of a bona fide purchaser the right to avoid it is gone, we give a perfectly consistent account of the matter.

FRAUDULENT SALE IS VOIDABLE AS TO WHOM.-Although a sale effected by fraud of the purchaser is voidable, it can be avoided only by the party defrauded. The fraudulent purchaser is bound by it, unless the defrauded vendor chooses to avoid it: White v. Garden, 10 Com. B. 919; Thayer v. Turner, 8 Metc. 552. As against the vendor, one purchasing from the vendee bona fide and without notice of the fraud, for a new consideration, before the vendor has exercised his election to disaffirm the sale, acquires a good title: Williams v. Merle, 25 Am. Dec. 613, note; Rowley v. Bigelow, 23 Id. 607; Root v. French, 28 Id. 482, and note; Price v. Junkin, Id. 685, and note; Fetterman v. Murphy, Id. 729, and note; Harris v. Horner, 30 Id. 182; Saltus v. Everett, 32 Id. 541; Parker v. Patrick, 5 T. R. 175; White v. Garden, 10 Com. B. 919; S. C., 20 L. J., C. P. 167; Kingsford v. Merry, 11 Ex. 577; Pease v. Gloaher, 3 Moo. P. C. (N. S.) 556; Moyce v. Newington, L. R., 4 Q. B. Div. 32; Babcock v. Lawson, Id. 394; Johnson v. Peck, 1 Woodb. & M. 334; Thompkon v. Rose, 16 Conn. 71; Williamson v. Russell, 39 Id. 406; Mears v. Waples, 3 Houst. 581; Kern v. Thurber, 57 Ga. 172; Chicago Dock Co. v. Foster, 48 Ill. 507; Ohio etc. R. R. Co. v. Kerr, 49 Id. 458; Titcomb v. Wood, 38 Me. 561; Powell v. Bradlee, 9 Gill & J. 220; Hall v. Hinks, 21 Md. 406; Cochran v. Stewart, 21 Minn. 435; Malcom v. Loveridge, 13 Barb. 372; Devoe v. Brandt, 53 N. Y. 462; Craig v. Marsh, 2 Daly, 61; Western Trans. Co. v. Marshall, 4 Abb. App. Dec. 575; Sinclair v. Healy, 40 Pa. St. 417; Hawkins v. Davis, 5 Baxter (Tenn.), 698; Williams v. Given, 6 Gratt. 268; Old Dominion St. Co. v. Burckhardt, 31 Id. 664. And one purchasing under such bona fide purchaser will be protected, although he has notice of the fraud: Williamson v. Mason, 12 Hun, 97. A bona fide purchaser from a fraudulent purchaser of goods will get a good title against the vendor, although the fraud amounted in law to a felony: Malcom v. Loveridge, 13 Barb. 372. The rule as to bona fide purchasers applies also to bona fide pledgees or pawnees of the goods, who have made advances thereon on faith of the fraudulent purchaser's title: Pease v. Gloahec, 3 Moo. P. C. (N. S.) 556; Kingsford v. Merry, 11 Ex. 577; Babcock v. Lawson, L. R., 4 Q. B. Div. 394; and the defrauded vendor can not recover the goods without repaying such advances: Kingsford v Merry, 11 Ex. 577. And where the former owner gets possession of goods so pawned by the fraudulent vendee, the pawnee may maintain trover for them: Parker v. Patrick, 5 T. R. 175. The master and owner of a vessel who in the ordinary course of business has given the fraudulent vendee a negotiable bill of lading for the goods, is within the rule protecting bona fide purchasers: Western Trans. Co. v. Marshall, 4 Abb. App. Dec. 575.

