good title to a bona fide purchaser. Cochran v. Stewart, 21 Minn. 435. And see Fassett v. Smith, 23 N. Y. (9 Smith) 252.

A lessee who stipulates that crops, etc., shall remain upon the farm, and belong to the lessor until certain conditions are performed, can convey no more title to them than he has, even to an innocent purchaser. Gray v. Stevens, 28 Vt. 1.

So where, by the contract of sale of personal property, the possession is given to the vendee, while the vendor retains the title until the purchase-money, due in installments, is paid in full, the right of the vendor, as reserved by the contract, will be protected against a bona fide purchaser from the vendee, unless he has in some way waived the condition, or done or suffered something to mislead the purchaser from his vendee. Ketchum v. Brennan, 53 Miss. 596.

The recording of a bill of sale of personalty will not affect a purchaser wit implied notice of the lien retained by the vendor. Mueller v. Engeln, 12 Bush (Ky.), 441. And the rights of a purchaser of personal property from a tenant, after its removal from the demised premises, for a valuable consideration, as, in payment of a pre-existing debt, is not affected by the fact that he knew there was rent due the landlord, and that he was about to distrain for the same. Hadden v. Knickerbocker, 70 Ill. 677; S. C., 22 Am. Rep. 80.

One who buys securities which are not delivered to him, making only a nominal payment prior to his receiving notice of another's interest therein, is held not to be entitled to protection as a bona fide purchaser. Haescig v. Brown, 34 Mich. 503.

The purchaser at a sale intended to defraud creditors, if free himself from all responsibility for the fraud, is not affected, upon afterward discovering the seller's fraudulent intent, even though he has not then paid the purchase-money, and the notes given for it have not passed beyond the control of himself and the seller, it not appearing that he alone could control the notes without the co-operation of the seller, or that the latter could have been induced by him to cancel or surrender the notes which were negotiable. Nicol v. Crittenden, 55 Ga. 497. Nor does an innocent purchaser become affected by the fraud of the seller, though the property be attached in the purchaser's hands before it is paid for, and before negotiable notes given for the price have passed to innocent holders. Id.

17. Defense of fraud in action by seller. See Vol. 3, tit. Fraud. It is a well-settled doctrine, that the rule of caveat emptor never applies to cases of fraud. Fraud is so abhorrent to the law that it vitiates every contract, and gives to the party deceived the right to relief. See Irving v. Thomas, 18 Me. 418; Otts v. Alderson, 10 Sm. & M. (Miss.) 476.

If the vendor represent property offered for sale as possessing certain important qualities, whereby it is rendered more valuable, and by reason of which the purchaser is induced to buy, and it turns out that the property does not possess those qualities, the representation thus made is fraudulent. Brown v. Tuttle, 66 Barb. 169. So, in case of wrongful concealment, the exercise of force, and fraudulent conduct generally, the doctrine of caveat emptor has no application. Paddock v. Strobridge, 29 Vt. 470; Manning v. Albee, 11 Allen, 522; Regina v. Kenrick, 5 Q. B. 49; Kimbell v. Moreland, 55 Ga. 164; French v. Vining, 102 Mass. 135; S. C., 3 Am. Rep. 440; Oakes v. Turquand, L. R., 2 H. L. Cas. 325. If, however, the buyer sees the property before taking possession, and has every opportunity to inspect the same, and no concealment is used on the part of the seller, or representations made respecting the quality, to induce the buyer not to examine the same, the defense of fraud cannot be successfully interposed. Carondelet Iron Works v. Moore, 78 Ill. 65. And see Bondurant v. Crawford, 22 Iowa, 40; Vandewalker v. Osmer, 65 Barb. 556; Long v. Warren, 68 N. Y. (23 Sick.) 426. But the fact that a buyer had opportunity to inspect the goods does not rebut his defense to a note given for the price, that it was procured by false representations as to the cost of the goods. Inspection enables a buyer to judge for himself as to quality and value, but is no means of enabling him to guard against deceit as to cost. McFadden v. Robison, 35 Ind. 24.

§ 13. Defense of fraud in action by buyers. See ante, 610, § 3. It is a rule in law and equity that fraud is not to be presumed, but must be proved (see Vol. 3, 445, tit. Fraud); and where the question at law is, whether a bill of sale was obtained by fraud, the facts attending its execution, and from which the fraud is attempted to be deduced, must be stated, and the jury, under instruction from the court, must determine whether or not they establish the fraud. Clinton v. Estes, 20 Ark. 216.

In order to entitle the vendor of goods to vacate the sale, and reclaim the goods on the ground of fraud, it is not necessary that the fraudulent representations be made at the time of the sale, as in case of a warranty, which is part of the contract of sale; but it is sufficient if the goods be obtained by the influence and means of false and fraudulent representations, though they were made on a previous occasion. Seaver v. Dingley, 4 Me. 306. See State v. Prison Keepers, 6 Phil. (Penn.) 78. An allegation of fraud against the purchaser of goods for cash will not be sustained by the circumstance of his having tendered the plaintiff in payment some of the plaintiff's own overdue notes. Foley v. Mason, 6 Md. 37.

