I. CH. 32. ment for the mortgagee. Held, there is a difference between a mortgage and a pledge; to this the title is solely on possession. Same principle, 3 Cowen, 166 to 206. Art. 1. Rives. § 23 con. A creditor to secure his debt, takes a conveyance 4 Rand. 282- from his debtor, but at the same time, inserts a provision in the 317, Garland v. deed, to delay, hinder, or defraud other creditors, such a deed is within the statute of frauds, and void: 2. So the deed will be void if the creditor, meaning only to secure his own debt, be privy to the fraudulent intentions of the debtor, thereby to delay, hinder, or defraud his other creditors: 3. By the Virginia and English statutes of frauds, to vitiate a conveyance there must be a fraudulent intention in the grantor, and notice of those intentions to the grantee: 4. The maxim that a party to have equity must do it, is confined to the parties in the case, and does not extend to third persons. See Boyd and Dunlop, 1 Johns. Ch. R. 478; but Sands v. Codwise, ch. 18, a. 3, s. 29, Herne v. Moeres, 1 Vern. 465, ch. 86, a. 3, s. 15, 3 vol. Barwell v. Ward, 1 Atk. 260; 2 N. H. Rep. 13. 4 Rand. 553563. $ 34 con. In all these cases, and the numerous cases therein cited, we see the nature of fraud, and the regard paid to the intentions of the parties. 1 Randolph, 113, 2 Anstr. 381, 15 Johns. 571; 14 id. 458; 20 id. 442. 36. How no fraud to favor one endorser. It is no fraud if the holder of a bill of exchange, agree with one of the endorsers, as A, to throw all the burden on the other endorsers, and 4 Pick. 104, that A be liable only in case they be unable to pay. An agreement on the of the vendee of a chattel, left in the vendor's possession to conceal the purchase, is not itself a fraud on creditors, but a matter of evidence, capable of explanation. 105, Gould v. Ward. 5 Pick. 5-7, Patten v. Clark. ART. 2. 2 Mason, 431, ris. part $37. Replevin; the defi. traversed the plt's. property, The plt. furnished one Chanly with goods, to be sold at a shop kept by him. C. was to pay for them at certain prices, as fast as he sold them; all over was to be his profits; the goods to remain the plt's property, and at his risk till sold, those not sold to be returned to the plt., those sold on credit to be at C's risk. Held, not fraudulent as to C's creditors: if bona fide or not, was a question for the jury. § 2 con. 16 Mass. R. 406-420, Trull v. Bigelow; same principle as Sutton v. Lord and Goodale administrator v. Nicholls. See 1 Cowen, 622-645, ch. 86, a. 3, s. 14, 15. 2 Pick. R. 184-204, Somes by his guardian v. Brewer; same principle as in Sutton v. Lord. A bona fide purchaser for a valuable consideration, without Dexter v. Har- notice of any fraud, shall hold the estate against the original grantor and his heirs. A purchaser has not by law, constructive notice of all matters of record; but only of such, as the title deeds of the estate refer to, or put him on inquiry for. Art. 2. 9. Ejectment for a farm, &c.; case, April 16, 1818. I. CH. 32. William Seward, aged and infirm, seised in fee of this large farm, deeded the same to the deft., his son. Consideration expressed $10,000, with full covenants. The true consideration was the son's two bonds to his two sisters, both $4452 50 cts. to be paid Jackson v. 6 months after the father's death, and annuity to him of $500. Seward, 5 (Not exceeding the rent.) The annuity was paid four years, all Cowen 67-73. an honest transaction, at the time of which the father was guarantor to the plt's. lessor, Van Wick; he was then no otherwise a creditor. The lessor, after said deed was given, recovered judgment on this guranty, against the father, in April, 1820. for $2980 4 cts. Docketed Sept. 12, 1820: commenced in August, 1819. The covenant sued was dated Nov. 6, 1817, and gurantied to the lessor a certain judgment of $2700 against the son, in favor of the father, assigned to the lessor. The lessor took out a fi fa on his judgment against the father; whereon, said farm was sold at auction and conveyed to the plt's. lessor, Feb. 19, 1820, by the sheriff of Dutchess. So much proof the said deed to the son was fair and honest, that the plt's. counsel declined going to the jury upon it. The verdict for the plt. was merely for the opinion, on the single question, whether the deed to the son was fraudulent in law, as against Van Wick, the plt's. lessor. Held, it was. There it may be observed as material; it does not appear that the father retained any estate to pay his debts, when he gave his deed to his son. Held, 1. The father's guaranty was a debt when he gave the deed to his son, within the statute, though it could not be proved in a case of bankruptcy or insolvency: cited Jackson v. Myres, 18 Johns. 