531.

14. It is no defence upon such indictment, that defendant was ignorant of the public character of the minister. Ibid.

15. Any person who executes process on a foreign minister, is to be deemed an officer under the twenty-fifth section of the act of 1790. United States v. Benner, Baldwin's C. C. R. 240.

16. To support an indictment under this law, it is not necessary that the defendant should know the person arrested by him to be a foreign

minister. Ibid.

17. A foreign minister cannot waive his privileges; his submission or consent to an arrest is no justification. An assault committed by him may be repelled, but does not justify an arrest by process. Ibid.

18. An attaché to a foreign legation is a public minister, within the act of congress. Ibid.

FORMER RECOVERY.

Where a verdict has been given against the plaintiff, and a judgment thereon has been rendered, it is a bar to a suit for the same cause of action, although the plaintiff may have offered no evidence to support his claim. Ramsey & Vattier v. Herndon, 1 M'Lean, C. C. R. 450.

FORTHCOMING BONDS.

FRAUD.

1. Without undertaking to suggest, whetner in any case the want of possession of the thing sold constitutes, per se, a badge of fraud, or is only, prima facie, a presumption of fraud, it is sufficient to say, that in case even of an absolute sale of personal property, the want of such possession is not presumption of fraud, if possession cannot, from the circumstances of the property, be within the power of the parties. Conard v. The Atlantic Insurance Company, 1 Peters, 449.

2. In cases where the sale is not absolute, but conditional, the want of possession, if consistent with the stipulations of the parties, and a fortiori, if flowing directly from them, has never been held to be, per se, a badge of fraud. Ibid.

3. It cannot be doubted that reducing an agreement to writing is in most cases an argument against fraud; but it is very far from a conclutended for, that a written agreement cannot be sive argument. The doctrine will not be conrelieved against on the ground of false sugges tions. Boyce's Executors v. Grundy, 3 Peters,

219.

4

4. It is not an answer to an application to a court of chancery for relief in rescinding a contract, to say that the fraud alleged is partial, and might be the subject of compensation by a jury. The law, which abhors fraud, does not permit it to purchase indulgence, dispensation, or absolution. Ibid. 220.

2. Regarding the forthcoming bond as part of the process of execution, a refusal to quash the bond is not a judgment of the court, and much less a final judgment; and therefore no writ of error lies in such. Ibid.

3. Under the statute of Mississippi of 1827, a forthcoming bond given according to the statute, to the creditor, on the seizure of the goods, was intended as a substitute and security for the lien acquired by the judgment and seizure, and consequently, on its execution and delivery, the goods, by operation of law, are released from all charge, and left in possession of the debtors, as free and unencumbered as before it attached; and if the property is not delivered, in pursuance of the condition, the remedy is then upon the bond, which, on the breach or forfeiture, becomes, by operation of the statute, a statutory judgment against the defendant and sureties from that time, followed by a new lien on the real and VOL. I.-66

6. A conveyance of the whole of his property by a husband to trustees, for the benefit of his wife and his issue, is a voluntary conveyance; and is at this day held by the courts of England to be absolutely void under the statute of the twenty-seventh of Elizabeth, against a subsequent purchaser, even although he purchased with notice. These decisions do not maintain that a transaction valid at the time is rendered invalid by the subsequent act of the party. They do not maintain that the character of the transaction is changed; but that testimony afterwards furnished may prove its real character. The subsequent sale of the property is carried back to the deed of settlement, and considered as proving that deed to have been executed with a fraudulent intent to deceive a subsequent purchaser. Cathcart et al. v. Robinson, 5 Peters, 264.

7. A subsequent sale, without notice, by a person who had made a settlement not on valuable consideration, was presumptive evidence

of fraud, which threw on those claiming under such settlement the burthen of proving that it was made bona fide. The principle, therefore, according to the uniform course of the supreme court, must be adopted in construing the statute of 27 Elizabeth as it applies to this case. Ibid. 8. The judgments of a court of competent jurisdiction, although obtained by fraud, are not absolutely void; and all acts performed under them are valid, as respects third persons, ignorant of the fraud. Simms v. Slacum, 3 Cranch, 300; 1 Cond. Rep. 539.

9. It is an admitted principle, that a court of law has concurrent jurisdiction with a court of chancery, in cases of fraud. But when matters alleged to be fraudulent are investigated in a court of law, it is the province of a jury to find the facts, and determine their character. Gregg v. The Lessee of Sayre and Wife, 8 Peters, 244.

