the recent case of A. against B." He stopped, dropped his head, looked as cannot be described, but as will be remembered by all who have seen him under like circumstances, indeed trying to look as much as possible like a culprit. The bar and the bench too knew his wonderful powers of humor and sarcasm, and were quite sure he would not retreat without giving a parting shot. "Your Honors, I do indeed deserve the rebuke of the court, but it was my ignorance, not my intention that caused me to offend, for indeed, my reading had not come down so low." This in a tone of voice inimitable. Shrill and guttural at the same time. The skillful archer did not miss his mark! It is needless to say just here that for the last forty years of his life he was engaged in nearly every important cause in his State, on one side or the other, and in nearly all of them he had Legaré with him or against him, up to the time of the death of the latter. In speaking of the case of the People v. Bank of South Carolina, which excited a great deal of public attention in that State, Chief Justice O'Neil remarked, "that Legaré's argument was indeed a very powerful one,and would have been even more celebrated in the history of that case, had it not been so far excelled and almost eclipsed by the greater argument of Pettigru. He was a man somewhat local in his tendencies; and inasmuch as the means of communication at the time he entered upon active practice were not such as to induce counsel at points distant from Washington to follow their cases to the Supreme Court of the United States, he did not acquire the habit of appearing before that court early in life. And when afterward he was repeatedly urged to go to the Supreme Court, he would modestly reply, "I am but a provincial lawyer, and fear that I could not do you justice there; let me send the case to some one whose powers and eminence are well recognized by that court." And he thus insisted to the end of his life in all cases except one, where the pressure and urgency was such that he did appear before the Supreme Court, receiving the greatest consideration from that body. It was happily said of Mr. Pettigru by one of his brethren at the bar that his love of justice was as of something incarnate, and he would no more trifle with it than with Deity itself." He kept jealous vigilance over the rights of truth, and resented falsehood in every form as if a personal wrong. His speech was always couched in language drawn from the pure well of English undefiled; adhering as closely as possible to the Anglo-Saxon vocabulary, though always a man of literary habitudes, with the ancient classics as familiar to him as household words. Singularly gifted with a power of wit and humor, he relieved the asperities and the tedium of forensic conflict, convulsing auditory, bar, and even bench, with his contagious merriment, and with matchless skill applied ridicule and sarcasm as weapons and tests of truth. But in the liveliest sallies of his wit and humor-the last acts on which benevolence ordinarily exerts its restraining influence he never allowed himself to trench on the sensibilities of others. He was in the true old English sense a gentleman, that rare combination of courage, courtesy and culture; of truth and kindliness; with a scrupulous and sensitive regard for the rights and feelings of others. this weapon is sometimes used by the advocate in a way which seems to take unfair and unmanly advantage of his position, I am tempted just here to quote a sentence or two from that perfect master of ridicule and sarcasm, Carlyle: "There are things in this world to be laughed at, as well as things to be admired; and it is no complete mind that cannot give to each sort its due. Nevertheless contempt is a dangerous element to sport in, a deadly one if we habitually live in it. The faculty of love, of admiration, is to be regarded as the sign and measure of high souls. Ridicule on the

66

But as

other hand is indeed a faculty much prized by its possessors, yet intrinsically a small faculty, we may say the smallest of all the faculties that other men are at pains to repay with any esteem. It is directly opposed to thought, to knowledge, propensity so-called; its nourishment and essence is denial, which hovers only on the surface, while knowledge dwells far below. Moreover it is by nature selfish, and morally trivial: it cherishes nothing but our vanity, which may in general be left safely enough to shift for itself."

Mr. Pettigru was remarkable for great truthfulness in the citation and application of authority, and this helped, with his many other qualities, to win for him not only the confidence, esteem and affection of the bar, but even perhaps to a greater extent of the bench. Then he was so fair, and so far above all trick or artifice in his practice; and especially was he kind and even brotherly in his deportment to the younger members of the profession. Late in life he once remarked with great satisfaction, that he had never turned one of them out of court on a mere technicality, "because he did not understand his business."

