Page:The American Cyclopædia (1879) Volume VII.djvu/457

FRAUDS (STATUTE OF) 445 transactions of this kind, a very large propor- tion of all the buying and selling, of all that goes under the name of speculation, must come to an end. The courts of the United States have held that a buyer is not bound to com- municate to a seller extrinsic circumstances which were very material to the price, and were known to the buyer alone. Still, while the law is so in general, there are cases in which the concealment of special knowledge invalidates a transaction founded upon that concealment. If one injures another by such fraud as the law recognizes, he is responsible although not interested in the transaction, and not himself gaining by the fraud ; as, for ex- ample, when one knowingly gives false recom- mendations of a person seeking employment. It may be proper to mention the doctrine of constructive fraud, or that by which the law treats as fraudulent certain acts which have, or which are adapted to have, the effect of fraud, although none be intended ; as, for ex- ample, if one buys a chattel, and leaves it, however honestly, in the possession of the sell- er, this is a void sale as against a third party who buys of the seller not knowing the pre- vious sale. This not taking away what one buys is held in some courts to be conclusive evidence of constructive fraud, and in others to be only what is called a badge of fraud, or a very suspicious circumstance indicating fraud, but open to explanation. (See SALE.) FRAUDS, Statute of. This is a very peculiar law, and in its extent and systematic form is quite unknown out of the British empire and the United States. It originated, nearly two centuries ago, in the earnest desire of eminent English jurists to prevent the numerous frauds which were perpetrated by means of suborned and perjured witnesses ; and it was thought that the more effectual way of doing this would be a provision that a large number of the most common contracts should be incapable of legal enforcement unless they were reduced to wri- ting and signed by the party whom it was sought to charge. For this purpose, in the 29th year of Charles II. (1678), the " statute for the prevention of frauds and perjuries" was enacted ; and it is commonly known by the shorter name of the "statute of frauds." It has always been doubted by wise lawyers and judges whether this statute has not caused and protected as many frauds as it has prevented. But the same reasons which led to its enact- ment have always produced a prevailing belief that on the whole it was useful. Hence, its provisions have been enacted more or less en- tirely, or declared to be law by adoption, in nearly if not quite all the states of the Union. In no one of them is the English statute ver- bally copied ; and perhaps the provisions are not precisely the same in any two states. But they all copy parts of the original statute, and most of them enact its most material parts ; and the difference between the enactments of different states is, generally speaking, not im- portant. The reason why so many have deemed the statute useless or worse is, that it has been found impossible to make all its provisions, or even its more important ones, universally known. Hence, while by its requirement of written evidence it tends strongly to suppress that large class of frauds which was founded upon mere perjury, it tends also to expose in- nocent parties to grievous fraud through their ignorance of this requirement. They make, and perhaps with much care, important bargains, with all the details well adjusted ; but they do not take the precaution to have their agree- ments reduced to writing and verified by signa- ture ; and after complying with their part of the bargain in good faith, they learn for the first time in court, or from their counsel, that their bargain gives them no legal right or remedy, because of the omission of that which they had never supposed to be requisite. We shall proceed to give the most general rules in regard to the provisions of this statute (mean- ing thereby both those which are most widely adopted, and those of the most important and frequent application) which have been sanc- tioned by the jurisprudence of the United States; without, however, attempting to go into a close consideration of the details and diversities of state enactment or adjudication. By the fourth section of the English statute, which is the one that our statutes copy most frequently, no action can be brought upon an agreement not reduced to writing and signed by the party to be charged therewith, or by some person by him authorized, if by the ac- tion : 1, any executor or administrator is to be charged to answer damages for the deceased out of his own estate ; 2, or if any person is to answer for the debt, default, or miscarriage of another ; 3, or upon any agreement in con- sideration of marriage. ; 4, or upon any contract for the sale of lands, or any interest in or con- cerning them ; 5, or any agreement not to be performed within one year from the making thereof. In reference to all these, it is held that a signing is sufficient if substantial, al- though not literal and formal : as if in a letter signed by the party he alludes to and recognizes the agreement; or if the party writes his name at the beginning or in any part of the agreement, with the intention that it shall verify the instrument as his own ; or if a broker, for both parties or either party, writes their or his name in his book, they or he assenting. But where, as in some of our statutes, the word used is not "signed" but "subscribed," there it has been said, but may not be certain, that the name must be written at the bottom of the agreement. So the name maybe printed, or written in pencil. An agent may sign, and may sign sufficiently although he write only his own name ; and any ratifica- tion of his signature would be equivalent to a previous authority. But one of the contract- ing parties cannot sign as the agent of the other. An auctioneer or his clerk, or a broker,