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exerted in lines running east and west; in other words, across
the building, and not longitudinally, so that the west wall of
complainant's building was compelled to receive whatever shock
was produced bvthis vibratory force. The defendant carried on,
in the adjoining building, a saddlery manufactory. The evidence
tended to show that the vibrations received from the plaintiff's
building were so great at times as to render it impossible to do
certain kinds of work in the defendant's building. One witness
said that, when the vibration was greatest, the floor seemed to
creep under his feet, and he could not write at all. The defend-
ant's book-keeper said that it prevented him at times from making
marks with his pen that he ought to make. Several of the
defendant's employes swore that they were more or less dis-
turbed by the vibration. It gave a headache to some, or produced
a dizzy sensation ; in others it produced nausea closely resembling
sea-sickness. Others testified that, when the motion was strong-
est, they found it impossible to do such parts of their work as
rccjuired a steady hand and clear eye, such as delicate stitching
and exact cutting in curved or irregular lines. One swore that
on several occasions he had })cen compelled, in consequence of
the vibration, to take his work to his dwelling and do it there.
Everything pendant about the building oscillated like the pendu-
lum of a clock. The actual deflection of the walls, however, was

^ See Wood on Nuisances, 553-5C8.



Tit. V, Ch. LVI.] NUISANCE and obstruction. 1403

not shown to hoover one-eighth to three-sixteenths of an inch.
The court found it difficult to believe that so nuich disturbance
could be produced by so slight a deflection. The learned judge,
however, said: "I am not at liberty to decide the case on a
theory or deduction based on a single fact, but must find the
fact according to the truth as established by the evidence as a
whole. Unless complainants' witnesses, without exception, have
^xajjfjerated the effect of the vibration to such an extent as to
render their stories downright falsehoods, it must be taken, as an
established fact in the case, that the vibration very sensibly and
materially interferes with the complainants in the prosecution of
their business. My judgment is that the defendant is guilty of
a nuisance which it is the duty of this court to redress. But this
conclusion does not necessarily involve the destruction of the
defendant's business. The injury to the complainants, in my
judgment, is caused solely by the position of the machinery. As
already stated, it is now placed so that its whole force is expended
across the defendant's building and directly against that occu-
pied by the complainants. To me it seems very plain that, if it
is changed so that its force shall be expended longitudinally with
the building, and not transversely, the injury the complainants
now suffer will be remedied, and all cause of complaint removed.
That is the unanimous opinion of all the experts who have spoken
on the subject. A decree will be advised directing the defend-
ant to change the position of his machinery in accordance with
the view above indicated, and that an injunction shall issue,
restraining him from operating any machinery in the building
occupied by him, to such an extent as shall produce a vibra-
tion in the com})lainants' building sufficient to annoy or disturb
them in the conduct of their business." ^

§ 1923. Vibration of Steam-iiainmers in a Rolling-mill. —

In an action at law for damages, caused by the cracking of cer-
tain cottage walls belonging to the plaintiff, by the vibration
caused by steam-hammers in a rolling-mill operated by the de-

1 Demarest v. Hardham, 34 N. J. Eq. 4(19, 47iJ-7.



1404 PROVINCE OF COURT AND JURY. [2 Thomp. Tl'.,

fendant, Blackburn, J., in summing up to the jury, said: " The
question is, whetlicr this is a case of nuisance, that is, an action-
able Avrong. If the defendant, in the course of using these
hammers, produced, not merely a nominal, but such a sensible
and real damage, as a sensible person occu})ying the cottage
would find injurious, that is a nuisance; but that which is a sen-
sible and real inconvenience to i:)roperty situated in one place or
occupied in one way, will be none to property situated in another
place or occu})ied in another way. If you are of opinion that
the vibration caused by the hammers has shaken and cracked the
walls of the cottages, you will probably consider that to be a
su))stantial and real mischief. If, on the other hand, you think
the damage was caused by the removal of the adjoining cottages^
whether that was justifiable or not, you ought to find a verdict
for the defendant on that part of the case. So, with regard to
the cottages standing empty; if that was caused by the hammer-
ing, you will find a verdict for the plaintiff; if by the want of
repair, for the defendant. A further point has been raised by
the plea that the grievances complained of were caused by the
defendant in a reasonable and proper exercise of his trade in a
reasonable and proper place. My opinion is, that in law that is
no answer to the action. I think that that cannot be a reasona-
ble and proper exercise of a trade which has caused such injury
to the plaintiff as she complains of." ^

