otherwise to have become void or defunct. Any concealment of this nature would be manifest fraud.

Where a merchant, knowing himself to be insolvent, purchases goods without disclosing the fact, there being no inquiry made, he is not necessarily guilty of fraud, as he may honestly believe that he can go on and retrieve his affairs. Where so much of the trade of the country is carried on without invested capital, or on borrowed capital, it must often happen that a merchant who is ultimately successful has known periods of commercial disaster when his property would not pay his debts. It would be too strict to hold that under such circumstances he must in all cases go into liquidation or expose himself to probable bankruptcy by disclosing his condition. But equity does not countenance a dealer of known standing, who has suddenly failed in business, going to those who were acquainted with his former character, but have not heard of his failure, and buying on credit.

The borrowing of money by men engaged in large transactions, bankers and dealers in cotton on their own account and commissions, is not unusual, and this although the borrowers may be persons of large means, and the fact that they borrowed by methods which would not disclose that they were borrowers, would not necessarily be inconsistent with good faith or solvency. It might be inconsistent with both.

Caveat emptor is the rule of the common law, founded upon wise policy, to induce vigilance and caution, and to prevent opportunities for deceit which lead to litigation, by casting on every man the responsibilities of his own contracts and to burden him with the consequences of his careless mistakes. If a person who is insolvent conceals that fact from the vendor for the purpose of defrauding him, and thus obtains goods without intending to pay for them, the title of the property is not changed, and it may be reclaimed by the vendor.

The doctrine that notice to an agent, in order to be binding upon the principal, must come to the agent in the course of his employment is not applicable to a case of actual fraud.

The fraud of the agent affects the principal for the reason that every principal impliedly warrants the integrity of his agent; at least so far as to prevent his retaining the fruits of the fraud, and if the agent, in transacting his employer's business, has unlawfully effectuated a fraudulent design it is unimportant whence the elements of his corrupt purpose were derived.

A court of justice, when it has to approve of a sale on behalf of persons or classes under its protection, ought to be strict, even to jealousy, when in exacting from a purchaser the fulfilment of his obligation to be honest and straightforward in all statements relevant to the duty which the court has to perform, whether made voluntarily or in answer to questions, or arising out of the terms of any proposal or preliminary agreement. But this does not mean that, because information on some material point or points is offered, or is given on request by a purchaser from the court, it must therefore be given on all others as to which it is neither offered nor requested, and concerning which there is no implied representation, positive or negative, direct or indirect, in what is actually stated.

[Reliance on and Materiality of Defendant's Misconduct.]

It is the duty of a vendor to see that the property to be sold is not untruly described, and he cannot be excused because a description which the property will not bear has been inserted in the particulars by the auctioneer without his instructions. Nor can the auctioneer excuse himself for inserting a false representation by saying that he did not know it to be untrue. It is a question of fact whether a person is induced to buy by a particular representation.

It would hardly do to hold that a party was induced into a contract by false and fraudulent representations, because one of the vendors represented that he had been governor of the State, and was a member of the Baptist Church and president of a bank and a railroad company.

A farmer may by nature or through mental disease be so far demented as to be quite unable to act with intelligence

and judgment in the matter of an exchange of his farm, yet be able to carry it on to a fair advantage, raise crops and make a fair sale of them in the markets. It is not an uncommon thing to see a man who is notoriously somewhat disturbed in his mind-partially insane who goes about attending to the ordinary routine of his every-day life and affairs and who is equally and notoriously unfit to enter upon and carry through any extraordinary venture requiring reflection, discrimination and judgment.

The standard of testamentary capacity is not the standard of business capacity. Wills have been, and will hereafter be sustained, that were made by persons whose minds were so enfeebled that the courts would unhesitatingly set aside business contracts entered into by them to their loss. It is familiar law that a higher degree of intellect is necessary to sustain a contract than a will.

