tention not to pay for them, this is a fraud upon the vendor which will entitle him to repudiate the sale. Such is the doctrine of the English authorities; and although it has been questioned in some recent cases in Pennsylvania and New York, it rests upon sound principles of morality and law. In such a case the fraudulent party pretends to be a purchaser when he is not, but is in fact attempting to obtain possession of the property of another dishonestly, with a view to deprive him of it without consideration. As far as the buyer is concerned, the whole sale is a mere fiction, a delusion, imposed upon the seller to induce him to part with the possession. If it be said that a mere intention does not constitute a fraud, the answer is, that the purchase with such a fraudulent intention is a fraudulent act. In its moral quality, it is hard to distinguish it from a larceny. There are other cases in which an intention to defraud entitles the party against whom the fraud is meditated, to treat a sale as a nullity, such as sales made with intent to defraud creditors. And however the law might be held elsewhere, in Massachusetts a purchase of goods with an intent not to pay for them is expressly recognized by statute as a fraud, which will deprive the debtor of the benefit of the act for the relief of poor debtors, and may subject him to sentence of imprisonment: Gen. Stat., c. 124, secs. 5, 34; Rev. Stat., c. 98, secs. 31, 36."

It is settled in accordance with the two decisions just referred to, by an overwhelming array of authority, that a purchase of goods with a preconconceived design not to pay for them, is fraudulent, and voidable by the vendor, although there may have been no actual, express misrepresentation of any material fact. This intent, concealed from the vendor, is enough: Story on Sales, sec. 176; Benj. on Sales, sec. 440, American notes; Thompson v. Rose, 16 Conn. 71; Cross v. Peters, 10 Am. Dec. 78; Ayres v. French, 41 Conn. 142; Morrill v. Blackman, 42 Id. 324; Wiggin v. Day, 9 Gray, 97; Kline v. Baker, 99 Mass. 253; Shipman v. Seymour, 40 Mich. 274; Bidault v. Wales, 19 Mo. 36; S. C., 20 Id. 546; Buckley v. Artcher, 21 Barb. 585; Roth v. Palmer, 27 Id. 652; Barnard v. Campbell, 65 Id. 286; S. C., on appeal, 58 N. Y. 73; S. C., 17 Am. Rep. 208; King v. Phillips, 8 Bosw. 603; Meacham v. Collignon, 7 Daly, 402; Johnson v. Monell, 2 Abb. App. Dec. 470; Nichols v. Michael, 23 N. Y. 264; Wright v. Brown, 67 Id. 1; Talcott v. Henderson, 31 Ohio St. 162; S. C., 27 Am. Rep. 501, and note; Reddington v. Roberts, 25 Vt. 686; Parker v. Byrnes, 1 Low. 539; Donaldson v. Farwell, 93 U. S. 631; Ex parte Whittaker, L. R., 10 Ch. App. 446; Davis v. McWhirter, 40 U. C., Q. B. 598. A mere intention not to pay at the time agreed on is not sufficient; the intent must be never to pay: Bidault v. Wales, 20 Mo. 546. The existence of such intent is a question for the jury: Byrd v. Hall, 2 Keyes, 646. It need not be proved by direct evidence; indeed, in most cases, that would be impossible; but it may be inferred from the circumstances of the case: Johnson v. Monell, 2 Abb. App. Dec. 470. If the purchaser has no reasonable expectation of being able to pay, it is equivalent to an intent not to pay, or, more accurately speaking, an intent not to pay is to be presumed: Talcott v. Henderson, 31 Ohio St. 162; S. C., 27 Am. Rep. 501; Johnson v. Monell, 2 Abb. App. Dec. 470; Powell v. Bradlee, 9 Gill & J. 220. See, also, Biggs v. Barry, 2 Curt. 259. A particular intent to defraud the vendor need not be shown, it seems, where a general intent to defraud by continuing to purchase on credit, the purchaser knowing himself to be hopelessly insolvent, is proved: Mullikin v. Millar, 12 R. I. 296.

OTHER FACTS SUFFICIENT TO WARRANT A PRESUMPTION of a fraudulent intent, which will render the sale voidable, are: Where payment is made in counterfeit money, in worthless securities, or in property to which the vendes