§ 1924. Action, by Whom Brought. — Injuries which flow
from noises are not permanent in their nature, and an action to
redress them can only be brought by those who are presently in-
jured by them. Such an action, accordingly, cannot be brought
by the reversioner ; it must be brought, if at all, by the tenant.^
The rule is otherwise where the injury is not to the use merely,
but to the property itself, — as in the case of the obstruction of
light. ^ The rule is familiar that several complainants may unite

J Scott V. Firth, 4 Fost. & Fin. 349. 40. See Dobsou v. Blackmorc, !) .\fK

2 Mimiford v. Oxford &c. Kailroad & Fl. (x. s.) 'J'-'l ; Sliadweli u. llutcliin-
Co., 1 Hurl. & N. 34. son, M. & M, 350.

3 Tucker v. Newnaan, 11 Ad. &E1.



Tit. V, Ch. LVI.] NUISANCE and obstruction. 1405

in the bill to enjoin a nuisance, where the injury complained of
is common to all, — as in case of a noise or stench, common to a
neighborhood. 1 But where the injury is not common to all, as
where it consists in part of vibration i)ro(luced by machinery,
which affects the buildings of some of the complainants, and not
those of the rest of them, there is a misjoinder of parties.^

§ 1925. Instruction as to Nuisance Caused by Running a Mill. —
" If the jury find from the evidence that the running and use of said
mill materially and essentially lessens the personal enjoyment of plaint-
iffs, by reason of the noise, smoke, dust, dirt and cinders, in their said
dwelling, then the allegations in the plaintiff's complaint have been

sustained. If the jury find from the evidence that the personal

enjoyment of the plaintiffs in their residence has been and will be
materially and essentially lessened, by either the noise, smoke, dust,
dirt, cinders, horses, mules or teams, caused by the running and use of
said mill, then the allegations of the complaint have been sustained." ^

^ Davidson v. Isham, 9 N. J. Eq. (1 2 Davidson v. Isham, supra.

Stock.) 186; Catliu v. Valentine, 9 3 ^Vpproved in Owen w. riiillips, 73

Paige (N. Y.), 575. Ind. 287.



1406 PROVINCE OF COURT AND JURY. [2 Tbomp. Tr.,



CHAPTER LVII.

, FRAUD.

Article I. — Ix General.

Article II. — Misrepresentation and Deceit.

Article III. — Fraudulent Conveyances.



Article I. — In General.
Section

1930. Distinction between Fraud in Fact and Fraud in Law.

1931. Court Adjudges when Self-Evident.

1932. And where Facts are Indisputable.

1933. Unless Depending upon a Variety of Circumstances Involving Motive

or Intent.

1934. Or upon Conflicting Evidence.

1935. Whether there is Evidence tending to show Fraud a Question of Law.
193G. Situations in which tlie Law Presumes Fivud.

1937. When Declared as a Question of Interpretation of Writings.

1938. Fraud in Fact not Presumed, but must be Proved.
1935. An Instruction Presenting the Rule.

1940. Fraud in Fact Always a Question for the Jury.

1941. Illustrations.

§ 1930. Distinction between Fraud in Fact and Fraud in
Law. — Fraud in law differs from fraud in fact, in that in the
former the iiUent of the party charged with the fraud is imma-
terial, and it is determined by the court regardless of such in-
tent; while in the latter, the fraud depends upon the fraudulent
intent of the party, and the facts, establishing such intent, are
for the jury.^ It has been said that " fraud and fraudulent in-
tent is always a question of fact for the jury ; and although there
are cases where it is said the law presumes fraud from certain
acts, yet that presumption is only the conclusion of the law upon
the facts as they are proven." '^

1 Milne v. Henry, 40 Pa. St. 352. 2 Wakcman v. Dalley, 44 Barb. (N.

Y.) 498, 503.