Some allusion must be made to the peculiarity of Mr. Pettigru's political position in this, that his party affiliations were always with a very small minority in his State; and this affected his relations to the public; and necessarily prevented him from ever holding political office, although in one or two instances, for special reasons, he was sent to the State Legislature.

He was a Federalist of the rankest sort, and was so "from his youth up." All his life he practiced and associated with a bar and before a bench differing from him utterly in politics. A man of strong convictions and steru views of duty, he would not even remain silent to gratify his best friend. In all the great political excitements which prevailed in his State, the first in 1830-31, then in 1850, and then from 1861 to the time of his death in 1863, he was separated in opinion from nearly all his best friends. Yet he never lost a single friend in all that time, whose friendship was worth the having.

Mailed in the armor of honesty, all respected his motives and admired his boldness, while lamenting what they believed to be his errors of opinion. He seemed encircled with an atmosphere of dignity, and armed with some electric power to repel hostile or dishonoring assaults.

During the administration of Mr. Fillmore, when the state of public feeling in South Carolina was such that the United States district-attorney resigned his office, saying that no man could hold it and be loyal to his State, Mr. Pettigru stepped promptly forward and took the position, to the great damage of the practice, and against the wishes and earnest protests of his friends. In 1861, when his State was about to take the decided step which would sever its connection with the Union, he bowed in humility to its behests, with that antique loyalty which made him share her fate while he disapproved her every act, and when appealed to by a very dear friend not to be so outspoken in his opposition, but to submit to the inevitable, he was silent for many minutes, and then, in tones of agony and despair, he said, "I never expect to see another happy moment in my life."

He was intensely conservative in all things; in law, in politics, in religion, in social life. He thought he saw in the great movement that was going on, only that love of change and lawlessness, which breaks off all habits of submission and support of government, and he could not do more than submit.

Notwithstanding this great difference of opinion between Mr. Pettigru and the people of his State, which deprived him necessarily of political office, there was no moment of time within the last years of his life that he could not have been made chancellor or chief jus

tice of his State, had he been willing to accept either position; and at the time of his death he held the best paid office in the State, an appointment by the Legislature, renewed from year to year, to codify the statute laws. I mention this instance of the generosity of that people, because they have so often been charged with intolerance as to all differences of political opinion.

And this brings to mind a somewhat similar action some years before in the case of William C. Preston. When the difference in opinion between his people and himself had become so great that he could no longer properly represent them in the United States Senate, he voluntarily resigned his position. At the first moment after his resignation that it was practicable to do so, he was elected to the presidency of the University of South Carolina, an office entirely within the control of the State authorities, and one highly esteemed and much sought after.

Mr. Pettigru's health began to trouble him seriously in the year 1862, and continued to grow worse until he died in the city of Charleston in March, 1863.

A meeting of the bar of Charleston took place soon thereafter, and the outburst of sorrow and lamentation, and of love for the departed, seemed for a time to hush even the noise of battle, for it was at that moment that the war was being waged between the States with all the fierceness that it assumed at any time during that contest.

The sentiments uttered on that occasion by his brethren of the bar exhibited such deep feeling and great sorrow and profound respect for the deceased, that could his spirit have hovered over that scene, and caught their notes of lamentations, it would have been to him more grateful than a Roman triumph formally decreed. The speakers, in the warm gush of their affection for the man, seemed to have but little comparatively to say of the lawyer.

CONVEYANCE IN FRAUD OF CREDITORS.

ENGLISH HIGH COURT OF JUSTICE, CHANCERY DIVISION, DEC. 16, 1881.

