(a) See Veazie v. Williams, 3 Story, 612. But see Attwood v. Small, 6 Clark & F. 234; Irvine v. Kirkpatrick, House of Lords, 3 Eng. L. & Eq. 17.

(b) Jones v. Yates, 9 B. & C. 532, per Lord Tenterden; Taylor v. Weld, 5 Mass.

116; Ayres v. Hewett, 19 Me. 281; Hollis v. Moms, 2 Harring. (Del.) 128. Therefore one who gives a fraudulent bill of sale to defraud his creditors cannot set it aside. Bessey v. Windham, 6 Q. B. 166; Nichols v. Patten, 18 Me. 231.

(c) Warburton v. Aken, 1 McLean, 460; Goudy v. Gebhart, 1 Ohio State, 262; Nellis v. Clark, 20 Wend. 24; Smith v. Hubbs, 1 Fairf. 71; Hoover v. Pierce, 27 Miss. 13.

1 See Begbie v. Phosphate Sewage Co. L. R. 10 Q. B. 491; 1 Q. B. D. 679.

pear. (d) It has been said that equity will act upon presumptions of fraud, which law might not deem sufficient to justify a verdict. (dd)

* It is said that the law never presumes fraud. If this maxim is regarded merely as an expression of the horror with which the law regards fraud, and its unwillingness to suppose that any one can be guilty of a thing so base, it may be useful. And if it means no more than that the law never presumes fraud without any evidence, as it will sometimes presume payment or title from lapse of time; (e) or that fraud will not be imputed if the facts upon which it is predicated may consist with honesty of intention, (ee) it is true. But this language is sometimes used when nothing more is meant than that it will not too readily admit fraud upon slight evidence; and when it might be taken to mean, what certainly is not true, that the law will never imply fraud where it is not directly proved, or will not call and treat as constructive fraud that which is not proved to be actual fraud. (f) There is such a phrase in use as legal fraud; meaning not fraud which the law allows, but that which the law for good reasons calls fraud, although neither the dictionary nor morality would give it that name. The doctrine on this subject is not yet fully settled. It would often be very harsh, and apparently very unjust, to inflict all the consequences of fraud upon one who had made a material misstatement in ignorance, only because of his own error; but it would seem to be still more unjust to permit all the consequences of this false statement to fall and rest on him whose only fault was in believing that one told the truth, who in fact was telling that which was false. In our first volume*we have considered this subject somewhat in connection with the law of agency. In general, we should say, that where one states what is not true, and injurious consequences result to another, the municipal law, although, as we have said, not identical with the law of morality, may well borrow some light from it. The question should be asked, first, whether the statement was made in actual ignorance, and, then, whether this ignorance was innocent. Nor would it be enough to give such a falsehood immunity, that the ignorance was not intentional and wilful, if it arose from the unquestionable negligence of the party. Such a case as that would fall within all the reason, and we think all the law, of intentional falsehood. But we go further; and say, that if the ignorance might have been avoided by such care, and such intelligence, and such investigation, as the party making the statement was bound to have and use, then he is responsible for its effects. (g) But while we admit that he to whom a deliberate assertion is made, of a fact material to his conduct and his interests, has a right to demand that honest inquiry and careful scrutiny should precede such assertion, and that, in their absence, he who makes it must be held responsible for it, we stop short of the doctrine, that whoever asserts what he does not know to be true, is in the same category with him who asserts what he knows to be false. This would be to say, that wilful falsehood and mere mistake are the same thing in the law; which cannot be true. Although it may be true, that when a loss must fall either on one who misleads or one who is misled, it shall be cast by the law on the first rather than the last, still, this is not because * of fraud, actual, constructive, or legal, but simply because each party should bear the consequences of his own acts.

(d) Any such distinction is denied in Massachusetts. See Hazard v. Irwin, 18 Pick. 95. In that case it was held, that in an action on a contract under seal, in which one of the contracting parties is seeking; to enforce the contract against the other, the defendant may plead that the contract was obtained by fraud and imposition. And Shaw, C. J., in delivering the judgment of the court, said: "It was argued on the part of the plaintiff, that whatever might be the effect of the alleged fraud in defence of a suit on a simple contract, such a fraud is not pleadable in bar of an action on a deed or specialty. Several cases are cited in support of this position, from the decisions of the courts of New York; and the point seems to be there so settled by a series of cases. It is a little remarkable, however, that the original case, which constitutes the commencement of this series, is hardly an authority for the point Dorian v. Sammis, 2 Johns. 179, note. The case was debt on bond, for the price of a slave; the defendant relied on the fact that the negro was free, and not the property of the plaintiff, when he sold her; a mere failure of consideration, and with no averment of fraudulent representation. The Court ask,'Can a defendant in a court of law get rid of a bond, given on a sale of a chattel, on the ground of failure of consideration? There is no allegation that the plaintiff sold the chattel fraudulently, and knowing that he had no title. There is no case in which a bond can be set aside but where the consideration was void in law, or where there was fraud.' But it was afterwards ruled, that fraud cannot be pleaded to a specialty in a court of law, not affecting the execution of the bond itself; but these decisions are founded mainly on the consideration, that a more adequate remedy, and one better adapted at once to discover the fraud and to relieve against it, is afforded in equity. In one of the late cases on the subject, Chief Justice Savage says: 'I confess I can see no very good reason why this defence should be excluded from a court of law, and the party sent into a court of equity; but so the point has always been decided.' Stevens v. Judson, 4 Wend. 473. But whatever may have been decided elsewhere, we think it has long been a settled rule in Massachusetts, that such a fraud as that set forth in this case is a good defence, as well to an action founded on a deed as any other; it is rather acted on as a settled rule than discussed and decided in any particular case. The cases cited on the argument are cases in which the judgment of the court, upon great consideration, proceeded upon this as a settled rule of law. Bliss v. Thompson, 4 Mass. 492; Somes v. Skinner, 16 Mass. 348; Somes v. Brewer, 2 Pick. 191. The second of the above cases was a real action, involving a question of title; and the deed, by which the plaintiff conveyed to the defendant, being shown to have been obtained by imposition and fraud, it was held that no title passed. The last of the above cases assumed the same rule to be a settled rule of law; but the case was distinguishable in this, that the first grantee, who obtained the deed from the plaintiff by fraud and imposition, had conveyed the land to a bona fide purchaser without notice, and so it was held, that as against him the rule did not apply. The general doctrine was also settled in a case in which the opinion was given by Parsons, C. J. It is directly in point. It was on covenant, and the defendant pleaded that it was obtained by fraud and imposition, and the defence was held good. The question as to the relative jurisdiction of courts of law and equity is there considered. The learned judge concludes this part of the case thus: 'But when a court of law has regularly the fact of fraud admitted or proved, no good reason can be assigned why relief should not be obtained there, although not always in the same way in which it may be obtained in equity.' Boynton v. Hubbard, 7 Mass. 119. The court are all of opinion, that in an action on a contract, though under seal, in which a party is seeking to enforce a contract against the other contracting party, a plea and proof that such contract was obtained by fraud and imposition would constitute a good defence at law, and, of course, that had this been a suit against Penman, he might have made this defence at law." To the same effect is Hoitt v. Holcomb, 3 Foster, 535; Hewin v. Libber, 36 Me. 350; Hancock's Appeal, 34 Penn. St. 155. (dd) Ward v. Lambert, 31 Ga. 150.