
    Lapish vs. Wells.
    B, a “settler” on lands of the Commonwealth of Massachusetts in Bangor, within the terms of the two Resolves of June 25, 1789, sold one acre of his possession, by metes and bounds, to MeG ; and afterwards sold the residue of his lot, excepting the acre, to P, from whom it passed to L, and his associates; who subsequently received from the committee on Eastern lands a deed of the whole lot, as the assignees of B, without any exception of the acre; they having complied with the conditions of the Resolve of Feb. 5,1800, relating to settlers in Bangor. L. resided on the lot ever after his purchase. McG. always resided in another town ; and never occupied the acre, nor took any measures to confirm his title, nor exercised ownership over it, till after the Commonwealth, by its committee, had granted it to L. and others. In an action by L. against a grantee of McG. to recover part of this acre, it was held,—
    That it was competent for the tenant to impeach the deed front the Commonwealth to L. and others on the ground of fraud, so far as related to its conveying the acre to the grantees :—
    That McG. was entitled to be confirmed in his right to the acre, as the assignee and legal representative of a settler, within the meaning of the resolves :—
    That a grant by Massachusetts, of lands in this State previous to the separation, is impeachable for fraud, in the courts of this State; notwithstanding the general language of the 7th of the terms and conditions of the act separating Maine from Massachusetts, confirming all the grants of the parent Commonwealth :—
    That if the committee on Eastern lands accidentally omitted to except the acre sold to McG. from their deed to L. and others, and the latter, perceiving the mistake, took the deed in silence, intending to defraud McG. of the acre; the deed, as to that acre, was void.
    It is the duty of a judge, when requested, to instruct the jury upon every point pertinent to the issue.
    Whether the “ grants,” &c. mentioned in the 7th of the terms and conditions of the act separating Maine from Massachusetts, can be extended beyond the immediate acts of the legislature, so as to include lands conveyed by the deeds of the committee on Eastern lands, — dubitatur.
    This was a writ of entry, in which the demandant counted on bis own seisin of a parcel of land in Bangor ; and a disseisin by one William, McGlathry, under whom the tenant claimed title ; and it came before the court upon exceptions taken to the decisions of Weston J. before whom it was tried. *
    The demandant, at the trial, relied on a deed from the committee for the sale of eastern lands, appointed by the Commonwealth of Massachusetts, dated March 2, 1802; conveying to himself, and Zadoclc French, and Amasa Stetson, “ assignees of James Budge, who settled in Bangor prior to Jan. 1, 1784, the lot No. 11, in Bangor, as it was surveyed by Park Holland, in the year 1801 and further describing it by metes and bounds, including the demanded premises, and extending to low-water mark.
    The tenant adduced a deed from James Budge to William Mc-Glathry, dated April 19, 1798, conveying an acre of land, of which the land defended was a part; bounded “ beginning at a stake on the west bank of Penobscot river, near a thorn-bush marked on four sides; running north eleven rods to a stake and stones; thence southerly to a stake and stones, a corner ; thence south nine rods to a stake and stones on the same bank of the same river; thence running on the western bank of said river, to high-water mark, sixteen rods to the first mentioned bounds; with all the privileges of water and. landing to the same belonging.” This deed was recorded May 7, 1798.
    He also read a deed from Budge to John Peck, dated March 13, and recorded March 20, 1799, conveying a tract of land in Bangor known-by the name of Budge’s farm ; bounded “ beginning on the east corner of Penobscot river; from thence running north one mile, adjoining the land formerly owned by Francis Rogers, deceased; thence west fifty rods on the land belonging to the Commonwealth; thence south to Kenduskeag stream, on the land owned by one Harlow ; from thence down the Kenduskeag stream to Penobscot river ; and from thence up the said Penobscot river to the place of beginning ; meaning to contain one hundred acres; excepting one acre sold to William, McGlathry, as by his deed dated April 19, 1798,” &c.
    He also read a deed of the same land from Peck to Daniel Wilde, dated March 23, and recorded April 2, 1799; and another from Wilde to Zadock French and Robert Lapish, the demandant, dated Nov. 21, and recorded Dec. 15, 1800, conveying an undivided moiety thereof; both deeds containing the same description and exception.
    It was further proved by the tenant, that at a legal meeting of the inhabitants of Bangor, holden .Dec. 30, 1800, Lapish was chosen to be “ their agent to carry in their claims to the government of Massachusetts, and procure deeds for them as settlers in said town that in Oct. 1800, the Budge-lot was surveyed by Moses Hodsdon for Lapish; who, while they were making the survey, observed that the value of the lot was much less, by reason of the acre sold to McGlathry, — That McGlathry resided in Frankfort, and was never an inhabitant of Bangor; — and that the acre sold to him, lay in common with the rest of the land at Kenduskeag-point, until a part of it was occupied and fenced, and a house built upon it in 1803, by Luke Wilder, who bought a quarter of the acre of McGlathry in 1802; which was the earliest actual occupancy of any part of the acre.
    The tenant also proved by Oliver Leonard Esq. who wrote the deed from Budge to McGlathry, that the latter had sued Budge, and attached his cattle ; that Budge employed the witness to procure for him a settlement of their accounts and dealings, which were of long standing ; that McGlathry met him, by appointment, at the house of Budge, where each party produced his demands against the other, and a balance was struck of about a hundred dollars, for which McGlathry agreed to receive the acre of land, which was measured and conveyed to him on the same day; that this was a settlement of all demands between them ; upon which McGlathry promised to stop the suit; that the witness was the attorney of Budge, and attended the court to which the writ was returnable, and looked for the action, with a view to answer for the defendant, but was unable to find it.
    On the part of the tenant was also shown the resolve of March 5, 1801, passed on the petition of the inhabitants of Bangor, and procured by the solicitation of Lapish as their agent, granting lots of one hundred acres each to all who were actual settlers prior to Jan. 1, 1784, on payment of eight dollars and forty five cents; and to all who were actual settlers between that day and Feb. 17, 1798, similar lots, on payment of one hundred dollars each; with the expenses of survey in both cases; and directing a survey to be made and returned to the committee on Eastern lands, on or before 
      Nov. 1, 1801; after which time six months were allowed to the settlers to pay for their lands.
    - Under this resolve a survey was made by Park Holland, and returned Nov. 30, 1801 ; in which he certified that he had laid out, by metes and bounds, “ to Robert Lapish and others, assignees of James Budge,” one hundred acres of land in Bangor, being the lot No. 11, on his plan, bounded “beginning at a stump with stones about it, standing on the bank of the river, being the southwest corner of lot No. 12 ; and from thence north seven degrees west, sixty rods, to a pine stump marked ; thence north, two hundred and thirty one rods, to a stake marked; thence west, fifty seven rods, to a fir tree marked; thence south, about two hundred and twenty-seven rods, to a stake standing in the county road, one rod east of an oak stump in said road ; thence west, four rods, to the stream ; thence on said stream, on the bank thereof, and on the bank of the Penob-scot river, to the first bounds.”
    It also appeared that a dispute respecting the bounds of their adjoining lots had arisen between Lapish and one Harlow; which had beep referred to the decision of arbitrators; whose award, dated Jan. 14, 1802,"set forth the boundaries of Lapish’s lot, describing it as containing one hundred acres, “ except one acre sold to Wm. McGlathry,” and it was proved that Lapish, though requested, did not produce any title-deeds to the referees ; alleging that they were lost or mislaid ; and that copies of them were afterwards obtained from the record and exhibited by Harlow.
    