425. The New York act against frauds, avoids all conveyances, &c. devised and contrived with purpose and intent to delay, hinder, or defraud creditors and others, of their just actions, &c. This is not exactly like the 13 Eliz. Court, also, cited, Muntford v. Ranic, 2 Keb. 499, where the conveyance was held fraudulent, though the plt. had become creditor only by the escape of a prisoner, and though the bond on which the judgment was obtained, had been given many years after the conveyance; cited Twyne's Cas. 3 Co. 82; court observed in Jackson v. Myers, an action in malificio, finding it was noticed that the New York statute extends not only to creditors, but to all others who had cause of action or suit, or any penalty or forfeiture. On the whole, the court speaking of the father's said deed to his son, said it is a deed of gift to his children; and so intended by the grantor in perfect truth and honesty.' If this case be law, it is so on two grounds: 1. The father retained no property to pay just demands against him: 2. The words in the New York act extend to all who had cause of action or suit against the father; but query if at the time of the deed the I. CH. 32. lessor's right on his guaranty was only contingent, as the justice Art. 2. giving the court's opinion, seems to think it might have been; Con. for the statute extends only to an existing right of action, that is, a right to sue when the deed is given, though recovering judgment be afterwards. As the statute speaks of a cause of action, that is, a right of action, it is a fair construction to hold, the act means an absolute, not a contingent right of action. On the whole, I see nothing to support the decision in this case, but the father's reserving no property to pay his creditors. This may be sufficient to constitute constructive fraud; the father at the time being in debt, aged, and infirm. ART. 4. 252, Sexton v. wife. § 12 con. The plt. got judgment against Jos. Wheaton, in the county of Washington, District of Columbia, and filed her 8 Wheat. 229, bill to subject the house and lot of his wife to pay her husWheaton and band's debt. Judgment against him, and he appealed. Held, 1. A post nuptial voluntary settlement made by a man, when not in debt, on his wife, is valid against subsequent creditors: 2. The 13 Eliz. c. 5. avoids all conveyances not made on a consideration deemed valuable in law as against previous creditors; but does not apply to subsequent creditors, if the conveyance be not made with a fraudulent intent. Cited Shaw v. Standish, 2 Vern. 326; Taylor v. Jones, 2 Atk. 600; Stillman v. Ashdown, 2 Atk. 481; Fitzer v. Fitzer, 2 Atk. 50; Peacock v. Monk, 1 Ves. 127; Walker v. Burrows, 1 Atk. 94. One conveying must then be indebted, &c. Townsend v. Windham, 2 Ves. 11; Stephens v. Olive, 2 Bro. Ch. R. 90. See ch. 109. a. 9. s. 2, 3, the statutes 13 and 27 Eliz.; Lush v. Williamson, or Wilkinson, stated ch. 32. a. 13. s. 10; Glazier v. Hewer, 8 Ves. 199; Battersbee v. Farrington & al. 1 Swanst. 106. Decree in favor of the wife, &c. no fraud established. The court observed, as our titles to real estate are all recorded, creditors need not be deceived as to that, so not as in England. 2 Mc Cord, 152. Sumner. A bona fide gift, though voluntary, is not fraudulent against subsequent creditors. 2 Mc Cord, 362. A marriage settlement, though not recorded, protects the property settled against a creditor, who knew of the settlement previous to the contracting of his debt. 5 Pick. 59, 60, § 14 con. Vendor's possession. Replevin for household Ward & al. v. furniture attached by the deft. as the property of one King The plts. endorsed for him certain notes: before they became due he executed a deed of the furniture to them on condition to be void, if he saved them harmless. The deed and furniture were formally delivered in the presence of a witness. To him alone the transaction was made known. King remained in the possession and use of the furniture as before. ART. 4. Held, the conveyance might be viewed as a mortgage, or as a I. CH. 32. pledge, according to the intent of the parties, and as the furniture remained in K's hands, it must be construed to be a mortgage; and there being no actual fraud, the mortgage was valid as against K's creditors. Con. 274-363. § 20 con. The plt. claimed a sum of money of the deft., 12 Johns. R. who denied it, but promised that if the plt. would swear to Broke v. Ball, the truth of the demand, he would pay it. The plt. accord- 18 Johns. R. ingly made