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And the receipt marked C, which is as fol- | Of this amount Goldsborough had lows, to wit:

Received of Benjamin G. Orr, his note, payable on the 15th day of February, eighteen hundred and nineteen, for the sum of three thousand five hundred and ninety-four dollars, in compliance with his agreement, dated the 5th day of May, 1818. H. GOLDSBOROUGH.

And further proved by a witness, that late in the winter, or in the spring of 1819, the defendant refused to deliver any more lumber to the orders of the plaintiff; the balance of lumber due under said contracts being duly

delivered lumber on account
of Orr, to the amount stated
in the account D (including
all the credits stated in the
account A),
Leaving a balance to be delivered
on account of the houses and
lots sold and conveyed by
Orr to Goldsborough, for
which judgment is now re-
covered, with interest,

He
To

tract B, so as to make the
whole amount in *lumber.
to be taken by Orr under
gave the note mentioned, for
that contract, $10.000 00
which, adding the purchase
money for the house and lots
sold by that contract,

Makes the total amount to be taken
in lumber under that con-
tract.

demanded of the defendant by agent of the In order to complete the con-
plaintiff; and it was admitted that the said
houses and lots mentioned in said contracts
had been duly conveyed according to agree-
ment. And the defendant thereupon proved
that he delivered lumber to the orders of the
plaintiff to the amount of $7,986.11, according
to a particular account thereof, which was pro-
duced, which includes the same amount of
$2.428.33, mentioned in the first account A, the
notes therein mentioned being payable in lum-
222*] ber, and the lumber given in discharge
of the same, being charged in the general ac-
count B; and that he delivered lumber to the
plaintiff's order, whenever called for, until the
15th of February, 1819, when the note filed in
the cause, and mentioned in this defendant's
receipt, fell due; that then, the said note not
being paid by plaintiff, the defendant refused
to deliver any more lumber, and the plaintiff
requested said defendant to give him further
time until some day in the April following to pay
the said note (at which time he promised to take
it up), and to continue the delivery of lumber
to his orders as he might want it, until that
day; and the witness, who was the defendant's
agent, would have gone on to deliver the whole
quantity, if it had been called for before the
time limited as aforesaid for the payment of the
note in April, not having been restricted by
defendant's orders as to quantity; and that
on the said day of April, the plaintiff again
made default in paying the said note, and the
defendant then refusing to deliver any more
lumber, this suit was brought. If they believe
the facts above stated to be true, the plaintiff is
not entitled to recover in the suit. Which di-
rection the court refused to give. To which
refusal, the defendant, by his counsel, excepts,

&c.

And the parties have since annexed to the record, as a part thereof, the following explanatory statement:

Whole amount of the purchase mon

ev of the house and lots sold 223*1*by the agreement, B, viz: House, with coach-house,

&c., and lot 21,

Lots 9, 10, and part of 11,

at 124 cts. per square
foot,

$4,500

1,906

Do., for the other house and lots sold as per account A,

Total amount for both houses, and all the lots under both contracts,

$7.986 11

2,919 89

$10,906 00

[*224

3,594 00

6,406 00

$10,000 00

Upon the argument of the cause in this court, the principal question has been whether the failure of Orr to-pay the note of $3,594, constitutes a good defense to this suit. That there is a balance due to Orr of $2,919.89, for property actually conveyed by him to Goldsborough, under the agreements stated in the case, is most manifest; and the only point open for consideration is, whether the payment of the note is a condition precedent to the recovery of that balance. This must be decided by the terms of the written agreement B; for if the contract on one side be not dependent upon the performance of the contract on the other, or if they be not mutual and concurrent contracts, to be performed at the same time, there can be no doubt that the defense is unsupported. And, upon full consideration, we are all of opinion, that the contracts are not dependent or concurrent, by the true and necessary interpretation of that agreement. The agreement on the part of Orr was literally complied with. The titles to the prop- [*225 erty sold were duly made, the note was duly given, and Orr was at all times ready to receive the lumber according to his rights under the agreement. It is observable that one moiety of

