern- 
 ible on the face of the instrument, and the ignorance, or 
 blunder, or mistake of the parties has prevented them from 
 expressing it in the appropriate language." 
 
 In regard to mistake in awards, the court will not relieve 
 against an award on the ground of mistake, either in matter of 
 law or fact, if the award is within the submission, and contains 
 the honest decision of the arbitrators after a full and lair 
 hearing of the parties, and the mistake does not appear on the 
 face of the award, or is not disclosed by some contemporaneous 
 writing.^* But if the mistake appears on the face of the 
 
 ' Saver v. Sayer, 7 Ha. 387, per * Co. Litt. 147 a. 
 
 Wioram V.-C, Hupra, p. 368. " Jeremy Eq. Jur. p. 367, 368, Story 
 
 "'Rodgers V. MarsliaU, 17 Vea. 294. Eq. Jur. 168. 
 
 * 1 Vict. c. 26, s. 3. " Corneforth v. Geer, 2 Vern. 705 ; 
 
 * 1 Bouck V. Wilber, 4 Johns. Ch. 405; Card v. Wallace, 7 Dana, 190;
 
 MISTAKE. 447 
 
 award,* or is disclosed by some contemporaneous writing,^ or 
 if the arbitrator voluntarily admit a mistake,^ or state circum- 
 
 Chirg V. Ching, 6 Ves. 282 ; Tonng v. ' Hogge v. Burgess, 3 H. & K 293. 
 
 Walter, 9 Ves. 365 ; Goodman v. Saycrs, ' Knox v. Symonds, 1 Ves. Jr. 369 ; 
 
 2 J. <fe W. 249 ; Wood v. Griffith, 1 Sw. Mills v. Bowyers' y.ocic;ty, 3 K. & J. 
 
 59; Steff V. Andrews, 2 Madd. 5 ; Price 68; but see Philipps v. Evans, 12 M. & 
 
 V. Jones 2 Y. & J. 114; Haigh v. Haigh, W. 309 ; Hogge v. Burgess, 3 H. & N 
 
 3D F. & J. l.-iY. 293, 
 • Morgan v. Mather, 2 Ves. Jr. 15. 
 
 Cleaveland v. Dixon, 4 J. J. Marsh. 226 ; Torrance v. Lamsden, 3 McLean, 
 509 ; Wiuship v. Jewett, 1 Barb. Ch. 173 ; Bell v. Price, 2 N. J. 578 ; Nance 
 V. Thompson, 1 Sneed, 321 ; Johnson v. Noble, 13 N. H. 286. 
 
 Nothing is to be considered apparent upon an award but what forms 
 a part of it; no calculations or any of the grounds of it unless aimexed to 
 it or incorporated with it at the time of delivery. Taylor v. Nicholson, 1 
 Hen. & Munf 67 ; Wheatley v. Martin, 6 Leigh. 62. 
 
 If arbitrators certify the principles upon which they proceed, a mistake 
 may be corrected. It is incompetent to show by proof a mere mistake 
 of law or of fact. Bumpass v. Webb. 4 Port. 65 ; Pleasants v. Boss, 1 Wash. 
 (Va.), 156 ; Ryan v. Blunt, 1 Dev. Eq. 382. 
 
 Mistakes, which are grounds for exceptions to the report at law, will 
 not constitute good grounds for interference in equity. Hurst v. Ilurst, 2 
 Wash. C. C. 127; Head v. Muir, 3 Rand. 122; Wheatley v. :\Iartin, 6 
 Leigh. 62 ; Howard v. Warfield, 4 H. «& McH. 21. 
 
 An award may be set aside in equity for a palpable mistake of law or 
 fact upon a material point. Hartshorn v. Cuttrell, 1 Green's Ch. 297; 
 Van Cortland ?'. Undeihill, 17 Johns. 405 ; 2 Johns. Ch. 339 ; Hattin v. De- 
 tinaud, 2 Dessau. 570. 
 
 The mistake must be of such a character as to show that the deduction 
 of the arbitrator was a mistaken inference from the facts, or that the 
 facts themselves did not authorize the conclusions drawn from them. 
 Cleaveland v. Dixon. 4 J. J. Marsh. 226 ; Ewing v. Beauchamp, 2 Bibb, 
 456. 
 
 It must appear that the arbitrators intended to be governed strictly by 
 the law or the fact mistaken. Ilolliugsworth v. Lupton, 4 Munf. 114. 
 
 An error in judgment upon the merits is no ground whatever for the 
 interposition of a court of equity. Hartshorn v. Cuttrell, 1 Green. Ch. 
 297; Boston Water Power Co. v. Gray, 6 Met. 131; Burchell t'. Marsh, 17 
 How. 344; Cromwell v. Owings, 6 H. & J. 10 ; Van Cortland v. Underbill, 
 17 Johns. 405 ; McVichar v. Wolcott, 4 Johns. 509 ; Rudd r. Jones, 4 Dana, 
 229; Ormsby «. Bakenell, 7 Ohio, €8 ; Head v. Muir, 3 Rand. 122; Rad- 
 clifie r. Wiphlman, 1 McCord's Ch 408. 
 
 When it appears that the parties intended to submit a question of law
 
 448 MISTAKE. 
 
 stances which show clearly that the proceedhigs have been 
 erroneous,^ equity "will relieve or remit the award bach to the 
 arbitrators under the Common Law Procedure Act,^ unless 
 the submission has been made a rule of court under statute 9 
 & 10 Will. 3, c. 15, in which case application must be made to 
 the coui't in which it has been made a rule. 
 
 In regard to mistakes in wills, a court of equity has juris- 
 diction to correct them when they are apparent on the face of 
 the will, or may be made out by a due construction of its 
 terms. But the mistake must be apparent on the face of the 
 will, otherwise there can be no relief; for at least since the 
 Statute of Frauds, which requires wills to be in writing 
 (whatever may have been the case before the statute),^ parol 
 evidence, or evidence deliors^ the will is not admissible to 
 contradict, vary, or control the words of the will, although 
 it is in certain cases admissible to explain the meaning of 
 the words which the testator has used.** 
 
 A mistake cannot be corrected or an omission supplied, 
 unless it is perfectly clear by fair inference from the whole 
 will that there is such a mistake or omission.^ The first thing 
 
 ^ Mills V. Bowyers' Society, 3 K <fe J. ^ See Milner v. Milner, 1 Ves. 106 ; 
 
 66 See Bankart v. Houghton, 3 D. F. Wigram on Wills, p. 5. 
 
 ^ j_ ]8. "MUner v. Wilner, 1 Ves. 106; Ul- 
 
 " lY &, 18 Vict. c. 125, s. 8; Mills v. rich v. Litchfield, 2 Atk. 373 ; Jarm. on 
 
 Bowyers' Society, 3 K. <fe J. 66; Ait- Wills, vol. I, p. 386: Wigram on Wills, 
 
 ken's Arbitration, 3 Jur. N. S. 1296. pp. 5, 8. 
 
 See Ilodgkinson v. Fernie, 3 C. B. N. S. * Philipps v. Chamberlaine, 4 Ves, 5*7. 
 189 ; Hogge v. Burgess, 3 H. <fe N. 293. 
 
 alone, the decision is binding, though contrary to law. Smith v. Smith, 4 
 Rand. 95 ; Crabtree v. Green. 8 Geo. 8. 
 
 A mistake in judgment upon a doubtful question of law is not suffi- 
 cient. Campbell v. Western, 3 Paige, 124; Morris v. Eoss, 3 Hen. & Munf. 
 408 ; Cleary v. Cour, 1 Hey. 125. 
 
 * Trexter v. Miller, 6 IreU. Eq. 248; Goode«. Goode, 22 Mo. 518 ; Hunt 
 U.White, 24 Tex. 643; Jackson v. Payne, 2 Met. (Ky.) 567. 
 
 An omission of the requis'.ts number of subscribing witnesses cannot 
 be corrected. Nutt v. Nutt, 1 Freeman's Ch. 128.
 
 MISTAKE. 449 
 
 to be proved in all cases is that tliere is a mistake.^ The mis- 
 take Jnust be a clear mistake or a clear omission, demonstrable 
 from the structure and scope of the will.^ Thus, if in a will 
 there is a mistake in the computation of a legacy, it will be 
 rectified in equity.' So, if there is a mistake in the name, 
 description, or number of the legatees intended to take,^ or in 
 the property intended to be bequeathed,^ and the mistake is 
 clearly demonstrable from the structure and scope of the will, 
 equity will correct it. 
 
 Relief cannot, however, be had, unless the mistake be 
 clearly made out.^ And so, if the words of the bequest are 
 plain, evidence of a different intention is iuadmissible to estab- 
 lish a mistake ; ' nor will a mistake be rectified, if it does not 
 appear clearly what the testator would have done in the case, 
 if there had been no mistake.* But if the omission of some 
 word or phrase is so palpable on the face of the will, that no 
 difficulty occurs in pronouncing the testator to have used an 
 expression which does not accurately convey his meaning, and 
 it is not only apparent that he has used the wrong word or 
 phrase, but it is also apparent what is the right one, the court 
 will substitute the right one.^"'^ Although the particulars 
 
 ' Hellish V. Mellish, ih. 49. v. Fell, 2 P. Wms. 141 ; Hampsliire v. 
 
 ' lb.; Fhilipps v. Chatnberlaine, ib. Peirce, 2 Ves. 216; Bradwin «;. Harpur, 
 
 51, 51; D 1 Mare v. Robello, 3 Bm G. Ambl. 3Y4 ; Jarm. on Wills, vol. 1, p 
 
 C. 445 ; Purse v. Snaplin, 1 Atk. 415; 393 ; ib. vol. 2, pp. 178, 181. 
 Holmes y. Custance, 12 Ves. 279. 'Door v. Geary, 1 Ves. 255; Sel- 
 
 ^ Milner v. Milner, 1 Ves. 106 ; Dan- wood v. Mildmay, 3 Ves. 306. 
 vers V. Manning, 2 Bro. V>. C. 18; Door " Holmes v. Lustance, 12 Ves. 279. 
 
 V. Geary, 1 Ves. 255, 256; Giles v. ' Chambers w. Minchin, 4 Ves. 676. 
 
 Giles, 1 Keen, 692. " See Smith v. Maitland, 1 Ves. Jr. 
 
 * Stebbiiig V. W^alkey, 2 Bro. C. C 363. 
 85; River's Case, 1 Atk. 410; Parsons " Taylor v. Richardson, 2 Drew. 16. 
 
 V. Parsons, 1 Ves. Jr. 260 ; Beaumont 
 
 * Wood V. White, 33 Me. 340. 
 
 The name of one legatee cannot be stricken out and that of anottier 
 inserted. Gates v. Cole, 1 Jones' Eq. 110. 
 
 The word " dollars " may be inserted after fifteen hundred. Snyder v, 
 Warbasse, 3 Stockt. 463.
 
 450 MISTAKE. 
 
 wliicli the testator has included in his description of the prop- 
 erty, the subject of the gift, should be inaccurate, the gift will 
 be upheld if there be enough of correspondence to aflbrd the 
 means of identification.^ If the property the subject of the 
 gift be capable of being accurately identified, certain errors in 
 the de-scription will not vitiate the gift.^ 
 
 The same considerations apply, when the particulars which 
 the testator has included in his description of the object of the 
 gift are inaccurate. If the devisee or legatee is so designated 
 as to be distinguished from every other person, the inaptitude 
 of some of the particulars introduced in the description is im- 
 material.^ If there is a person to answer the name given in 
 the will, it is immaterial that any further description does not 
 precisely apply.* A gift by will to a person described as the 
 husband, or wife, or widow of another, is not in general affected 
 by the fact of the devisee or legatee not actually answering the 
 description, by reason of the invalidity of the supposed mar- 
 riage, or by reason of the second marriage of the supposed 
 widow or otherwise.^ And on the same principle a legacy to 
 a person described as the testator's intended wife, has been held 
 to be payable although the testator did not eventually marry 
 her.® A different rule, however, prevails where a fraud has 
 been practiced on a testator, the knowledge or discovery of 
 which, there is reason to believe, would have destroyed or re- 
 moved the motive for the gift. When, for example, a testatrix 
 under a power of appointment bequeathed a legacy to a man 
 whom she described and with whom she lived as her husband, 
 but the marriage was invalid on account of his having a wife 
 at the time, which fact was not known to the testatrix, the be- 
 
 ' Jarm. on Wills, vol. 1, p. 394. Del Mare v. Robello, 3 Bro. C. C. 446; 
 
 - Door V. Gi-ary, 1 Ves. 255; Selwood Holmes v. Custance, 12 Ves. 2/9. 
 
 V. Mildnmy, 3 Ves. 306 ; Jarm. on Wills, ^ Giles v. Giles, 1 Keen, 685. 692, 
 
 vol. 1, p. 394. 693; Rishton v. Cobb, 5 M. & C. 14f ; 
 
 ' Jarm. on Wills, vol. 1, p. 399. Jie Petts, 27 Beav. 576. 
 
 * iStanden v. Standen, 2 Yes. Jr. 589; " Schloss v. Stiebel, 6 Sim. 1.
 
