dence to show that, by the laws of France, such receipts required stamps to render them valid, was rejected; and Abbott, C. J., then said, "In the time of Lord Mansfield, it became a maxim, that the courts of this country will not take notice of the revenue laws of a foreign state; there is no reciprocity between nations in this respect. Foreign courts do not take. notice of our stamp laws, and why should we be so courteous to them, when they do not give effect to ours? It would be productive of prodigious inconvenience, if, in every case in which an instrument was executed in a foreign. country, we were to receive in evidence what the law of that country was, in order to ascertain whether the instrument was valid or not:" James v. Catherwood, 3 D. & R. 190. But, if a bill or instrument be made in any part of the king's dominions, as in Jamaica, where, by the law of such place, a stamp is required, such instrument cannot be recovered upon in [*526] a court here, unless properly* stamped, according to the law of the place where the same was made: Alves v. Hodgson, 7 T. R. 241; Clegg v. Levy, 3 Camp. 166.

PROOF OF.] The existence of a foreign law, from which any instrument derives its legal operation, must be first proved, before such instrument will be allowed to be given in evidence in an English court, Ganer v. Lanesborough, Pea. Rep. 17, 1 D. & R. 41, a.; and it lies in the party setting up the foreign law in his discharge, to prove the same. Where, to prove a divorce, an instrument was produced, under the seal of the synagogue at Leghorn, Ld. Kenyon held, that the law of the country must be known before he could take notice of a proceeding in a foreign court: ib. And, where a party justifies an arrest in Scotland, he must make that justification complete, by pleading the law of Scotland to show the validity of the arrest: Mure v. Kaye, 4 Taunt. 44; Freemoult v. Dedire, 1 P. Wms. 431. So, where the acceptor of a bill had been discharged by the laws of the country where the bill was drawn, after proof of the custom there regarding bills of exchange, he was allowed to give such discharge in evidence, in answer to an action brought against him here: Burrows v. Jemino, 2 Str. 733; Feanbert v. Turst, 1 Brown, P. C. 38.

The existence of the written law of a foreign country must be proved by the production of an authenticated copy: Clegg v. Levy, 3 Camp. 166; Millar v. Heinrick, 4 ib. 155; Inglis v. Usherwood, 1 East, 521; Buchanan v. Rucker, 1 Camp. 63. To prove the acts of state of a foreign government, copies should be produced examined by the public archives abroad: Richardson v. Anderson, 1 Camp. 65, n. A copy of the civil code of France was admitted in evidence, when produced by the French consul, and declared by him to be an authentic copy of the law of France: Lacon v. Higgins, D. & R. N. P. C. 1 Ph. Ev. 383. The unwritten law of a foreign country may be proved by the parol examination of witnesses of competent professional skill: Millar v. Heindrick, 4 Camp. 155; but see Borthlinck v. Schneider, 3 Esp. Rep. 58.

FOREIGN PLEA.

See "ABATEMENT."

FRAUD.

PLEADINGS AS TO.] In an action for fraud or misrepresentation, where there has been a contract, it is now more usual to declare in assumpsit, so as to join the count for money had and received, as in the case of a false warranty, or other misrepresentation in the sale of goods; an action on the case, however, also lies, Doug. 91; and, if there has been any actual fraud or misrepresentation, independent of a contract, 4 Camp. 22, it is the preferable form of action, especially as the scienter, though expressly alleged in the declaration, need not be proved: Williamson v. Allison, 2 East, 446; Jarvis v. Adamson, 4 Bing. 69. And, for fraudulently representing a person fit to be trusted, or for other deceit, where there has been no contract between the parties, or the deceit be independent of the contract, Meyer v. Ewerth, 4 Camp. 22, Gardiner v. Gray, ib. 144, Laing v. Fidgeon, ib. 169, Powell v. Edmunds, 12 East, 11, case is the proper form of remedy: 1 Chit. Pl. 129. And, in some cases, where there has been fraud, and the Statute of Limitations is expected to be set up as a defence, it is best to sue for the fraud, in preference to *su- [*527] ing on the contract: Brown v. Howard, 4 Moo. 508; 2 B. &

B. 73, s. c.; Short v McCarthy, 3 B. & A. f. 626; Howell v. Young, 5 B. & C. 259; 8 D. & R. 14. An action on the case for deceit lies, though it be stipulated that the vendee may return the article if he dislike it: Wallace v. Jarman, 1 Stark. 162.