the lumber was deliverable in 1818; and as to this it is clear that the payment of the note could not be a condition precedent. The other moiety was deliverable in the year 1819, as it was wanted by Orr, and of course he might elect to demand the whole before, as well as after the note became due, at his pleasure. If this be so, it could not be within the contemplation of the parties, that the delivery of the lumber should be dependent upon the payment of the note, for the whole might be rightfully demanded before it became due. Nothing is better settled, both upon reason and authority, than the principle that where the acts stipulated to be done, are to be done at different times, $10,906 00 the stipulations are to be construed as indepen

$6,406 00

4,500 00

dent of each other. The parol enlargement of the time of payment of the note cannot be admitted to change the nature of the original agreement; nor is there any pretense to say that there was any waiver of the original agreement, even supposing that, in point of law, such a waiver could be insisted upon, in a case circumstanced like the present. For the parties recognized the existence of that agreement, and lumber continued to be delivered under it as Orr required. If, indeed, any waiver were to be implied, it would be a waiver by Goldsborough of a payment of the note as a condition prece226*] dent to the delivery of *the lumber. But the parol contract does not, in any degree, vary the legal rights or obligations of the parties. The court below was, therefore, right in refus ing the instruction prayed for by the counsel for the defendant.

After the argument, some difficulties occurred as to the nature and form of the proceedings under this attachment act; but upon hearing the parties again our doubts are entirely removed. One of the doubts was, whether, in cases of attachment, if the defendant appeared and dissolved the attachment, there ought not to be a declaration and subsequent pleadings, according to the course in ordinary actions. Upon the terms of the acts respecting attachments, we should have inclined to the opinion that such a declaration, and such pleadings, were necessary. But the practice is shown to have been otherwise, and that practice has been solemnly adjudged by the Court of Appeals of Maryland to be in conformity to law.1 We have no disposition to disturb this construction.

Another doubt was, whether an attachment

ing, account or accounts, by which the debtor is so indebted." This enumeration would seem to include such cases only of contract as were for payment of money, either certain in themselves, or for which debt, or indebitatus assumpsit, or actions of that nature, would lie. It does not seem to include a contract for the delivery of goods, or doing any other collateral act. But, however this may be, and we give no opinion respecting it, we are satisfied that upon the contract in the present case, the plaintiff is entitled to a specific sum in money, so as to bring himself within the purview of the act. The value of the property sold was estimated in money; and though it was payable in lumber, yet if, upon demand, the defendant refused to deliver the lumber, he lost the benefit of that part of the contract, and the plaintiff became entitled to receive the sum stipulated to be paid in money.

Some objections were taken by the defendant to the preliminary proceedings in this suit; but it is unnecessary to consider them, because, whatever might have been their original defects, they are waived by going to trial upon the merits.

The judgment of the Circuit Court is therefore affirmed with costs.?

Cited-1 Bald. 494.

will lie in a case ex contractu, for unliquidated [*CHANCERY.
damages for non-delivery of goods. The act of
1795 gives the remedy upon the creditor's mak-
ing oath, &c., that the debtor is bona fide in-
debted to him in a sum certain over all discounts,
"and at the same time producing the bond or
bonds, bill or bills, contested bill or bills of
227*] exchange, promissory *note or notes,
or other instrument or instruments in writ-

POST-NUPTIAL SETTLE- [*229
MENT.]

SEXTON v. WHEATON ET UX.

A post-nuptial voluntary settlement, made by a man, who is not indebted at the time, upon his wife, is valid against subsequent creditors.

1.-Samuel Smith and others v. Robert Gilmoring that the suit was brought to recover the sum of and others, Garnishees of Wilhelm and Jan Willink. June term, 1816, of the Court of Appeals, MSS.