 MISTAKE. 451 
 
 quest was held void.^ The question in all such cases is, 
 whether the mistake of the testator has been induced by the 
 fraud of tlie object of his intended bounty. Though it is clear 
 that a legacy given to a person in a character which the legatee 
 does not fill, and by the fraudulent assumption of which char- 
 acter the testator has been deceived, will not take effect ; yet if 
 the testator is not deceived, although a false character is in fact 
 assumed, the legacy will be good. A fortiori it will be good, 
 if both parties not only knew the actual facts, but are design- 
 edly parties to the assumption of the false character.^ A false 
 reason, however, given for a legacy, is not alone a sufficient 
 ground to avoid the act or bequest in equity. To have such 
 an effect, it must be clear that no other motive mingled in the 
 legacy, and that it constituted the substantial ground for the 
 act or bequest.^ 
 
 If the language of a will is either capable of more tlian one 
 meaning, or is incapable of any certain meaning, parol evidence 
 cannot be admitted to show what the testator intended to have 
 expressed.* But parol evidence is admissible for the purpose 
 of explaining the meaning of the terras he has used.^ The 
 court in construing a will cannot shut its eyes to the state of 
 facts under which the will was made.® Although in general 
 evidence as to the amount or state of the testator's property, is 
 inadmissible to influence the construction of the will ; ' yet, if 
 he inaccurately or imperfectly describes the gift, so as to make 
 the interpretation of the words in their primary sense impos- 
 
 ' Kcnnell v. Abbott, 4 Ves. 804. of itself sufficient to destroy it. But 
 
 " Giles V. Giles, 1 Keen, 685, 692, there must be an exception of any fraud 
 
 693^ practiced from wliich it may be pre- 
 
 **Kennell v. Abbott, 4 Ves. 802. The sumed tliat the person giving ihe legacy 
 
 civil law seems to have proceeded upon would not, if that fraud had been knowa 
 
 the same ground. The Digest says, to him, have given it. Keuuell v. Ab- 
 
 Falsain cnutsmn Ifigato non obease vcrius bott, 4 Ves. 803. 
 
 est ; quia ratio le/andi. legato non cohcc- * Wigram on Wills, 95. 
 
 ret. ,Scd pleruiiique doli ezceptio /ocwn ' 7A. 8. See Grey «. Pearson, 6 tt 
 
 habcb'U, ni probe/ur, alias lei/aturuiii non L. 106. 
 
 fuisse. Dig. Lib. 35, tit. 1 ' le^. 72, g G. * Jarm. on Wills, vol. 1, pp. 393, 394. 
 
 The meaning of this passage is that a ' lb. 394, and cases cited. 
 
 false reason given for the legacy is not
 
 452 MISTAKE. 
 
 sible, parol evidence is admissible.^ The principle is exempli- 
 fied in those cases in which a devise of land at a given place 
 has been extended to property not strictly answering to the 
 locality, because there is none which does precisely correspond 
 to it ; ^ or in which an apparently specific bequest of stock in 
 the public funds has been held to authorize payment of the 
 legacy out of the general personal estate, the testator having 
 no such stock when he made the bequest.^ So also if the sub- 
 ject of devise is described by reference to some extrinsic fact, 
 it is not merely competent but necessary to admit extrinsic 
 evidence to ascertain the subject of de\ase.* 
 
 The same considerations apply when the description or 
 terms employed by the testator are insufficient to determine 
 the person intended by the testator. If the object of the 
 testator's bounty, or the person meant by him, is described in 
 terms which are applicable indifferently to more than one 
 person, parol evidence is admissible to prove which of the 
 persons so described was intended by the testator.^ ■ 
 
 If the words of a will, aided by evidence of the material 
 facts of the case, are insufficient to determine the meaning of 
 the testator, evidence to prove the sense in which he intended 
 to use them is, as a general proposition, inadmissible.^ Thus, 
 evidence is inadmissible for the purpose of filling up a total 
 blank in a will,' or inserting a devise inadvertently omitted by 
 the mistake of the person drawing, making, or copying the 
 will,^ or of proving what was meant by an unintelligible 
 
 ' Fonnereaiix v. Poyntz, 1 Bro. C. C. ' Wigram ou Wills, 109 ; Jarmaii on 
 
 4T2; Att.-Gen. v. Grote, 3 Mer. 316; Wills, toI. I, pp. 400-403, and cases 
 
 Colpoysw. Colpoys, Jac. 451; Wigram cited, 
 
 on Will" 65. ° Wicrram on Wills, pp. 94, 98. 
 
 ''Doe v. Koberts, 1 B. <fe Aid. 407; ' Baylis v. Att.-Gen., 2 Atk. 239; 
 
 Jarm on Wills, vol. I, p. 393. Castledon v. Turner, 3 Atk. 257; Hunt 
 
 = Sel\vood V. M'ldmay, 3 Ves. 306; v. Ilort, 3 Bro. C. C. 311; Taylor v. 
 
 Jarm. on Wills, vol. I, p. 394. Richardson, 2 Drew, 16. 
 
 * Sanford v. Raikes, 1 iler. 646, pc- ' Kewhurgh v. NewburiiTi, 5 Madd. 
 
 Sir "w. Grant; Webb v. Byng, 1 K. & 364; Jarm.'on Wills, vol. I, p. 382. It 
 
 J. 580; Jarin. on Wills, voL I, p. 397. would, however, seem that il a clause
 
 MISTAKE. • 403 
 
 word;^ or of proving that a thing in 'substance different from 
 that described in the will was intended;'^ of changing the 
 person described ; ^ or of reconciling conflicting clauses in a 
 will.* 
 
 Where a testator, by a codicil, revokes a devise or beqnest 
 in his will, or in a previous codicil, expressly grounding such 
 revocation on the assumption of a fact which tarns out to be 
 false, the revocation does not take effect, being, it is considered, 
 conditional and dependent on a contingency which fails.^ So 
 also if a will is cancelled by mistake, or on the presumption 
 that a later will is good, which proves void, the heir is not let 
 in, but the .mistake may be relieved against.^ In such case 
 equity does not alter the will ; it merely relieves the party from 
 tlie effect of the mistake, thus placing him in the same condition 
 as if the mistake had not happened.^ 
 
 An election made by a party under a mistake of facts, or a 
 misconception as to his rights, is not binding in equity. In 
 order to constitute a valid election, the act done must be with 
 a full knowledge of the circumstances of the case, and the 
 right to which the person put to his election was entitled.^ In 
 order to presume an election from the acts of any person, that 
 person must be shown to have had a full knowledge of aU the 
 requisite circumstances, as to the amount of the different prop- 
 erties, his own rights in respect of them, &c.^ A person who 
 has elected under a misconception, Is entitled to make a fresh 
 election.^" 
 
 be inadvertently introduced, there may * Onions v. Tyrer, 1 P. "Wms. 345. 
 
 • be an issue to try whether it is part of ' Ih. 
 
 the testator's will. lb. ; Wigram on " Wintour v. Clifton, 21 Beav. 468 ; 
 
 Wills, 121. affirmed 3 Jur. N. S. 74. 
 
 ' Goblett V. Beochey, 3 Sim. 24. " Wake v. Wake, 1 Ves. Jr. 335, and 
 
 " Selwood V. Mildniay, 3 Ves. 306. the other cases mentioned; 1 Sw. 381, 
 
 ' Del Mare v. Robello, 1 Ves. Jr. n. ; Reynard v. Spence, 4 Beav. 103 ; 
 
 412. Edwards v. Morgan, 13 Pri. 782; 1 
 
 * Ulrich u Litchfield, 2 Atk. 372, pe»- Bligh's N. S. 401; Price v. Brice, 2 
 
 Lord llardwicke. Moll. 21. 
 
 'Campbell v. French, 3 Ves. 321; '» Kidney v. Coussmaker, 12 Ve3.136; 
 
 Doe >\ Evans, 10 A. ik E. 228; Jarm Jarman on Wills, vol. I, p. 441. 
 
 on Wills, vol.1, p. 170.
 
 454 ]«ISTAKE. 
 
 The court ■will not inquire into the fact of whether a 
 testator was mistaken or not with reference to his daughter's 
 liealth and capacity, assigned by his will as a condition for 
 imposing a condition in restraint of marriage.'^ 
 
 The costs of the suit, in cases of mistake, depend on the 
 conduct of the parties.- * If a deed is set aside or varied on 
 the ground of mistake, the decree will be with costs against 
 the defendant, if the suit is either wholly or mainly due to his 
 conduct in the matter.^ So also a decree for specific perform- 
 ance of an ordinary agreement,* or of an agreement by way of 
 compromise,^ will be with costs, if the case set up by the 
 defendant fails wholly on the merits, or the litigation has been 
 due to his conduct in the matter.^ If, on the other hand, the 
 mistake is entirely owing to the conduct of the plaintiff, he 
 must pay all the costs of the suit.''' So also if the case set 
 up by the plaintiff wholly fails on the merits, and the defend- 
 ant has not been to blame in the matter, the bill will be dis- 
 missed with costs, whether the object of the suit be to rectify 
 an instrument or to rescind a transaction.^ 
 
 So also if a bill for the specific performance of an agreement 
 
 * Morley v. Rennoldson, 2 Ha. 584. ' Attwood v. , 1 Ru=3. 353 ; 5 
 
 * Mortimer v. Shortall, 2 Dr. & War. Euss. 150; Houghton v. Lees, 1 Jur. N. 
 373 ; Alvanley v. Kiimaird, 2 Mac. & S. 862. 
 
 G. 9 ; Harris v. PeppereU, L. R. 5 Eq. ' I'arker v. Tastvell, 2 D. <fe. J. 576. 
 
 1 ; supra, p. 324. ' Harris v. PeppereU, L. R. 5 Eq. 1, 
 
 ' Bincjjliain v. Bingham, 1 Ves. 126; ^e?- Lord Romilly. 
 East India Co. v. Donald, 9 Ves. 275 ; * Naylor v. Winch, 1 Sim. & St. 555; 
 
 Dacre v. Gorges, 2 Sim. & St. 456 ; Alexander v. Crosbie, LI. & G. temp, 
 
 Sturge V. Sturge, 12 Eeav. 245; Mead- Sug. 153; Okill v. Whittaker, 1 Deg. 
 
 ows V. Meadows, 16 Boar. 404 ; Coward <fe Sm. 83 ; 2 Ph. 338 ; Wcstby v. West- 
 
 V. Hughes. 1 K. <fc J. 451; Cox r. Bru- by, 2 Dr. & War. 502; Howkins v. 
 
 ton. 5 W. R. 544 ; Leuty v. Hillas, 2 D. Jackson, 2 Mac. & G. S72; Meadows v. 
 
 <t J. 122; Broughton v. Ilutt, 3 D. <fe Meadows, 16 Beav. 405; Rido-way v. 
 
 J. 501 ; Brouu v. Kennedy, 33 Beav. Sneyd, Kay, 637 ; Bentley v. ilackay, 
 
 154; Harris v. PeppereU, L. R. 5 Eq. 1. 31 Beav. 159 ; Bateman v. Boyuton, 1,. 
 
 * Parker v. Taswell, 2 D. <fc J. 676. R. 1 Ch. App. 308. 
 
 * A bill to rectify an instrument must aver tliat it differs from the 
 intention of the parties, and set forth the particulars. United States v. 
 ^[tuii'oej 5 Mason, 573.
 
 MISTAKE. 455 
 
 be dismissed, tlie dismissal will be "svith costs, if the case of 
 mistake as set up by the plaintiff fails on the merits.^ If there 
 have been faults on both sides, costs will be given to neither, 
 whether the object of the suit be to rectify or rescind a trans- 
 action.^ 
 
 Although a bill for the rescission of a transaction, on the 
 ground of mistake, be dismissed, the dismissal will be without 
 costs, if the case of the plaintiff be a reasonable one on the 
 merits ; but his title to relief has failed through the absence 
 of due diligence on his part in filing the bill ; ' or because the 
 court could not interfere without prejudicing the rights of 
 innocent parties.* So also although a bill for the rectification 
 of an instrument be dismissed, the dismissal will be without 
 costs, if the case as set up bj the plaintiff be, on the whole, a 
 reasonable one.' So also although a deed be cancelled, the 
 circumstances of the case may be such that it will be without 
 costs.^ So also although a bill for the specific performance of 
 an agreement be dismissed, the dismissal will be without costs, 
 if the defendant has been to blame in the matter, either by 
 mistaking the terms of the agreement, or by other acts of 
 negligence; and the refusal of the court to interfere has 
 proceeded merely on considerations as to the hardship to 
 which the defendant would be exposed by being compelled to 
 perform his agreement specifically.' So also where there has 
 been a mutual misunderstanding,^ or where the terms of 
 
 ' Humphries v. Home, 3 Ha. 276 ; * Cockerell v. Cholmeley, Taml. 445 ; 
 
 Moxey V. Bigwood, 8 Jur. N. S. 803. 1 R. & M. 425; Ashhurst v. Mill, 7 Ha 
 
 ' Hitchcock V. Giddings, 4 Pri. 135 ; 515, 616; Barrow v. Barrow, 18 Beav 
 
 Mortimer v. Sliortall, 2 Dr. & War. 373; 537 ; Lord Bradford v. Lord Komuey 
 
 Murray v. Parker, 19 Beav. 305; Al- 30 Beav. 441. 
 
 v.iiiley V. Kinnaird, 2 Mac. <fe G. 9 ; ° Philippson v. Kerry, 32 Beav. 638 
 
 Fowler v. Scottish Equitable Life As- ' Malins v. Freeman, 2 Keen, 32, 
 
 surance Society, 28L. J. Ch. 228; Gar- Manser i;. Buck, 6 Ha. 413; Wood v. 
 
 r;ird V Frackel, 30 Beav. 459; Price v. Scarth, 2 K. <fe J. 33 ; Webster w. Cecil, 
 
 Ley, 11 W. R. 475; Harris v. Pepperell, 30 Beav. 64. 
 
 L. 11. 5 Eq. 1, mi/ira, p. 324. " Calverley v. Williams, 1 Ves. Jr. 
 
 " Stone V. Godfrey, 18 Jur. 166 ; but 210 ; Stratford v. Bosworth. 2 V. <fe B. 
 
 Bee S. C. on appeal, ^■) D. M. & G. 93. 342. See Clowes v. Higginson, 1 V. <Jl 
 
 * M'Alpine v. Swift, 1 Ba. & Be. 293. B. 524.
 
 456 MISTAKE. 
 
 the contract are ambiguous, so that the one party may have 
 reasonably put a different construction on the contract from 
 what was contemplated by the other,* a bill for specific 
 performance will be dismissed without costs. And so where 
 parol evidence was admitted in opposition to specific perform- 
 ance.^ 
 
 If parol evidence to vary the contract is introduced by 
 the defendant, the bill should be strictly dismissed ; and, 
 therefore, if the court makes a decree at plaintiff's desire for 
 specific performance of the contract according to defendant's 
 evidence, the plaintiff must pay costs.^ But inasmuch as 
 parol evidence to vary the contract cannot be admitted on 
 the part of the plaintiff to a bill for specific performance,* a 
 bill for the specific performance of a contract with parol 
 variation, though left out by fraud, was dismissed, but without 
 costs.® 
 
 ' Neap V. Abbott, 1 C. P. Coop. temp. * Supra, p. 348. 
 