Assumpsit lies for money obtained by fraud, Lumine v. Dorrell, 2 Ld. Raym. 1216, Hitching v. Campbell, 2 Bl. R. 827, 3 Wils. 204, Boyter v. Dodsworth, 6 T. R. 683, 1 Chit. Pl. 87, or for the value of goods obtained, Boughton v Sandiland, 3 Taunt. 374, 6 T. R. 681, Rex v. Filewood, 2 T. R. 145, 3 Wils. 304, 5 Moo. 525, the plt. being at liberty to waive the tort: but, in these cases, it may sometimes be advisable to sue in case, to avoid a set-off, or to obtain the real value of the goods, or to avoid doubtful right in plt. to the goods: see Smith v. Hodson, 4 T. R. 211; Edmeads v. Newman, 1 B. & C. 418; 2 D. & R. 568, s. c. Assumpsit lies for goods as sold against a deft., who, by fraud, procured the plt. to sell to an insolvent goods which the deft. got in his possession: Smith v. Spooner, 3 Taunt. 274; and see Biddle v. Levy, 1 Stark. 20; but see Read v. Hutchinson, 3 Camp. 352.

As it is an intendment of law that a person is innocent of a fraud, or any other imputation affecting his reputation, the party insisting upon the contrary must state it fully in pleading: Co. Lit. 78, b.; Heath's Maxims, 207 to 212; 1 Chit. Pl. 204. In an action for falsely representing a third person fit to be trusted, a scienter must be alleged and proved; though, indeed, the word "fraudulently" might be a sufficient allegation in this respect, especially after verdict: Willes, 584. But in an action on the case for fraud, or on misrepresentation of any kind, an express warranty, or scienter, need not be alleged, nor proved if alleged: 2 East, 446; Adamson v. Jarvis, 4 Bing. 69.

Where fraud is intended to be set up as a defence, it may be given in evidence under the general issue in assumpsit: Doug. 433; 2 T. R. 551. Even in debt on a specialty, a defence that the deed was obtained by fraud may be given in evidence under non est factum, 2 Camp. 272, though it is most usual to plead it. In such a plea, or in a replication of fraud, it is

necessary to state the particulars of the fraud: 9 Co. 110. The usual replication to a plea of fraud in debt on a specialty is, that the same was duly obtained: Com. D. Pleader, 2 T. R. W. 19, 20.

ITS EFFECT IN GENERAL.] All contracts, specialities, and transactions, tainted with fraud, are void, though the fraud does not appear on the face of them: Petrie v. Hannay, 3 T. R. 418; 2 Stark. Ev. 586; 3 Chit. Cont. 81, 222. But, in the case of records obtained by fraud or collusion, third persons only can set up the defence, and not the parties to the record, whose only relief is in equity, except in the case of a judgment obtained on a cognovit, or warrant of attorney: 2 Marsh. 392, 7; 7 Taunt. 97, s. c.; 1 Anst. 8; 3 V. & B. 42; Doug. 196; Cowp. 727; 1 H. Bl. 75. Where A. agreed to underlet his house to B., the latter paying for the furniture at an appraisement, it was decided that B. was excused from the performance of the agreement, because A., at the time he granted the house, was in arrear for rent to his landlord: 3 B. & P. 172. Where a sale is fraudulently procured by the vendee, he may be sued by the vendor, before the expiration of the credit agreed on to be given: 1 Esp. Rep. 430; 2 ib. 523. As to frauds in cases of sale, &c., post, "Goods Sold." "Goods Sold." The obtaining goods under false pretences, under colour of purchasing them, or otherwise, does not change the property: 7 Taunt. 59; 6 Mod. 114. Money obtained by fraud or mispresentation is recoverable back, although the deft. would, in equity, be entitled to the money: 1 Camp. 124; 1 Salk. 28; 5 Moo. 98; 3 Taunt. 274. No part of a fraudulent transaction can be sup

