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Austell vs. Rice, et al.

97. 14 Johns. 466.

6 Monro, 97. 2 Rand. 442. 5 Watts, 259. 1 Watts, 216, 217. 2 N. Hamp. 97. 1 Wright, 660. 4 Pick. 2 Wend. 184. 7 Ad. & El. 19. 8 Bing. 5. bien, 2 Bailey, S. C. 623.

Lawrence vs. Beau

The Court farther charged the jury, that if they believed the witnesses, the obtainment of the notes was founded in gross and palpable fraud. This manner of instructing the jury is within the rule this Court has several times laid down. The Judge leaves the veracity of the witnesses to be judged of by the jury, and expresses his own opinion upon the testimony. He says to them, that if they find the witnesses credible, then gross and palpable fraud is proven. The fact of fraud or not, is for the jury to de termine. The Judge has the right to express his opinion upon the evidence. It is impossible, however, not to see that his manner of doing it is well calculated to cause them to understand it as a direction to them, and in that respect, the charge is by no means to be approved.

[4.] The defendant's plea is, that the notes are void because fraudulently obtained, and it charges the fraud to consist in this, that the agent, Austell, represented that the notes were for Mrs. Bomer and child, and that he had none or a very little interest in them, when in fact he was, as subsequently appeared, interested as owner of one half the amount which they agreed to pay. They farther say, that their motive or intention was to make provision for Mrs. Bomer and her child, and by Austell's fraudulent misrepresentations they have been defeated in that intention. Admitting the plea to be sustained by the proof, then, in our judgment, according to law, it is not such a case of fraud as will invalidate the notes. That the false statements of Austell were morally wrong, is very clear. They constitute a fraud, but it is a fraud without injury. "Damnum absque injuria." Fraud without injury, or injury without fraud, will not sustain an action, or a defence. Both must exist. Administrators of Green vs. Bryant, 2 Kelly, 66. 2 Kent's Comm. 489. 3 Buls. R. 95. Whether the agent, Austell, misrepresented his interest in the transaction or not; whether the plea be true or false, the defendants will have neither more nor less to pay on their contract. If it be true, it does not increase their liability; they are not injured by it, and have no right to complain.

Again, to make the fraud available to them, it must refer to

Austell vs. Rice, et al.

and affect the consideration which moved them to execute the notes-it must reach and lessen the benefits which they derived from the contract.

[5] The consideration, the benefit accruing to them, is the cause of the contract-the mutire with which they entered into it, is no part of the consideration. And if that motive, therefore, be defeated by the fraudulent misrepresentations of the other party, the law cannot regard it. This distinction between motive and consideration, has been recently recognised in England. These defendants say, that their motive was to benefit Mrs. Bomer and her child, and in this they have been disappointed, by the fraudulent conduct of Austell. Let all this be true, and it is all one side of the contract. The law cannot regard, in just such a case as this is, either the motive or the fraud which defeats it. It must still look to the contract; that is to be sustained or not by legal rules. Suppose, for example, there were no consideration for these notes, but the benevolent motive to benefit Mrs. Bomer and her child-no benefit of any kind to the defendants, and no loss, or trouble or disadvantage to, or charge upon the promisee; they would be without consideration-nude pacts. If this be true, how can that be a fraud upon them, which affects only that benevolent motive? The Civil Law gives the following definition : Nudum pac'um est ubi nulla subest causa præter conventionem, sed ubi subest causa fit obligatio et parit actionem."

The French Civil Code adopts the definition of the Civil Law, and French commentators have taken the distinction I refer to. According to their construction, causa, does not mean motire. The benefit to the promisor is the moving cause of the contract. And it must be a benefit which the law recognises—not a mere gratification of a benevolent or kind disposition. This view of it, as I before said, is taken recently in the English Courts, and the distinction between motive and consideration recognised. It is, indeed, well understood that the consideration must be of some value, and it must move from the promissee to the promisor, and that, whether it consist in a specific advantage to the latter, or a loss, trouble or charge to the former. Price vs. Easton, 4 B. & Ad. 433. Edwards vs. Baugh, 11 M. & W. 641. Clutterbreck vs. Coffin, 4 Scott N. R. 509. Crow vs. Rogers, 1 Stra. 592, Lilly vs. Hays, 5 A. & E. 548.

Galloway vs. Jackson, 3

Scott N. R. 753, 763. Thornton vs. Jenyins, 1 Scott N. R. 52.

Austell vs. Rice, et al.

Jackson vs. Cobbin, 8 M. & W. 790. Cowper vs. Green, 7 M. & W. 633.