As already stated, in order to entitle one to protection in such a case as a bona fide purchaser, he must have advanced some new consideration, or incurred some new liability on the faith of the fraudulent vendee's apparent ownership of the goods: Johnson v. Peck, 1 Woodb. & M. 334; McLeod v. First Nat. Bank, 42 Miss. 99. Hence, one who takes the goods merely as payment or security for a pre-existing debt is not such a bona fide purchaser: Hyde v. Ellery, 18 Md. 496; Johnson v. Peck, 1 Woodb. & M. 334; contra, Shufeldt v. Pease, 16 Wis. 659. So an assignee of the fraudulent vendee for the benefit of creditors, incurring no new liability on the faith of his title, is not a bona fide purchaser: Farley v. Lincoln, 51 N. H. 577; S. C., 12 Am. Rep. 182; Harris v. Horner, 30 Am. Dec. 182; Nichols v. Michael, 23 N. Y. 264. See also Clark v. Flint, post, and note. So the vendee's assignee in bankruptcy: Load v. Green, 15 Mee. & W. 216. So attaching creditors of the

fraudulent vendee: Buffington v. Gerrish, 8 Am. Dec. 97; Thompson v. Rose, 16 Conn. 71; Bidault v. Wales, 20 Mo. 546; American Merchants' Union Express Co. v. Willsie, 79 Ill. 92; Poor v. Woodburn, 25 Vt. 234; Field v. Stearns, 42 Id. 106. The defrauded vendor may have replevin against an officer attaching the goods as the vendee's property: Jordan v. Parker, 56 Me. 557; or trover after demand: Thompson v. Rose, 16 Conn. 71. One who receives the goods from the fraudulent vendee in satisfaction or execution of a previous contract is not such a bona fide purchaser as will be protected under the rule: Barnard v. Campbell, 58 N. Y. 73; S. C., 17 Am. Rep. 208. It hardly needs to be stated that one who purchases from the fraudulent vendes with notice of the fraud, or whose title is tainted with any manner of fraud, can not hold against the defrauded vendor: Stephens v. Austin, 1 Metc. 558; Lynch v. Beecher, 38 Conn. 490; Meacham v. Collignon, 7 Daly, 402. A purchaser with notice of the fraud is not entitled to notice of rescission: Meacham v. Collignon, supra; Stephens v. Austin, 1 Metc. 558.

The ground for the rule protecting the title of a bona fide purchaser in such cases, which is preferred by Lord Chief Justice Cockburn in Moyce v. Newington, L. R., 4 Q. B. Div. 32, is that as both the defrauded vendor and the bona fide purchaser are innocent of any wrong, the former should bear the loss, because it is by his act that the vendee is enabled as apparent owner to make the sale to such bona fide purchaser; and his lordship expresses his de cided approval of the doctrine of Root v. French, 28 Am. Dec. 482, on that point.

ELECTION TO AFFIRM OR DISAFFIRM, WHEN AND HOW EXERCISED.-The general rule is, that a vendor must exercise his right of election to affirm or disaffirm a fraudulent sale, within a reasonable time after the discovery of the fraud, and before the rights of innocent third persons become involved: Oakes v. Turquand, L. R., 2 Eng. and Ir. App. 325; Reese River Silver Mining Co. v. Smith, 4 Id. 64; Bulkley v. Morgan, 46 Conn. 393; Cobb v. Hatfield, 46 N. Y. 533; Barnard v. Campbell, 58 Id. 73; S. C., 17 Am. Rep. 208. But the vendor may keep the question open, it seems, so long as he does nothing to affirm the contract, and so long as no innocent third party acquires any interest: Clough v. London etc. R. W. Co., L. R., 7 Ex. 26. He may disaffirm the sale even after action brought by the vendee's agent to recover the goods, if the fraud is then discovered, although he has previously undertaken to stop the goods in transitu under the mistaken notion that the transit still continued, when in fact it was ended: Id. But the election once made is binding forever: Id. The vendor can not both affirm and disaffirm. He can not treat the sale as valid and recover judgment for the price, and at the same time repudiate the sale for fraud and recover the goods from third persons to whom they have been assigned for value: Lloyd v. Brewster, 28 Am. Dec. 88, and note.