ported, except where a consideration has been given, in conse[*528] quence of which, the parties cannot be placed in the same situation: and, in ordinary cases of fraud, in equity, the whole transaction is undone, and the parties replaced in their former situation: Danberry v Cockburn, 1 Meriv. 643. The defence of fraud cannot, in general, be set up by a party privy to it; for no person can allege his own fraud to invalidate his own deed: Cro. J. 270; Roberts v. Roberts, 2 B. & A. 367; 1 W. Bla. 363. And it is not permitted to a vendor, or other person, to defeat even collaterally, his own sale or act, on the ground that it operated as a fraud on his creditor, or the like, 1 Stark. 60, 2 B. & A. 134, Cro. J. 670, 3 V. & B. 42; sed quære, if the court will not allow, in some cases, a defence of fraud, on third persons, to be set up by a party privy to it.

PROOF OF.] The fraud may be proved by parol evidence, or any circumstances, however contrary to apparent facts or statements in the written instrument: B. N. P. 172; 2 B. & A. 370. This rule does not contra

vene the general one against the admissibility of parol testimony against written, as the effect and result of such evidence is, that the instrument never had any operation; and, on grounds of policy and necessity, this rule may be supported: 3 B. & C. 623. The mode of proving fraud must depend on the facts of each particular case. As to what amounts to fraud, see Chit. Cont. 222 to 227, 113, 137; 3 Chit. Com. Law, 155, &c.

FRAUDULENT CONVEYANCE.

WHERE a person claims by virtue of an assignment, the opposite party may impeach the transaction, either by evidence to show the transfer was

merely colourable; or, if an assignment has been regularly executed, so as to transfer the goods as between the debtor and the assignee, it may be shown that, as against a creditor, the conveyance is void under 13 El. c. 5, (confirmed by 14 El. c. 11, s. 1, and made perpetual by 29 El. c. 5, s. 2,) which enacts, that fraudulent deeds, &c., made to avoid the debts of others, shall be void. This is a very common defence in an action against a sheriff for seizing goods in execution. It may be given under the general issue, either in trespass or trover, as it shows that the goods are not the goods of the plt. But, if the goods were, in fact, the goods of the plt., but the deft. justifies the taking of them under a fi. fa. against him, such defence cannot be given in evidence under the general issue in trespass, but the same must be pleaded specially.

The statute extends to the fraudulent assignment of personal property; but it is doubtful how far surrenders of copyhold are within it: 1 Cox. R. 278. The party injured, alone, can avail himself of this statute: Hawes v. Leader, Cro. J. 270; Warmoll v. Young, 5 B. & C. 660; 8 D. & R. 442.

It is usually, under this statute, a question of fact for the jury, whether the assignment has been executed with intent to defraud either the whole body of the creditors, or some particular creditor: Leonard v. Baker, 1 M. & S. 251. And, in such cases, it may be a question of law, or of fact, or a mixed question of law and fact, whether the assignment amounted to a fraud: per Buller, J., Estwick v. Caillard, 5 T. R. 420. When the fraud may be collected from the instrument or deed coupled with the extrinsic circumstances and intention of the parties, it is a question of law arising from the facts so found; but, when it depends upon the intent, its existence is a fact to be ascertained by a jury: ib.

What amounts to a Fraudulent Conveyance, &c.] Voluntary assignments of property, without valuable consideration, would, prima facie, amount to fraud under this statute, 1 Fonbl. 271; [529] though, nevertheless, the party conveying must be in insolvent circumstances at the time of the conveyance, to render it fraudulent: 5 Ves. 384; 2 Atk. 520. A debtor may, under this act, without fraud, assign a part or the whole of his property to a particular set of creditors or ereditor, if possession is at the same time given, although to the hindrance of his other creditors. No conveyance can be fraudulent unless it can be proved that the party conveying the goods was indebted in an equal sum at the time of the conveyance, or nearly so, B. N. P. 257; though this has been doubted, ib., as there would be a difficulty in showing that the object of the conveyance was to delay the creditor. Still, it seems, that if a conveyance could be proved to have been made with a view to defraud a future creditor, it would be void under the stat. 5 T. R. 420. An assignment by a deft., pending the plt.'s suit, of all his effects, for the benefit of his creditors, under which possession is immediately taken, is not fraudulent, 4 East, 1, although made to delay the plt'.s execution: neither is it fraudulent to confess a judgment to one creditor, in order to defeat the pending execution of another creditor, 5 T. R. 424; for a debtor, as well as an executor, may give preference to a particular creditor: ib.