3.-The editor having been favored with a MSS. note of the case of Smith and others v. Gilmor and others, cited by the court in the preceding case, determined in the Court of Appeals of Maryland, takes the liberty of adding it for the information of the learned reader:

$14,094.84, due from the defendants to the plaintiffs, on account, and a copy thereof was sent with the said writ, indorsed, to be set up at the court2. See under the act of 1715, ch. 40, The State v. house door by the sheriff." The attachment was Beall, 3 Harr. & M'Henry's Rep. 347. returned by the sheriff, laid in the hands of Robert Gilmor and others (the appellees), and the writ of capias ad respondendum was returned tarde. The garnishees being called, appeared; and by their counsel pleaded that Wilhelm and Jan Willink did not assume, &c., and that at the time of laying the attachment, &c., they had no goods, &c., of the said Willinks in their hands. The general replication was put into the last plea, and issues were joined. Verdicts for the plaintiffs for $12,775 current money, damages. Motion by the garnishees in arrest of judgment, and the reason assigned was because no declaration had been filed in the case. The County Court sustained the motion, and arrested the judgment. The plaintiffs appealed to this court.

228*] *Samuel Smith and others, v. Robert Gilmor
and others, Garnishees of Wilhelm and
Jan Willink.

Appeal from Baltimore County Court. In this case, an attachment issued on the 2d of February, 1805, in the names of the present appellants, against the lands, tenements, goods, chattels, and credits of Wilhelm and Jan Willink, under, and in virtue of a warrant from a justice of the peace of Baltimore county, directed to the clerk of the County Court of that county, accompanied by an affidavit and account, pursuant to the directions of the act of Assembly of 1795, ch. 56. At the same time the plaintiffs prosecuted a writ of capias ad respondendum against the defendants, and filed a short note, stat

The case was argued in this court by Winder for the appellants, and by Martin and Harper for the appellees.

The Court of Appeals reversed the judgment of the County Court, and rendered judgment of condemnation on the verdicts for the plaintiffs for $12,775 current money, damages, together with $1,975.93 current money, additional damages and

costs.

The statute 13 Eliz., c. 5, avoids all conveyances | ed the premises. That the defendant, Sally, not made on a consideration deemed valuable in permitted this misrepresentation, and did not law, as against previous creditors. undeceive General Dayton, although she had many opportunities of doing so.

But it does not apply to subsequent creditors, if the conveyance is not made with a fraudulent in

tent.

What circumstances will constitute evidence of such a fraudulent intent.

APPEAL from the Circuit Court for the Dis- liciting a commercial connection, and advances

trict of Columbia and County of Wash

ington.

This was a bill brought by the appellant, Sexton, in the court below, to subject a house and lot in the city of Washington, the legal title to which was in the defendant, Sally Wheaton. to the payment of a debt for which the plaintiff had obtained a judgment against her husband, Joseph Wheaton, the other defendant. The lot was conveyed by John P. Van Ness, and Maria, his wife, and Clotworthy Stephenson, to the defendant, Sally Wheaton, by deed, bearing date the 21st day of March, 1807, for a valuable consideration, acknowledged to be received from the said Sally. And the plaintiff claimed to subject this property to the payment of his debt, upon the ground that the conveyance was fraudulent, and, therefore, void as to creditors.

In support of these allegations the plaintiff annexed to his bill several letters written by the defendant, Joseph, in the city of Washington, to the plaintiff, in the city of New York, soof goods on credit. The first of these letters was dated the 2d of September, 1809. The letters stated that the plaintiff's house had been recommended to the defendant by their mutual friend General Dayton; *represented [*231 the defendant's fortune as considerable, spoke of the house in which he was to carry on business as his own, and held out the prospect of regular and ample remittances.

The bill farther stated that, upon the faith of these letters, and on the recommendation of General Dayton, the plaintiff advanced goods to the defendant, Joseph, to a considerable amount, who failed in making the promised remittances; and on the plaintiff's withholding farther supplies of goods, and pressing for payment, he avowed his inability to pay, declared himself to be insolvent, and then stated that the house in controversy was the property of his wife.