affidavit. Plt. recovered the amount sworn to. 337. Not competent to the deft. to prove the plt. had sworn falsely, or that he was mistaken in his affidavit, or that there was any fraud in the case. 8 con. 1 Litt. 112; principle as in Hamilton v. Russell: ART. 11. but adds, an evidence of a fair intent is inadmissible. But Con. when the sale is such as not to be inconsistent with the seller's retaining possession, the fraud, if any, is not a conclusion of law, but a matter of fact for the jury. Baylor v. Smithers. But, 2. This doctrine does not extend to cases where there has been an adverse possession for five years without demand made and pursued by due course of law, &c. id; and 3 Marsh. 241, 242; 2 Bibb, 416; 4 Bibb, 70, 446, 458; Tenn. R. 91. A bill of sale of slaves, even for a valuable consideration, made by a person in debt, who subsequently retains possession, is void against creditors. 103-134, and Caleb § 4 con. Lord Hardwicke's four kinds of frauds. 2 Ma- ART. 12. son, 378; 11 Wheat. 103-134; ch. 225. a. 7. s. 9. Vol. 7. Con. $9. Imposition on a weak mind. Held, a court of equity 11 Wheat. has jurisdiction of a suit brought by heirs at law to set aside a Harding and conveyance obtained from their ancestor, (Comfort Wheaton,) others, appelby undue influence, he being so infirm in body and mind from lants v. Handy old age and other circumstances, as to be liable to imposition, Wheaton, rethough his weakness does not amount to insanity: 2. In such spondents. a case not depending on absolute insanity of the grantor, at the time of executing the conveyance, the court may determine the question of capacity without directing an issue: 3. The verdict of the jury as to the insanity of the grantor at the time of the conveyance would not be conclusive; the court being competent to determine for itself the degree of weakness, or of imposition, which induces it to set aside the instrument; 4. In such a case a court of equity cannot make a final decree for the sale of the property, until all the heirs are brought before the court, as parties, if they are within the jurisdiction: 5. If all the heirs cannot be brought before the court, the undivided interest of those who are made parties may be sold. Bates v. Graves, 2 Ves. Jr. 287-295, similar See ch. 114. a. 27. s. 11. 12 Wheat. 199–206, like I. CH. 32. case. § 2 con. A sale at auction, under process of law, cannot be invalidated for mere inadequacy of price. Livingston v. Byrne, on appeal, 11 Johns. R. 555. Accidental advantages made after the bargain can have no effect. Osgood v. Franklin, on appeal, 14 Johns. R. 527; see ch. 114. a. 17. s. 17: nor inadequacy of price, unless so palpable, as of itself, to afford proof of actual fraud; and in judging of this the condition of the estate when sold must be regarded. Id. 1 Starkie, 126; 1 Bligh, 137; Bos. & P. 172. ART. 1. 19. Freight repaid, &c. Assumpsit for money had and received. Held, if freight be paid in advance, and the goods be not carried for no fault in the shipper, he may recover it back, if no agreement to the contrary. 3 Pick. R. 20-26, Griggs & al. v. Austin. $20. Commercial Code of France as to freight. Art. 273 prescribes the form and contents of the charter party. Art. 275, provides, if the vessel be freighted by the month, and no agreement to the contrary, the freight runs from the day of the vessel's sailing. Arts. 276 to 280, provide, in substance, if before she sails, her country of destination is interdicted, her charter party is dissolved, and neither party is liable for damages shipper is at the expense of lading and unlading. If prevented sailing by superior force, a short time, it is not dissolved, and no damages on account of the delay; or increase of freight, if the detention, by such force, be during the voyage. During the detention, the shipper may unlade his goods at his expense, on condition to reship them or to indemnify the master. In case of the blockade of the port to which the vessel is bound, the master is required, if he have no contrary orders to go to one of the neighbouring ports of the same nation into which he can enter. The vessel, the rigging and apparel, the freight and goods laden on board, are respectively bound for the performance of the charter party, or agreement between the parties. Art. 288: if, however, the freighter, not having laden any goods, break up the voyage before the vessel sails, he pays as an indemnity to the master, half the freight agreed on in the charter-party, for the whole cargo they agreed to put on board; and if the vessel receive a part of her cargo, and sail but in part loaded, the |