Tit. V, Ch. LVIL] fraud. 1407

§ 1931. Court adjudges when Self-Evideiit. — "When fniiul in
fact is self-evident, as in thie case of deceitful misrepresentations,
found or admitted, it is the duty of the court to adjudge upon it
■without submitting it to the jury.^

§ 1932. And Where Facts are Indisputable. — "Fraud,"
said Kent, C. eJ., " is a question of law, and especially, Avhen there
is no dispute about the facts. It is the judgment of law on
fads and intents,, as has been frequently observed by judges of
the greatest eminence."''' "Whether a transaction be fair or
fraudulent," said Lord Mansfield, " is often a question of law:
it is the judgment of law, upon facts and intents." ^ It is feaid that
fraud is a question of law, when the facts on which it depends
are well pleaded on one side and admitted by demurrer on the
other. ^

§ 1933. Unless depending on a Variety of Circumstances
involving Motive or Intent. — It is said by a recent writer of
reputation: " In some cases, fraud is self-evident; and, when so,
it IS the proper province of the court to adjudge upon it, with-
out submitting its existence to the decision of the jury. Case-
of dishonest misrepresentation and deceitful attempts to mislead
are examples. Indeed, the whole law of deceit is an illustration
of this proposition. Certain elements of deceit being found or
admitted, the court rules that they constitute fraud. In other
cases, the existence of fraud depends upon a variety of circum-
stances, arising from motive and intent, and inferences from cir-
cumstantial evidence; and, in such cases, the courts should
submit to the jury the question of fraud, under proper instruc-
tions concerning the tests of fraud." ^ " What constitutes fraud
is a question of law," says Pearson, J. "In some cases, the
fraud is self-evident: when it is the province of the court so
to adjudge, and the jury has nothing to with it. In other cases,

1 Williams v. Hartshorn, 30 Ala. 3 Worsely ij. DeMattos, 1 Burr. 467,
211; Hardy v. Simpson, 13 Ired. L. (N. 474.

C.) 132, 139. •» Gerrish v. Mace, 9 Gray (Mass.),

2 Sturtevautu. Ballard, 9 Johns. (N. 235.

y.) 337, 342. 5 Bigelow ou Fraud (1st ed.), 408.



1408 PKOvixcE OF COURT AND JURY. [2 Thomp. Tr.,

it depends upon a variety of circumstances, arising from the
motive and intent; tlien it must be left as an open question of
fact to the jury, with instructions as to what, in hiw, constitutes
fraud. And, in other cases, there is a presumption of fraud,
which may be rebutted. Then, if there is any evidence tending
to rebut it, that must be submitted to the jury ; but if there is
no such evidence, it is the duty of the court so to adjudge and to
act u})on the presumption. Fraud is very subtile and frequently
alludes the grasp, both of the court and jury. When, there-
fore, the court has hold of it, there is no reason for passing it
over to the jury, unless there is some evidence that will justify
them in coming to the conclusion that the presumption is re-
butted."^ Questions of motive or intent are always questions
of fact for the jury,^ except in cases where the facts are ad-
mitted, or the evidence is unequivocal and involves no question
of the credibility of testimony, in which case it is supposed that
the court may make the deduction.^

§ 1934. Or Upon Conflicting- Evidence. — ^Vhere the ques-
tion of fraud or no fraud is directly in issue, and the evidence is
conflicting, the jury must decide the question, and it will be error
for the court to instruct them that if they believe the evidence,
they must find for the plaintiff.* It is said in other cases that,
although fraud vel non is, where the facts are clear and undis-
puted, a i)iae question of law,^ yet where there is a conflict of
evidence iq)on the question of fraud, depending upon the weight
of evidence and the credibility of witnesses, it is error to with-
draw the question from the jury."