The circumstances on which the plaintiff re230*] lied, *in his bill, to support the alle- Some arrangements were made, by which gation of fraud, were, that the said house and the goods in the store, and the books of the delot were purchased by the defendant, Joseph, fendant, Joseph, were delivered to the plaintwho, contemplating at the time carrying on the iff; but, after paying some creditors who were business of a merchant in the said city of preferred, a very small sum remained to be apWashington, procured the same to be convey-plied in discharge of a judgment which the ed to his wife; and obtained goods on the credit plaintiff had obtained in January, 1812, for the of his apparent ownership of valuble real prop- | sum of $8,249.29. On this judgment an execuerty. That for the purpose of obtaining credit tion was issued, by which the life estate of with the commercial house of the plaintiff, in Joseph Wheaton was taken and sold for $300. New York, he represented himself, in his let- the plaintiff being the purchaser. ters, as a man possessing real estate to the value The bill prayed that the property, subject to of $20,000, comprehending the house in ques- the plaintiff's interest therein under the said tion, besides 100 bank shares, and other per- purchase, might be sold, and the proceeds of sonal estate. That the defendant, Sally, knew the sale applied to the payment of his judgand permitted these representations to be made. ment. It farther stated that improvements to That the defendant, Joseph, in the presence of a great amount had been made since the conthe defendant Sally, applied to General Dayton, veyance to Sally Wheaton, and prayed that, the friend of the plaintiff, to be recommended should the court sustain the said con- [*232 to a commercial house in New York, and in veyance the defendant, Sally, might be de the statement of his property, as an induce-crced to account for the value of those improvement to make such recommendation, he includ- ments.

NOTE.-Marriage Settlements.

A deed to wife or child, for love and affection, is not always void as to creditors. The mere fact of indebtedness to a small amount, the grantor being in good circumstances and the gift reasonable, will not render the deed fraudulent. Hinde's lessee v. Longworth, 11 Wheat. 199.

To render an ante-nuptial settlement void as to creditors, both parties must concur in the fraud. Maguiar v. Thompson, 7 Pet. 348.

A voluntary conveyance by a person not indebted at the time, in favor of wife or children cannot be impeached by subsequent creditors upon the mere ground of its being voluntary. It must be shown to have been fraudulent, or made with a view to future debts. Reade v. Livingston, 3 Johns. Ch. 501; Richardson v. Smallwood, Jac. 552; Bennett v. Bedford Bank, 11 Mass. 421.

The want of valuable consideration may be a badge of fraud; but it is only presumptive, and not conclusive evidence of it, and may be met and rebutted by evidence on the other side, as that the grantor was in prosperous circumstances, indebted to only a small amount, and was unembarrassed,

and that the gift was a reasonable one, according to his state and condition in life, leaving enough for the payment of his debts.

Verplank v. Sterry, 12 John. 536, 554, 556, 557: Partridge v. Gopp, Ambler, 597, 598; S. C. 1 Eden, 167, 168, 169; Gilmore v. N. A. L. Co., Pet. C. C. 461; Cadogan v. Kennett, Cowp. 432, 434; Doc v. Routledge, Cowp. 705; Lush v. Wilkinson, 5 Ves. 887; Holloway v. Willard, 1 Madd. 414; Kidney v. Conssmaker, 12 Ves. 155; Sagitary v. Hyde, 2 Vern. 44; Cathcart v. Robinson. 5 Pet. 277.

In Verplank v. Sterry. 12 John., supra, it is said by Mr. Justice Spencer: "If the person making the settlement is insolvent, or in doubtful circumstances, the settlement comes within the statute (of 13th of Elizabeth, ch. 5.) But if the grantor be not indebted to such a degree, as that the settlement will deprive the creditors of an ample fund for the payment of their debts, the consideration of natural love and affection will support the deed, although a voluntary one, against his creditors; for, in the language of the decisions, it is free from the imputation of fraud." Mr. Newland maintains the same principle. Newland on Contracts, ch. 23, p.