The distinction is fully illustrated in the late case of Thomas vs. Thomas, 2 Q. B. 859. 42 E. C. L. Reports. In that case there was an agreement between the plaintiff, who was a widow, and the defendant and one S. T. who were the executors of her husband, by which, after reciting that the husband of the plaintiff, in his life, had verbally expressed his desire that the plaintiff' should have a certain house, &c. during her life, and reciting also, that the defendants were desirous of carrying his wishes into effect, it was witnessed that in consideration of such desire, and of the premises, the executors would convey the house, &c. to the plaintiff for life, "provided nevertheless, and it is hereby agreed and declared," that the plaintiff should pay one pound yearly for ground rent, and should keep the said house in repair. In this case it was held, that respect for the wishes of plaintiff's husband was no part of the consideration of this contract, and need not be stated in the declaration. Lord Denman, in this case, interprets the word cause in the definition of a nude pact, as one which confers what the law considers a benefit on the party." In this case, Patterson, J. remarks, "Motive is not the same thing with consideration. Consideration means something that is of some value in the eye of the law, moving from the plaintiff. It may be some benefit to the plaintiff or some detriment to the defendant, but at all events it must be moving from the plaintiff." See also Smith on Contracts, note, 53. Broom's Legal Maxims, 342, 343.


As the respect which the defendants had to the wishes of the deceased husband-the motive with which they entered into the contract was held to be no part of the consideration in the case of Thomas vs. Thomas, so in this case, the motive, to-wit: a desire to provide something for Mrs. Bomer and her child, is no part of the consideration. It does not enter into the contract at all. The contract is to be viewed as it would be, had there been no such motive. The conclusion is therefore irresistible, that if there was a fraud upon that motive, it is not a fraud upon the contract, and cannot be set up in avoidance of it.

What are the rights of the child, in equity, growing out of this entire transaction; whether this note, or its proceeds may not be seized in the hands of the administrator of Austell, and applied

Christian vs. Penn.

to its use; whether it is not entitled in addition to its legacy of $300, or whether, under the circumstances, these defendants may not be compelled to pay its full distributive share of the estate of A. Bomer, deceased, we express no opinion. I will say, however, that it behooves its friends to look to its interests, for they are valuable, and its rights unquestionable.

Let the judgment be reversed.

No. 55. CHARLES W. CHRISTIAN, plaintiff in error, vs. WILLIAM PENN, defendant,

[1] Where there is a cause of action set forth in the plaintiff's declaration, though defectively set forth, it is amendable at Common Law, and more especially so, under our Statute of 1818, which contemplates a very liberal practice, in allowing amendments, both to declarations and answers.

Case in Chattooga Superior Court, before Judge WRIGHT, April Term, 1848.

The plaintiff filed his petition against the defendant in the Superior Court of Chattooga county, as follows:


GEORGIA, CHATTOOGA COUNTY. To the Honorable Superior Court, for the county and State aforesaid. The petition of Charles W. Christian humbly sheweth, that William Penn, of said county hath injured, and damaged your petitioner one thousand dollars.

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For that, whereas, the said defendant heretofore, to-wit: On the 1st day of January, 1839, having, or pretending to have a demand or debt owing to him, the said defendant, for the sum of four hundred dollars, by one William P. Christian, of Elbert county, in the State of Georgia, and which the said William Penn, the defendant, stated was to be paid by the said William P. Christian, when the estate of one Maxwell, the father-in-law of the said William P. was distributed. And the said defendant, intending to deceive and defraud your petitioner, wrongfully and deceitfully persuaded one Nathaniel Duncan, the then co-partner of your petitioner, to sign the partnership name of

Christian vs. Penn.

your petitioner, for the said William P. Christian's benefit, payable to him, the said defendant, for the sum of four hundred dollars; and by falsely, deceitfully and fraudulently representing to the said Nathaniel, the co-partner of your petitioner, that the said William P. Christian was abundantly able to pay the said note, and that your petitioner should never be called on for payment thereof, but should be saved harmless from all liability on account of said note, and that the said defendant would never look to your petitioner for payment of the same, caused and procured the said Nathaniel to sign the partnership name of your petitioner to the said note of hand without the knowledge of your petitioner, and fraudulently accepted the same, whereby your petitioner became bound to pay the said note, when in truth and in fact, the said defendant, at the time of making such representations, well knew the said William P. Christian was not safely to be trusted, but was insolvent and unable to pay said note, and so your petitioner says the defendant fraudulently deceived your petitioner, by representations made by him, and that by means thereof, he hath been compelled to pay the said note, and the interest and costs, amounting in the whole to the sum of money aforesaid."

There were several other counts in the declaration, alleging substantially the same facts and transactions contained in the first count.

The plaintiff subsequently filed an amendment to his petition, as follows: "And for that, whereas, also your petitioner, and one Nathaniel Duncan, being partners in trade, and carrying on business in co-partnership as merchants, and dealers in goods and were as a firm in the business aforesaid, to-wit: on and before the 11th day of March, 1838, and being such merchants and copartners in the business of goods, wares and merchandise only, the said Nathaniel, fraudulently and without the knowledge or consent of your petitioner, executed and issued a certain promissory note, for the sum of four hundred dollars, payable to the said defendant, as and in consideration of a tract or tracts of land of little value, sold and conveyed to the said Nathaniel Duncan by the said defendant, and the said defendant, fraudulently, and without the knowledge or consent of your petitioner, accepted the said promissory note so issued and executed, in the name of the said mercantile firm of your petitioner,

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