A sale on credit procured by fraud may be rescinded before the credit expires by bringing trover or replevin for the goods: Ferguson v. Carrington, 9 Barn. & Cress. 59; S. C., 17 Eug. Com. L. 37: Kellogg v. Turpie, 2 Bradw. (Ill.) 55; Dellone v. Hull, 47 Md. 112. And it is held in Hodgeden v. Hubbard, 18 Vt. 554, that the vendor may retake the property, using no more force than necessary, and that he may use such additional force as may be required to accomplish the retaking where the fraudulent purchaser draws weapon and resists such retaking. The disafirmance must be total, as already intimated. Hence, if the vendor after knowledge of the fraud accepts any benefit under the contract, or takes security for the price, he shall be deemed to have affirmed the sale and can not afterwards disaffirm it: Cobb v. Hatfield,

AM. DEC. VOL. XXXIII-45

46 N. Y. 533; Joslin v. Cowee, 52 Id. 90; Gregory v. Schoenell, 55 Ind. 101. Where the vendor takes from the vendee an assignment of his claim to a surplus that may result to him upon an assignment for the benefit of creditors, although it is stipulated in the assignment that he is not to be thereby precluded from reclaiming the property, this is nevertheless a binding affirmance: Joslin v. Cowee, 52 N. Y. 90. If the vendor sues on the contract for the price, he affirms the contract, and can not afterwards set up title to the goods on the ground of the original fraud: Dibblee v. Sheldon, 10 Blatch. 178; nor can he discontinue the suit and disaffirm the contract: Butler v. Hildreth, 5 Metc. 49; Bulkley v. Morgan, 46 Conn. 393. If suit is brought for the price before the term of credit expires, it is premature; for, as already stated, the contract must be affirmed or disaffirmed as a whole, and consequently the vendor can not, on the ground of the fraud, rescind the credit and sue for the price immediately, thus converting the transaction into a cash sale: Ferguson v. Carrington, 9 Barn. & Cress. 59; S. C., 17 Eng. Com. L. 37; Strutt v. Smith, 1 Cromp. Mee. & R. 311; Read v. Hutchinson, 3 Camp. 351; Kellogg v. Turpie, 2 Bradw. (Ill.) 55; Dellone v. Hull, 47 Md. 112; Whitlock v. Heard, 3 Rich. (S. C.) 88. A contrary doctrine to this is laid down in De Symons v. Minchwich, 1 Esp. 430, where it is held that the vendor may in such a case sue immediately, notwithstanding the credit. In Roth v. Palmer, 27 Barb. 652, the action was for the price of the goods, and was brought before the term of credit expired, the complaint setting out the fraud and alleging that by reason thereof the defendant became liable to pay the price immediately. The action was sustained on the ground that the vendor on rescinding could either sue in tort, or on an implied contract to pay, waiving the tort. A similar conclusion was reached in Wigand v. Sichel, 3 Keyes, 120, where, however, Hunt, J., who delivered the opinion, put the decision on the ground that it was the credit merely, and not the sale that was rescinded. He said: "It is not accurate to say that the plaintiffs sought to avoid the contract of sale. It is the credit, only, that is sought to be avoided. It was a sale of goods which the plaintiffs by their action affirmed. It was, however, a sale where the credit was obtained by fraud, and in law amounted to a sale for cash. In stating it in their complaint, therefore, to be a sale, and for cash, the plaintiffs but stated the contract according to its legal effect. They did not seek to avoid the contract of sale. They endeavored, merely by proof of the act of fraud, to reduce the transaction to a cash sale."

It seems to us wholly at variance with sound principles to permit a vendor thus to dissect out such parts of a contract as are acceptable to him and to disaffirm the residue. The position taken in Roth v. Palmer, above referred to, that the vendor on rescinding the contract in such a case may waive the tort and sue in assumpsit, presents the anomaly of permitting a party to rely upon a tort and at the same time to waive it. He is allowed to rely upon the tort to get rid of his contract, and at the same time to waive the tort and sue upon an implied contract. But if he waives the tort, does he not affirm the express contract? That would seem to be the logical consequence, since the existence of the tort is the only thing that prevents the contract from being absolutely binding on both parties. Suing upon the contract does not, however, estop the vendor from setting up the fraud to defeat a plea of a discharge in bankruptcy, where the statute provides that the discharge shall not affect debts fraudulently contracted: Stewart v. Emerson, 52 N. H. 301. There is nothing inconsistent in this, for, as is well shown in that case, there is no attempt to rely both upon the contract and upon the tort as a substantive cause of action. The suit is upon the contract throughout, and the tort is resorted to, not to disaffirm the contract or to affect it in any way, but

merely to avoid a statutory bar interposed to prevent the enforcement of the contract.