 Cott. 382; Baxendaiew. Seale, 19Beav. ^ WooUam v. Hearn, 7 Ves. 211; 
 
 613. Lord Portman v. Morris, 2 Bro. C. C, 
 
 * Townshend v. Stangroom, 6 Ves. 219; see Clowes v. Higginson, 1 V. <fe 
 
 328 ; Garrard v. Grinling, 2 Sw. 250. B. 524. 
 
 ' Fife V. Clayton, 13 Ves. 546; Mor- 
 timer V. Orchard, 2 Ves. Jr. 243.
 
 GENERAL INDEX.
 
 GENERAL INDEX. 
 
 A 
 
 ABATEMENT, 
 
 of price for misdescription, 65, 67, 339, 340. 
 
 purchaser compelled to accept, 361, 362, 363. 
 
 ACCOUNT, 
 
 on setting aside a sale as fraudulent against vendor, 344, 345, 
 
 346, 347, 348, 349, 350. 
 what interest allowed on taking, 351. 
 on setting aside a sale of shares as fraudulent against purchaser, 
 
 349, 351. 
 no reconveyance until, be taken, 351. 
 of wilful default, in what cases ordered, 348. 
 ordered from time of filing bill, if there has been delay, 348. 
 
 ACQUIESCENCE, 
 
 principle of, 127, 298, 301. 
 
 founded on fraud, 127, 109, 130. 
 •what is necessary to constitute, 85, 131, 298, 300, 301, 302. 
 extent of the principle, 127, 129, 131, 133. 
 cases in which the principle does not apply, 131, 133, 300, 301. 
 cases in which the principle applies with peculiar force, 302. 
 in expenditure on'his land binds the landowner, 126, 127, 129. 
 mere silence not sufficient, 128. 
 refusal to speak, with reason given, is not, 128. 
 none, where both parties have equal opportunities, 128, 131. 
 inferred, from small payment, 131. 
 through mistake of law, 132, 
 joint tenants, 134. 
 by recovering judgment, 299. 
 party bound only to extent of, 300,
 
 4G0 rsDEX. 
 
 ACQUIESCENCE— COM /m»e(/. 
 
 applies as between trustee and cestui que trusi,ZOZ. 
 representatives of man bound by his, 303. 
 remainderman may be bound by, 303. 
 
 ACTION AT LAW, 
 
 against vendor for concealment and misrepresentation, 53, 325, 
 
 326. 
 against stranger misrepresenting property, 53, 54, 340. 
 against agent misrepresenting property of principal, 326. 
 both fraud and injury must concur, 325. 
 fraud no bar to, unless there is an offer to rescind, 327 
 recoupment in, for fraud, 327. 
 
 no offer to return when consideration is worthless, 327. 
 note of third person must be returned, 327. 
 no return of vendee's own note, 328. 
 time of credit may be disregarded, 328. 
 fraud no defense to, on specialty, 328. 
 for fraud in sales of land, 328, 329. 
 
 AGENT. See Principal and Agent. 
 
 principal bound by misrepresentation of. 111, 112, 113,114,115. 
 
 unless he be acting ultra vires, 115, 116, 117. 
 notice to, notice to principal, 258, 259, 260. 
 for purchase, may not sell his own estate to principal, 175 
 for sale or management cannot purchase, 174, 175. 
 action at law against, for misrepresenting property of prin. 
 cipal, 326. 
 
 AGREEMENT. See Contract. 
 
 misrepresentation a bar to specific performance of, 358, 359. 
 although made innocently, 359. 
 
 unless compensation can be made, 361, 362, 363. 
 mistake a bar to specific performance of, 410, 411, 412. 
 
 unless with a variation, 417, 418. 
 mistake in written, when rectified, 418, 421. 
 when not rectified, 428. 
 when relieved against, 429, 430. 
 parol evidence admissible to explain errors in, 417, 418. 
 not to bid at auction, valid, 224. 
 
 fraudulent, respecting marriage, 215, 216, 217, 218,219,220. 
 to secure influence over other persons, 220, 221, 222. 
 among heirs to share ec[ually, 224.
 
 IXDEX. 4G1 
 
 AGREEMENT— cow/t;iMec/. 
 
 addition by parol to written, not admissible at law, 416. 
 or on behalf of plaintiff in equity, 417. 
 when admissible as a defense in equity, 364, 417, 418. 
 
 ALLOWANCE. See Account. 
 
 AMBIGUITY, 
 
 of agreement, 411,412. 
 
 patent, 435, latent, 435. 
 
 in what cases evidence admissible to explain, 435. 
 a ground of defense in equity, 360, 411, 412. 
 for refusal of costs, 456. 
 in wills, 452. 
 
 parol evidence when admissible to explain, 452. 
 
 AMBIGUOUS RECITAL, 
 not notice, 254. 
 
 APPOINTMENT. See Powkr. 
 
 fraud upon power of, when relieved against, 207, 268, 269, 
 
 270, 271, 272. 
 when vitiated in toto by fraud, and when in part, 272. 
 defective execution of power of, when relieved against, 335, 
 
 336, 337, 338, 339, 340, 341. 
 relief in case of illusory, 273. 
 
 ARBITRATOR. See Award. 
 
 may not purchase claims of parties for reference, 162. 
 corruption or partiality of, 290. 
 
 ARRANGEMENT. See Family Arrangement. 
 
 ASSIGNEE OF BANKRUPT, 
 
 may not purchase bankrupt's estate, 161. 
 except leave be obtained, 101. 
 
 ASSIGNMENT, 
 
 of equitable interest in personal estate, notice of, to trustee 
 
 necessary to complete title, 142. 
 fraud in, 277, 278. 
 to a beggar not fraudulent, 277. 
 by debtors giving preference to creditors, when valid or not, 
 
 210,211,212,284,285,286. 
 for benefit of creditors, when valid or not, 212, 287.
 
 462 lifDEX. 
 
 ATTESTING WITNESS, 
 
 whether affected with notice of contents of deed, 252. 
 
 ATTORNEY. See Solicitor and Client. 
 
 AUCTION, 
 
 engagement by parties not to bid against each other at an, 
 
 valid, 224. 
 employment of puffers or underbidclers at, 225, 226, 227. 
 purchase at, by fiduciary vendor, voidable, 158. 
 
 AWARD. See Arbitrator. 
 
 jurisdiction over, 288, 289, 290. 
 
 fraud in, 43, 44, 288, 289, 290, 291. 
 
 excessive, 291. 
 
 misbehavior of arbitrators, 290. 
 
 mistake in, when relievable, 446, 447, 448. 
 
 circumstances excluding equity for relief against, 292. 
 
 only when apparent on the, 447. 
 
 mistake in law, 447. 
 
 for error in judgment, 447. 
 
 ■when question of law is submitted, 447. 
 
 doubtful question of law, 448. 
 
 J3 
 
 BANKRUPT, 
 
 estate of, may not be bought by assignee, 161. 
 nor by commissioner, 161. 
 
 BANKRUPT LAWS, 
 
 fraud upon the, 219, 220. 
 
 what constitutes, 281, 282, 283, 284, 285, 286, 287. 
 
 what is not, 282, 283, 284. 
 
 giving one creditor preference over another is, 284, 285, 
 
 286. 
 covenant or bond by a man to pay moneys in contingency 
 
 of bankruptcy is, in general, a, 286, 287. 
 settlement by a man on himself until bankruptcy, is a, 286. 
 settlement by a third party on a man until bankruptcy, is 
 
 not a, 286. 
 assignment of property for benefit of creditors, not a, 287.
 
 LNDEX. 463 
 
 BIDDER, 
 
 employment of, at auction when allowable, 225, 226, 227. 
 
 employment of, at auction a fraud at law, 225. 
 
 in tax sales, 224. 
 
 fictitious bids by auctioneer, 226. 
 
 BONA FIDE PURCHASER. See Purchaser of Value without 
 Notice. 
 protected in equity, 312, 313, 314. 
 
 BOND, 
 
 marriage and place brokage, 220, 221, 222. 
 
 to marry given secretly, 223. 
 
 for giving consent to marriage, fraudulent, 216. 
 
 fraudulent upon an intended marriage, 216. 
 
 obtained by solicitors from their clients, 167. 
 
 reform of mistake in, 425, 426, 427. 
 
 joint, when deemed joint and several, 425, 426. 
 
 BROKAGE BONDS, 
 
 marriage and place, 220, 221, 222. "~ 
 
 
 
 CANCELLATION 
 
 of deeds by fraud or mistake, 276. 
 
 CAUTION, 
 
 mere want of, a? distinguished from gross negligence, 239, 240. 
 purchaser not bound to use excessive, 239. 
 
 CAVEAT EMPTOR, 
 
 the rule of the common law, 59, 101. 
 
 obtains in equity, 62. 
 in case of purchase of real estate, 103, 104. 
 in case of purchase of goods, 104, 105, 106, 107, 108. 
 does not apply where there is a distinct and positive misrepre- 
 sentation, 82, 257. 
 
 CESTUI QUE TRUST, 
 
 right of, to impeach purchase by trustee, 157, 158, 159, 349, 350. 
 may be lost by acquiescence, 303. 
 or lapse of time, 246. 
 right of, to impeach purchase from trustee, 157, 158, 349, 350. 
 purchase of trust estate, 154.
 
 464 INDEX. 
 
 CESTUI QUE TRUST— continued. 
 valid as to third parties, 154. 
 binding on trustee, 155. 
 option with, exclusively, 155. 
 by corporation in which trustee is member, 155. 
 when remedy may be at law, 155. 
 trustee cannot purchase for himself, 157. 
 purchase by, 157. 
 
 CESTUI QUE VIE, 
 
 death of, before date of contract, 429, 430. 
 
 CHANGE 
 
 of solicitors not notice of change of interest, 254. 
 
 CHAKITY, 
 
 governor of, lease to, of the lands, invalid, 162. 
 within the rule as to purchasers without notice, 313. 
 lands, tenant of, also a trustee, 163. 
 
 CHARTER 
 
 obtained by fraud, 355. 
 
 CHEAT, 
 
 goods, instruments, &c., obtained by, as distinguished from goods, 
 instruments, &c., obtained by fraud, 49, 50. 
 
 CHILD, 
 
 and parent, contracts, gifts, &c., between, when valid, 179, 180, 
 
 181, 262. 
 prima facie, valid, 179. 
 defective execution of power supplied in favor of, 440. 
 
 CHOSES IN ACTION, 
 
 assignee of, not assignable at law, cannot set up defense of pur- 
 chase for value without notice, 322, 323. 
 
 rule as to notice of assignment of, does not apply to equitable 
 interests in land, 1 42. 
 
 CLAIM, 
 
 concealment of, may amount to fraud, 130, 131. 
 
 CLERICAL ERROR, 
 
 corrected by courts of law, 416. 
 
 CLIENT AND ATTORNEY. See Solicitor and Client.
 
 index:. '*oo 
 
 collusion, 42, 190. 
 
 between a company and a creditor to enforce his debt against a 
 particular shareholder, 278. 
 
 COMMENDATION, 
 
 of property by vendor allowable, 82, 83, 84, 85, 80, 87. 
 
 COMMISSIONERS 
 
 of bankrupts may not buy bankrupt's estate, 101. 
 
 COMMITTEE 
 
 of lunatic may not purchase or rent the lunatic's estate, 101, 102. 
 
 COMPANIES, 
 
 misrepresentation and concealment in prospectuses of, 110, 111. 
 
 vague representations in prospectuses of, 80, 87. 
 
 collusion between directors of, and a creditor to enforce his debt 
 
 against a particular shareholder, 278. 
 parties induced by misrepresentation to take shares in, when not 
 
 relieved from the shares, 340, 341. 
 fraud upon, by shareholder, 279. 
 notice to proper officers of, notice to, 202. 
 notice to directors of, not notice to, 202. 
 notice to shareholder of, not notice to, 202. 
 
 COMPENSATION, 
 
 defects, &c., not admitting of, avoid contract, if undisclosed, 59, 
 
 05, 302. 
 conditions respecting, 304. 
 
 what matters do not admit of, 02, 03, 04, 05, 302, 303. 
 purchaser compelled to take defective estate with, 301, 302. 
 vendor's or purchaser's right to, for difference in quantity, 07, 303. 
 for improvements on an estate on setting aside a transaction, 347 
 allowed in respect of false representation through mistake, 339, 
 
 340. 
 price for better title, 345. 
 none, in case of actual fraud on creditors, 345. 
 in case of constructive fraud, 340. 
 
 COMPOSITION DEEDS, 214. 
 
 secret arrangements by creditors, a fraud upon, 214, 215. 
 under '< Bankruptcy Act, 1801," 287. 
 in what cases a fraud upon creditors, 287. 
 concealment of assets vitiates, 215.
 
 46G INDEX. 
 