The answers denied that the house and lot in contest were purchased in the first instance by Joseph Wheaton, or conveyed to his wife with a view to his entering into commerce; and averred that they were purchased for Sally Wheaton, and chiefly paid for out of the profits made by her industry, and saved by her economy in the management of the affairs of the family while her husband was absent executing the duties of his office as sergeant-at-arms to the House of Representatives. The answers also stated that in January, 1807, when the conveyance was made, Joseph Wheaton was sergeant-at-arms to the House of Representatives, expected to continue in that office, had no intention of going into trade, and had no knowledge of the plaintiff. The design of going into commerce was first formed in the year 1809, when, being removed from his office, and having no hope of being re-instated in it, he turned his attention to that object as a means of supporting his family. He, then, in a letter dated the 24th of August, applied to General Dayton, as a friend, to recommend him to a house in New York, and received from that gentleman a letter dated the 29th of the same month, which is annexed to the answer. In this letter, General Dayton, says: "Pursuant to your request, I recommend to you the house of Messrs. Sexton & Williamson, with which to form the sort of connection which you propose, in New York. They have sufficient capital." &c. "The proper course 233*] will be for *you to write very particularly to them, stating your present advantageous situation, your prospects and plans of business, and describing the nature and extent of the connection which you propose to form with them, and then refer them to me for my knowledge of your capacity, industry, probity," &c., &c., &c.

The defendant, Joseph, in his answer, stated that in consequence of this letter, he wrote to the said house of Sexton & Williamson. He admitted that his account of his property was too favorable, but denied having made the statement for the purposes of fraud, but from having been himself deceived respecting its value. He denied having ever toid General Dayton that the house was his, and thinks he declared it to be the property of his wife. Sally Wheaton denied that she ever heard her husband tell

384, 385. see also 1 Fonbl. Eq. B. 1, ch. 4, s. 12, note (a). To the same effect are Townsend v. Westcott, 2 Beav. 340. 345; Salmon v. Bennett, 1 Conn. 525, 548 to 551; Story Eq. Jur. s. 363, note 1.

Chancellor Kent says: "I have not been able to find the case, in which a mere voluntary conveyance to a wife or child has been plainly or directly held good against the creditor at the time. The cases appear to me to be, upon the point, uniformly in favor of the creditor. Reade v. Livingston, 3 John., Ch. 504.

The doctrine above stated in Hinde's Lessee v. Longworth, 11 Wheat, 109, is not easily reconcilable with that in Reade v. Livingston, 3 John. Ch., 500, 501. See also Holloway v. Willard, 1 Madd. R. 414; Jones v. Boulter, 1 Cox. 288, 294, 295; Plank v. Schemerhorn, 3 Barb., Ch. 644: Townshend v. Windham, 2 Ves. 10, 11; Frazier v. Western, 1 Barb., Ch. 220; Jackson v. Post, 15 Wend. 588; 1 Story Eq. Jur. s. 365; Van Wyck v. Seward, 18 Wend. 376; Seward v. Jackson, 8 Cow. 406; Wickes v. Clark, 8 Paige, 165.

To avoid a post-nuptial settlement insolvency need not be proved. It is enough if property sufficient to impair the means of the grantor, so as to

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General Dayton that the house was his property, that she ever in any manner contributed to impose on others the opinion that her husband was more opulent than he really was; or ever admitted that the house she claims was his. She admitted that she saw a letter prepared by him to be sent to Sexton & Williamson, in the autumn of 1809, which she thought made too flattering a representation of his property, and which she, therefore, dissuaded him from sending in its then form. She then hoped that her persuasions had been successful.

The answers of both defendants stated that Joseph Wheaton was free from debt when the conveyance was made, and insisted that it was made bona fide.

*The court below dismissed the bill, [*234 and from this decree the plaintiff appealed to this court.