    It was further proved, in the defence, that the acre was called “ the McGlathry acre” in 1801; that in February of that year Lapish offered McGlathry eight hundred dollars for it; that in 1805 he said he did riot pretend to claim it; that in the same year he and JLmasa Stetson, Esq. who owned half the Budge-lot, said to Wilder that their deed covered the acre as well as the rest of the lot, and that they did not see why they could not hold that also; but on Wilder’s replying that it was not right to take away the land, Mr. Stetson answered, in presence of Lapish, that though their deed covered that lot, yet they had no moral right to it. Stetson and Lapish, having previously caused Kenduskeag point to be surveyed into streets and lots, which they had extended across the acre without reference to its lines, asked Wilder if he intended to conform to their plan of the streets and lots; to which he replied in the affirmative. And a part of his lot extending a few feet across one of their streets, they wished him to sell them that strip; to which he assented, for an agreed price; and had no doubt he gave them a deed of conveyance. Wilder also testified that the owners of the land at the point were very desirous that people should build and occupy there ; that before he purchased, he told Lapish ho thought he should buy of McGlathry, and that when he was laying down the sills of his house, Lapish pointed out the place which would conform to their plan of the streets, assisted at the raising of the frame, and permitted the people at work under him, as surveyor of highways, to leave their work and assist also.
    On this evidence the tenant contended that the deed under which the demandant claimed the acre, and so far as it purported to include it, was obtained from the committee by fraud, and was therefore void, as to that parcel.
    The demandant, to rebut this evidence, read copies of certain documents from the land-office; from which it appeared that the existence of McGlathry's claim, and of the exception of it in the deeds of the Budge-lot, must have been known to the committee at the time of executing the deed of March 2, 1802 ; those deeds, with other papers relating to some disputes respecting the bounds of the lot, having been laid by them before the late Chief Justice Parsons, then at the bar, for his advice whether the demandant and his associates were entitled to a deed as the representatives of Budge ; which he answered in the affirmative. The effect of this evidence was denied by the tenant, who contended that it ought to be rejected.
    Two resolves, passed June 25, 1789, were also read, restricting the term “ settler” to one who made a separate improvement on bis lot, fitted for mowing, pasturage or tillage, with an intent to abide and remain thereon; and was resident on such lot, by himself or some other person under him, during the period mentioned in the resolves. Also, the resolve of Feb, 23, 1798, directing the resurvey of the Waldo claim 5 and the resolve of Feb, 5, 1800, ota the report of Thomas Davis, surveyor; to show that the persons to be quieted in their possessions in Bangor, were none but the actual residents mentioned in the preceding resolves.
    The demandant also produced a copy of a judgment recovered by McGlathry against Budge at May term, 1798, on default, for one hundred and six dollars damages, with costs, in an action of assumpsit; and a certificate thereon, showing that execution was issued Nov. 21, 1798 ; but it did not appear that any part of the judgment had been satisfied.
    He further proved by Holland, the surveyor, that advertisements of his intended survey of the settlers’ lots were posted up in the taverns in the vicinity, six weeks before the time of the meeting; which was also published in the newspaper printed at Hampden, adjoining both Bangor and Frankfort; that the settlers generally attended at the survey ; and after it was completed, Maj. Neal, who had attended as the agent of Gen. Knox, certified his assent to the assignment of the lots to the settlers ; but during all this time there was no appearance, nor any claim, either by McGlathry or any one in his behalf; nor did it appear that he had any personal knowledge of any of these transactions, other than might be inferred from the foregoing testimony. But Lapish always had resided on the Budge-lot, not far from the acre, from the time of his purchase from Budge, till long after the deed was made to him and his associates by the committee, in 1802.
    Other evidence was offered by the demandant, showing that the acre lay in common, and was occupied indiscriminately with the rest of the point, by transient occupants and others, up to the year 1805 ; except the separate inclosure of Wilder’s lot in 1803, as before stated. Holland further testified that he did not recollect having any knowledge of McGlathry’s claim till long after the survey; but thought he must have had some evidence of the deeds, and of the title of the demandant and his associates to hold as the assignees of Budge, or he should not so have returned their names. And he said that had Lapish pointed out the acre to him, requesting him to mark it on the plan, he should have marked it.
    After the tenant purchased the land defended, it continued in the occupancy of him and his grantees, till the commencement of this action.
    Hereupon it was contended on the part of the demandant, that by force of the resolves referred to, all the lands in Bangor were conveyed to Gen. Knox and others, interested in the Waldo claim, except one hundred acres to each settler then occupying the same; and that as McGlalhry was not a settler, and never occupied any land in Bangor, he could have no right or claim under the resolve of 1801, and was not entitled to any grant or deed from the committee :—
    And that as McGlalhry did not attend before the surveyor, and preferred no claim to him or to the committee, either as a settler or the legal representative of one j and wholly omitted the condition required by the resolve, of paying for the survey, and paying money into the treasury of the State ; he had no right to claim any land cither as a settler, or as the representative of a settler.
    But these points the judge overruled. And he instructed the jury that if the committee had before them the evidence of Mc-Glalhry’s title to the acre under Budge, but it escaped their attention, and therefore was not noticed in their deed to Lavish and others; and if Lapish, when he took the deed, then perceived, though for the first time, that the acre was not excepted ; and took the deed with intent to defraud McGlalhry, to deprive him of the acre, and to hold it against him ; this would vitiate the deed as to that acre, and so far render it void ; — and that if the deed was so received, with such intent, it was a fraud, not only on McGlalhry, but on Budge, his warrantor of the acre.
    It was further contended by the demandant, that if the committee, at the time of giving their deed, were deceived as to the right of French, Lapish and Stetson to the whole lot; yet the present tenant could not take advantage of this, nor impeach the deed for this cause. But this point the judge overruled.
    It was also contended by the demandant, that by the statute of Massachusetts for the separation of Maine, incorporated into our constitution, the grant from Massachusetts to the demandant was confirmed, so that neither the State of Maine, nor any of its tribunals, could now invalidate or set it aside. But the judge instructed the jury that if the deed was originally obtained by fraud, it was competent for a judicial tribunal in Maine to declare the grant void ; in the same manner as such a tribunal in Massachusetts might have done before the separation of the State.
    The demandant also requested the judge to instruct the jury, that if the committee perceived the exception of the acre sold to McGlathry, as stated in the deeds from Budge, down to Lapish and his associates; but considered McGlathry as not entitled to any land under the resolve, and intentionally excluded him; meaning to convey the whole lot to Lapish and his co-tenants; it was not a fraud in the latter to receive such a deed.
    But the judge declined so to instruct them; saying that such a course, on the part of the committee, was not to be presumed.
    And a verdict was returned for the tenant, as to so much of the demanded premises as lies above high water mark, and within the limits of that part of the acre by him defended. Whereupon the demandant filed exceptions, under the statute, to the opinions and decisions of the judge, above stated.
    