§ 1035. Whether there is Evidence tending" to show Fraud
a Question of Law. — It has been observed, with the most ob-

1 Hardy v. Simpson, 13 Ired. L. (N. 39; Upsou v. Raiford, 29 Ala, 188,
C.) 132, 139. 199. See also Horn v. Amicable &c.

2 Western Stage Co. v. AValker, 2 Co. CA Barb. 81; s. c. 3, Big. Ins. Cas.
la. 505. 712.

3 A7ite, § 1333. etseq. « Henderson v. Mabey, 13 Ala. 715;
MViUlams P. Hartshorn, 30 Ala. 211. Boyd v. IMcIvor, 11 Ala. 822; Upson
* Swift V. Fitzhugli, 9 Port. (Ala.) v. liiiiiord, supra.



Tit. V, Ch. LVII.] FRAUD. 1409

vious i)ropriety, that, while fraud is a question of fact for a jury,
or for the court where there is no jury, yet it is a question of
law whether the evidence before the court or jury tends in any
respect to establish fraud; if fraud is found, as u conclusion of
fact, where there is no evidence tending to such conclusion, it is
the duty of the court to set the finding aside. ^

§ 1936. Situations iu which the Law presumes Fraud. —

There are cases where the law, from the situation or relation of
the parties, presumes fraud, — examples of which are found in
transactions had between superiors and inferiors in a fiduciary re-
lation, as attorney and client, guardian and ward, physician and
patient, pastor and parishioner, etc., in which the superior ob-
tains a gift or advantage from the inferior. In such cases the
law, on grounds of public policy, presumes fraud, or, what is
tantamount to fraud, undue influence, sufficient to avoid the con-
tract, gift, devise or legacy, and casts the burden upon the party
acquiring the benefit, of showing that it w\as acquired without un-
due influence, and generally, that the inferior had independent
advice. In many such cases, certain facts being established,
it becomes the duty of the court to declare what is called con-
structive fraud, to exist. ^ " For the sake of protecting parties in
such dependent situations," says Dr. Bigelow, " the law wisely
requires the party in the superior position to overcome the posi-
tive presumption against the fairness of the particular transaction.
But, if there be evidence tending to overturn the presumption,
it must, in most cases at least, be submitted to the jury, and their
decision of the existence of fraud invoked; or rather their de-
cision must be invoked to determine whether the presumption is
rebutted. If no rebutting evidence be offered, it is the duty of

^ Gage V. Parker, 25 Barb. (N. Y.) cutiou of a will, is a question of fact

141, 145; Erwiuv. Voortiees, 26 Barb. for the jury, and if the evidence is such

(N. Y.) 127. that a rational mind might reasonably

2 Hardy v. Simpson, 13 Ired. L. and fairly draw the conclusion reached

(N. C.) 132. On the trial of contest of by the jury, the court, on appeal, will

a will the question of the existence of not disturb the verdict. Moore v.

undue influence at the time of the exe- McDonald (Md.), 12 Atl. Rep. 117.

89



1410 PROVINCE OF COURT AND JURY. [2 Thoilip. Tr.,

the court to adjudge the existence of fraud as matter of law." *
Although matters of this kind generally arise in suits in ec^uity,
the object of which is to impeach deeds as well as other instru-
ments of conveyance, by which property is passed from an
inferior to a superior in some confidential relation, yet the prin-
ciple stated by the above writer is one of universal recognition,
and applies equally in proceedings at law and in equity. Trans-
actions of this kind, taking place between attorney and client,
spiritual adviser and advisee, trustee and cestui que trust, parent
and child, guardian and ward, physician and patient, and parties
in other like relations, are watched by the courts with the most
scrutinizing jealousy, and are generall}^ held to be presumptively
void.-

