1 A purchaser of counterfeit bonds of the United States, in whose possession they are, need not return such bonds before bringing an action to recover back the money paid by him for them. Brewster v. Burnett, 125 Mass. 68. Nor need a personal unsecured note given in fraud by a purchaser be returned before suing for the fraud. Dayton v. Monroe, 47 Mich. 193. Where the defendant fraudulently purchased of the plaintiff stock in a bankrupt company of which the defendant was trustee, the consideration paid need not be returned, but will be placed to the defendant's credit in an action to recover dividends on such stock. Clews v. Traer, 57 la. 459.

2 In Hendrickson v. Hendrickson, 51 la. 68, Seevers, J., quotes the text with approval, and says that a party who has fraudulently procured the execution of a contract, is not entitled to an offer to restore as a condition precedent of rescission. In American Wine Co. v. Brasher, 14 Reporter, 609, McCrary, J., although quoting the text with disapproval, as not borne out by the authorities cited supra, in note (v), yet decides the case in exact accordance with the doctrine expressed in the text. In that case the defendants bought a hundred cases of wine, and after the sale of twenty cases rescinded the contract, and it was held, that such partial re-sale of the wine would not of itself prevent a rescission; but it was intimated that if the whole or a greater part of the subject-matter of the sale had been disposed of, the result might have been different.

(w) Thus, in Masson v. Bovet, 1 Denio, 69, it was held, that where a party has been led to enter into a contract by the fraud of the other party, he may, upon discovering the fraud, rescind the contract, and recover whatever he has advanced upon it; provided he does so at the earliest moment after he has knowledge of the fraud, and returns whatever he has himself received upon it. In that case the defendant, being the plaintiff in a judgment, and about to cause land of the judgment debtor to be sold on execution, fraudulently represented to the plaintiff that the land to be sold was free from any prior incumbrance, when in truth it was subject to older liens to more than its value, and thereby induced him to become the purchaser at the sheriff's sale for a considerable sum, and received from him in payment of his bid the note of a third person held by the plaintiff for a larger sum than the amount bid, giving back his own note for the balance. It was held, that the plaintiff, who had, immediately upon the discovery of the. fraud, offered to give up the note received by him, and to assign the certificate of sale could maintain replevin in the detinet against the defendant, for the note so transferred to the defendant by him.

(x) Thus, where A engaged to carry away certain rubbish for B at a specified sum, but found upon commencing his work that B had made fraudulent representations as to the quantity of rubbish, but nevertheless went on with the work, and then sought to recover more than the sum specified by the contract, it was held, that by going on with the work he had waived the fraud, and could not recover except npon the special contract. Selway v. Fogg, 5 M. & W. 83. Saratoga R. R v. Row, 24 Wend. 74, is very analogous, and see Herrin v. Libbey, 36 Me. 350. So, if a party defrauded brings an action on the contract to enforce it, he thereby waives the fraud and affirms the contract. Ferguson v. Carrington, 9 B. & C. 59, Kimball v. Cunningham, 4 Mass. 502. See also Whitney v. Allaire, 4 Denio, 554; Lloyd v. Brewster, 4 Paige, 537. So if, after a party has acquired a knowledge of facts tending to affect a contract with fraud, he offers to perform it on a condition which he has no right to exact, he thereby waives the fraud, and cannot set it up in an action on the contract. Blydenburgh v. Welsh, Baldw. 331. And see Lamerson v. Marvin, 8 Barb. 10. But in Adams v. Shelby, 10 Ala. 478, it was held, that when a party, by fraud, obtains possession of property, under a contract which he had not complied with on his part, an offer by the defrauded party to make a new contract, which is not acceded to, is not a waiver of any right he had against the other for the fraud practised.

(y) Flynn v. Williams, 7 Ired. 33.

(z) Thus, in Campbell v. Fleming, 1 A. & E. 40, it was held, that if a party be induced to purchase an article by fraudulent representations of the seller respecting it, and after discovering the fraud goes far to establish a waiver of this right; and if it be connected with an obvious ability on the part of the defrauded person to discover the fraud at a much earlier period, by the exercise of ordinary care and intelligence, it would be almost conclusive. (a)

1 See Cobb v. Hatfield, 46 N. Y. 533; Bulkley v. Morgan, 46 Conn. 893.

The fraudulent party cannot himself assert his fraud, and claim as his right any advantages resulting from it. To permit him to do so would be to contradict the plainest principles of law. No man can be permitted to found any rights upon his own wrong; (b)1 and it would seem to be an inference from this, that, if both parties are in fault, the law will not interfere between them; and this is so, if both parties are actually fraudulent, although the beginning, and the greater fraud, may be on one side or the other. (c)

The general rule, that equity gives relief only where the law cannot, seems not applicable to cases of fraud; for there equity and law have, in some cases at least, a concurrent jurisdiction. But where the injured party confines his claim to damages, he should bring his action at law. If he seeks to set aside the contract entirely on this ground, he must either wait until sued upon the contract, and then interpose this defence at law, or *by his bill in equity seek for an injunction, or other proper remedy. There is one distinction, however, which rests upon cases of authority, but is in its own nature so far technical that we have some doubts whether it would now be generally adopted. It is this, that while in a suit on a simple contract, fraud is a good and complete defence, it is not pleadable in bar to an action founded upon a specialty. Some of the courts which have recognized, and perhaps enforced this distinction, have doubted its reasonableness; and in that mingling of law and equity jurisdiction, which has made much progress, and threatens, or promises, to make more, we think this distinction will disapcontinue to deal with the article as his own, he cannot recover back the money from the seller. And semble that the right to repudiate the contract is not afterwards revived by the discovery of another incident in the same fraud.