      McGaw, Greenleaf and Sprague, for the demandant,
    maintained the following propositions.
    1. The entry of Budge on the land of Massachusetts, was without pretence of right; and was not even a disseisin; because the State cannot be'disseised. He therefore had nothing which he could convey to McGlathry. The latter was not a “ settler,” within the terms of the resolves referred to; — Lambert v. Carr, 9 Mass. 190 ; Harlow v. French, ib. 192; and so was not entitled to any of the bounty granted by the Commonwealth to that class of persons. Nor was it any longer in the power of the Commonwealth to grant him the land ; because all the township, not in the hands of actual settlers, was already granted to Gen. Knox; which the grantor could not control. Dartmouth College v. Woodward, 4 Wheat. 518. Yet to the grant to Lapish, Knox had assented, by the presence of his agent at the survey. Bussey v. Luce, 2 Greenl. 367..
    Neither was McGlathry the “legal representative” of a settler. though such are mentioned in the resolve of 1801. That term applies only to executors, administrators and heirs; to whom his estate would be distributed, by the statute ; not to assignees in fact. But Lavish was an actual settler, within the letter and spirit of the resolve.
    2. But if McGlathry was within the meaning of the resolve, yet he never complied with its terms; and so was not entitled to any land. He did not reside in the town ; he claimed nothing; he paid nothing ; and if he ever had actual possession, he had long since abandoned it; had prosecuted his suit against Budge; and obtained judgment for the very sum agreed to bo extinguished by the conveyance of the acre. He was not a tenant in common of any portion of the lot; but had a deed of an acre in severalty. He therefore could, in no view of the case, be entitled to a deed ; because the committee could only convey in lots of a hundred acres; and to resident settlers, such as was the demandant.
    3. Though the acre conveyed to McGlathry escaped the attention of the committee, and Lapish, perceiving it, took the deed in silence, yet this was no fraud in him; unless he had taken some measures to deprive McGlathry of that to which he was entitled. The mere suppression of a fact within his own knowledge, is no fraud. Laidlaio v. Organ, 2 Wheat. 178. Nor was he bound by any notice respecting the claim of McGlathry, the latter having no rights entitled to be respected. Cowp. 711,712; 1 Crunch,'IQ, 100 ; Eve renden v. Beaumont, 7 Mass. 76; Bullard v. Hinckley, 5 Greenl. 272; Co. Lit. 57, b.; Dyer 266, b.
    