§ 1937. When Declared as a Question of Interpretation of
Writings. — In many cases the presumption of fraud will arise
on the face of a deed or other instrument of writing, which
presumption will be rebuttable; and, if it be an action at law, it
will in such a case be for the jury to say whether it has been re-
butted.^ The interpretation of written statements of fact, in
connection with the question whether they are false or not,
seems to belono; to the court.* Whether facts not disclosed or
falsely stated, are material, is for the jury to determine; ^ unless
it appear, either directly or by plain inference from the contract,

1 Bigelow ou Fraud (1st ed.), (N. C.) 132 ; Jolmson v. McAllister, 30

4(J'J. Mo. 327, 330; Weber v. Armstrong, 70

- This doctrine will be found, in Mo. 217, 220; Hewson v. Tootle, 72

various forms of expression, in tlie Mo. G32, 636; American Exchange

following and many other cases: Cas- Bank v. Inloes, 7 Md. 380, 393; Gates

pari V. First German Church, 12 Mo. v. Labcaume, 19 Mo. 17; Wise v.

App. 293; Garvin 17. Williams, 44 Mo, Wimor, 23 Mo. 237; Oliver v. Eaton,

40."), 409; s. c. 50 Mo. 200; Harvey v. 7 Mich. 108, 113. Compare Hardy v.

Rulleus, 46 Mo. 147; Yosti v. Laugh- Siiiuner, 9 Ired. L. (N, C.) 191.
ran, 49 Mo. .594; Street v. Goss, 62 ■» Swift v. Mass. Life Ins. Co., 03

Mo. 226; Rankin v. Patton, 65 Mo. N. Y. 186. See further authorities,

378, 411; Bradshaw v. Yates, 07 Mo. Bigelow on Fraud, 470.
221, 228; Ford v. Hennessey, 70 Mo. . ^ Rawlins v. Desbrough, 2 Mood. &

580. R. 328.

3 Hardy v. Simpson, 13 Ired. L.



Tit. V, Ch. LVIL] FRAUD. 1411

that they are deemed material/ or unless they arc of an evident
and orlarin<>: character. ^



§ 1938. Fraud in Fact not Presumed, but Must be Proved:
Statement of the Rule. — An initial doctrine is that fraud is
never to be presumed, but that, on the contrary, honesty and
right acting are always presumed in the absence of evidence to
the contrary ; from whence it follows that fraud must be clearly
proved by the party alleging it.^ The law presumes in favor of
innocence until the opposite is shown, — will never infer evil in-
tentions and dishonest purposes from language or conduct wdiich
is susceptible of upholding intentions and purposes which are
good and honest, — its maxim being: " Odiosa et inhonesta non
sunt in lege jJt'cesumenda, et in facto quod in se habet et bonum^
et malum, magis de bono, quani de malo, pi'oesumendum est.'' ^

§ 1939. An Instruction Presenting the Rule. — It is the constant
practice of courts, in actions raising the question of actual fraud, to in-
struct the jury concerning this principle. The following is offered as
a good model: " The court instructs the jury that fraud is never pre-
sumed, but must be clearly proved, to entitle a party to relief on the
ground that it has been fraudulent ; and the presumption of law is, that
the business transactions of every man are done in good faith, and for an
honest purpose ; and any one who alleges that such acts are done in bad
faith, or for a dishonest purpose, takes upon himself the burden of show-
ing, by specific acts and circumstances, tending to prove fraud, that
such acts were done in bad faith." ^

§ 1940. Fraud in Fact always a Question for the Jury. —

What is called fraud in fact is, as the term implies, always a
question of fact, and, in cases tried by a jury, must be established
to the satisfaction of the jury; and whether it is proved or not,
is a question for the jury, subject, of course, to the poAver of

1 Campbell v. New England Life ^ Stewart v. English, 6 Ind. 176.
Ins. Co., 98 Mass. 381; s. c. 1 Big. L. * Norton v. Kearney, 10 Wis. 443,
Ins. Cas. 229. ' 451.