Mr. Key, for the appellants, argued, 1. That the evidence in the cause was insufficient to prove the fact alleged, that the house in question was purchased with the funds of the wife. The case of Slanning v. Style, which is the stronger, as it excepts creditors from the operation of the right where it exists, goes to show that it was not bought with funds which could be considered as hers. The fund accruing from the thrift and economy of the wife does not constitute her separate estate. Still less could such an accumulation for her separate use, from the presents of her friends, or as a compensation for services rendered her husband, be warranted by any case or principle.

2. If, then, the purchase was not made with the separate property of the wife, were the circumstances of the husband such, at the time this settlement was made, as to justify him in making it, to the prejudice of subsequent creditors? All the cases concur in showing that he cannot do so, and that the subsequent creditors may impeach it. And it makes no difference that it is the case of a settlement by a purchase,

1.-3 P. Wms. 335-337. 2.-1 Cas. in Ch. 117.

3.-Fletcher v. Sidley, 2 Vern. 490; Taylor v. Jones, 2 Atk. 600; Fitzer v Fitzer, 2 Atk. 50; Stillman v. Ashdown, 2 Atk. 481; Hungerford v. Earle, 2 Vern. 261; Roberts on Fraud, Convey, 21-30; Atherly's Fam. Settlem. 212, 230-236.

hinder creditors, is conveyed. Parish v. Murphee, 13 How. 92. A post-nuptial settlement, not disproportionate to the husband's means, taking his debts and his situation into consideration, is valid. Picquet v. Swan, 4 Mas. 443; Hopkirk v. Randolph, 2 Brock. Marsh. 132.

A marriage settlement while husband is heavily indebted is invalid. Kehr v. Smith, 30 Wall. 31. Mere indebtedness of the husband at the time, will not alone make the settlement void; it must be shown that he was insolvent, or that the settlement had a tendency to impair the rights of creditors. Lloyd v. Fulton, 1 Otto,479; Humer v. Scruggs, 4 Otto, 28.

Settlement by husband, not in debt, of one sixth of his estate on his wife, valid. Jones v. Clifton, 17 Am. L. Reg. 713: 6 Reporter, 324.

The doctrine in regard to voluntary settlements seems to have vibrated, both in this country and in England, between that laid down in Hind's Lessee v. Longworth, 11 Wheat. 199 (stated above) and the doctrine (stated above), as laid down by Chancellor Kent in Reade v. Livingston, 3 John. Ch. 504. See Willards, Eq. Jur., 230 to 237.

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9

But

235*] and the deed taken *to the wife. This tained against creditors." So, also, the subnotion of certain elementary writers' has been stitution of a voluntary bond by another is exploded, and the authorities are decisive good. And a post-nuptial settlement is only against it. Nor is there any difference be- void as against creditors at the time. A voltween a deed to defraud subsequent creditors untary conveyance in favor of strangers is valid and one to defraud purchasers. And a subse- against subsequent creditors, the party making sequent sale, after a voluntary settlement, cre- it not being indebted at the time. 10 And in a ates the presumption of fraudulent intent in very recent case, a voluntary settlement by a the previous settlement under the statute of husband, not indebted at the time, was es27 Eliz. If so, there is the same ground for tablished against subsequent creditors."1 similar presumption where debts are contract- this is not a mere voluntary conveyance on a ed after a previous voluntary settlement. This moral obligation; it is for a valuable consideramust especially apply where the settlement is tion in the wife's services. 12 The case cited of all the settler's property, and the debts are from 1 Cas. in Ch., 117, has no bearing on the large, and contracted almost immediately after present question, and has been overruled since. the settlement. Besides, the case of Slanning v. Style13 is better vouched, more modern, and of greater authority in every respect. The pretext of collusion in actual fraud between the husb.nd and wife, in the present case, is utterly devoid of any foundation in the evidence.

3. But, supposing the settlement was fairly made, here is evidence of collusion of the wife in the misrepresentation which was made to the prejudice of creditors, and she is bound by it. The principle is well established that the property of a married woman, or that of an infant, may be rendered liable to creditors by their concurrence in acts of fraud."