had no title: Williams v. Given, 6 Gratt. 268; Green v. Пumphrey, 50 Pa. St. 212; Manning v. Albee, 11 Allen, 523; Waters v. Van Winkie, 3 Am. Dec. 387. So where the vendee immediately resells the goods at a lower price, or assigns them to preferred creditors, or absconds, taking with him all his available assets, soon after the purchase: Ferguson v. Carrington, 9 Barn. & Cress. 59; S. C., 17 Eng. Com. L. 37; Byrd v. Hall, 2 Keyes, 646; Davis v. McWhirter, 40 U. C., Q. B. 598. Fraud may be inferred also from contemporaneous dealings with other parties, showing fraudulent views: Hennequin v. Naylor, 24 N. Y. 139; Wiggin v. Day, 9 Gray, 97; Mullikin v. Millar, 12 R. I. 296. Of tourse, where there are actual false and fraudulent representations as to a material fact at the time of the sale, there can be no question as to the fraudulent nature of the purchase, or as to its being voidable by the vendor: Johnson v. Peck, 1 Woodb. & M. 334. The representations must be both false and fraudulent: Morse v. Dearborn, 109 Mass. 593. But they need not be such as would be required to support an indictment for obtaining goods under false pretenses: Nichols v. Michael, 23 N. Y. 264. They must be made as to some material fact, and not as to a mere opinion respecting the purchaser's solvency, and of that the jury must judge: Morse v. Shaw, 124 Mass. 59; Stubbs v. Johnson, 127 Id. 219. An expression of opinion, however, which necessarily involves a misrepresentation or concealment of a material fact, in answer to an interrogatory, may amount to a fraudulent representation; as where a purchaser of a life insurance policy, knowing that the party insured was on his death-bed, which was unknown to the vendor, and being asked by the vendor as to his opinion of the value of the policy, made such an answer as to leave the vendor off his guard as to the real condition of affairs: Jones v. Keene, 2 Moo. & R. 348. False representations as to what those associ ated with the purchaser in making the purchase would be willing to give for the property, are not such false and fraudulent representations as will render the sale voidable: Vernon v Keys, 12 East, 32. Said Lord Ellenborough, delivering the opinion in that case: "Is a buyer liable to an action of deceit for > misrepresenting the seller's chance of sale, or the probability of his getting a better price for his commodity than the price which such proposed buyer offers? I am not aware of any case, or recognized principle of law, upon which such a duty can be considered as incumbent upon a party bargaining for a purchase. It appears to be a false representation in a matter merely gratis dictum, by the bidder, in respect to which the bidder was under no legal pledge or obligation to the seller for the precise accuracy and correctness of his statement, and upon which therefore it was the seller's own indiscre. tion to rely."

Further, it must appear that the representations were such as to deceive a prudent man, and were actually relied upon by the vendor. If the vendor relied, not upon the representations as to solvency, but upon his previous knowledge of the purchaser's character, derived from a course of dealing, it seems the sale can not be avoided for fraud: Gregory v. Schoenell, 55 Ind. 101. The representations may be made by an agent of the purchaser, or by one to whom he refers the seller for information: Kline v. Baker, 99 Mass. 253; Harner v. Fisher, 58 Pa. St. 453; Mullikin v. Millar, 12 R. I. 296; Fitzsimmons v. Joslin, 21 Vt. 129. As to concealment of facts affecting the value of the property, the better opinion would seem to be that such concealment does not amount to fraud, unless there is such a relation between the parties as to make it the vendee's duty to disclose the facts within his knowledge, or unless he does something to mislead the seller: Benj. on Sales, sec. 447; Story on Sales, sec. 174; Laidlaw v. Organ, 2 Wheat. 178; Kintzing v. McElrath, 5 Pa. St. 467; Butler's appeal, 26 Id. 63; Fisher v. Budlong, 10 R. I. 527.

PRINCIPAL CASE IS CITED in Boise v. Knox, 10 Metc. 44; Salisbury v. Gourgas, Id. 448; Thayer v. Turner, 8 Id. 552; Bussing v. Rice, 2 Cush. 49; Butler v. Collins, 12 Cal. 462, to the point that where an original tortious taking or actual conversion is proved, a demand is unnecessary before suing in trover. It is cited also to the following points: that a note is not a payment for goods so long as it remains in the vendor's hands not negotiated: Curtis v. Hubbard, 9 Metc. 328; that where a note, though in form negotiable, is not intended as a payment, it will be regarded rather as a liquidation and adjustment of the amount due than as a payment: Morton v. Austin, 12 Cush. 392.

VALENTINE v. BOSTON.

[22 PICKERING, 75.]

REDUCTION OF THE WIDTH OF A STREET BY VOTE OF THE TOWN operates a discontinuance of so much of it as is thereby excluded.

TOWN ACQUIRES A RIGHT OF WAY OVER A STRIP OF LAND adjoining a townway which has been left open to the public and uninterruptedly used as a part of the way for more than forty years. CONDEMNATION OF LAND FOr a Street ovER WHICH THE TOWN HAS A RIGHT of way by uninterrupted use, does not entitle the owner to damages. WAY MAY BE ACQUIRED BY DEDICATION or user.

TWENTY YEARS' USE OF LAND AS A WAY RAISES A PRESUMPTION that it has been dedicated by the owner for a way, and forty years' use of the land as a way gives the public a right of way over it.