10. Fraud, it is said, will never be presumed, though it may be proved, by circumstances. Now, where an act does not necessarily import fraud; where it has more likely been done through a good than bad motive, fraud should never be presumed. Ibid.

11. Even if the grantor in deeds be justly chargeable with fraud, but the grantees did not participate in it; and when they received their deeds had no knowledge of it, but accepted the same in good faith, the deeds upon their face purporting to convey a title in fee, and showing the nature and extent of the premises; there can be no doubt the deeds do give colour of title under the statute of limitations. Ibid.

12. G. the executor of his father, who had devised his estate to G. and his other children, sold the estate and became himself the purchaser of it; and in order to secure the portions of the other devisees, who were minors, confessed a judgment, June 1, 1819, on a promissory note, in favour of two persons, without their knowledge, in a sum supposed to be sufficient to be a full security for the amount of the portions of the minors. The judgment was kept in full operation by executions regularly issued upon it, so as, under the laws of South Carolina, to bind the property of G. He was then engaged in mercantile pursuits, and had other property than that so purchased by him. G. afterwards became insolvent, and the claims of the devisees of his father, under the judgment, were contested by his creditors as fraudulent; the plaintiffs, in the judgment, having no knowledge of it when it was confessed, the amount of the sum due to the co-devisees not having been ascertained when it was confessed, no declaration of trust having been executed by the plaintiffs, and false representations of his situation having been made by G. after the judgment, whereby his creditors were induced to give him time on a judgment confessed to them subsequently. The judgment of June 1, 1819, was held to be valid, and the plaintiffs in that judgment entitled to the proceeds of the sales of the estate of G., for the satisfaction of the amount actually due to the co-devisees by G. Bank of Georgia v. Higginbottom, 9 Peters, 48.

13. A mistaken opinion of the value of pro

perty, if honestly entertained, and stated as opinion merely, unaccompanied by an assertion or statement, untrue in fact, can never be considered as a fraudulent misrepresentation. Hepburn & Dundas v. Dunlop et al., 1 Wheat. 179; 3 Cond. Rep. 529.

14. The administrator of his father, who left a valuable estate in the county of Alleghany, Pennsylvania, suffered the estate to be sold by the sheriff, for a debt due by the intestate, and the estate was purchased by the attorney of the creditor, for a considerable sum beyond the debt; and who, after holding it for some time, conveyed it to the administrator by deed, vesting the estate in him, in his own right, he hav ing been paid the amount of the debt due by the intestate. The administrator, to an application made to him by a legal heir and a grandchild, who lived in the state of Mississippi, represented that the intestate had not left more property than would pay his debts. There was evidence that less than one-tenth of the real estate of the intestate would have satisfied the judgment for which it was sold. The adminis trator claimed the property conveyed to him as his own, and to exclude all claims to it by the grandchild of the intestate. Held, that no title to the estate against the claim of the co-heir of the intestate was acquired under the deed made to him by the attorney of the creditor: and that in a proceeding in ejectment by the co-heir to recover her part of the real estate, in order to maintain the suit, it is not necessary to prove that the purchaser at the sheriff's sale participated in the fraud, in order to enable the co-heir to recover in an ejectment. Lessee of Swayze and Wife v. Burke et al., 12 Peters, 11.

15. That fraud is cognizable in a court of law, as well as in a court of equity, is a well estab lished principle. It has often been so ruled in the supreme court. Ibid.

16. A receives goods from B & C, on an agree ment that A should take them, for sale, from place to place, to pay the invoice price for such as were sold, to return those unsold, and be credited with the amount at the prices charged; A to receive the surplus of what was sold over the invoice price: Held, that such agreement is not fraudulent in law, if not so in fact. B & C should recover in trover for taking them, if the contract was not fraudulent. Merrill & Foster v. Rinker, 1 Baldwin's C. C. R. 529.

17. On the question of fraud in giving a letter of credit, the remedy at law is complete. A fraudulent recommendation will subject the person giving it, to the damages sustained by the person trusting to it. A misrepresentation of the solidity of a mercantile house, made under a mistake of the fact, without any interest or fraudulent intention, is not a sufficient ground on which to sustain an action, although the plaintiff may have sustained damage by reason of such misrepresentation. Russell v. Clark's Executors, 7 Cranch, 69; 2 Cond. Rep. 417.

18. An inadequacy of price may be so great as to be evidence of fraud proper to be submitted to a jury: but is not itself a fraud, on which a court of law will pronounce a deed ab.

