a compliance with the statute; and if the agreement be thus defective, it cannot be supplied by parol proof, for that would at once introduce all the mischiefs which the statute of frauds and perjuries was intended to prevent.

VIII. Of sales of goods, as affected by fraud.

Though there be a judgment against the vendor, and the purchaser has notice of it, that fact 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 upon the motive. The purchase must be bona fide, as well as upon a valuable consideration. This rule has been repeatedly declared and established. Whether it would be an act of fraud sufficient to vacate the contract, if the purchaser, knowing of his own insolvency, and utter incapacity to make payment, but without using any device or contrivance to deceive the vendor, purchases goods of another, who is igno

a Parkhurst v. Van Cortlandt, 1 Johns. Ch. Rep. 281. Abeel v. Radcliff, 13 Johns. Rep. 297. It was said, upwards of sixty years ago, at Westminster Hall, that the statute of frauds, of 29 Charles II, had not been explained at a less expense than £100,000 sterling. I should suppose from the numerous questions and decisions which have since arisen upon it, that we might put down the sum at a million and upwards. How hazardous it would now seem to be, to attempt to recast the statute in new language, or to disturb the order and style of its composition, considering how costly its judicial liquidation has been, and how applicable its provisions are to the daily contracts and practical affairs of mankind. It has been affirmed in England, that every line of it was worth a subsidy; and uniform experience shows how difficult it is by new provisions, to meet every contingency, and silence the tone of sharp, piercing criticism, and the restless and reckless spirit of litigation.

b Lord Mansfield, 1 Burr. 474. Coup 434. Ch. J. Dallas, 8 Taunton, 678. Beals v. Guernsey, & Johns. Rep. 446. Duncan, J. 7 Serg. Rawle, 89.

rant of his insolvency, and sells them under the belief of the solvency as well as good faith of the buyer, is a ques tion which was raised, but left undecided, in Conyers v. Ennis. It has been since decided in another case, that the mere insolvency of the vendee, and the liability of the goods to immediate attachment by his creditors, though well known to himself, and not disclosed to the vendor, would not of itself avoid the sale. In that case, there was no false assertion, or fraudulent misrepresentation or deceit practised, or concert, or secret agreement, with any other person, and there was no direct evidence that the vendee knew at the time that he was insolvent. The decision was put upon the ground that the credit was in fact obtained without any fraudulent intent, and the validity of the sale would depend upon the decision of the question, whether there was fraud in fact.

If the vendee discovers that he is insolvent, and 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 it before the contract was consummated by an absolute delivery and acceptance. He cannot rescind the contract after the goods have been actually received into his possession, and the rights of other creditors have attached.c

On the subject of fraudulent sales, another, and a very vexatious question has arisen, as to the legal consequence and effect of an agreement between the parties at the time of the sale, that possession was not to accompany and follow the bill of sale of the goods. There is no doubt of its being evidence of fraud; but the great point has been, whether the fraud which was to be inferred in such a case, was an inference of law to be drawn by the court, and resulting inevitably from the fact, or whether the fact was only evidence

a 2. Mason 236.

b

· ross v. Peters, 1 Greenleaf, 376.

Barnes v. Freeland, 6 Term Rep. 80. Richardson v. Goss, 3 Bar. & Pull. 119.

of fraud to be drawn by the jury, and susceptible of explanation. The history and diversity of the decisions on this subject, form a curious and instructive portion of our jurisprudence.

By the English statutes of 3 Hen. VII. and 13 Eliz. c. 5. which have been re-enacted in this state, and the essential provisions of which have been adopted generally throughout the United States, all conveyances of goods and chattels in trust for the use of the person conveying them, or made to delay, hinder, or defraud creditors, are declared to be void; and it is every where admitted,5 that the statutes of fraud of 13 and 27 Eliz. were declaratory of the principles of the common law, and the deci sions of the English courts are, therefore, applicable to questions of constructive fraud arising in this country.

Twyne's case, which arose in the Star Chamber in the 44th Eliz. is the basis of the decisions, on the question of fraud arising from possession being retained by the vendor.