VENDOR MUST RESTORE CONSIDERATION.-In order to rescind a sale on the ground of fraud, the vendor must put the other party in statu quo by restoring the consideration if he has received it or any part of it, whether it consist of money, goods, or notes of third persons: Kimball v. Cunningham, 3 Am. Dec. 230; Carneal v. May, 12 Id. 453; Durrett v. Simpson, 16 Id. 115; Curtiss v. Howell, 39 N. Y. 215; Cobb v. Hatfield, 46 Id. 533; Guckenheimer v. Angewine, 81 Id. 394; Poor v. Woodburn, 25 Vt. 234; Bartlett v. Drake, 100 Mass. 176 (citing the principal case). If he has taken the vendee's own note he need not offer to return it before rescinding, but it will be sufficient if he delivers it up at the trial: Ryan v. Brant, 42 Ill. 86; Nichols v. Michael, 23 N. Y. 264, both citing the principal case. He must not, therefore, have parted with the note before the trial: Poor v. Woodburn, 25 Vt. 234. The only cases, however, in which it is sufficient to surrender notes at the trial without tendering them before the action, are those where the notes are those of the purchaser: Bassett v. Brown, 105 Mass. 558, referring to Thurston v. Blanchard. Where the note of the vendee and of a third person has been given for the property, and the vendor wishes to rescind because of false and fraudulent representations as to the surety's solvency, he may bring replevin, but must first offer to return the note and demand the property: Moriarty v. Stofferan, 89 Ill. 528. If the vendor has received property in payment which he can not restore, he must account for the price at which it was estimated in the contract, with interest thereon: Durrett v. Simpson, 16 Am. Dec. 115. The vendor is not bound to reimburse the fraudulent vendee for advances made to others in consummation of the fraud, though he receives the benefit of such payment on repossessing himself of the property, as where the vendee has paid a government tax to get possession of the goods: Guckenheimer v. Ang wine, 81 N. Y. 394. Nor is he bound to refund a part payment before suing, where the vendee has funds sufficient to reimburse him, derived from sales of portions of the goods while in his hands: Peters v. Hilles, 48 Md. 506.

KNOWN INSOLVENCY NOT DISCLOSED DOES NOT OF ITSELF MAKE PURCHASE FRAUDULENT.-It has been repeatedly determined that the mere fact that a purchaser of goods on credit is insolvent, and knows himself to be so, and yet does not disclose that fact to the vendor, is not enough to render the sale fraudulent and voidable, if no questions are asked on that point, and no trick or fraud is resorted to to conceal the insolvency, and if there is no preconceived design not to pay for the goods: Story on Sales, secs. 174, 176; Benj. on Sales, sec. 440, note to Am. ed.; Cross v. Peters, 10 Am. Dec. 78; Bidault v. Wales, 19 Mo. 36; Mears v. Waples, 3 Houst. (Del.) 581; Bell v. Ellis, 35 Cal. 620, overruling Seligman v. Kalkman, 8 Id. 207; Powell v. Bradlee, 9 Gill & J. 220; Buckley v. Artcher, 21 Barb. 585; King v. Phillips, 8 Bos. 603; Fish v. Payne, 7 Hun, 586; Byrd v. Hall, 2 Keyes, 646; Nichols v. Pinner, 18 N. Y. 295; Nichols v. Michael, 23 Id. 264; Hennequin v. Naylor, 24 Id. 139; Wright v. Brown, 67 Id. 1; Talcott v. Henderson, 31 Ohio St. 162; S. C., 27 Am. Rep. 501, and note; Garbutt v. Bank, 22 Wisc. 384; Redington v. Roberts, 25 Vt. 686; Cony rs v. Ennis, 2 Mason, 236; Ex parte Whittaker, L. R., 10 Ch. App. 446. In the case last cited, James, L. J., says on this point: "A man is not bound to tell all his affairs to those with whom he deals, though he must not say anything which amounts to a misrepresentation." In that case the purchaser knew that bankruptcy proceedings had already been com menced against him, and yet the learned judge says that "he might suppose

