New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1856-03-08

be actual amount q superior profits realized By the defendant
would order referee and when the sc4rtnei
would resod the sale which " the thing would give
the excess to the plaintiff THIS what jury could DO,
rule ofdamasrs) or tie difference b. ~eeu the soan
hed by bin on the purtba e. the profits Only BE- Even
tie theory recession contract s whereas Jury
have only ques,ion Of isei DAMAGES
tie bs-. q not disturbing the contract bat eo7erssng tue
tlsrh for what he he. actually s-Herd by the fsu estab
shed by the fact Of the bargain psn9 in the present
s'snce instead Of asking for damages such has claimed
the exact difference between the amount given snd tae
amount alleged 70 have been realized By ths defend
ant on the purchase from him q both subjects, ths
vessel and the prOhS without asking taa TIE sAs m.y
be set ssde AID In this respect well perhaps IN
9m otters the distinction estreen the lea. ant e!a.S.
Character CT the remedy seems 10 have been an %
has given re 10 embarrassment IN the progress OF he
va; .u' a.. 40 10y eo 49, r. -, - - - ssr. NJ
Character q TIE action OF II INTO one 81
II it the latter this i clearly not the tribunal b.
il one for DAMAGES generally without affecting Of
the action se hsy. been thus particular in explaining
mining the present motion have approximations
that subject The appropriate remedy in this case would
sctiOn In the OF bill equity aside
and for Compensation but the p.intf has n
bring hs before jury which e has the night TO d. be
must fail BY hs scon law A snch. II
action the nature Of setion in he founded upon
he otoe i OF .,,a9 Z. rbe.be- ,be ,I..ia "a,
made such affirmative proof Of the alleged fraud uleni repre-
BY the defendant the alleged fraudulent coace
ment By him OF material to be known TO the plaintiff
affecting the sale in question: viii Justify me in with
drawing from the Jgy and determining the que.
shall be governed by the only test Of such motion to
Whether verdict could be sustained upon the evidence
effect Of s evidence 70 advert TO the rules which tbs
rroof in actions And first has always been
stated the fraud must be ahrmAseIy proved II 1t consists
in sfrmsops the Armaiions must be proved, and
their fslsi,y; and it must b. shown that the de-
faith and isnorsnty himself there deceit pracced
Whether the evidence proof Of knowledge
must Of be Jeff the Jury # the In other
sJects proper to them II the freud consists Of the
preston the Of the facts be shown aud
the knowledge Of them and aArns evil
Of the DEFENDANT conceanen Of those facts from the
aeree Of fsc a. will nstf the jury in believing that the
defendant intended to deceive the plaintiff and further be
show that re not actually deceived IL the l1uiit
knew that false and made the bargain
with his he has redress SO he hal the means
ascertaung tie truth and might have done but
resulting from the HeI resentson When al these ele
mens unite AID DrirlG made II proper for
cradle length The opinion conc ndes in the following anguise
The evidence stands does not in judgment con
Ue sufficient Pa Jae'eca-e TO 20 the jury on the
points Of misrepresentation or conceament on the par OF the
Mountaineering the plaintiff the full benefit OF that stand
Obligation respect disclosure from the htu
relation which would be recognized IN Court OF equity
nor this does show the plaintiff 10 have
condition and opportunity aud
means investigation his part which would make the
the fault of the other does II show that the panth was
in tact deceived that be closed hs baaain IN aec
the sa,e Of the accounts, Of the actual existence
and terms Of the contract with the Steamship Com
does not pima ace establish the affirmative OF these PROPOSE
and only by the aid Of pesunpons which cannot oe
entertained action law that such affirmative can
be sid have been made out TN the contrary the evidence
establish that the defendant possessed OF
deal Of information in respect 10 the accounts aud that
be was in actual controversy and dispute with the defendant
the Steam hip Company, does establish arnavely that be
had information that he put directly inquiry
opportunity least days Of personal in
curry closed his sale defendant during which
particle Of evidence show that he did not
fully rossess hnse all that be known regard
both subjects. The complaint must be dismissed.