The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1848-10-09
TWO CENTS.
Law Intelligence.

10 set aside contract, on the ground Of fraud ana
leased or purchased from dsfe ndant strip Of land
nsand Tor the exclusive purpose Of cult. sting
on the premises aud cutivating IL FOR year or mora
he found it did not the purpose for which II
was intended he then filed his bill alleging that tbs
defendant had frsndulen,y represented the land 70
be the best in the for producing early
crops by which mesns he induced to purchase;
ana turther alleging that there Q mi stake the
contract of which the comp had no kno wedgs,
nor could he from the nature of things get knowledge
Oh ~ Upon these grounds the bill prayed that the
cohtrsct might be declared fraudulent and void The
case was beard at the special term of the Supreme
Court and decree pronou need in favor Of the CON-
plainant From that decree the defendant appealed.
ana the cause was argued at the July general term,
and, few days ago the judgment of the court was
justice by whom the decided at the special
term held that the complainant entitled to relief
on the ground of mistake. The bill, however seeks
relief upon the additional ground of fraud, and the
case was Pressed upon the argument, and must
be decided upon both the grounds taken in the bill
The first question to be considered s whether the sae
was made upon false and fraudulent represe nations
There was no dispute upon the argument rs to the
law upon the subject and the question s entirely
OF fact The fraudulent approximation alleged in the
bill s that the land early, If not carrier, than
any land en- that part of Long Island The proof Of
the alleged fraudulent represe rests upon the
testimony of Henry A Ovington the BROTHER u Law,
and William II, Ovington, the nephew Of the
planant each whom processes to testify to the
conversation The last named witness says that the
defendant represented that the land in question
was as early ~ anyAathat could be obtained
there earlier land anywhere about. A question
was raised upon the argument, what the meaning
OF the testified to by William II Owing
ton On the one side, IT commended that II meant
no more than that the land early as any that
there was for sale, and that there proeft
there was any earlier land for sale. On the other
hand 1t was contended that the expression meant
that the land was as early any that part Of the
island 1t is necessary with The view have taken
Of the question to decide which the proper meal M
to be given to this represe NATION To say the least
OF it, the meaning is ambiguous. There Is some,
tfu tot ha kh.
Sc ntatop testified to by Henry A. Ovngton. It will
be remarked that while these witnesses both testify to
the same conversation they not only differ from each
other but each differs from the allegations contained
In the bill of complaint. Now, adopting the elevated
rule of morality which is laid down in the Of Dog
gett Emmons I'D Story, 4T3) and which relied
upon by the who decided the at the special
term, and assuming it to be- as it undoubtedly is,
clear principle of equity that there should be" the
most scrupulous good faith and exalted honesty any
representation made by vendor inducemsnt to
the sale still there another pr cipe OF law Equally
well settled that when fraud is charged II must be
clearly and fully substantiated by proof" Doum
ntsi Perspieuis inducis probari conpenir'Q Pother
1914 Where there is ambiguity in the meaning of the
expression used, how 1t be said with certainty
and, tortiovi, how fraud be imputed when there
is discrepancy and uncertainty in the proof itself
But, irrespective of this and IL should be ad-
mitted that the representations alleged in the bill
have been substantially proved still It seems to
me that the testimony does not establish a case
of bad faith the part of the defendant. The
next ground on which complainant seeks relief
is that there was a mutual mistake as to q material
fact To certain extent, the same objection taken
to the insufciency Of the proof to sustain the ale
CATION Of fraud will apply to the testimony which IL
relied upon to sustain the allegation mistake But
for other reasons, think that the complainant has
failed to make out which entitled him to relief
on this ground. To entite party relief q court
OF equity the ground of mistake in . free from
fraud the mistake must bel As to the material fact
constituting the very essence and condition of the
contract. 2. The mstake must be to fact Of
such nature that the party could not by reasonable
diligence get knowledge Of it when put upon in
qury Qst Storys Equi Jurisp. S. lag The fact in
mistaken in this case, was peculiar quality Of
the soil which would enhance the value of the land in
question for a particular purpose, but which could
purposes quality which, appears by the testi-
mony belonged only to small strip Of land upon
some measure by the nature Of the season. the
method of cultivation adopted IL might admit lof
doubt, whether this 10 fact of such charactsr that
court of equity could say with certainty that had
there been full knowledge the part Of the COM
painant, he never would have entered into the
tract It appears by the testimony that the land in
question capable Of producing early crops and it
is, to say the least questionable whether the
panant is entitled to relief because it did not fual
earliest crops that could be produced in that part Of
Long Island. The remaining question to be con-
sideIed is whether the fact In reference to which
is not one OF which he might have obtained
knowledge by reasonable diligence If it is, it
equity will suppose that he must have had know
ledge or as is expressed in the rule of the civil law
which Is cited with appreciation by Justice Story,
CENTER inquiyendo notam habere poss (Storys Equi.
Jurisps l46 note Dig. Lib. tit 81, g. 5, q Pothier
fuses its aid to those who by their negligence,
and by that alone have incurred the loss may suf
fer the inconyenience .Qbid) In this CAGE, If the
whether there any land upon that part Of Long
Island capable of producing earlier fruits vegetables
he could easily have informed himself but It seems
instead
quired Of MIR Benrn, who owned land In the neigh
borhood, as to the value of the land in question, he
did not make the inquiry ~ to its quality for
producing early crops With these views, au Of OPT
MON that the decree made at the special term should
be reversed with costs.
SUPERIOR CoURT, Oct. In Banco -DEorsIors.-
WiHoughby ads Brookiyn Bank Motion denied.
Huibm ads The Bank Of Charle,ton; Same ads.
Leroy w. Wtiy--NIotion for decision to examine wit
nesses granted with stay of proceedings in the first
cause.
anderson u.s. Watson Order at Chambers set aside.
Strung adsm. Sterens et ai.-Motion for . trial
denied
Ben rs GUN Judgment for defendant
trial denied.
VaterJury adsn characterization for new trial
denied.
SANFORD rs Conant.-Jud Judgment Of non suit.
Haggadron, plaintiff in error shelly defendant ~
srror.-Judgment affirmed
Sonoiee, PiaintiB in error, u.s. Fraser Judgment
reversed
Moss rs. Livingston Judgment for plaintiff.
EMANCIPATION IN kENTUcKY.--A correspondent
writing from Frankfort to the Louisville (Ky) Cou
rier says"That the election being over, and 1t hsv
ing become a fixed fact that they are to have q con
ventior to form constitution the gradual smAn
cipaton Of slaves seems to be the all absorbing ques
ton; and from all he learn from persons who live
different portions of the State that will b. the great
question next simmer in the election Of members of
the convention and that those in favor OF gradual
cipation will not urge that the present genera
ton Of slaves to be made but that all born after
period to be fixed say 1855 80 should be free
at the age of IS years also says that ffths Of
the voters of Kentucky observation-disclosures and thae
the presumption may be INDUCED by those In favor or
gradual that majority Of the members
of the convention will be in favor Of their peculiar
notions The great body of foreigners who support
Themselves by daily labor may be counted in opPosi
ton to slavery and Of gradual cipation"
CATHOLIC FREE Schools IN CINcINNAr.-We
find the following statistics IN an article IN the
Cathode Tskgraph upon the Catholic Free Schools Of
this ty:--The number Of children attending these
schools Is 1907 The scholars distributed In the
following order st. Peters (CathedraD 202 Holy
Trinity, 500; st. Marys, $50; St Johns, 500 st.