¶1The opinion of the court was delivered October 28,1858, by
¶2— The plaintiff’s chief reliance here, is on the fact that the court did not answer his second point; but this is equivalent to a negative of it, and such was the proper .answer. The point requires the court to say, that if the defendant knew the fact of the insolvency of the parties to the bill and did not communicate it to the plaintiff, when selling the bill to him, this is a fraud. In the case of Smith v. Murphy & Co., 21 State R. 367, we have shown that this is not so, and have given to the whole subject a careful consideration.
¶3There we showed that the fraud is not in the contract itself, but in some of the previous acts, representations or circumstances, that induced the contract. The right of reclamation, after delivery, or payment, exists only where an action of deceit would lie. As a man cheated out of his money may sue in assumpsit or deceit; so one cheated out of his personal property, may sue in trover, or replevin, or deceit. The injuries and remedies correspond in substance. But there must have been actual artifice, intended and fitted to deceive, before a man can claim that he has been cheated. The point put to the court, is therefore, defective of an essential element of fraud, and could not be affirmed. We can hardly think, that the circumstances noticed on the argument but not in the point, could add much strength to the plaintiff’s position.
¶4In relation to the points of the case, we do not discover any error prejudicial to the plaintiff.
¶5Judgment affirmed.