From Rutherford. Case for a deceit in the sale of a female slave. On the, trial, it appeared that the negro had belonged to one Rutherford, who died intestate, in the year'1819. Letters of administration upon his estate, did not issue until January, 1823, when the Defendant being appointed administrator, took the personal property into his possession, and sold the negro in dispute to the Plaintiff, in February 1823, at public auction.
Cited by 3 later decisions — most recently July 1931
1 federal appellate · 2 state decisions
Good law ✅— No negative treatment on recordhow we know
¶1
This action is founded on a fraud
;
to support if, there must he either a fraudulent misrepresentation, or a fraudulent concealment. It is not sufficient that the representation be false in point of fact; the Defendant must be guilty of a moral falsehood.
*352
The party making a representation, must know or be-¡¡eve it to be false, or what is the same .thine:, have no .
°
reason to believe ¡Í to be true.
¶2
Concealment
ex vi termini
imports a knowledge of the thing concealed ; for a person cannot he said to conceal that which he does not know, and silence, as to a fact which the party does not believe to exist, cannot be said to be a fraudulent concealment. 1 cannot therefore agree with the Judge below, that (he Defendant was bound to declare, and
was guilty of a fraud if he did not declare
that which he did not believe to exist, although he had been told that it did exist. It should have been left to the Jury to say whether the Defendant had a knowledge of the unsoundness of the negro.
¶3
I disturb this verdict with great reluctance, because I believe it meets both the law and the justice of the case.