GOLDEN V. GILLAM, 46 L. T. Rep. N. S. 222. Where a bona fide and honest settlement is executed, for which valuable consideration is given, and the instrument is one between relatives, the difference between the real value of the estate and the consideration given is not a badge of fraud. The mere fact that a bona fide creditor is defeated by the execution of a settlement is not sufficient of itself to set the deed aside. A., being bedridden, conveyed her farm and assigned her stock and household goods, which was the whole of her property, for the benefit of her two daughters, they entering into a covenant to pay the debts incurred up to the date of the conveyance in connection with the management of the farm, and to maintain their mother. Held, that the deed was executed in good faith, for a valuable consideration, that it was influenced by honest family considerations,and was executed without any intention to defeat, defraud or delay creditors and that it could not be set aside under 13 Eliz.,.c. 5.

Ac

CTION to set aside a deed conveying Trunch Farm on the ground that it was fraudulent and void, under the statute 13 Eliz., c. 5, by reason of its having been made with the intent to defraud creditors.

. The deed in question was executed by Judith Mary Johnson of the first part, to her two daughters, Alice and Amy, of the second part, and Stephen Gillam as trustee of the third part. At the time the grantor was bedridden, it was claimed by plaintiff that she was indebted to him in the sum of £120 and interest. Other debts to two persons were also shown; one to a saddler (which was a farm debt), the amount not stated, and £80 to her sister. The deed recited that

Mrs. Johnson, in consideration of her natural love and affection toward her daughters, and in consideration of the covenant by them thereinafter contained, and for divers other good considerations, desired and had agreed to assure the premises thereinafter expressed to be thereby assured, to the uses and upon the trusts thereinafter declared and contained concerning the same, respectively. She then conveyed the freehold of Trunch Farm, subject to the mortgages affecting the same, as to one moiety to the use of her daughter Alice, and as to the other moiety to the use of her daughter Amy; but in case she should die under the age of twenty-one years to the use of her daughter Alice. And she assigned to Stephen Gillam all her farming stock and household effects upon trust as to one moiety for Alice, and as to the other for Amy; but in case she should die under age, for Alice. And by the same deed Alice and Amy covenanted with her that they, or one of them, would pay all the just debts incurred by the said Judith up to the date of the said indenture in connection with the working and mauagement of the said farm, and would maintain the said Judith during her life, providing her with a home, food, clothes, and medical or other attendance, in such style or manner as she bad been theretofore accustomed.

Amy Johnson, at the time of the execution of this deed, was an infant, and she never executed the instrument; Alice was of age and did execute it.

This deed comprised in effect all Mrs. Johnson's property. She and her daughters continued to live on the farm, and it was carried on as before by Alice with the help of Amy, and the assistance, pecuniary and otherwise, of Stephen Gillam, who was a cousin of Mrs. Johnson.

FRY, J. The deed is impeached as being void under the statute of 13 Eliz., c. 5, and so much has been said about the true construction of that statute, that it is convenient I should recur to the statute itself, and express my general views upon the true construction of it. The statute itself is sufficiently stated in the passage which I am about to read from the judgment of Sir Thomas Plumer, when Vice-Chancellor, in Coppis v. Middleton, 2 Madd. 410. He says (p. 427): "The preamble of that act is For the avoiding and abolishing of feigned, covinous, and fraudulent feoffments, etc., as well as of lauds and tenements, as of goods, chattels, etc., devised and contrived of malice, fraud, covin, collusion, or guile, to the end, purpose, and intent to delay, hinder, or defraud creditors and others of their just and lawful actions, suits, debts, etc., not only to the let or hindrance of the due course and execution of law and justice, but also to the overthrow of all true and plain dealing, bargaining, and chevisance between man and man, without which no Commonwealth or civil society can be maintained or continued.' A conveyance, therefore," the Vice-Chancellor says, "to be affected by this act, must be shown to be feigned, covinous, and fraudulent, and made with an intent to delay, burden, or defraud creditors. But if this case was held to be within the statute it would be the overthrow of all true and plain dealing, bargaining, and chevisance between man and man, for as a purchaser cannot know the circumstances of the vendor, it would prevent all dealing, bargaining, and chevisance between man and man, and counteract the object of the statute. The statute, in order to prevent this inconvenience, has by the 6th section provided that the act shall not extend to any conveyance upon good consideration and bona fide to any person not having at the time of such conveyance or assurance any manner of notice or knowledge of such covin, fraud, or collusion. A conveyance therefore cannot be invalidated by the act if there has been a bona fide purchaser." That is the state