The absolute transfer of personal chattels, without a delivery of possession, is evidence of fraud: Edwards v. Harben, 2 T. R. 587. In general, the continuing possession of the vendor, or assignor, affords a strong presumption of fraud: Twyne's case, 3 Rep. 80, b. Thus, where the VOL. II.

5

vendor remains in possession, jointly with the servant of the vendee, it affords a strong legal presumption that the assignment is fraudulent and void against creditors: Wordall v. Smith, 1 Camp. 333. And, in Twyne's case, 3 Rep. So, where A., being indebted to B., and also to C., who brought his action, made a secret conveyance of his goods to B., but continued in possession, the conveyance was held to be fraudulent within the statute: 1, because the gift was general; 2, because the donor continued in possession of the goods, and used them as his own; and, 3, because it was made pending the writ: B. N. P. 258; 2 Stark. Ev. 619. But a bill of sale, unaccompanied by possession, is valid against a creditor who is privy, and assenting thereto, Steel v. Brown, 1 Taunt. 381; and, though no possession be given, a presumption that the sale is bona fide may arise from the fluctuating state of the market: Benton v. Thornhill, 2 Marsh. 427; 7 Taunt. 149. The fact of the vendor's continuing in possession may not always be indicative of fraud, as where the want of immediate possession is consistent with the deed, as in cases where the assignment is from husband to wife: Codogan v. Kennet, Cowp. 432; ib. 435; 3 T. R. 620, notis; ib. 618; 10 Ves. 150. But, if the continuing in possession be accompanied by other circumstances, as if the consideration be grossly inadequate, Dewey v. Baynton, 6 East, 257, or the wife permits third persons to treat the property as her husband's, it may be evidence of fraud: Bucknal v. Roiston, Prec. Ch. 285; Cole v. Davies, 1 Ld. Raym. 724; Dean v. Brown, 8 D. & R. 95. And, in greneral, if the possession taken be merely colourable, there will be evidence of fraud, as where a creditor took possession on the 4th of April of the goods of a publican, under a bill of sale, and the person in possession permitted him to serve out liquors, and receive money as usual, till next day, when the goods were seized under an execution: Paget v. Purchard, 1 Esp. Rep. 205.

Where the plt. has never been in possession of the goods, but claims by an assignment, under which possession has never been given, it will be sufficient for the deft. to show that the assignment is fraudulent and void, and unnecessary for him, in such case, to go further, and give evidence of the judgment and writ under which the goods are taken; but where the plt. was in possession of the goods at the time of the taking, the deft. must

prove the judgment and writ, as he would otherwise appear to be [*580] a wrong-doer, and the plt., being in possession, would have a *sufficient title as against him: Lake v. Billers, 1 Ld. Raym. 733; but see Martyn v. Padger, 5 Burr. 2631. Declarations and admissions made by the assignor at the time of executing the bill of sale, &c., are admissible, as part of the res gæstee, but if not made at another time: Phillips v. Eamer, 2 Esp. Rep. 357; 5 Esp. Rep. 243. The time of the transfer, with relation to the plt. 's action, verdict and judgment, (as if it be made immediately after a verdict for the plt.) the connexion between the parties (as where it is made to a son or daughter,) the secrecy with which it was made, the want of consideration, as evidenced by the probable inability of the sup posed purchaser, are obviously material and important circumstances to be submitted to a jury: 2 Stark. Ev. 617.

FREIGHT.

Form of Remedy for, and Pleadings.] Where freight is payable under a bill of lading, the master or owner's remedy for it is in assumpsit or debt.