    4. But admitting, for the sake of the argument, that the’committee were deceived ; yet the tenant is not entitled to this objection ; which can only be made by the grantor; as in the cases of infancy or duress. Worcester v. Eaton, 11 Mass. 371. It was on this principle that Story J. held that the associate of this demandant could not avail himself of the fraud practised by McGlathry against Budge, in obtaining judgment against him. Dunlap & al. v. Stetson, 4 Mason, 349.
    5. The deed from the committee to the demandant, being a grant by Massachusetts, which had received a solemn judicial exposition in the case of Lambert v. Carr, in which it was established that the committee were the exclusive and final judges of the claims of settlers, is now confirmed by the Constitution of Maine, Art. 10, sec. 5, condition 7; and cannot be impeached in this State, nor vacated by its tribunals. •
    6. The instruction requested from the judge, but which he declined giving to the jury, was pertinent to the issue; and was therefore improperly refused. There was evidence, from which it was plainly to be inferred that the committee knew of the claim of Mc-Glathry. They passed it over through inadvertence, or design. On the former supposition, the jury had already been instructed by the judge. But if they adjudicated on his claim, and designedly rejected it, as, by the decision of Lambert v. Carr, they had the right to do, it was no more fraud in the demandant to reap the benefit of that decision, than for any other party to have the benefit of a judgment fairly rendered in his favor by a competent tribunal.
    