Mr. Jones, for the respondents, contra, insisted that many of the cases cited on the other 236*] side *might be disposed of upon their peculiar circumstances, without touching upon the general doctrine for which he contended. He admitted that whether a settlement was within the letter of the statutes relating to fraudulent conveyances or not, if there was actual fraud, a court of equity would lay hold upon it, and redress the injured party. But the settler must be indebted at the time of the execution of the deed, in order to set it aside on that ground. And there must be an allega tion, and proof of that fact or the bill will be dismissed. According to the original rudeness of the feudal system, the husband and wife were considered as one person, and all her rights of property were merged in his. But this is a doctrine wholly unknown to the civilized countries governed by the Roman code; and courts of equity have constantly struggled to mitigate its rigor. For this purpose they consider the husband as a trustee for the wife, in order to preserve her property to her separate use. It does not follow that because voluntary settlements are void against subsequent purchasers, that they are, therefore, void against subsequent creditors. There is a wellestablished and well-known distinction in this respect between the statute 13 Eliz. and the statute 27 Eliz. Taking the present case, then, as a mere voluntary conveyance on good consideration, independent of actual fraud, it must stand. Whatever discrepancy there may 237*] be in some of the old cases, this *is now the settled doctrine in England. Thus, in the case of a voluntary bond, and arrears under it, a conveyance to secure those arrears was sus

1.-Fonbl. 275; Sugd. 424; Roberts, 463. 2.-Peacock v. Monk, 1 Ves. 127; Stillman v. Ashdown, 2 Atk. 481; 2 Vern. 683; 4 Munf. 251; Partridge v. Goss, Ambl. 596; Atherly's Fam Settlem. 481. 3.-Anderson v. Roberts, 18 Johns. Rep. 515. 4.- Roberts on Fraud. Convey, 34. 5.-Roberts, 522; Sugd. 480; Fonbl. 161; 1 Bro. Ch. 358; 2 Eq. Cas. Abr. 488.

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*Mr. Chief Justice MARSHALL deliv- [*238 ered the opinion of the court, and, after stating the case, proceeded as follows:

The allegation that the house in question was purchased with a view to engaging in mercantile speculations, and conveyed to the wife for the purpose of protecting it from the debts which might be contracted in trade, being positively denied, and neither proved by testimony nor circumstances, may be put out of the case.

The allegation that the defendant, Sally, aided in practicing a fraud on the plaintiff, or in creating or giving countenance to the opinion that the defendant, Joseph, was more wealthy than in truth he was, is also expressly denied, nor is there any evidence in support of it, other than the admission in her answer that she had seen a letter written by him to the plaintiff, in the autumn of 1809, in which he gave, she thought, too flattering a picture of his circumstances. This admission is, however, to be taken with the accompanying explanation, in which she says that she had dissuaded him, she had hoped successfully, from sending the letter in its then form.

This fact does not, we think, fix upon the wife such a fraud as ought to impair her rights, whatever they may be.

The plaintiff could not know that this letter was seen by the wife, or in any manner sanetioned by, or known to her. He had, therefore, no right to suppose that there was any waiver of her interest, whatever it might be, nor had he a right to assume anything against her, or her claims, in consequence *of [*239 his receiving this letter. The case is very different from one in which the wife herself makes a misrepresentation, or hears and countenances the misrepresentation of her husband. The

7.-Gillam v. Locke, 9 Ves, 612.
8.-Ex-parte Barry, 19 Ves. 218.
9.-Williams v. Kidney, 12 Ves. 136.

10.-Holloway v. Millard, 1 Madd. Rep. 414; Hobbs
v. Hull, 1 Cox, 445; Jones v. Bolter, Id. 288.
11.-Battersebee v. Farrington, 1 Swanst. Rep.
106; See, also, Jones v. Bolter, 1 Cox, 288.

12.-3 P. Wms. 337. 13.-3 P. Wms. 337.

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