ment of law by the vice-chancellor. In the case of Thompson v. Webster, 4 Drew, 628, Kindersley, V. C., made this statement with regard to the general principle of the act (p. 632): "The principle now established is this: The language of the act being that any conveyance of property is void against creditors if it is made with intent to defeat, hinder, or delay creditors, the court is to decide in each particular case, whether on all the circumstances, it can come to the conclusion that the intention of the settler in making the settlement was to defeat, hinder, or delay his creditors." It is obvious that the statute was not intended to provide for an equal distribution of property amongst all the creditors, that has been the object of other statutes, but certainly was not the object of this. In like manner the statute was not intended to set aside an honest dealing between man and man, which might nevertheless have the effect of delaying the execution of a creditor; and accordingly cases have been decided in which the deed has been held good, in which the effect has not been merely to defeat but actually to exclude from all chance of payment the bona fide creditors. I repeat that the inquiry in every case made is whether the deed was executed with this intent to defeat or delay the creditors. The mere fact that as a collateral result it may have that operation will not make the deed void within the statute if it was otherwise made for good consideration and bona fide. In this case it has not been denied that good consideration was given for the assignment and conveyance-I mean by the effect of the covenant entered into by Alice. I have decided the same point on the same deed before, and Mr. Pearson, for the plaintiff, has therefore not argued that point. The effect of the fact that there is good consideration in a deed of this sort is very great. It does not necessarily show that the deed may not be void within the statute of 13 Eliz., because in many cases good consideration has been proved, and yet the object and purpose of the deed has been to defeat and delay the creditors. It has been therefore for an unconscientious purpose, and the fact of there having been good consideration will not uphold the deed; but nevertheless it is a material ingredient in considering the case, and for very obvious reasons. The fact that there is a deed between man and man, for valuable consideration, shows at once that there may be another purpose and intention in the transaction than the defeating or delaying of creditors, and rendering the case therefore more difficult on the part of those who contest the deed. That that has always been regarded as the effect of there being valuable consideration in the deed, is apparent from several cases to which I have been referred during the course of this discussion. In the case of Harman v. Richards (10 Hare, 81) Turner, L.J., then Vicechancellor, makes this observation (p. 89): "It remains to be considered whether the settlement, which was thus made for valuable consideration, was also made bona fide; for a deed, though made for valuable consideration, may be affected by mala fides, but those who undertake to impeach for mala fides a deed which has been executed for valuable consideration, have, I think, a task of great difficulty to discharge "-a task of difficulty which has in many cases been discharged. Lord Hatherley, when vice-chancellor, adopted that view in the case of Holmes v. Penney (3 K. & J. 90, which has been so much discussed before The same point was stated with even more force by Giffard, L.J. in the case of Freeman v. Pope, which has also been cited to me. He said in that case [23 L. T. Rep. (N. S.) 210; L. Rep., 5 Ch. App. 544]: "I do not think that the vice-chancellor need have felt any difficulty about the case of Spirett v. Willows, 11 L. T. Rep. (N. S.) 614; 3 De G. J. & S. 293; but he seems to have considered that in order to defeat a

me.