 COMPROMISES, 
 
 vitiated by concealment, 124, 125. 
 
 of doubtful rights, not vitiated by mistake, 403, 404, 405. 
 may be vitiated by mistake of fact, 433, 434. 
 consideration for, 404. 
 CONCEA LMENT. See Misrepresentation, 94, 95, 96, 97, 98. 
 a fraud, if there be a duty to disclose, 95, 130. 
 as distinguished from silence, 98, 99, 100. 
 must be of a material fact, 94,95. 
 must be in reference to the transaction, 95. 
 immaterial, if fact be known, 95. 
 
 a fraud, if there be artifices to mislead, 98, 99, 102, 103, 127. 
 of truth, after discovery of misrepresentation, 67. 
 of patent faults, 101. 
 of latent faults, 101, 102, 103. 
 by vendor of ownership of property, 88. 
 by purchaser of advantages, &c., 9G, 97, 98. 
 by purchaser of his insolvency, 107, 108. 
 of recorded incumbrance, 103. 
 when property does not exist, 104, 
 when property is worthless, 104. 
 vendee's knowledge of defective title, 104. 
 when there is no title, 104. 
 by agent, binding on principal, 111, 118. 
 in prospectuses of companies, 100. 
 in policies of marine assurance, 118, 119. 
 life assurance, 120, 121. 
 fire assurance, 121. 
 in guarantees and contracts of suretyship, 122, 123. 
 in compromises, 124. 
 
 by parties in dealings with others toward whom they stand in 
 a fiduciary position, 125, 150, 151. 
 
 trustee and cestui que trust, 157. 
 
 solicitor and client, 164, 165. 
 
 principal and agent, 172, 173, 174. 
 
 guardian and ward, 178. 
 
 parent and child, 179, 181. 
 
 partners, 182. 
 
 parties generally coming within the principle, 182, 183. 
 of claim by incumbrancer, 1.30, 131. 
 in fraud of marriage, 216, 21'''.
 
 IXDEX. 4C7 
 
 CONCEALMENT— cow/»j«ec/. 
 
 of title with design to mislead, 126, 127, 128, 129. 
 contract procured bj, not enforced in equity, 358. 
 
 CONDITION, 
 
 imposed under mistake, 453. 
 
 CONFIRMATION, 
 
 of impeachable transaction, when binding in equity, 296, 297. 
 
 concealment will vitiate, 297. 
 
 marriage brokage bonds incapable of, 221. 
 
 implies knowledge of defect, 297. 
 
 must be deliberate act, 297. 
 
 CONSENT, 
 
 necessary in contracts, 142, 143. 
 what is necessary to constitute, 143. 
 to marriage, fraud in withholding, 223. 
 
 CONSIDERATION. See iNAOEQUAcy of Consideration. 
 may be either good or valuable, 198. 
 
 what will constitute a valuable, 200, 201, 202, 203, 232, 233. 
 marriage a valuable, 201, 232. 
 unless there be fraud, 201. 
 inadequacy of not per se a ground for relief, 186, 187, 188, 189, 
 
 or for refusing specific performance, 186, 364. 
 
 when a ground for relief, 164, 187, 189. 
 false statement of, 191, 192. 
 
 may vitiate a deed, 191, 192. 
 not expressed, may be proved, 191, 192, 199. 
 
 CONSTRUCTIVE NOTICE. See Notice. 
 what is, 236, 237, 240. 
 as distinguished from actual notice, 236, 
 limits of doctrine of, 236, 237, 238, 239, 252. 
 party not fixed with, of instruments or facts which may only 
 
 by possibility affect property, 254, 255. 
 may be excluded by positive representation, &;c., 79, 80, 255, 
 
 256, 257, 258. 
 only operates in matters affecting title, 258. 
 
 CONTRACT. See Agreement. 
 
 vitiated by absence of consent, 143. 
 induced by fraud voidable, not void, 48. 
 of lunatic, idiot, &c., 143, 144, 145.
 
 468 INDEX. 
 
 CONTRACT— continued. 
 
 of person in a state of mental imbecility, 145, 146. 
 
 of person in a state of intoxication, 147. 
 
 of infant, 147, 148. 
 
 of married woman, 148, 149. 
 
 by a party under duress or imprisonment, 184, 185. 
 
 in a state of embarrassment, 190, 
 vitiated on the ground of undue influence, 149, 179, 183, 192, 
 
 193, 194. 
 with persons in a fiduciary relation, 148, 149. 
 marriage brokage, not capable of confirmation, 221. 
 
 CONVEYANCE. See Fraudulent Conveyances, 
 
 vendor defrauded remains owner in equity notwithstanding 
 
 subject to repayment of moneys received, 48. 
 reformed in equity, 418, 419, 421. 
 
 COPYHOLD, 
 
 surrender of, supplied in equity, 438, 446. 
 purchaser need not take, instead of freehold, 62, 362. 
 nor need he take freehold instead of, 362. 
 
 CORPORATION, 
 
 lease to member of, of corporate property set aside, 162, 
 
 COSTS, 
 
 sale to solicitor in discharge of, 166, 
 
 solicitor may not take security for future, 167. 
 
 general rule in equity as to, 392, 393, 
 
 charges of fraud, if unsubstantiated, visited with, 393, 
 
 unsuccessful litigant as a general rule has to pay, 390, 394, 454, 
 
 455. 
 in equity, do not always follow the event, 391, 
 unsuccessful litigant exempted from payment of, 391, 392, 393, 
 
 455, 456, 
 solicitor made party to a suit for the purpose of having costs 
 paid by him, 380, 394, 395, 
 costs must be prayed for by the bill, 395, 
 party abetting a fraud made party, and ordered to pay, 380, 
 
 395, 
 
 COUNSEL, 
 
 rule in equity as to dealings between client and, 171. 
 notice to, is notice to client, 258, 260.
 
 INDEX. 4G9 
 
 COV'^^F.L— continued. 
 
 must disclose adverse retainer. 163. 
 
 cannot abandon client, 1G3. 
 
 judgment is only security for what is actually due, 164. 
 
 purchaser from client protected, 167. 
 
 when acting for two clients, 169. 
 
 for defendant, may purchase, 169. 
 
 COURTS OF COMMON LAW, 
 
 have jurisdiction over fraud, 44, 45. 
 remedies in, often defective, 45, 46, 332, 333. 
 
 COURTS OF COMPETENT JURISDICTION, 
 
 assistance of courts of equity to prevent fraud upon, 295. 
 
 COVENANTS, 
 
 notice of lease is notice of, 243, 244. 
 
 in lease, deceptive statements respecting, 91, 99, 244. 
 
 COVERTURE, 
 
 rights of married women in equity in respect of separate property 
 
 notwithstanding, 148. 
 no excuse for participation in fraud, 149. 
 
 CRE^)ITORS. See Fraudulent Conveyances. 
 
 fraud upon, 196, 197, 198, 199, 200, 201, 202, 203, 204, 205, 206, 
 
 207, 208, 209, 210, 211, 212, 213, 214, 215. 
 when on sale of chattels vendor remains in possession, 208, 
 
 209, 210. 
 assignment for benefit of, when valid or not, 212, 287. 
 fraudulent devises in fraud of, 214. 
 
 favored in equity in cases of defective execution of powers, 440. 
 preference of particular, 210, 212, 284, 285, 286. 
 assignment to fictitious, a fraud on the bankrupt laws, 287. 
 trust deeds for, when fraudulent, 287. 
 
 CROWN, 
 
 fraud upon the, 294, 295, 355. 
 
 D 
 
 DECEIT, 
 
 action on the case for, 325. 
 
 when and against whom it will lie, 325, 326. 
 
 DECEPTIVE STATEMENT, 
 is a fraud, 91, 92, 98, 99, 244.
 
 470 INDEX. 
 
 DECREE, 
 
 fraud in, remediable in equity, 43, 44, 292, 351, 352, 353. 
 purchasers under, take with notice of fraud apparent on face of) 
 
 317. 
 of court of equity may be adjusted to meet the exigencies of a 
 
 particular case, 46. 
 
 DEEDS, 
 
 fraudulent suppression and destruction of, 275, 276. 
 
 fraudulently obtained without consideration, 187, 
 
 given in extreme intoxication, 147. 
 
 vendor need not state defects apparent on face of, 103. 
 
 cancellation of, 276. 
 
 omission to ask for, or to retain, its effects as regards priority, 
 
 140, 141, 142, 251. 
 notice of, as affecting property, is notice of entire contents, 241, 
 
 242. 
 notice that party holds, is notice of his incumbrance, 234, 251. 
 attesting witness not affected with notice of contents of, 252. 
 fraud in, proveable by parol evidence, 389. 
 
 DEFECTS, . 
 
 patent and latent, what are, 101. • 
 
 disclosure or concealment of, by vendor, 101, 102, 103. 
 
 in execution of power, when supplied in equity, 438, 439, 440, 
 
 441, 442, 443, 444. 
 in instruments, when supplied in equity, 445, 446, 447. 
 in estate, abatement of purchase moneys in respect of, 65, 66, 67, 
 363. 
 
 DEFICIENCY 
 
 in quantity of estate, compensation for, 65, 66, 67, 363. 
 
 DELAY. /S'eeTiME. 
 
 in instituting a suit to impeach a transaction a bar to relief, 303, 
 304, 305, 306, 307, 308, 309, 310, 311, 312. 
 especially in certain cases, 306, 307. 
 even as between trustee and cestui que trust, 308, 309. 
 acquiescence, as distinguished from, 305. 
 representatives of a man bound by his, 312. 
 bill dismissed on ground of, dismissed without costs, 391, 455. 
 
 DEPRECIATORY 
 
 remarks, tSsc, by purchaser, their effect, 87.
 
 INDEX. 471 
 
 DESTRUCTION 
 
 of deeds, fraudulent, 275, 276. 
 
 DIRECTORS 
 
 of public companies, misrepresentation by, 110, 111. 
 
 DISCLOSURE. See Concealment. 
 
 of facts, defects, &c., by vendor, 94, 101, 103, 103. 
 of advantages, &c., by purchaser, 96. 
 
 DISTRESS, 
 
 rule of equity as to transactions entered into by a person in, 184, 
 189, 190, 191. 
 
 DOLUS, 
 
 according to the civilians, 73. 
 
 DRUNKARDS, 
 
 acts and contracts of, relievable, where there is fraud, 147, 
 where relief refused to, 147. 
 
 DURESS, 
 
 relief in cases of, 184, 185, 189, 190, 193, 194. 
 
 E 
 
 ELECTION, 
 
 what is necessary to constitute a valid, 453. 
 relief against, made under mistake, 453. 
 
 ENCOURAGEMENT 
 
 of party in error may amount to fraud, 98, 127, 128, 129, 130, 
 131, 401. 
 
 EQUITABLE ESTATE. See Equitable Interest. 
 
 in land, purchaser of, acquires no priority by notice to owner of 
 legal estate, 142. 
 
 EQUITABLE INTEREST 
 
 in personal estate, purchaser of, acquires priority by givmg notice 
 
 to person in possession of fund, 142. 
 as between parties claiming a mere, he who is prior in time has 
 a better equity, 321, 322. 
 defense of purchase for value without notice has no place, 
 
 321, 322, 323. 
 the negligence of one may give the other a better equity, 141. 
 the possession of the deeds may give a better equity, 141.
 
 472 INDEX. 
 
 EQUITABLE TITLE 
 
 of purchaser without notice protected by the legal estate, 312, 
 
 813, 314, 315, 316. 
 mere, postponed to prior equities, 321, 322, 323. 
 with possession of deeds and the ownership of the legal estate, 
 
 priorities between, 140, 141. 
 
 EQUITIES, 
 
 as between innocent parties defrauded, 138, 139, 140, 141. 
 as between mere, purchase for value without notice has no place, 
 321, 322, 323. 
 
 EQUIVOCAL 
 
 terms of agreement a ground for refusing costs, 456. 
 
 ERROR. See Mistake. 
 
 clerical, in agreement, corrected by courts of law, 416. 
 
 ESTATE TAIL, 
 
 barred by fraud, remedy of remainderman, 372. 
 
 EVIDENCE. See Proof. 
 
 rules of, same in equity as st law, 384. 
 to prove fraud, 384, 385. 
 
 parol, where admissible to prove consideration in a deed, 191, 
 192. 
 
 of variation in or addition to agreement admissible in 
 defense to a suit for specific performance, 363, 364, 
 417. 
 admissible on application to rectify or rescind an instru- 
 ment on the .ground of mistake, 416, 423. 
 when admissible to explain an ambiguity in an agreement, 
 
 435. 
 when admissible to explain a will, 451, 452. 
 of one witness cannot prevail against a denial by the answer, 
 389. 
 EXECUTION, 
 
 defective of power, when relieved against in equity, 440, 441, 
 442, 443. 
 
 EXECUTOR. See Eiduciary Relation. 
 
 rule in equity as to, dealing in respect of the testator's estate, 
 
 161. 
 may file a bill to have a transaction, fraudulent as against his 
 
 testator, set aside, 372.
 
 INDEX. 473 
 
 EXPECTANCY, 
 
 fraud in respect of sale of, 1 87, n. 224. 
 
 EXPiENDITURE 
 
 in improvements, allowed to a purchaser in account, on rescind- 
 ing a transaction, 345, 346, 347. 
 
 purchaser when protected in equity against person encouraging, 
 127, 128, 129, 130, 131. 
 
 when a part-performance in equity, 136. 
 
 EXPENSES, 
 
 allowed to party complaining, on transaction being set aside for 
 fraud, 350, 
 
 F 
 
 FALSE REPRESENTATION. See Misrepresentation. 
 
 FALSE STATEMENT, 
 
 of consideration, 191, 192. 
 
 FAMILY ARRANGEMENT, 
 
 rule of equity as to validity of, 180, 181, 182, 271. 
 valid in equity notwithstanding mistake of parties, 434. 
 
 FATHER 
 
 and son, rule in equity as to dealings between, 179, 180, 181, 
 
 FAULTS, 
 
 sale with all, 102, 103. 
 
 FELONY, 
 
 goods obtained by, as distinguished from goods obtained by 
 fraud, 49. 
 FEME COVERT, 
 
 may dispose of separate property, 148, 149. 
 bound by fraudulent representations, 148. 
 not liable for fraud, 149. 
 
 representing herself to be single, 149. 
 no action against husband and wife for fraud, 149. 
 acquiescence in husband's conduct, 149. 
 defective execution of power aided in favor of, 370. 
 FIDUCIARY RELATION, 
 
 rule of equity as to dealings between parties standing in a posi- 
 tion to each other of, 148, 149, 150, 151, 152, 153. 154, 155, 
 156, 157, 161, 162, 182, 183.
 