When a vendor who has sold goods on credit, induced by the fraudulent representations of the vendee, does not disaffirm the contract and reclaim the goods as his own, but, on the failure and absconding of the vendee, issues an attachment against him for the debt, and afterward obtains judgment by confession against him, and seeks to enforce the judgment by claiming an equitable lien on the goods sold, that is an affirmance of the contract, and there is no principle on which the complainant is entitled to that relief against prior judgment creditors of the vendee when executions have been levied on the goods. Stoutenburgh v Konkle, 15 N. J. Eq. 33.

CHAPTER CXX.

SCIRE FACIAS.

ARTICLE I

Section 1.

OF SCIRE FACIAS IN GENERAL.

Definition and nature.

A scire facias is deemed a judicial writ, founded on some matter of récord. Chestnut v. Chestnut, 77 Ill. 346; Walker v. Wells, 17 Ga. 547; Bentley v. Sevier, 1 Hemp. 249. Public records to which the writ is applicable are of two classes, judicial and non-judicial. Judicial records are of two kinds, judgments in former suits, and recognizances which are of the nature of judgments. 2 Bouv. Law Dict. 499. When the writ is founded upon a judgment it is merely the continuation of a former suit to execution. Brown v. Harley, 2 Fla. 159; Hopkins v. Howard, 12 Tex. 7; Blackwell v. The State, 3 Ark. 320; 2 Bouv. Law Dict. 499. So the affidavits upon motion for a sci. fa. on a judgment against a shareholder in a railway company, are properly entitled in the original action. Edwards v. Kilkenny, etc., Railway Co., 3 C. B. (N. S.) 786; Same v. Same, id. 787. When founded on a recognizance, its purpose is, as in case of judgments, to have execution; and though it is not a continuation of a former suit, as in the case of judgments, yet, not being the commencement and foundation of an action, it is not an original, but a judicial writ, and at most is only in the nature of an original action. 2 Bouv. Law Dict. 499; Blackwell v. The State, 3 Ark. 320. But, though generally it is termed a judicial classed and recognized by all the authorities as an action. v. Krebs, 34 Md. 93; Winter v. Kretchman, 2 T. R. 46; Commonwealth, 14 Gratt. (Va.) 318; Bentley v. Servier, 1 Hemp. 249. The writ in practice very often serves in the double capacity of process and declaration, and is in many respects amendable. Gedney v. Commonwealth, 14 Gratt. (Va.) 318. It is an action to which the party may plead. 8 Bac. Ab. 598; Bentley v. Servier, 1 Hemp. 249. But not being an original action, in Texas it need not be preceded by petition. Hopkins v. Howard, 12 Tex. 7. When scire facias is brought to enforce the payment of money, it must be for a specific VOL. V.-81

writ, it is Kirkland Gedney v.

sum, or perhaps in addition thereto, interest or exchange as an incident to the debt. Chestnut v. Chestnut, 77 Ill. 346.

Non-judicial records are letters patent and corporate charters. The writ, when founded on a non-judicial record, is the commencement and foundation of an original action, and its purpose is always to repeal or forfeit the record. 2 Bouv. Law Dict. 499; Miller v. Twitty, 3 Dev. & Batt. 14. A State may by scire facias repeal a patent of land fraudulently obtained. Carroll's Lessee v. Llewellin, 1 Harr. & McH. (Md.) 162; Sevier v. Hill, 2 Overt. (Tenn.) 37. A sci. fa. will lie to repeal the grant of a franchise where the owner has neglected his duty. Peter v. Kendal, 6 B. & C. 703. Scire facias is also used by government as a mode to ascertain and enforce the forfeiture of a corporate charter, where there is a legal existing body capable of acting, but who have abused their power; it cannot like a quo warranto (which is applicable to all cases of forfeiture) be applied where there is a body corporate de facto only, who take upon themselves to act, but cannot legally exercise their powers. 2 Bouv. Law Dict. 499.

A scire facias upon a municipal claim is an original, not a judicial writ, and does not necessarily issue from the court in which the claim is filed. Schenley Schenley v. Commonwealth, 36 Penn. St. 29.

A sci. fa. issued upon a recognizance for the appearance of a defendant to answer to a criminal charge performs the office of a declaration as well as a process, and a default admits the facts alleged in the writ. A law which provides for issuing a sci. fa., upon the forfeiture of a recognizance, against the principal and his surety, to show cause why judgment should not be entered, etc., and for rendering a judgment, by default, upon the return of such sci. fa., that the defendants cannot be found, unless they appear and defend, is not in contravention of the letter or spirit of the constitution. Rietzell v. People, 72 Ill. 416. Where the United States circuit court has jurisdiction of a cause and of the parties thereto, and has authority by laws of congress to issue a writ of sci. fa. on the judgment in the action, the sci. fa. is not a new action, but a continuation of the old one. Notice thereof must be given to the defendant before judgment thereon can be legally entered. But as no form of notice is prescribed by law, if the notice given to a defendant out of the district where the court is held is actual, personal and seasonable, although not in any form ordered by the court, and proved merely by the affidavit of an officer, not taken in his official capacity, yet adopted by the court as sufficient, the judgment rendered must be deemed valid, and an action thereon in a State court sustained. Comstock v. Holbrook, 82 Mass. 111.

§ 2. In what cases a proper remedy. Scire facias lies to revive