The abandonment of one cause of action and the adoption of a new one by amendment is, in effect, the dismissal of the former suit and the commencement of a new one upon a different cause of action.

No deception or artifice will be considered an actionable fraud so as to be the proper subject of judicial redress, which has not been a cause of injury or prejudice to the party seeking redress. A misrepresentation or concealment, which has not been the means of producing damage or injury, is not within the cognizance of human tribunals, for they do not sit for the purpose of enforcing moral obligations or correcting unconscientious acts which are followed by no loss or damage.

If one sells two horses as his own, knowing that he owns but one of them and has no right to sell the other, and knowing also that the buyer believes he owns both, he commits a fraud on the buyer who gets title to but one horse under the purchase, even though he made no express representation that he owned both horses. Dealing with the property as his own is equivalent to a representation of ownership.

A man is entitled to get what he contracts for. If he fails in any material particular, through the fraud of the other

contracting party to get what he bargained for, he may rescind the contract and recover back what he paid on it.

One buying what the seller represents to him as white acre, relying upon such representations, when the property so purchased is in fact black acre, fails to get the thing for which he contracted, and hence may rescind without showing absolute pecuniary loss.

There must be a causal relation between the alleged fraud and the alleged injury to warrant a recovery. But where the thing obtained is the thing contracted for, and there can be no loss, then there cannot be any damage appreciable in law, and hence it would seem that in such a case there can be no causal relation between the alleged fraud and the supposed injury for the reason that the supposed injury is not established.

He who would recover damages in a court of law must set forth in an orderly manner the facts showing his right to recover and the amount to which he is entitled, to the exclusion of every presumption to the contrary. In such an action the damages are the essential thing. In an action to rescind on the ground of fraud, the fraud is the essential thing, and while it must be coupled with loss, injury, damage, the precise amount of such damage is of secondary importance.

[Plaintiff must make Restitution.]

The general rule that the party defrauded, if he would rescind the contract, must return or offer to return everything he received in execution of it, is not exacted on account of any feeling of partiality or regard for the fraudulent party. The law cares very little what his loss may be, and exacts nothing for his sake. If, therefore, he has entangled himself in the meshes of his own knavish plot that the party defrauded cannot unloose him, the fault is all his own, and the law only requires the injured party to restore what he has received, and, as far as he can, undo what has been done in the execution of the contract. This is all that the party de

frauded can do, and all that honesty and fair dealing require of him.

It is no objection to a restoration of property received on a fraudulent sale that it has fallen in value since the date of the transaction. Nor, if the property is of a perishable nature, is the holder bound to keep it in a state of preservation until the bill is filed.

A party seeking to set aside a sale of shares is not bound to pay calls on them to prevent forfeiture after filing his bill; nor is it fatal to his right of rescission that some of the shares have been thus perfected.

Parties engaged in a fraudulent attempt to obtain a neighbor's property are not the objects of the special solicitude of the courts. If they are caught in their own toils, and are themselves the sufferers, it is a legitimate consequence of their violation of the rules of law and morality. Those who violate those laws must suffer the penalty.

Upon principle there appears to be no good reason why a plaintiff in equity, suing upon equitable grounds, should be required, on the face of his bill, to submit to those terms which the court at the hearing may think it right to impose as the price of any relief to which he may be entitled.

Where one seeks the aid of a court of equity to set aside and rescind a contract, it is not essential that he should have previously attempted a rescission or should have made any tender to the other party, except when such tender is necessary to put the other party in default.

The exception to the general rule requiring tender, recognized by some of the authorities, is, that where the judgment or decree itself will accomplish the result of placing the other party in statu quo, a tender need not be made before suit brought, but that the rescission may be made by the pleadings.

There is this marked distinction between suits at law for the recovery of the consideration paid, after rescission by plaintiff, and bills in equity for rescission. The plaintiff at law must have the legal title to the thing sued for, if it be a chattel or the legal right to the sum demanded, at the time