 474 INDEX. 
 
 FIDUCIARY RELATION— continued. 
 
 proof of fairness of transaction rests on party filling the position 
 
 of, 151,386. 
 limitation of general rule as to dealings between parties in a, 
 
 152. 
 after termination of, parties may deal with each other, 152, 167, 
 
 168, 175. 
 rule of equity as to dealings between parties in a, may continue 
 after cessation of, 153. 
 applies to third persons who make themselves parties to 
 
 such dealings, 151, 179. 
 may apply, even though no definite relation subsist between 
 the parties, 183. 
 on what terms a transaction between persons standing in a, is set 
 aside, 349, 350. 
 
 FINE 
 
 obtained by fraud, relieved against, 353, 354. 
 
 FORFEITURE, 
 
 fraud on the law of, 280, 281. 
 FORGED INSTRUMENT, 
 
 purchaser under, yet protected by getting in legal estate, 314, 
 315. 
 
 legal estate cannot pass under a, 50, 51, 315. 
 
 FRAUD. See Concealmen-t — Misrepresentation. 
 
 what is, 41, 42. 
 
 moral, as distinguished from legal, 57. 
 
 concurrent jurisdiction of law and equity over, 44, 45. 
 
 always cognizable in equity, 43, 44. 
 
 except fi-aud in obtaining a will, 44. 
 
 not punishable in equity as a crime, 43. 
 
 classification of forms of, 43. 
 
 as regarded by a court of equity, as distinguished from, as re- 
 garded by courts of law, 45. 
 
 equity may entertain jurisdiction over notwithstanding remedy 
 at law, 46, 47, 48. " 
 
 transaction tainted by, voidable only, not void, 48, 49. 
 not'voidable, if right of others intervene, 49. 
 
 goods, instruments, &c., obtained through a trick or cheat, as 
 distinguished from goods, instruments, &c., obtained through, 
 49, 50. 
 
 original vice continues to taint a transaction founded upon, 51. 
 
 no lapse of time will screen, 51.
 
 T^DEX. 475 
 
 FRAUD — continued. 
 
 words more or less, 65. 
 
 will not cover fraud, 65. 
 import of, 65. 
 qualify representation, 66. 
 must be clearly proved, 383. 
 onus 2^rohandi rests on party alleging, 383. 
 
 will be presumed, where the parties are on unequal footing, 
 143, 386. 
 unless party upholding the transaction can prove the fair- 
 ness of it, 386, 387. 
 evidence of, 384, 385, 388, 389. 
 must be pleaded, 365, 366, 367. 
 bill will lie for recovery of moneys obtained by, 46, 47, 48, 367, 
 
 368, 369. 
 who may sue to set aside a transaction on the ground of, 
 370, 371, 372, 373, 374. 
 particeps criminis, 373, 374, 375, 376, 377, 378, 379. 
 ■who may be made defendants to a suit to set aside a transaction, 
 
 on ground of, 379, 380, 381, 382. 
 transaction impeachable on the ground of, may become unim- 
 peachable by confirmation, 296, 297. 
 by acquiescence, 298, 299, 300, 301, 302. 
 by lapse of time or delay in instituting a suit, 303, 304, 
 305, 306, 307, 308, 309, 310, 311. 
 of agent, principal bound by, 111, 112, 113. 
 of one member of a firm affects co-partner, 114, 351. 
 infancy or coverture no excuse for, 147, 148, 149. 
 by vendor, incumbrancer encouraging, &c., postponed in equity, 
 
 130, 131. 
 gross negligence may be treated as equivalent to, 137, 140, 240. 
 mere suspicion of, does not affect a purchaser, 239, 254, 255. 
 of his own professional adviser, whether purchaser has implied 
 
 notice of, 261. 
 how purchaser guilty of, must account, if sale set aside, 345, 
 
 346. 
 
 groundless imputation of, its effect on costs, 403. 
 a ground for setting aside a sale by the con it, 353. 
 in cases of idiots, lunatics, &;e., 143, 144, 145, 146. 
 in cases of drunkards, 147. 
 
 married women, 148, 149.
 
 47G INDEX. 
 
 FRAUD — continued. 
 
 infants, 147. 
 
 undue influence, 183, 184, 185, 193. 
 duress, 184, 185. 
 
 inadequacy of consideration, 186, 187. 
 suppression and destruction of deeds, 275, 276. 
 the prevention of acts to be done for the benefit of 
 third persons, 273, 274, 275. 
 setting up an instrument obtained for one purpose for an- 
 other purpose, 276. 
 by and upon companies, 278, 279. 
 upon the mortmain laws, 279. 
 in assignments, by assignees, &c., 277. 
 in the law of forfeiture, 280. 
 upon the bankrupt laws, 281,288. 
 in awards, 288, 292. 
 upon particular statutes, 288. 
 in judgments and decrees, 292, 293, 294. 
 upon the crown, 294. 
 upon the legislature, 295. 
 upon other courts, 295. 
 upon powers, 267-273. 
 upon creditors, 196-215. 
 upon marriage articles, 215, 216. 
 upon the marital rights, 217-220. 
 in respect of bond to marry, 223. 
 in withholding consent to marriage, 223. 
 in respect of expectancies, 223, 224. 
 in respect of sales by auction, 224, 225. 
 voluntary conveyances in, of subsequent purchasers, 227-233. 
 when persons purchase with notice of adverse title, 233-266. 
 in marriage and place brokage contracts, 220, 221, 222. 
 arising from peculiar fiduciary relations, 147, 183. 
 
 between trustee and cestui que trust, 147-183. 
 
 between solicitor and client, 163-172. 
 
 between principal and agent, 172-177. 
 
 between guardian and ward, 177-179. 
 
 between parent and child, 128, 131, 179-182. 
 
 between partneis, 182. 
 
 between principal and surety, 182. 
 
 in other special cases, 151, 161, 162, 171, 182.
 
 INDEX. 477 
 
 FRAUDULENT CONVEYANCES, 
 relief of creditors against, 196, 198. 
 what ^yithin statute of 13 Elizabeth, 198. 
 when one indebted conveys to his wife and children, 200, 201, 
 
 202, 203, 204, 205. 
 whether indebtment 'per se evidence of fraud, 205, 206. 
 when subsequent creditors let in, 206, 207. 
 must be of property applicable to discharge of debts, 208. 
 when made to defeat creditors, void, though for a valuable con 
 
 sideration, 198, 208. 
 when vendor of chattel property remains in possession after the 
 
 sale, 208, 209, 210. 
 assignments giving preference, when valid, 209, 210, 211, 212. 
 voluntary conveyance of real estate in regard to subsequent 
 
 purchasers, 227-233. 
 to defeat an attachment, 196. 
 of articles consumable in their use, 196. 
 in name of third person, 197. 
 reconveyance by grantee, 197. 
 void in toto, 197. 
 judgment is lien on, 197. 
 dower in, 197. 
 
 valid against third parties, 198. 
 not made valid by subsequent consideration, 200. 
 grantee must concur in, 201. 
 
 voluntary, governed by statute 27 Elizabeth, 227. 
 such conveyances good as between the parties, 230. 
 the statute does not extend to personal estate, 233. 
 between volunteers equity will not interfere, 233. 
 defeated by a sale, though the purchaser takes with notice, 229. 
 rule in America, 227. 
 does not apply to State, 228. 
 of equitable interest, 228. 
 valid against purchaser with notice, 228. 
 record is notice, 228. 
 judicial sale, 230. 
 to defraud creditors, 231. 
 applies to personal property, 233. 
 
 FRAUDULENT INTENT, 
 what constitutes, 54, 92. 
 in particular cases imputed, 55, 56, 57.
 
 478 INDEX. 
 
 FRAUDULENT INTENT— continued. 
 
 not imputed if a man makes a representation which he honestly 
 believes to be true, 60, 61. 
 
 FRAUDULENT PREFERENCE, 
 
 what is, 284, 285. 
 
 what is necessary to constitute, 285, 286. 
 
 G 
 
 GIFT, 
 
 by client to solicitor is not valid, 170. 
 by principal to agent, 176. 
 by cliild to parent, 180. 
 
 mere trifling, may be valid, though a large one would be invalid, 
 152. 
 
 GOVERNOR 
 
 of charity cannot buy or take a lease of charity land, 162. 
 
 GUARANTEE 
 
 avoided by non-disclosure or concealment of material facts, 122, 
 123, 124. 
 
 GUARDIAN AND WARD, 
 
 rule of equity as to dealings between, 177. 
 
 not limited to cases where the relation actually exists at the 
 time, 177, 178. 
 after complete termination of relation of, parties may deal, 178. 
 cases coming within the rule of equity with respect to dealings 
 
 between, 178, 179. 
 
 H 
 
 HEIR 
 
 of party defrauded may file a bill for relief, 371. 
 
 of voluntary settler cannot defeat the settlement by a sale, 229. 
 
 agreement between expectant heirs to share equally is valid, 224. 
 
 HUSBAND, 
 
 defective execution of a power by wife in favor of, not aided in 
 equity, 440.
 
 INDEX. 479 
 
 I 
 
 IDIOTS. See Lunatic. 
 
 IGNORANCE. See Mistake. 
 
 willful, tantamount to actual knowledge, 237. 
 of law, 398. 
 
 moneys paid in, 402. 
 of fact, 406. 
 
 ILLEGAL 
 
 purpose concealed from vendor, does not avoid conveyance, 46. 
 party may avoid his deed by showing that it was ex©- 
 cuted for an, 388. 
 
 ILLUSORY APPOINTMENT, 273. 
 
 IMBECILITY, 
 
 mental, relief in cases of, 143, 144, 145, 146. 
 
 where there is duress or undue influence, 187, 188, 189, 190. 
 
 IMPRISONMENT, 
 
 contract by party under, 184, 185. 
 
 IMPROVEMENTS, 
 
 expenditure in, allowed to a purchaser on setting aside a transac- 
 tion, 345, 346, 347. 
 refusal to execute promised, a defense in equity to bill for specific 
 
 performance, 304. 
 by lessee on land of lessee not allowed, 131, 132, 133. 
 purchaser who seeks to set aside a transaction on ground of fraud 
 
 should pray for, 347. 
 false representation as to amount spent in, upon property may 
 amount to a fraud, 88. 
 
 IMPROVIDENCE 
 
 of transaction not a ground of relief, 189, 190. 
 
 INADEQUACY OF CONSIDERATION, 
 not in general a ground for relief, 186. 
 
 or for refusing specific performance, 186, 364. 
 a ground of relief, if grossly inadequate, 187. 
 
 or if the parties are in a position of fiduciary relation, 116, 
 
 137, 164, 165, 189. 
 or if the one possesses an influence over the other, 189, 190.
 
 480 INDEX. 
 
 INADEQUACY OF CONSIDERATION— con?i;i?/ei. 
 
 till recently a ground for setting aside the sale of a reversion, 
 
 187n. 
 may amount to proof of fraud, 187. 
 due to fall of vendor, 186. 
 on sale for taxes, 186. 
 sale under judicial process, 188. 
 sale at auction, 188. 
 when consideration is mere bubble, 188. 
 
 INCAPACITY 
 
 to contract, renders a contract fraudulent, 143, 144, 145, 146, 147. 
 
 INCUMBRANCES. See Notice. 
 
 vendor must disclose, if not apparent on the deeds, 103. 
 
 notice of, to purchaser, before conveyance, binds, 318, 319, 320. 
 
 right of purchaser to pay off, after conveyance, out of unpaid 
 
 purchase moneys, 320. 
 legal estate, when a protection against, 313, 320. 
 concealment of, by third party, 130, 131. 
 priority as between equitable, 141, 142, 322, 323, 324. 
 
 INFANT, 
 
 general incapacity of, to contract, 147. 
 bound by fraudulent representations, 147, 148, 382. 
 incumbrancer, fraudulent concealment by, relieved agiiinst, 147, 
 148, 382. 
 
 INFLUENCE, 
 
 undue, transaction set aside on ground of, 183, 185, 193, 194. 
 
 INJUNCTION, 
 
 remedy by, in cases of fraud, 355, 356. 
 
 INQUIRY, 
 
 purchaser fraudulently abstaining from, case of, 237. 
 
 purchaser negligently abstaining from, fixed with notice, 237, 238, 
 
 239. 
 mere suspicion not enough to put a man upon, 238, 254. 
 
 INSANITY. See Lunatic. 
 
 INSOLVENCY, 
 
 concealment by purchaser of his, 108. 
 when assignee in, may purchase, 160, 161. 
 representation of solvency, 108.
 
 INDEX. 481 
 
 INSOLVENCY— con^mMecZ. 
 
 vendor's knowledge of his, 108. 
 mutual mistake as to solvency, 109, 
 after committing an act of, 109. 
 
 mSPECTION 
 
 of property by purchaser, its effect on misdescription, 75, 76, 77, 
 
 78, 95. 
 
 INSURANCE. See Policies of Insurance. 
 
 INTENTION, 
 
 false representation as to, not a ground fur relief, 88, 89. 
 evidence of, admissible when there has been a mistake in the 
 
 expression of an agreement, 414, 416, 418. 
 of author of power, no relief, so as to defeat, 443. 
 of testator, when evidence admissible to explain, 451, 452. 
 
 INTEREST, 
 
 of vendor in property, purchaser must disclose facts increasing, 
 98. 
 
 in property, conveying party mistaking, has no remedy, 432, 
 433. 
 
 on moneys advanced, allowed on setting aside a transaction, 344. 
 
 on improvements, allowed to purchaser on setting aside a trans- 
 action, 351. 
 
 in respect of costs, charges and expenses, allowed to complaining 
 party on setting aside a transaction, 351, 
 
 INTOXICATION 
 
 of party to contract, its effect, 147. 
 
 JOINT CONTRACTS, 
 
 when held in equity joint and several, 425, 420, 427. 
 
 JUDGMENTS, 
 
 fraud in, 43, 44, 292, 293, 294, 352. 
 how relieved against, 353. 
 reorjstered, are notice only if search be made, 206. 
 purchasers when bound by notice of unregistered, 26G. 
 mistalxc in, 446.
 
 482 IKDEX. 
 
 JURISDICTION, 
 
 of equity over fraud, uoL excluded by existence of remedy at 
 law, 45, 46. 
 