Among other indicia of fraud upon which the court relied, and adjudged the deed fraudulent in that case, a prominent one was, that the vendor, after a bill of sale of chattels for a valuable consideration, to a creditor, continued in possession, and exercised acts of ownership over / the goods. Afterwards, in Stone v. Grubham,d upon a bill of sale of chattels, being a lease for years, the vendor continued in possession, but as the conveyance was only conditional upon payment of money, it was held, that the possession did not avoid the sale, as by the terms of the deed the vendee was not to have possession until he had performed the condition. The rule was explicitly declared

a Laws of N. Y. sess. 10. ch. 44. s. 1. and 2.

b Lord Mansfield, Cowp. 434. Marshall, Ch. J. 1 Cranch, 316. Rabertson v. Ewell, 3 Munf. 1. Story, J. 1 Gallison, 423.

c 3 Co. 87.

d 2 Bulst. 225.

in Sheppard's Touchstone, in the time of James I., that if a debtor secretly made a general deed of his goods to one creditor, and continued the use and occupation of the goods as his own, the deed was fraudulent and void against a subsequent judgment and execution creditor, notwithstanding the deed was made upon good consideration. Again, in Bucknal v. Roiston, a bill of sale of goods was given by way of security or pledge for money lent, and a trust in the vendor to keep the goods, and sell them for the benefit of the vendee, appeared on the face of the deed; and for that reason it was held by the Lord Chancellor not to be fraudulent. One of the counsel in that case observed, that it had been ruled forty times in his experi ence at Guildhall, that if a man sells goods, and still continues in possession as visible owner of them, the sale was fraudulent and void as to creditors. The case of a mortgage of goods was afterwards held, in Ryall v. Powles, not to form an exception to the general rule recognised in the former cases. It was declared by very strong authority in that case, that a mortgagee of goods permitting the mortgagor to keep possession, had no specific lien against general assignees under a commission of bankruptcy, and he was understood to confide in the personal credit of the vendor, and not in any security. Though that case was decided upon the bankrupt act of 21 J. I., and not upon the statutes of Elizabeth, the reasoning of the court relative to the distinction between absolute and conditional sales or mortgages, was founded on general principles applicable to every case. It was the doctrine of the case, that in a mortgage of goods the mortgagee takes possession, and that there was no reason, unless in very special cases, why an absolute or conditional vendee of goods, should leave them with the vendor, unless to procure a col lusive credit. There was no distinction, it was admitted,

a S. Touch. p. 66.

b Prec. in Ch. 285. c1 Vesey, 348. 1 Atk. 165.

under the 13th Eliz., between conditional and absolute sales of goods, provided they were fraudulent; and continuance in possession by the mortgagor was fraudulent at common law, and void by the statutes of Elizabeth.

The doctrine of that case was powerfully sustained by Lord Mansfield in Worseley v. Demattos & Slader.a That case arose under the bankrupt act of 21 James I., and it was held by the K. B., that a mortgage of goods, with pos session retained by the mortgagor, was fraudulent in law equally as it would be upon an absolute sale. To give a creditor priority by such a mortgage, when the mortgagor is allowed to appear and act as owner, is enabling him to impose upon mankind by false appearances for where possession is not delivered, goods may be mortgaged a hundred times over, and open a plentiful source of deceit. But in Cadogan v. Kennet, where household goods, by settlement before marriage, in consideration of the marriage, and of the wife's marriage portion, were conveyed to trustees in trust for the settler for life, remainder to his wife for life, and remainder to the sons of the marriage, it was held, that those goods were protected from execution in favour of a creditor existing at the time of the settlement, though the grantor continued in possession of the goods. The transaction was fair and honest in point of fact, and it was part of the trust that the goods should continue in the house. Other subsequent cases have established the rule, that the wife's goods may, before marriage, be conveyed to trustees with her husband's assent, for her use during coverture, and such property will not be liable to his debts. Again, in Edwards v. Harben,d the K. B. laid down the principle emphatically, that if the

• 1 Burr. 467.

b Cowp. Rep. 432.

c Haselinton v. Gill, 24 Geo. III. 3 Term Rep. 620. note. Jarman v. Woolloton, 3 Term Rep. 618.

d 2 Term Rep. 587,