      W. D. Williamson, for the tenant.
   The opinion of the Court was read at the ensuing October term, as drawn up by

Mellen C. J.

We have listened with attention to the arguments of the respective counsel, and have since deliberately re-examined the facts, and the principles adduced to support and resist the motion for a new trial; and although for some time we were not able to unite in any conclusions, yet on further discussion and reflection, we became satisfied with the opinion which we have formed. This opinion, with the reasons on which it is founded, will now be delivered.

Several reasons have been urged by the counsel for the demand-ant in support of the motion; these we will consider separately, though not in the order in which they are presented in the report.

1. As the deed from the committee contains no exception of the acre previously conveyed by Budge to McGlathry, it is contended that the tenant has no right to impeach the deed on any of the alleged grounds; but as it is admitted that he claims under McGla-thry, he has a direct interest in the question in issue, and has the same right to impeach.the conveyance on those grounds as McGla- thry liiraself would have if he were tho tenant in this action. This simple answer is sufficient, without being further extended.

2. It is denied that McGlathry was a settler, within the true meaning of any of the resolves offered in evidence; and that if he was a settler, he had not complied with the terms prescribed, and so was not entitled to a deed of the disputed acre from the committee. The answer to this objection is plain and obvious. Neither of the parties in this case, nor tho committee, ever considered him as the original settler, but only as the assignee of a settler. The deed from the committee describes James Budge as the original settler, and they recognized him as such. This objection, therefore, may at once be laid out of the caso as wholly unimportant.

