We have had repeated occasion to remark, that fraud avoids every contract, and annuls every transaction; and to illustrate this principle in its relation to many of the kinds of contracts which we have already considered. But there are some general remarks on the subject of fraud, especially when considered as a defence to an action brought upon a contract, which we would now make, avoiding a repetition of what has been already said, as far as may be.

It is sometimes asserted, that the distinction in the civil law between dolus malus and dolus bonus, is unknown to the common law; and it is true that we have no such distinction expressed in words which are an exact translation of the Latin words. But it is also true that the distinction is itself, substantially, a part not only of the common law, but necessarily of every code of human law. For it is precisely the distinction between that kind and measure of craft and cunning which the * law deems it impossible or inexpedient to detect and punish, and therefore leaves unrecognized, and that worse kind and higher degree champerty is in full force in Rhode Island. Maintenance and champerty are still offences against the common law in Indiana. Quigley v. Thompson, 53 Ind. 317. See Thompson v. Remolds. 73 Ill. 11: Allard v. Lamirande. 29 Wis. 502.

(n) This was forbidden by the English stat. 32 Henry VIII. c. 9, against buying up pretended titles, which was at an early day enacted in some American States, and in others adopted by practice. See Brinley v. Whiting, 5 Pick. 353; Whitaker v. Cone, 2 Johns. Cas. 58; Belding v. Pitkin, 2 Caines, 147; McGoon v. Ankeny, 11 Ill. 558. But see Cresinger v. Lessee of Welsh, 15 Ohio, 156; Edwards v. Parkhurst, 21 Vt. 472; Dunbar v. McFall, 9 Humph. 505. The English statute of 32 Hen. VIII. c. 9, on the subject of champerty, is not in force in Mississippi. In order, therefore, to avoid a contract on the ground of champerty, the common-law offence must be complete, to constitute which it must not only be proved that there was adverse possession at the time of sale, but that the purchaser had knowledge of such adverse possession ; this is especially the case where the land granted was in forest and wild at the time of the grant. Sissons v. Reynolds, 7 Smedes & M. 132. In many States such a transaction never was considered illegal. See Frizzle v. Veach, 1 Dana, 211; Stoever v. Whitman, 6 Binn. 416 ; Hadduck v. Wilmarth, 5 N. H. 181. But it has been held in New York, that an agreement by an attorney to carry on a suit and pay all the expenses, and give the plaintiff a certain share of the proceeds, is not as against a statute, a buying of a chose in action, for the purpose of bringing a suit thereon. Fogerty v. Jordan, 2 Rob. 319.

of craft and cunning which the law prohibits, and of which it takes away all the advantage from him by whom it is practised.

The law of morality, which is the law of God, acknowledges but one principle, and that is the duty of doing to others as we would that others should do to us, and this principle absolutely excludes and prohibits all cunning; if we mean by this word any astuteness practised by any one for his own exclusive benefit. But this would be perfection; and the law of God requires it, because it requires perfection; that is, it sets up a perfect standard, and requires a constant and continual effort to approach it. But human law, or municipal law, is the rule which men require each other to obey; and it is of its essence that it should have an effectual sanction, by itself providing that a certain punishment should be administered by men, or certain adverse consequences take place, as the direct effect of a breach of this law. If, therefore, the municipal law were identical with the law of God, or adopted all its requirements, one of three consequences must flow therefrom: either the law would become confessedly, and by a common understanding, powerless and dead as to part of it; or society would be constantly employed in visiting all its members with punishment; or, if the law annulled whatever violated its principles, a very great part of human transactions would be rendered void. Therefore the municipal law leaves a vast proportion of unquestionable duty to motives, sanctions, and requirements, very different from those which it supplies. And no man has any right to say, that whatever human law does not prohibit, that he has a right to do; for that only is right which violates no law, and there is another law besides human law. Nor, on the other hand, can any one reasonably insist, that whatever one should do or should abstain from doing, this may properly be made a part of the municipal law; for this law must necessarily fail to do all the great good that it can do, and therefore should, if it attempts to do that which, while society and human nature remain what they are, it cannot possibly accomplish. It follows, that a certain amount of selfish cunning passes unrecognized by the law; that any man may procure to himself, in his dealings with other men, some advantages to which he has no moral right, and yet succeed perfectly in establishing his legal right to them. But it follows, also, that if any one carries this too far: if, by craft and selfish contrivance, he inflicts injury upon his neighbor, and acquires a benefit to himself, beyond a certain point, the law steps in, and annuls all that he has done, as a violation of law. The practical question, then, is, Where is this point? and to this question the law gives no specific answer. And it is somewhat noticeable, that the common law not only gives no definition of fraud, but perhaps asserts as a principle, that there shall be no definition of it. And the reason of this rule is easily seen. It is of the very nature and essence of fraud to elude all laws, and violate them in fact, without appearing to break them in form; and if there were a technical definition of fraud, and everything must come within the scope of its words before the law could deal with it as fraud, the very definition would give to the crafty just what they wanted, for it would tell them precisely how to avoid the grasp of the law. Whenever, therefore, any court has before it a case in which one has injured another, directly or indirectly, by falsehood or artifice, it is for the court to determine in that case whether what was done amounts to cognizable fraud. Still, this important question is not left to the arbitrary, or, as it might be, accidental decision of each court in each case; for all courts are governed, or at least directed, by certain rules and precedents, which we will now consider.