2 Bufe V. Turner, (J Taunt. 338; ^ Approved in Ahlman v. Meyer,
ante, § 1284. 19 Neb. 06.



1412 PROVINCE OF COURT AND JURY. [2 Thomp. Tl.,

the judge, on principles elsewhere discussed, to withdraw the
question from them, on the ground that there is no evidence
tending to show fraud. ^ It may be said, as a general rule, that,
in every case where the law does not, on grounds of public
policy, impute fraud to a particular transaction, it becomes a
question of fact for the jury, whether it was fraudulent or not.
In every case where the question is one of motive or intent, it is
manifestly so.^

§ 1941, Illustrations. — By a statute of Missouri ^ a landlord is
allowed an attachment against his tenant^ if the latter intends to remove,
or is removing, or has within thirty days removed his property from the
leased premises, or shall in any manner dispose of such crop or attempt
to dispose of the same, so as to endanger, hinder or delay the landlord
from the collection of his rent, etc. It is held not to be the sense of
this statute that the tenant shall not remove any portion of the crop,
but only that he shall not remove or dispose of it so as to endanger or
hinder the landlord's collection of the rent ; and this is a question for the
jury.* So, in Texas it is ruled that when a judgment is offered in evi-
dence in an action to try title to land, it cannot be objected to its
admissibility that it was obtained by fraud ; for the reason that the
question of fraud in obtaining a judgment depends upon extrinsic evi-
dence and raises a question for the jury, and not for the court to decide.''
And it should be added that this question can only be tried in a direct
proceeding in equity, or in a proceeding of that nature, the object of
which is to impeach the judgment for fraud. It cannot be tried collat-
erall}', when the judgment is offered in evidence for some other purpose.
" Whether an award is void by reason of fraud in the party, or corrup-
tion, gross partiality or prejudice on the part of the arbitrators, is not
a question of law to be determined upon a demurrer to a plea, but a
question of fact to be submitted, if the parties desire it, to a jury, with
an opportunity to the party whose award is impeached, to explain by
testimony any circumstances on the face of the proceedings that might
tend to excite suspicion of unfair practices." ^ So, on a question of the

• Hanna v. Phillips, 1 Grant Cas. 410. The question is not, however,
(Pa.) 253. to be determined with reference to

2 Buckley v. Artcher, 21 I'.arb. auy property which the tenant may
(N. Y.) 585. have elsewhere. Ibid.

3 llcv. Stat. Mo. 1879, § 3091. s Maverick r. Salinas, 15 Tex. 57.

* Haseltiue v. Aushermau^ 87 Mo. '' Dureu v. Getchell, 55 Me. 241, 251.



Tit. V, Ch. LVIL] fraud. 1413

right to receive a bounty, voted by a town for volunteers enlisting to
serve in the late war, it was held a question for the jury, under all tlie
circumstances of the case, whether the claimant, in the true sense of the
law, engaged to serve for the term of nine months, either as a private or
an officer, in such a manner that he might be reckoned as one of the
nine months' quota for the town ; and included in this was the question
whether the enlistment was a bona fide contract to serve in some capa-
city for a stipulated term of nine months, or was a colorable engagement
for the purpose of obtaining the bounty.^ So, where a loill is icritten
on several sheets of j^ctper, fastened together by a string, the question
whether all the sheets were attached at the time of the signing, or
whether there has been a subsequent fraudulent addition to the instru-
ment, has been held under circumstances a question for the jury.'^ So,
in an action of ejectment, whether an entry of land was fraudulent or
not, should be submitted to the jury as a question of fact. In other
words, whether an entry was procured from the United States by fraud-
ulent means or not, in a contest between two claimants from the United
States, is a question which must be submitted to the jury.^ So, where
lands were sold by a deed which described it by courses and distances,



Online LibrarySeymour D. (Seymour Dwight) ThompsonA treatise on the law of trials in actions civil and criminal (Volume 2) → online text (page 32 of 126)