 LACHES. See Delat. 
 
 LATENT, 
 
 defects, what are, 101, 103. 
 
 must be disclosed by vendor, 101, 103. 
 ambiguity in agreement, 435. 
 parol evidence admissible to explain, 435. 
 
 LAW, 
 
 remedies at, in cases of fraud, 325, 326, 327, 328, 329, 330, 331. 
 
 jurisdiction of equity over fraud not excluded by existence of 
 remedy at law, 45, 46. 
 
 LEASE, 
 
 notice of, whether notice of all its contents, 242, 243, 244. 
 covenants in, need not be mentioned on sale of, 243. 
 there must, however, be no misrepresentation, 243, 244. 
 misdescription respecting, when fatal, 62, 63, 64, 
 purchaser of, has what notice of lessee's title, 250. 
 
 LEASEHOLD, 
 
 described as freehold, variance is material, 62, 63, 362. 
 
 LEAVE AND LICENSE, 
 
 rule at law as to, 133, 134, 135. 
 
 as distinguished from equitable doctrine of acquiescence, 
 133, 134, 135. 
 
 LEGACIES, 
 
 fraud in the prevention of, 273, 274, 275, 354. 
 
 revocation of, under mistake, 3S3, 384. 
 
 false reason given for, when avoiding, 354, 355, 450, 451. 
 
 LEGAL ESTATE, 
 
 how far a protection to purchaser, 312, 313, 314, 315, 318, 319, 
 320. 
 
 not a protection where a purchaser has omitted to inquire for the 
 
 title deeds, 251. 
 being outstanding, notice of, is notice of the trusts on whicli it is 
 
 held, 248.
 
 INDEX. 483 
 
 LEGISLATURE, 
 
 fraud upon the, 295, 296. 
 
 LESSEE, 
 
 has constructive notice of lessor's title, 249. 
 
 LESSOR, 
 
 notice of tenancy not notice of title of, 247. 
 
 lessee or purchaser from lessee has notice of title of, 249. 
 
 LICENSE 
 
 to exercise a right over the land of another may be counter- 
 manded at law by the owner of the soil, 135. 
 
 not so in equity, if there has been acquiescence or encouragement 
 to spend moneys, 133, 134, 135. 
 
 LIEN, 
 
 notice of possession of deeds is notice of, 251. 
 vendor's tenancy, when not notice of, 247. 
 
 LIMITATIONS, STATUTE OF, 
 
 equity acts upon analogy of, and follows as to legal demands, 
 
 304. 
 eflfect of, upon equitable demands and in cases of equitable titles, 
 
 304. 
 delay for less than time allowed by, may bar right to relief in, 
 
 equity, 304, 306. 
 not a bar in cases of fraud, 51, 303. 
 
 LUNATIC, 
 
 how far incompetent to contract, 143, 144, 145, 146. 
 committee of, may not purchase lunatic's estate, 161. 
 
 M 
 
 MARITAL RIGHTS, 
 
 of husband, fraud upon the, 217, 218, 219, 220. 
 
 settlement or conveyance of property during treaty of marriage 
 
 without notice to the intended husband, 217, 218, 219. 
 acquiescence by husband in, 220. 
 
 MARRIAGE. See Settlement. 
 
 a sufficient consideration for a settlement, 200, 201, 232. 
 setttlement before, may be fraudulent and void, 200, 201. 
 
 whether valid in favor of colliitcrals, 232, 233. 
 is not a part perfurmance of parol agreement, 137.
 
 484 INDEX. 
 
 MARRIAGE— continued. 
 
 fraud in withholding consent to, 223. 
 mistake in settlement of, 424, 425. 
 
 MARRIAGE ARTICLES, 
 fraud upon, 215, 216, 217. 
 
 MARRIAGE BROKAGE BONDS, 220, 221, 222. 
 incapable of confirmation, 221. 
 
 MARRIED WOMAN, 
 
 how far incapable to sell or buy, 148, 149. 
 acting fraudulently is bound, 149. 
 
 MARRY, 
 
 bound to, 223. 
 
 MEDICAL MAN, 
 
 as to purchases by, and gifts to, from patient, 193. 
 
 MISAPPREHENSION, 
 
 agreement entered into under, when not enforced^ 411. 
 
 MISDESCRIPTION. See Misrepresentation. 
 condition respecting, 82, 364. 
 
 destroys effect of what would otherwise be notice, 79, 80, 255. 
 ■what so material as to avoid a contract, 62, 03, 64, 65. 
 specific performance decreed notwithstanding, where compensa- 
 tion can be made, 361, 362. 
 
 MISREPRESENTATION. See Concealment. 
 what constitutes, 53, 54, 91, 92. 
 must be of something material, 73. 
 must be relied on, 73, 75, 76, 77, 78, 79. 
 must be a proximate cause of a transaction, 74. 
 must be in respect of a fact, 82, 83, 84, 85, 86. 
 allegation of, may be met by proof of knowledge, 78, 79. 
 need not be in express terms, 90, 91, 92. 
 may be by acts or artifices to mislead, 92, 98, 99, 102. 
 must be made with the intent to deceive, 92, 93. 
 must be attended with damage, 93. 
 as to mere matter of opinion, 82, 83, 84, 85, 86. 
 as to value, 84, 85, 87, 364. 
 as distinguished from mere exaggeration, 86. 
 as to matter of opinion made by purchaser to vendor, 87. 
 as to cost, (SiC, of property, 88.
 
 INDEX. 4S5 
 
 MISREPRESENTATION— con ^i/iwed:. 
 as to intention, 88, 89. 
 as to matter of law, 90, 400. 
 made innocently or by mistake, 57, 68. 
 not in general a ground for an action at law, 325. 
 in what cases it vitiates a contract, 57-65. 
 in what cases it does not vitiate a contract, 59, 60. 
 by party who ought to know the truth, 57, 69. 
 if made by party who was not under a duty to know the truth, 
 
 must be disclosed by him, as soon as he discovers the truth, 
 
 67, 68. 
 destroys effect of what would otherwise be notice, 79, 80, 193, 
 
 255. 
 caveat emptor does not apply when there is a positive, 82. 
 in prospectuses of companies, 110, 116, 117, 118. 
 by agents, binding on principal, 111, 112, 113, 114, 115, 116, 117. 
 by infant binds him in equity, 147. 
 extent of application in equity of doctrine of law as to, 126, 
 
 127, 135. 
 negligence may be tantamount to, 137. 
 action at law for damages lies for, 53, 325, 326, 340. 
 not so, however, if made innocently, 325. 
 
 and in the absence of a duty to know the truth, 69 
 rescission of contract at law on the ground of, 325, 326, 327, 
 
 328, 329, 330. 
 rescission of contract or conveyance in equity on the ground of, 
 
 333, 334, 335, 340. 
 
 unless compensation can be made, 339, 340. 
 DO i-escission of contract either at law or in equity if party who 
 
 made the, is a stranger to the contract, 331, 340, 341. 
 as a ground of defense to a bill for specific performance, 357, 
 
 358, 359, 361, 364, 365. 
 ipef'-fic performance notwithstanding, if compensation can be 
 
 made, 361, 362, 363. 
 -osts in cases of, 390, 391, 392, 393. 
 
 MISTAKE, 
 
 what is, 396. 
 
 in matter of law, 396, 397, 398, 399, 400, 401. 
 
 when a ground of relief in equity, 398, 399, 400, 401. 
 
 payment of moneys under, 401, 402, 403.
 
 480 INDEX. 
 
 MISTAKE — continued. 
 
 not a ground for setting aside a compromise, 403, 404. 
 selection of wrong instrument, 397. 
 decision subsequently overruled, 397. 
 misconstruction of statute, 397. 
 of attorney, 397. 
 when relief granted, 399. 
 misconstruction of instrument, 400. 
 ignorance of right, 400. 
 in matter of fact, 405, 406. 
 
 of law and of fact, opinion of Savigny as to distinction be- 
 tween, 405, 406. 
 as distinguished from fraud, 406, 407. 
 as distinguished from negligence, 407, 408. 
 principles on which relief is granted against, 408, 436, 437, 
 must be material, 408. 
 
 may be of one party not known to the other, 400, 409, 410. 
 specific performance not enforced against party acting under, 
 
 410, 411, 412. 
 of one party known to the other, 400, 412, 413, 414. 
 caused by misrepresentation, 57, 90, 413, 414. 
 not caused by misrepresentation, 414, 415. 
 consisting in expression of agreement, 414. 
 in some matter inducing the aga-eement, 414, 415. 
 common to both parties to agreement, 416. 
 in expression of agreement, 416. 
 
 no specific performance, except on terms, 417. 
 rectification of, 418, 419, 420, 421, 422, 423, 424, 
 
 425, 426, 427. 
 cases in which there can be no rectification of, 357, 
 428, 429. 
 in matters inducing the agreement, 429, 430, 431. 
 
 in what cases not a ground of relief, 431, 432, 433. 
 as to matters to which the agreement is to be applied, 434, 
 435. 
 in marriage settlem'Mit, where the final instrument and prelim- 
 inary contract differ, 424, 425. 
 of fact, recovery of moneys paid under, 415. 
 
 in compromises and family arrangements, 433, 434, 
 parol evidence admissible to prove, 412, 416, 417, 418, 423, 435.
 
 INDEX. 487 
 
 MISTAKE— continued. 
 
 terms imposed on setting aside a transaction on the ground of, 
 436, 437, 438. 
 
 when money is spent on another's estate through mistake of title, 
 127. 
 
 election under, 453. 
 
 in the execution of powers, when aided in equity, 438, 439, 440, 
 441,442,443,444. 
 
 when parties have omitted acts necessary to the validity of instru- 
 ments, 445, 446. 
 
 when an instrument is drawn untechnically, 447. 
 
 in judgments, 446. 
 
 cancellation of deed by, 276. 
 
 in awards, 447, 448. 
 
 in wills, when rectified, 448, 449, 450, 451. 
 
 when parol evidence admissible to explain, 451, 452. 
 
 in legacies, 449, 450. 
 
 revocation of legacies under, 453. 
 
 condition imposed by will under, 453. 
 
 when a fiUse reason is given for a legacy, 450, 451. 
 
 effect of, in costs, 454, 455, 456. 
 
 MONEYS, 
 
 bill to recover, obtained by fraud, 46, 368. 
 
 paid under mistake of fact when recoverable, 415. 
 
 of law whether recoverable, 401, 402, 403. 
 arising from illegal contract, assertion of title to, 379. 
 
 "MORE OR LESS," 
 
 quantity of land stated to be, 65, 66, 67, 363. 
 
 MORTGAGEE, 
 
 puisne, may buy the mortgaged property from a prior, under 
 
 his power of sale, 162. 
 may buy from mortgagor, 162. 
 legal, not inquiring for or giving up the title deeds, how aflected 
 
 in equity, 140, 141. 
 equitable, not inquiring for or giving up the title deeds, how 
 
 aflected in equity, 142. 
 
 MORTMAIN LAWS, 
 
 fraud upon the, 279, 280.
 
 488 INDEX. 
 
 N 
 NEGLIGENCE, 
 
 may be tantamount to misrepresentation, 137. 
 principle of law as to, 137, 138, 
 
 application of, as between two innocent parties who have 
 
 been defrauded by a third, 138, 139. 
 application of, as between owner of legal estate and a party 
 
 having an equitable claim, 140, 141, 142. 
 application of, as between parties having mere equitable 
 
 interests in real estate, 141. 
 in what cases does not apply, 141. 
 distinction between gross and mere, 140, 141, 239, 240. 
 
 as understood in the Roman law, 140 n. 
 as distinguished from mere want of caution, 239, 240. 
 gross, treated as notice, 240. 
 
 omission by incumbrancer to give notice of claim is, in case of 
 personal estate, 142. 
 
 secus in case of equitable interests in real estate, 142. 
 omission to inquire for title deeds is gross, 141, 251. 
 not getting or giving up title deeds, when gross, 141, 251. 
 
 NOTICE. See Constructive Notice. 
 doctrine of, 234, 235. 
 
 founded on fraud, 233, 234. 
 actual, 235. 
 constructive, 236. 
 
 gross negligence may be treated as, 239, 240. 
 mere want of caution not tantamount to, 239. 
 that property is incumbered, &c., is notice of incumbrances, &c., 
 
 239, 241. 
 of deed is notice of contents 241, 242. 
 of lease is notice of covenants, 242, 243, 244. 
 that a man is in possession of land is notice of all equities therein, 
 
 244, 245, 248. 
 of tenancy is notice of equities of tenant, 245, 246, 247. 
 of past tenancy not notice of equities of tenant, 247. 
 of tenancy not notice of lessor's title, 247. 
 person held to have, of facts which he ought to have known, 248, 
 
 249, 250, 251. 
 that title deeds are in possession of another is notice of his cla'm, 
 
 234, 251.
 
 INDEX. 489 
 
 NOTICE — continued. 
 
 possession of deeds by solicitor of vendor is not, of interest of 
 
 solicitor therein, 250, 251. 
 witness to deed not bound by, of contents of deed, 252. 
 party specially referred to another for information fixed with, 252, 
 mere statement that information may be had at a particular 
 
 place not, 252. 
 that property is charged is notice as to the nature of the charge, 
 
 253, 254. 
 doctrine as to, does not extend to instruments or circumstances 
 
 which may only by possibility affect property, 254. 
 may be excluded by positive representation, 79, 80, 247, 255, 
 
 256, 257. 
 misrepresentation may avoid effect of what would be, 79, 80, 255, 
 
 256, 257, 258. 
 registration of assurance is not, unless search be made, 263, 264, 
 
 205. 
 registration with, of unregistered assurance, 265. 
 of unregistered judgment, 266. 
 record of deed is, 264. 
 
 not required to be recorded is not, 264. 
 deficient in statutory requirement, 264. 
 only to those claiming under grantor, 264. 
 when left with clerk, 264. 
 incorrect index, 264. 
 in wrong name, 264. 
 
 variance between copy and original, 265. 
 renewals, 265. 
 judgment not, unless search be made, 266. 
 purchaser with, judgments do not affect, 266. 
 immaterial as between judgment creditors, 266. 
 to solicitor or agent is notice to client or principal, 258, 259, 260. 
 notwithstanding that solicitor be committing a fraud upon 
 client, 261. 
 to partner is notice to other partners, 262. 
 to director of company not notice to company, 262. 
 to shareholder of company not notice to company, 262. 
 to proper officer of company notice to company, 262. 
 shareholder of company not necessarily fixed with, of contents of 
 
 memorandum of association of company, 261, 262. 
 doctrine of, applies although no solicitor be employed, 237.
 