voluntary settlement there must be proof of actual and express intent to defeat creditors. That however is not so. There is one class of cases no doubt in which an actual and express intent is necessary to be proved-that is, in such cases as Holmes v. Penney, 3 K. & J. 90, and Lloyd v. Atwood, 3 De G. & J. 614, where the instruments sought to be set aside were founded on valuable consideration; but where the settlement is voluntary, then the intent may be inferred in a variety of ways." I therefore proceed to inquire, looking at all the circumstances of this case, and at the nature of the instrument itself, whether I can or ought to infer au intent to defraud creditors in the parties to the deed. I say "in the parties to the deed," because it appears to me to be plain that whatever fraudulent intent there may have been in the mind of Mrs. Johnson, it would not avoid the deed unless it was known to have been concurred in by Alice, who became the purchaser under the deed. It has not been contended, and it could not be contended, that the mere fraudulent intent of the vendor, the assignor under the deed, could avoid it if the purchaser, was free from that fraud. [His lordship then considered the family and other circumstances under which the deed was executed, and continued:] The circumstances, looked at independently of the result of the deed, therefore lead me to the conclusion that the intention of the parties was to make a perfectly honest family arrangement, under which the daughters were to undertake the burthen of paying their mother's debts, and in consideration of that to take immediately that farm which in all probability they would receive by the will upon her death. Then it is said, and said truly, that a person generally must be taken to intend the result of the acts which he actually performs, he must be taken to intend to do that which he does. That is often true, but is by no means always true; because although no doubt the immediate and main result of our acts must be the object of our intention, there are many collateral results or acts which are not only not objects of our intention, but against our wish. There are many unintentional results of intentional acts. The operation of the deed, it is said, in this case was to defeat and delay creditors, and therefore it is said that that must have been intended. That has been presented in two ways. In the first place it has been observed that the deed contained a provision only for the payment of creditors whose debts have been contracted in connection with carrying on the farm. It is said that there may have been, or must have been, debts of another description; in fact, there was, at any rate, a debt of another description. That appears to me to be very probably the case in this instance, but it does not appear to me to be shown that that debt was present to the mind of the settlor, Mrs. Johnson, or to the mind of her daughter; and nothing is more probable, if I were to speculate upon the intention, than that I should come to the conclusion that Mrs. Johnson, who had herself assumed the debt of her brother after a deed conceived in those terms, would have anticipated that her daughters must in like manner have assumed the debt of their uncle after they took under a deed couched in the same terms. That may or may not be. It appears to me plain from the case of Holmes v. Penney, 3 K. & J. 90, that the mere fact of a bona fide creditor being defeated by the execution is not enough of itself to set the deed aside. In this case, if I uphold the deed, it seems probable that the plaintiff will have no remedy in respect of his debt. In that case, by upholding the deed the plaintiff was excluded from all remedy in respect of his debt, and that debt must have been plainly present to the mind of the settlor; bnt the vice-chancellor thought in that case that the very object of the brother, who was the purchaser of

the estate, was to make an honest family arrangement with regard to it. So in the present case, it appears to me that the object of the mother and daughters was to make an honest family settlement of the property, including in that honest family settlement a covenant by the daughters to pay the mother's debts and to maintain her. Then again it has been said, that with regard to many creditors, who are included in the covenant, they are defeated and delayed, because before the execution of the deed they had a right against the property, and after the execution of the deed they would only have a right to the enforcement of the covenant. But that is the result of almost every dealing between man and man. If I am indebted and sell my estate, my creditors have lost their right of proceeding against the estate by elegit or otherwise, and can only proceed against the purchaser to recover the purchase-money. So, in a variety of cases, visible chattels or real estate of a person are converted into choses in action. Of course, if that is done, bona fide creditors cannot complain of it; if they could complain of it, that would, as Sir Thomas Plumer pointed out, restrain honest dealings and transactions between man and man. There is only one other point on which I wish to observe, although it has not been put to me. It appears to me plain from the facts of the case, that although valuable and good consideration was given by the daughters, that consideration cannot be considered to be the full value of the estate. But there again it appears to me to be plain, that where a bona fide and honest instrument is executed, for which valuable consideration is given, and the instrument is one between relatives, the court cannot say that the difference between the real value of the estate and the consideration given is a badge of fraud; and if it is not a badge of fraud or evidence of an intention to defeat creditors, it has no relation to the case. I have come therefore to the conclusion upon the whole of this case, that the instrument impeached was executed in good faith; that it was executed for a valuable consideration; that it was influenced by honest family considerations; and that it was executed without any intention to defeat, to defraud, or delay creditors. That being so, I dismiss the action with costs.

DEFENSE TO NEGOTIABLE INSTRUMENT PROCURED BY FRAUD.