3. The third objection has an intimate connection with the one just answered, and a part of it is involved in that. This however proceeds on the ground that, although McGlathry was the assignee of Budge, still he was not such a legal representative of him, as to be entitled under any of said resolves, to a deed of the acre from the committee of the Commonwealth. This argument seems to the court to be founded upon too narrow a construction of the terms “ legal representative.” We apprehend the legislature never could have intended merely the “ heirs, executors or administrators” of a settler, to tho exclusion of his legal assignees. Such a construction would be an unreasonable limitation of the bounty intended by them, as it would have operated to prevent settlers from realizing any advantages from the provisions of the resolves directly or indirectly, in case of a transfer of their possessory interests. Besides, the argument of the demandant’s counsel is unfortunate in being liable to the objection that it proves too much. By the report it appears that Budge conveyed all his farm, (except the acre in question,) to Peck, who conveyed the same to Wilde; and he conveyed an undivided moiety of the same to French and the demandant. Now Peck, under whom the demandant claims, and McGlathry, under whom the tenant claims, were both of them assignees of Budge, in different proportions; and one of them was as well entitled to a deed from the committee as the other. And if nothing could legally pass by their deed to an assignee of Budge, because he was not his legal representative, according to the construction of the demandant’s counsel, then it would follow that nothing passed by the deed to Peck; the consequence of which would be that upon that principle, if on no other, there ought to be judgment on the verdict.

4. In the next place it is contended that by the seventh provision in the first section of the act relating to the separation of the District of Maine from Massachusetts proper, and forming it into a separate and independent State, the deed from the committee to Lapis'll, French and Stetson has been confirmed ; and as the foregoing provision, with others, is incorporated into the constitution of this State, no tribunal thereof can now legally invalidate or set it aside. The language of the above mentioned provision relating to the point is this;- — “All grants of land, franchises, immunities, corporate or other rights, and all contracts for, or grants of land not yet located, which have been, or may be made by the said Commonwealth, before the separation of said District shall take place, and having, or to have effect within the said District, shall continue in full force, after the said District shall become a separate State.” It is very questionable whether the above cited provision was intended to have any relation to conveyances made by the agents of the Commonwealth, in the common form of deeds. It would seem from the words grants of land, franchises, immunities, corporate and other rights,” that the immediate acts 'of the legislature were intended. But, be that as it may ; the expression is that they “ shall continue in full force”; which implies legal and effectual grants, and, as such, being then in force. But we can never presume that the legislature intended that grants of deeds should be more binding and sacred in this State and in its judicial courts, than they would have been in the judicial courts of Massachusetts, provided Maine had never been erected into a separate State. It would be a singular construction of the language quoted, to consider it as designed to confirm and sanction a deed fraudulently obtained from an agent of the Commonwealth, and to deprive the courts of justice in this State of the power of exaniining and deciding a title, depending on such deed, according to the unquestioned principles of the common law. We do not feel at liberty to countenance this objection.

g. The next objection relied on has reference to the instructions of the judge to the jury on the subject of the alleged fraud in the procurement of the deed by the demandant from the committee. He instructed them that if the committee had before them the evidence of McGlathry's title to the acre under Budge, but it escaped their attention, and therefore was not noticed in their deed to Lapish and others ; and if Lapish when he took the deed then perceived, though for the first time, that the acre was not excepted, and took the deed with intent to defraud McGlathry, to deprive him of the acre, and to hold it against him; this would vitiate the deed, as to that acre, and so far render it void and “ that it would be a fraud, not only on McGlathry, but on Budge, his warrantor of the acre.”