 490 INDEX. 
 
 i^OTlC^—Co7itinued. 
 
 gives priority as between equitable incumbrancers in personal 
 
 estate, 142. 
 does not give priority as between equitable interests in land, 142, 
 
 321, 322. 
 purchaser for value without, having legal estate, protected in 
 
 equity, 312, 313, 316. 
 purchaser for value with, from purchaser without, protected, 315, 
 
 316. 
 purchaser having, cannot defeat it by getting in the legal estate, 
 
 316. 
 of another having better right to call for legal estate is notice of 
 
 all equities, 315. 
 purchaser with notice of facts which ought to have put him on 
 
 enquiry cannot claim as a purchaser without, 316, 317. 
 before payment of purchase money, though it be secured, and 
 
 conveyance executed, is sufficient, 318, 319, 320. 
 before conveyance, but after payment of purchase moneys, 320. 
 purchasers under a decree aifected with, 317, 318. 
 purchase for value without, available against a legal title, 320, 
 
 321. 
 purchase for value without, no defense as between persons claim- 
 ing mere equities, 321, 322. 
 injunction notwithstanding defense of purchase for value without," 
 
 321. 
 defense of purchase for value without, cannot be admitted, unless 
 
 it is pleaded, 369. 
 purchase for value with, not bound by a voluntary settlemet.t, 
 
 227, 228, 229. 
 matters of which purchaser has, vendor need not state, 101. 
 
 o 
 
 OCCUPATION, 
 
 notice of, notice of equities of occupier, 244, 245, 248. 
 
 aliter as respects a past occupation, 247. 
 rent debited in account to a purchaser on rescinding purchase of 
 
 real estate, 345. 
 not equivalent to recording, 245. 
 merely an inference, 245. 
 under recorded deed, 246.
 
 INDEX. 491 
 
 OCCUPATION— Continued. 
 
 terminated before purchase, 246. 
 
 joint, 246. 
 
 by mortgagor after foreclosure, 246. 
 
 notice to creditors, 246. 
 
 by tenant, 24G. 
 
 cestui que trust, 246. 
 
 of intruder, 246, 
 
 must be possessio pedis, 248. 
 
 must put party on inquiry, 248. , 
 
 without claiming title, 248. 
 
 OFFER 
 
 for purchase by third person, false assertion of, by vendor, 85. 
 
 OFFICE BROKAGE BONDS, 222. 
 OMISSION 
 
 of parcels from conveyance, purchaser relieved, 418. 
 
 OPINION 
 
 puffing statements amounting to mere expression of, allowable, 
 
 82, 83, 84, 85. 
 
 P 
 
 PARENT AND CHILD, 
 
 rule of equity as to dealings between, 179, 180, 181, 182. 
 
 PAROL EVIDENCE. See Evidence. 
 
 admissible to prove fraud in a deed, 389. 
 
 not in general admissible to vary a wi-itten agreement, 416, 418. 
 admissible to prove an engagement or a representation amount- 
 ing to an engagement, 356. 
 
 PART, 
 
 unspecified, of estate, notice of charge as affecting, 242. 
 
 PARTICEPS CRIMINIS, 
 
 cann.jt in general have relief, 373, 374, 375, 376, 377. 
 
 may in particular cases have relief, 377, 378, 379, 388. 
 
 PARTIES 
 
 who may sue for relief on tlie ground of fraud, 371, 372, 373. 
 defendants to a suit for relief on the ground of fraud, 379, 380, 
 
 381, 382. 
 third parties, who have abet'.cd a fraud, may be made, 380, 381, 
 
 382.
 
 492 IlsDEX. 
 
 PARTNERS, 
 
 stand to each other, in respect of dealings between them, in a 
 fiduciary relation, 182. 
 
 PARTNERSHIP, 
 
 firm, how far bound by fraud or misrepresentation of a partner, 
 
 114,382. 
 terms of rescission of, for fraud, 351. 
 
 PART-PERFORMANCE, 
 
 doctrine of^ founded on fraud, 135, 136. 
 
 what acts of, are or are not sufficient in equity, 136, 137. 
 
 PATENT, 
 
 defects, vendor need not point out, 101. 
 ambiguity, evidence not admissible to explain, 435. 
 
 PAYMENT, 
 
 of moneys, under mistake of fact, relievable, 415. 
 
 of law, whether or not relievable, 401, 
 402, 403. 
 injunction to restrain the, 355. 
 
 PLACE BROKAGE BONDS, 222. 
 
 PLEADING, 
 
 fraud, 365, 366, 367, 368, 369. 
 
 evidence not admissible to prove fraud, unless fraud be alleged 
 
 in the, 365. 
 purchase for value, without notice, 369, 370, 371 . 
 notice, 367. 
 
 POLICIES OF ASSURANCE, 
 
 affirmation in, when warranties, 72. 
 concealment in, 118, 119, 120, 121. 
 
 POST-NUPTIAL SETTLEMENT, 
 
 when valid or not, as against creditors, 200, 201, 202, 203, 232, 
 233. 
 
 POVERTY, 
 
 of vendor, when a ground for setting aside a contract, 189, 190. 
 not an excuse for laches, 311. 
 
 POWER, 
 
 fraud upon a, relieved against, 267, 272. 
 
 where appointment is made for benefit of appointer, 267, 208.
 
 INDEX. 493 
 
 P W E R — con tinned. 
 
 or for benefit of party, not an object of the jjowar, 269, 
 
 270. 
 or for a purpose foreign to the purpose of the power, 
 271, 272. 
 where necessary consent to it has been obtained by misre- 
 presentation, 272. 
 when vitiating an appointment in toto, and when in part 
 only, 272, 273. 
 defective execution of a, when aided, 438, 439, 440. 
 in favor of whom, 440, 441. 
 as against whom, 444. 
 as against whom, not aided, 444. 
 only in cases when an intention to execute clearly appears, 
 
 441, 442. 
 not aided, if executed by deed, instead of by will, 443. 
 
 or if intention of author of power would be defeated, 
 443. 
 of statutory powers not aided, 444, 445. 
 aided in favor of a volunteer, if there be fraud, 445. 
 by will, when aided, 442, 443. 
 
 not aided, if the defect be in the substance of the power, 440. 
 non-execution of, as distinguished from defective execution of, not 
 
 aided, unless there be fraud, 440, 445. 
 fraud in preventing the execution of, relieved against, 274, 445. 
 
 PREFERENCE, 
 
 to creditors, assignments giving, valid at law, 210, 211 212. 
 secret, when void in cases of assignment, 214, 215. 
 fraudulent, under the Bankrupt Laws, 284, 285, 286. 
 
 PREVENTION OF ACTS, 
 
 for benefit of third parties, fraud in, relieved against, 273 274 
 275. 
 
 PRINCIPAL AND AGENT. See Agent. 
 
 rule of equity as to dealings between, 172, 173, 174, 
 rule of equity as to dealings between, is not limited to cases 
 where the relation actually exists at the time, 175, 176. 
 after termination of relation of, parties may deal, 175, 176. 
 gifts between, 176, 177. 
 
 principal putting forth representations made to him by his agent, 
 as his own, bound in equity, 68.
 
 494 INDEX. 
 
 PRINCIPAL AND AGENT— coniinued. 
 
 not liable however in action for deceit, 69, 326. 
 form of decree, when agent has secretly bouglit from or sold to 
 principal, 349, 350. 
 
 PRIORITIES, 
 
 as between innocent parties, defrauded by a third, 139, 140, 141, 
 
 142. 
 as between equitable incumbrancers of personal estate, 142. 
 as between equitable incumbrancers of real estate, 142. 
 as between parties having mere equities, 322, 323, 324. 
 as between voluntary grantees, 198, 230. 
 
 PRISON, 
 
 contract entered into with party in, valid, 185. 
 
 PROBATE, 
 
 obtained by fraud, relief against, 354. 
 
 PROFIT, 
 
 trustee, agent, &c., purchasing and making, must account, 156, 
 172, 349, 350. 
 
 PROOF, 
 
 of fraud, must be clear and conclusive, 383. 
 what is sufficient, 385. 
 rests in general on party alleging fraud, 383. 
 
 burthen of, that transaction is free from fraud, rests on defend- 
 ant in what cases, 151, 157, 164, 165, 172, 386, 387. 
 
 burthen of, where deeds have been cancelled, 276, 
 
 what is, of fairness of transaction, 387, 388. 
 
 PUBLIC COMPANIES. See Companies. 
 
 PUFFING, 
 
 statements by vendor, their effect, 83, 84, 87. 
 on sales by auction, 225, 226, 227. 
 
 PURCHASE MONEYS, 
 
 notice of adverse right before payment of, sufficient, 318, 319, 
 
 320. 
 payment of, not part performance, 137. 
 
 procured by fraud, relieved against, 326. 
 purchaser allowed to follow, 351.
 
 INDEX. 495 
 
 PURCHASER FOR VALUE WITHOUT NOTICE. See Notice. 
 having legal estate, protected in equity, 312, 313. 
 may get in outstanding legal estate, 313, 314. 
 
 even when his equitable title depends on a forged instru- 
 ment, 314, 315. 
 
 unless from a trustee, 313, 314, 
 protected where he has the best right to call for the legal estate, 
 
 320. 
 of a mere equity, not entitled to priority, 321, 322. 
 may defend himself by plea, 369. 
 
 by answer, 370, 371. 
 
 by demurrer 370, 371. 
 
 Q 
 
 QUALIFYING EXPRESSIONS, 
 
 in statement of quantity, 65, Q>Q, 67, 363. 
 
 QUANTITY, 
 
 deficiency in, compensated, 67, 363. 
 misdescription in, not capable of compensation, 63. 
 
 K 
 
 RACK-RENT, 
 
 misdescribed as ground rent, 63. 
 
 RECEIVER, 
 
 may not purchase for his own benefit, 162. 
 
 RECITAL, 
 
 of instrument amounts to notice, 241. 
 ambiguous, not notice, 254. 
 
 RE-CONVEYANCE, 
 
 of real estate, decreed in cases of fraud and mistake, 344, 437. 
 not decreed, if transaction is not voidable but void, 345. 
 on what terms decreed, 345, 340, 347. 
 
 against trustee, agent, die, who has purchased or sold im- 
 properly, 349, 350. 
 no, in general, until account be taken, 350, 351. 
 costs of, &c., allowed to plaintiff, 350. 
 
 RECORD, 
 
 fraud in, provable by parol evidence, 389.
 
 49G INDEX. 
 
 EECTIFICATION, 
 
 of mistake in written instruments, 418, 419, 420, 421, 422, 423, 
 
 424, 425, 426, 427. 
 cases in which there cannot be, 424, 427, 428, 429. 
 not given, unless mistake be clearly proved, 421. 
 parol evidence of mistake admissible on application for, 423. 
 in particular cases decreed, though mistake is only implied, 425, 
 
 420. 
 of voluntary deed not ordered, unless by consent of parties, 429. 
 ordered only upon bill, not upon motion or petition, 429. 
 if there be fraud, there can be no, 352. 
 
 REGISTER, 
 
 is notice only if searched, 266. 
 
 removal of name of party induced to take shares in a company 
 
 by fraud from the, 351. 
 removal of name inserted by misrepresentation on, of a company, 
 
 351, 352. 
 
 REGISTRATION, 
 
 with notice of unregistered assurance, 265. 
 
 not notice unless search be made, 263, 266. 
 
 of assurance in Ireland binds the title, 263. 
 
 of judgments, 266. 
 
 in county register, 265, 266. 
 
 is constructive, 264. 
 
 not required to be recorded, 264. 
 
 defective, 264. 
 
 left with clerk, 264. 
 
 incorrect index, 264. 
 
 variance between record and original, 265. 
 
 renewals, 265. 
 
 REGISTRY ACTS, 
 
 fraud upon the, relieved against, 288. 
 
 RELEASE, 
 
 when binding in equity, 297. 
 
 REMEDIES, 
 
 for fraud, at law, 325, 326, 328, 329, 330, 331. 
 in equity, 333. 
 
 rescission, 343, 353. 
 for fraud, in equity declaring a party trustee, 353, 354.
 
 INDEX. 497 
 
 REMEDIES— co«/i/iJ<ec/. 
 
 for fraud, in equity, injunction, 355, 356. 
 
 specific performance, how affected by fraud, 357, 
 358. 
 
 RENEWAL, 
 
 of lease by trustee enures for benefit of cestui que trust, 154 n. 
 
 RENTS AND PROFITS, 
 
 party in possession must account for, on a purchase being set 
 
 aside, 345, 346, 347, 348. 
 trustee, &c., purchasing must account for, 350. 
 
 REPAIRS. See Improvements. 
 
 REPETITION, 
 
 in civil law of money paid under mistake of law, 403. 
 
 REPRESENTATION. See Misrepresentation. 
 
 made recklessly, is fraud at law, if it be untrue, 54. 
 honestly believed to be true, is not a fraud, although it be un- 
 true, 57, 325. 
 
 unless there be a duty to know the truth, 57, 69. 
 what are reasonable grounds for believing in the tiuth of a, 
 
 68, 69. 
 duty of party who has innocently made a false, to disclose the 
 
 truth, on discovering the falsehood, 66, 67. 
 as distinguished from a warranty, 70, 71. 
 doctrine of notice does not apply, if there be a distinct, 79, 80, 
 
 255, 256. 
 party entitled to rely on a distinct, 79, 80, 255. 
 as to matter of opinion, 82, 83. 
 as to value, not to be relied on, 84, 85. 
 vague, goes for nothing, 83, 84, 85, 86, 87, 88. 
 amounting to engagements, 90, 274, 275. 
 as to intention, 88. 
 
 as distinguished from representation, amounting to engage- 
 ment, 90, 274, 275. 
 by parties having a duty to perform, 111, 381. 
 person making a false, if not a party to the transaction, as far as 
 
 possible compelled to make it good, 333, 341, 342. 
 