PETITION to the court of common pleas for a jury to assess damages for a strip of land appropriated for a street in Boston, called Broad street. At the trial, the taking of part of the land was admitted, but the taking of the remainder, amounting to three hundred and seventy-four feet, was denied, as it was alleged that the city had a right of way over this part before and at the time of the appropriation for Broad street. The petitioners produced a record of the city, from which it appeared that on October 31, 1683, the selectmen staked out a highway, Sea street, fifty feet in breadth, on the casterly side of the proprietors' land. A record of a vote of the town, in 1736, by which the width of Sea street was reduced to thirty-five feet, was also produced. The easterly side of Sea street, as thus reduced, and the southwesterly side of Summer street, intersect each other at an acute angle. Nearly a century ago, the former owners of the petitioners' land set their building back from the intersection of the two streets, leaving a triangular piece open to the public use, which is included in the fifteen feet cut off from Sea street in 1736, and is the land now in question. The petitioners contended that the reduction of Sea street operated as a discontinuance of it over the fifteen feet, and that the land in question

could not be re-established as a way, unless laid out again according to the statute, and therefore belonged to the petitioners, who were abutters, on both sides of the way. They requested the judge to instruct the jury to that effect; and further, that a town-way could not be acquired by dedication, or in any other manner than by laying it out for that purpose pursuant to the statute. The judge, however, instructed the jury that a way could be acquired by dedication; that user for twenty years would raise a presumption of dedication, and that a user for forty years would give the public an absolute right of way; to which the petitioners excepted.

Osgood, for the petitioners.

Pickering, city solicitor, contra.

By Court, MORTON, J. The mayor and aldermen laid out a highway called Broad street, diagonally across the petitioners' land, for which they now seek a remuneration. The only question in the case relates to the amount of damages; which depends on the quantity of land taken. Broad street terminates at Sea street upon the petitioners' land, and the quantity taken will depend upon the boundary of the latter street. This is an ancient street, which has been used as such for more than a century. There is no question but the boundaries of it are well defined and clearly ascertained, according to such public use. But if any uncertainty did exist as to the line of the street, the mere lapse of time would define it by the buildings, as they stood at the laying out of Broad street: Stat. 1786, c. 67, sec. 7; Rev. Stat., c. 24, sec. 61. But it has been argued for the petitioners, that Sea street has been laid out according to law; that the lines of it are clearly ascertainable by the record, and that these lines leave to the petitioners a narrow strip of land in front of their building, containing three hundred and seventy-four feet.

It appears that Sea street was laid out by the town in 1683. It was at first fifty feet wide; but in 1736 the town voted to reduce the width to thirty-five feet. There can be no doubt that the street was originally laid out as a town way. It was done by the selectmen, who, at that time, had the power to lay out town ways, without the approbation of the town: Anc. Charters, etc., 127, 269. Nor can there be any doubt that the acts of the selectmen and the votes of the town, in reducing the width of the street, operated as a discontinuance of so much of it as was excluded by the reduction of the width: Anc. Charters, etc., 459; Commonwealth v. Inhabitants of Westborough, 3 Mass. 406.

In this state of things the owners of the petitioners' estate, which was then in the corner formed by the oblique intersection of Sea street and Summer street, to render less acute the angle thus formed and with a view to improve their own estate or to accommodate the public, or both, placed their buildings ten feet back from the angle, making Sea street at this point forty-five instead of thirty-five feet wide, and thus leaving open for public use the little triangle now in controversy. In this situation the street remained for almost a century. After this lapse of time, and after so long a user of this land by the public, the respondents contend that they have a right to continue to use it without making compensation for it. These facts, they argue, are abundant evidence of an easement in the city or in the public.

To this it is objected, that the street in question appears from the records to be a legal town way, established according to the provisions of the statutes, and that a town way can not be created or acquired by dedication, user, or a presumption of a grant, so that no additional width can be, by any means, acquired to such a way.

In Commonwealth v. Newbury, 2 Pick. 54, and Commonwealth v. Low, 3 Id. 408, it seems to be holden, that a town-way, as such, and with its statutory properties and qualities, can be acquired only in the method specially pointed out in the statute. And these positions we have now no occasion to call in question. Because if this strip of land may not be deemed a part of a town way, it does not necessarily follow that the public or the city. may not have an easement in it of some other character. When those decisions were made, the doctrine of dedication had not been recognized as the law of this state: Hinckley v. Hastings, 2 Id. 162. Since that time it has been fully adopted, in the case of Hobbs v. Inhabitants of Lowell.' So in Commonwealth v. Low, it is said a town "may become seised of a right of way by grant, prescription, or reservation. A grant also may be presumed from continued occupation, as well in favor of a corporation as of an individual:" 3 Pick. 413. Now from the uninterrupted public use of this land for a century, we can entertain no doubt that an easement was established in it. And whether it may have been acquired by a grant, or dedication, or the presumption of a laying out, and whether it may be viewed as a private way for the town or as a highway for the public, seems to us to be useless speculation; for in either event the owners held it subject to a servitude, and the public or the city had acquired an easement over it.

1. 19 Pick. 405; S. C., 31 Am. Dec. Dec. 145.