30. Whatever is done in fraud of a law, is done in violation of it. The William King, 2 Wheat. 148; 4 Cond. Rep. 71.

31. When a voluntary deed is impeached on the ground of its being fraudulent as against creditors, judgments against the grantor are admissible in evidence, to show his indebtedness at the time, although the grantee was no party to the judgments. Hinde's Lessee v. Longworth, 11 Wheat. 199; 6 Cond. Rep. 270.

32. A voluntary deed is void only as to antecedent, and not as to subsequent creditors. But when the record of a judgment obtained a short time after the date of such conveyance, appears to be founded on accounts exhibiting a prior indebtedness, it is competent evidence to be left to the jury to establish the fact that the grantor was indebted at the date of the deed. Ibid.

33. A deed from a parent to a child for the consideration of love and affection is not absolutely void as against creditors: it may be so under certain circumstances, but the mere fact of being in debt to a small amount would not make the deed fraudulent, if it could be shown that the grantor was in prosperous circumstances and unembarrassed, and that the gift to the child was a reasonable provision, according to his estate and condition in life, and leaving enough for the payment of the debts of the grantor. Ibid.

34. The want of a valuable consideration may be a badge of fraud, but it is only presumptive and not conclusive evidence of it, and may be met and rebutted by evidence on the other side; and where the deed to the child is expressed to be for the consideration of love and affection, evidence to show that the father was indebted at the time to the child, to an amount equal to the value of the property conveyed to him, is competent to go to the jury to repel the presumption of fraud. Ibid.

35. In an action for a false affirmation of the credit of another, the action is not sustained, if the representation was in substance true, according to the party's knowledge and belief. The gist of such an action is fraud. Tappan v. Darling, 2 Mason's C. C. R. 101.

36. If goods are ordered by a person who is at the time insolvent, but who employs no device or fraud to deceive the vendor, and afterwards dies insolvent, and the goods are subsequently sent by the vendor without any knowledge of these facts, and arrive and are taken possession of by the administrator of the vendee, the vendor cannot reclaim the property or its proceeds upon these grounds. Conyers et al. v. Ennis et al., Adm'rs, &c, 2 Mason's C. C. R. 236.

37. A secret conveyance of her property, by a woman, immediately before her marriage, is a fraud upon the marital rights of the husband, and will be set aside. Linker v. Smith, 4 Wash.

C. C. R. 224.

demerit of the plaintiff, which excludes him from the aid of a court to draw it out of the defendant's hands. Schwartz v. The United States Insurance Co., 3 Wash. C. C. R. 170.

40. The court is not disposed to make nice distinctions between grades of fraud. The rule is, that if the insured, by deception and false pretences, induces others to take a risk, which, had the truth been disclosed, they would have refused, or would have taken on different terms, thereby securing to himself a chance to claim an indemnity in case of loss, or a return premium in case of safe arrival; it is such a fraud as ought to defeat his claim to a return of premium. Ibid.

41. If the teas selected by A., under a contract made in China for teas, were afterwards changed, the buyer was at liberty to rescind the contract, and refuse to take the teas as soon as the fraud was discovered, even at Amsterdam, the place of their sale, and to recover back what had been paid; and also to refuse payment of the note given on the contract, on the ground of a failure in the consideration of the note; or he might affirm the contract and claim damages. Cheongwo v. Jones, 3 Wash. C. C. R. 359.

42. Fraud and official misconduct are not to be presumed, but should be proved; and it is not a fraud, or illegal, in a judge who has presided in the court in which the judgment was rendered, to purchase property sold under an execution issued upon such judgment. Lessee of Cooper v. Galbraith, 3 Wash. C. C. R. 546.

43. It is an ancient and well established principle, that whenever suppressio veri, or sugges tio falsi, occur, and more especially both together, they afford sufficient ground to set aside any release or conveyance. Smith v. Richards, 13 Peters, 26.

44. The party selling property must be presumed to know whether the representation which he makes of it is true or false. If he knows it to be false, that is fraud of the most positive kind; but if he does not know it, then it can only be from gross negligence; and, in contemplation of a court of equity, representations founded on a mistake resulting from such negli gence is fraud. The purchaser confides in them upon the assumption that the owner knows his own property, and truly represents it. And it is immaterial to the purchaser whether the misrepresentation proceeded from mistake or fraud. The injury to him is the same, whatever may have been the motives of the seller. The misrepresentations of the seller of property, to authorize the rescinding a contract of sale by a court of equity, must be of something material, constituting an inducement or motive to purchase, and by which he has been misled to his injury. It must be in something in which the one party places a known trust and confidence in the other. Ibid.

which he buys upon the representation of the seller, relying on its truth, then the representation in effect amounts to a warranty; at least