RHODE ISLAND SUPREME COURT, FEBRUARY, 11, 1882.

MILLARD v. BARTON.*

Usually when the maker of a negotiable promissory note is not allowed to avail himself as against third parties holding he note, of defenses valid against the payee, it is because negligence is imputable to the maker in the inception of the note. That a third party holds a negotiable note for a valuable consideration will not of itself in an action against the maker deprive such maker of defenses valid against the payee.

Hence when A. made a negotiable promissory note to B., which was fraudulently procured by B., and no negligence was imputable to A. and suit was brought on the note against A. by C., a purchaser for valuable consideration, but it did not appear that C. bought the note in the usual course of business or for its full face value, held that A. was entitled against C. to use the defenses which he could have employed against B.

PLAINTIFF'S petition for a new trial. The opinion

states the case.

Henry J. Dubois & Nicholas Van Slyck, for plaintiff. Ziba O. Slocum, for defendant.

* To appear in 13 Rhode Island Reports.

POTTER, J. This is an action of assumpsit on a promissory note, dated Oct. 1, 1874, and payable one one year after date. The note was given to C. B. Mahan and is sued by Millard, the indorsee, against Barton, the maker. Plea the general issue.

The defendant testified that he never gave the note sued. He was a farmer. He said: "Mahan, the payee, came to me October, 1874, while I was at work with my team, said he was agent for the Granite Agricultural Works, and wanted me to sell agricultural tools for them on certain terms he proposed. If not sold by August, 1875, he was to take them back. While I was reading an agreement which he handed me, he wrote a note and handed it to me to sign. I told him that meant money and was not conditioned by the agreement and I should not sign it. I was going off. He said he must have something to show for the goods sent. I told him if he would write a condition in the note I would sign it. At his request I wrote a condition that the note was not to be paid until the agreement was fulfilled. He said there was not room to put it in that note. He opened a portfolio and wrote a promissory note and also the condition. I took a pencil and wrote my name below the condition. The condition followed the note. I read the note before I signed it. I then signed the agreement. He wrote the note on a plain piece of paper, a new sheet of paper unfolded."

Another witness testified that he was present. That Mahan filled out a printed note which the defendant refused to sign. The second note was all written. Saw the defendant read it before he signed it.

The accompanying agreement which the defendant signed proves to be a sort of bill of sale of mowing machines, etc., acknowledging receipt of payment by a note with a provision that the Granite Agricultural Works were to take back all not sold by August 15, 1875, and pay him the same prices at which they are now billed to him, and that if the defendant did succeed in selling them, he was to pay the note.

The plaintiff, the holder, produced the note, and it being admitted that he was a bona fide holder and had taken it for valuable consideration, and had purchased it in the usual course of trade before it was due and without notice of any equities, he objected to the admission of any evidence by the defendant tending to show the equities as between the original parties. The evidence was nevertheless admitted, and the plaintiff excepted.

The first question is, was the evidence properly admitted? Had the defendant, the maker, a right to show in his defense that the note was obtained from him by fraud, or that it was a forgery, and that therefore the indorsee could not recover against him?

While between the original parties the ordinary rules of contract apply, there are many cases where the maker of a note who has a good defense against the payee, has none against an honest indorsee, and this brings us to the inquiry whether the present is such a case?

And it will be found, we think, that the greater part of the cases, where the maker has been held liable to third parties, are cases where there has been more or less negligence on his part.

There is a large class of cases where the maker reposes confidence in one who abuses it; notes given to a person to be used in some particular mode or event and he applies them to his own use; e. g., a note given to a person to renew an accommodation note and he uses it to procure a new loan for himself; Small v. Smith, 1 Denio, 583; Bank of Missouri v. Phillips, 17 Mo. 29; McDonald v. Muscatine Nat. Bank, 27 Iowa, 319; Hall v. Hale, 8 Conn. 336. So where a note is voluntarily made and delivered but it is obtained by fraudulent representations. In this case the maker puts his