 REPRESENTATIVES, 
 
 of party defrauded may file a bill for relief, 372. 
 relief may be had against, of defrauding party, after liis death, 
 379, 380.
 
 498 INDEX. 
 
 RE-SALE, 
 
 of property purchased by trustee, &;c., 349. 
 ordered on what terms, 349, 350. 
 RESCISSION, . 
 
 of deeds, instruments, &;c., for fraud, at law, 326, 327, 328, 331, 
 332. 
 
 in equity, 333 et seq. 
 principle on which, is had, 328, 333, 334, 335, 330. 
 of sale of goods and chattels at law for fraud, 32G, 327, 328, 
 
 329,330. 
 cannot be had, if there has been acquiescence, 328. 
 
 or if rights of others have intervened, 327, 328, 329, 
 
 330, 334, 335. 
 or if the parties cannot be restored to their original position, 
 48, 49, 327, 328, 335, 336, 337, 338, 339. 
 cannot in general be had, unless the transaction can be rescinded 
 
 in loto, 52, 336, 337, 338, 339. 
 cannot be had, if the defrauding party is not party to the trans- 
 action, 331, 340, 341. 
 on what terms decreed, 343, 344, 345, 346, 347, 348, 351. 
 
 where trustee, &c., has bought or sold secretly, 349, 350. 
 where a man has been induced to take shares in a company, 
 
 351. 
 where a man has been induced to enter into a partnership, 
 351. 
 bill for, dismissed without prejudice to action, 352. 
 of transaction on the ground of mistake, 409, 429, 430, 431, 436. 
 principle on which is had, 436. 
 terms on which granted, 436, 437, 438. 
 
 RESERVED BIDDING, 225, 226, 227. 
 
 RESTORATION, 
 
 by purchaser of altered premises, compelled, 346, 347. 
 
 RESTRAINING STATUTES, 
 fraud upon the, 288. 
 
 RES IS, 
 
 • directed in case of fraud, 348. 
 
 RETENTION 
 
 of deeds by venrlor, its effoct, 140, 141, 251. 
 
 RETICENCE. >S'e<? Silence.
 
 INDEX. 
 
 499 
 
 EEVENUE LAWS, 
 
 fraud upon the, 288. 
 
 REVERSION, 
 
 purchaser contracting for, must inform vendor of death of tenant 
 
 for life, 96. 
 misstatement on sale of, what not matter for compensation, 65. 
 inadequacy of consideration in sale of, not a ground for setting 
 
 aside sale, 187 n. 
 purchaser need not take, instead of estate in possession, 363. 
 
 REVOCATION, 
 
 of will under mistake, 453. 
 
 of legacy by mistake, 452, 453. 
 
 s 
 
 SALE 
 
 by court, set aside for fraud, 44, 232, 353. 
 
 of goods and chattels rescinded at law for fraud, 326, 327, 328, 
 
 329, 330, 332. 
 by auction, fraud in respect of, 224, 225, 226, 227. 
 of chattels sold under a warranty, rescission of, 331, 332. 
 
 SETTLEMENT, 
 
 notice of, is notice of articles, 241. 
 
 voluntary, is fraudulent as against purchasers, 227, 228, 229, 
 230, 231, 232. - ^ 
 
 who may set aside, 229, 230. ^i|i» 
 on marriage may yet be fraudulent, 201, 202. 
 to defiaud creditors, 196, 197, 198, 199. 
 revocable is fraudulent, 211, 212. 
 post-nuptial, when valid or not, 201, 202, 203, 232. 
 ante-nuptial, voluntary as to collaterals, 203, 232. 
 
 unless in special cases, 202, 203, 204, 232, 233. 
 underhand agreement to defeat, avoided in equity, 216. 
 secret, of wife in fraud of marital rights, 216, 217. 
 mistake in, when remedied, 424, 425. 
 
 SHAREHOLDER. See Shares. 
 
 in a company, induced by misrepresentation to take shares, upon 
 
 what terms relieved, 351. 
 removal of name of, from register, 351, 352.
 
 500 INDEX. 
 
 SB.AEEHOL'DER^contmued. 
 
 assignment by, of his shares to a pauper, whether fraudulent or 
 
 not, 277, 279. 
 when creditor of company may sue out execution against a par- 
 ticular, 278. 
 SHARES, 
 
 purchaser of, in a company, upon misrepresentation by the com- 
 pany, relieved from the, 341, 351. 
 not relieved from the, if he was induced to take 
 them by the fraud of a third party, 340. 
 or of a shareholder, 341. 
 nor relieved from the, if he was induced to take 
 them from a shareholder upon misrepresenta- 
 tions by the company, 341. 
 issued fraudulently, right of purchaser of, to prove on winding 
 up, 279. 
 
 SILENCE. See Concealment. 
 
 mere, not a fraud, 96, 100, 128. 
 
 a fraud, if there be a duty to speak, 100, 101, 127, 128, 129, 
 
 130, 131. 
 a fraud, if there be artifices to mislead, 100, 101, 131. 
 where both parties have equal opportunities, 128, 131. 
 refusal to speak, with reason given, 128. 
 on payment of small sums, 131. 
 under mistake of law, 132. 
 
 SOLICITOR AND CLIENT. See Costs. 
 
 rule of equity as to dealings between, 163, 164, 165, 166. 
 statement of untrue consiJei'ation in a deed between, fatal, .167. 
 rule of equity as to dealings between, is not limited to cases 
 
 where solicitor is actually employed at the time, 1G7. 
 after termination of relation of, parties may deal with each other, 
 
 167, 168. 
 cases in which the rule of equity as to dealings between, does not 
 
 apply, 168, 169, 170. 
 gifts from client to solicitor invalid, 170, 171. 
 what parties come within the rule as to dealings between, 171, 
 
 172. 
 notice to solicitor, notice to client, 258, 259, 260. 
 
 notwithstanding solicitor may be committing a fraud, 261. 
 fDrm of decree when solicitor has secretly bought from client, 349.
 
 IlfDEX. 601 
 
 SOLICITOR AND CUENT— continued. 
 must disclose adverse retainer, 163. 
 cannot go over to adverse party, 163. 
 suits before magistrates, 164. 
 securities, 164. 
 purchaser from client, 167. 
 
 two clients, 169. 
 
 defendant, 169. 
 SPECIFIC PERFORMANCE, 
 
 principle of the court in respect of, 357, 358. 
 misrepresentation a bar to, 358, 359. 
 
 conduct of party seeking, must be fair and clear, 358, 364. 
 misdescription a bar to, 359, 360, 362, 363. 
 
 unless compensation can be made, 361, 362. 
 false representation as to value a ground for refusing, 364. 
 inadequacy of consideration not a ground for refusing, 364. 
 of lease not enforced, containing usual covenants, which defend- 
 ant had no reasonable grounds of knowing, 244, 360, 361. 
 mistake of defendant a bar to, 410, 411, 412, 417. 
 parol evidence of misrepresentation or mistake admissible as an 
 
 answer to a bill for, 364, 412, 417, 418. 
 with parol variation introduced by the defendant, 364, 417. 
 parol variation on part of plaintiff not admissible in suit for, 417, 
 
 418. 
 by purchaser against vendor, who has innocently made a mistake 
 
 in description, not enforced except on terms, 364. 
 costs in suits for, 390, 392, 455, 456. 
 
 SPOLIATION OF DEEDS, 
 
 fraud by, 275, 276. 
 STATUTES, 
 
 fraud upon, relieved against, 288. 
 
 of Mortmain, fraud upon, 279. 
 
 of Limitations, 304. 
 
 13th Elizabeth, as to creditors, 196. 
 
 27th Elizabeth, as to purchasers, 226. 
 STATUTORY POWERS, 
 
 no relief against defective execution of, 442, 443, 444. 
 STRANGER, 
 
 agreement brought about by, with a fraudulent object, yet valid 
 between parties, 52, 53, 340, 341.
 
 502 INDEX. 
 
 STRANGER— con tinued. 
 
 liable for misrepresentation, 53, 54, 340, 341. 
 SUB-LESSEE, 
 
 has notice of title of immediate and original lessor, 249. 
 
 cannot rely on representations of his lessor, also a sub-lessee as 
 to covenants in lease, 257. 
 SUPPRESSION OF DEEDS, 
 
 fraud by, 275, 276. 
 SURETYSHIP, 
 
 what concealment vitiates contract of, 122, 123. 
 SURRENDER, 
 
 of copyhold supplied in equity, 438, 446, 447. 
 SUSPICION, 
 
 mere, of fraud, is not notice, 239, 254. 
 
 circumstances of, do not warrant conclusion of fraud, 384, 
 
 T 
 
 TACKING, 
 
 foundation of doctrine of, 324, 325. 
 confined to honafide purchaser, 324. 
 what is, 324. 
 
 TENANCY, 
 
 notice of, is notice of tenant's interests, 245, 246, 247. 
 
 but not of lessor's title, 246, 247. 
 past, notice of, not notice of tenant's interests, 247, 248. 
 of vendor, notice of, is no notice of lien, when, 246, 247. 
 
 TENANT, 
 
 what acts by, are part performance, 136. 
 TENANT EOR LIFE, 
 
 may purchase from trustees of settlement, 162, 163. 
 
 with power to sell or lease, may sell or lease to himself, 163. 
 
 concealment of death or dangerous illness of, by purchaser of 
 
 reversion, 98. 
 death of, unknown to both parties at time of contract, contract 
 vitiated by, 430. 
 TENANT IN TAIL, 
 
 induced by fraud to bar the entail, remedy of remainderman, 
 372.
 
 IIJDEX. 503 
 
 TERM OF YEARS, 
 
 instead of fee, purchaser need not accept, 62, 63, 362. 
 
 TERMS, 
 
 on which a transaction is rescinded for fraud, 343, 344, 345, 
 
 346, 347, 348. 
 of rescission of partnership transactions for fraud, 351. 
 of rescission of contract for purchase of shares, 351. 
 on setting aside a transaction for mistake, 437, 438. 
 
 TIME. See Delay. 
 
 lapse of, a bar to relief, 303, 304, 305. 
 
 begins, in cases of fraud and mistake, to run from the discovery, 
 
 309,310, 311,436. 
 does not run where there is undue influence, 310, 311. 
 lapse of, as affecting remainderman, 312. 
 lapse of, effect of, as between trustee and cestui que trust, 308, 
 
 309. 
 what lapse of, sufficient to bar relief in equity, 305, 306. 
 
 TRICK. See Cheat. 
 TRUSTEE, 
 
 and cestui que trust, rule of equity as to dealings between, 153, 
 154, 155, 156, 157, 158. 
 concealment in dealings between, 157, 158. 
 what parties within the rule, 161, 162, 
 what parties not within the rule, 160, 162, 
 
 163. 
 dealings between after termination of rela- 
 tion, 159. 
 may not derive any profit in the execution of his trust, 156, 
 
 349, 350. 
 selling property of his own secretly to the cestui que trust, 349. 
 buying property secretly from cestui que trust, 349, 350. 
 acquiescence by cestui que trust in dealings with, when bindino-, 
 
 303. 
 legal estate got in from, when available, 313, 314. 
 transactions relating to trust estate, 154. 
 valid as to third parties, 154. 
 binding on, 155. 
 when I'omedy at law, 155. 
 cannot purchase from himself, 157. 
 entitled to compensation, 156.
 
 504 nn)EX. 
 
 U 
 
 UNDER-LEASE. See Sub-Lessee. 
 
 instead of lease, purchaser need not accept, 363. 
 
 UNDUE INFLUENCE, 
 
 rule of equity as to, 143, 150, 183, 184. 
 what is, 184, 185, 186. 
 
 in what cases relief has been given against, 193, 194, 195. 
 bonds given as a reward for, to be exercised over testators, 222. 
 in the promotion of marriage, bonds given for, 220, 221, 222. 
 in preventing an act for the benefit of third parties being done, 
 273, 274. 
 
 V 
 VALUE. 
 
 representation as to, not to be relied on, 83, 84, 85, 86. 
 
 false representations as to, may however amount to a fraud, 84, 
 
 87, 88. 
 vendor may put upon purchaser the responsibility of telling him 
 
 the, 87, 88. 
 
 VOLUNTARY CONVEYANCE. See Fraudulent Conveyance. 
 of real estate, void as against subsequent purchaser, 227, 228, 
 
 229, 230, 231, 232. 
 contract to sell with notice of, enforced by purchaser, 229. 
 maker of, may defeat it by a sale, 229. 
 
 heir or devisee of settler of, may not defeat it by a sale, 229. 
 of chattels not defeasible by a sale, 233. 
 void as against creditors, 200, 201, 202, 203. 
 as distinguished from settlement for value, 200, 201, 202, 203, 
 
 232, 233. 
 
 w 
 
 WARD. See Guardian and Ward. 
 
 WARRANTY, 
 
 what is a, 70, 71, 72. 
 
 as distinguished from representation, 70, 71. 
 
 does not cover patent defects, 101. 
 
 of title on sale of goods, 104, 105. 
 
 rescission of sale of chattels sold under a, 331.
 
 INDEX. 505 
 
 WILL, 
 
 fraud in obtaining, not cognizable in equity, 44, 354. 
 what is undue influence in obtaining, 184, 185. 
 revocation of, by mistake, 452, 453. 
 mistake in, when porrected in equity, 448, 449, 450. 
 
 parol evidence admissible to explain, 462. 
 execution of power by, instead of by deed, 443. 
 
 by deed, instead of by, 443. 
 WITNESS. See Attesting Witness. 
 
 testimony of one, will not prevail against a denial by answer, 
 399. 
 
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