he had a chance of paying" the small debt upon which the proceedings orig inated, and thus put an end to them. Certainly, if the purchaser, though knowing himself insolvent, intends to pay, and has a reasonable expectation of being able to do so, he ought not to be deemed guilty of a fraud: Talcott v. Henderson, 31 Ohio St. 162; S. C., 27 Am. Rep. 501. Even if he has no such reasonable expectations, it is held in Biggs v. Barry, 2 Curt. 259, not to be sufficient to authorize a rescission for fraud, unless there is a fraudulent purpose, although it may induce a jury to find a fraudulent purpose. The doctrine of Johnson v. Monell, 2 Abb. App. Dec. 470, as stated in the reporter's head-note. is in direct conflict with the cases above cited. The head-note is, that "the mere omission of one purchasing goods on credit, to disclose the fact that he is insolvent and unable to pay, is sufficient, without any affirmative representation, to render the purchase fraudulent and the sale void. On examining the case, however, it will be found that the doctrine really laid down in it was that concealment of insolvency was a matter of evidence, from which a jury might find a fraudulent purpose not to pay. There is nothing in the case giving countenance to the doctrine that concealment of insolvency, without a fraudulent design not to pay, is sufficient to render a sale voidable for fraud.

PRECONCEIVED Design not tO PAY IS ENOUGH.-In some cases courts have gone so far as to hold that even if there is coupled with the purchaser's knowledge and concealment of his insolvency, a distinct purpose not to pay for the goods, the sale is nevertheless not fraudulent and voidable, but that "there must have been actual artifice intended, and fitted to deceive, before a man can claim that he has been defrauded:" Smith v. Smith, 21 Pa. St. 367; Backentoss v. Speicher, 31 Id. 324. See also Bell v. Ellis, 33 Cal. 620, and the opinion of Selden, J., in Nichols v. Michael, 23 N. Y. 274, approving the same doctrine. "The right of reclamation after delivery," says Lowrie, J., in Smith v. Smith, 21 Pa. St. 372, "exists only where an action of deceit would lie." The ground upon which this doctrine is rested in that case, is that in order to constitute a fraud, there must be some act concurring with the intent not to pay, because an intent to commit fraud is not itself a fraud, and that the act of purchasing is not such an act as will complete the fraud, because it is in itself a lawful act. This reasoning, however, is, it seems to us, effectually answered in the able and elaborate opinion of Doe, J., in Stewart v. Emerson, 52 N. H. 301. He says in substance, that, while an intent not to pay for the goods, if standing alone, would not constitute a fraud, yet if that intent is concealed, there is a concealment of a material fact, because the expectation of payment is the vendor's sole inducement for parting with the goods. Here, then, is the fraudulent intent, coupled with the concealment which will make it operative, and if the vendor is thereby induced to part with his property the fraud is completed. It is true that a purchase of goods is a lawful act, but an intent to pay is essential to constitute one a purchaser. Getting possession of goods with an intention not to pay is not a purchase, and is not a lawful act. It is true that until the term of credit has expired, and payment is not made, the fraudulent intent not to pay can not be said to be consummated. In the interim the fraudulent vendee may change his purpose and determine to pay as he has promised; but he might do the same even if there had been positive misrepresentations, such as to amount to obtaining the goods under false pretenses. There is no more reason for giving the purchaser locum penitentiæ, and postponing the vendor's right to rescind, in the one case than in the other. The observations of Hoar, J., on this subject in Dow v. Sanborn, 3 Allen, 181, are apt and cogent; he says: "We cau entertain no doubt that when goods are purchased with a preconceived in