It is contended that this instruction cannot be sustained upon legal principles; that unless the demandant was instrumental in causing the omission of the exception of the acre in the deed of the committee, his mere silence when he saw the mistake which they had carelessly made, and his receiving the deed under such circumstances, did not amount to a fraud on his part which would vitiate the deed; though it might render Lapish, French and Stetson trustees of the acre ; and, as such, compellable in a court of equity to convoy the same to those entitled to the estate therein. In support of this objection it has been urged that the whole subject in relation to the contending titles to the acre conveyed to McGlathry, and afterwards by the committee to the demandants and others, has recently undergone a critical and laborious examination in the Circuit Court of'the United States in the case-of Dunlap & al. v. Stetson, 4 Mason, 349; and that the learned judge who tried the cause decided that there was no ground for the imputation of fraud on the part of the grantees, but that the deed, as to the acre, conveyed an estate to them in trust. The force of this argument disappears when we consider that the case abovementioned was a bill in equity, and that the defendant in his answer had expressly denied all fraud and management; and the answer being under oath, and not disproved, was of itself proof that no fraud existed in the obtainment of the deed from the committee ; or at least it removed all presumption of fraud; and even if any existed, the case was left destitute of all proof of it. But- the case furnishes us with no principles of law repugnant to those delivered to the jury in the instructions we are considering. On the contrary, principles directly establishing the same doctrine are strongly stated. He observes — “ would it be pretended, that if a man should fraudulently procure from the Commonwealth a title to lands intended for another, either by its bounty or its contract, by misrepresenting himself to be that person or his assignee, that he should possess the land, thus procured by his fraud or misrepresentation, free of all claims of the injured party ? That because his deception had been complete, therefore it should constitute and perpetuate an unimpeachable title ? A court of law would not hesitate to set aside such a conveyance. No conveyance is so sacred, that, if infected by fraud, it may not be overturned.” Again he observes, when speaking of the grantees, — “ If they represented themselves as the sole owners, or, knowing the mistake of the commissioners, if they took the deed, intending to defraud 'McGlathry, the transaction, both at law and in equity, would be pronounced void for the fraud, and the deed be set aside on that account as well against McGlathry and his assignees, as against the Commonwealth.”

We have examined the eases cited by the counsel for the demandant, but do not perceive that any of them, except Laidlaw v. Organ, 2 Wheat. 178, have any special bearing upon the point now under examination. In that case Organ, having heard of the news of peace at New Orleans, purchased a quantity of tobacco of Laidlaw who had not heard of it; and a few moments before the sale was completed, being asked whether there was any intelligence calculated to enhance the price of tobacco, Organ remained silent. Marshall, C. J. says — “ The question is whether the intelligence of extrinsic circumstances, which might influence the price of the commodity, and which was exclusively within the knowledge of the ven-dee, ought to have been communicated. The court is of opinion he was not bound to communicate it; but at the same time each party must take care not to say or do any thing to impose upon the other. It would be difficult to circumscribe the contrary doctrine within proper limits, where the means of intelligence are equally accessible to both parties.” A note is added by the reporter from Pothier in these words : “ Where the vendee conceals from the vendor the knowledge be may have, touching the thing sold, and which the vendor may not possess, it does not vitiate the sale ; because the vendor ought to know best the quality of the articles ho sells ; and if he does not it is his own fault.” In the above named case the principle decided had reference to the intelligence of extrinsic circumstances, as it is expressed, or the general knowledge of business or public events ; and the note subjoined has reference to knowledge of some fact, in relation to an article, possessed only by the vendee. In the case at bar no want of knowledge is imputed to either party. The instruction complained of was, that if the committee knew of the title of McGlathry to the acre, but that the fact escaped their recollection when they made the deed; and if Lapish saw their mistake, arising from that forgetfulness, but fraudulently received the deed with intent to hold the land which belonged to McGlathry ; then such a transaction would vitiate and avoid the deed. Thus far, certainly, a difference exists between the cases. That case seems to us to go as far as moral principles will justify, even in cases of that description, depending on public intelligence; and further than the same Court seemed willing to go in the case of Etting v. Bank of United States, 11 Wheat. 59. In that case it appeared that McCullough had been cashier of the Branch bank at Baltimore, and had been guilty of a fraudulent appropriation of a large sum of money belonging to the bank to his own use. The fact being discovered, it was resolved on by the directors that he should be removed. He was immediately called upon for security, which after some time was procured. As a part of the security furnished, a note was given by McCullough, indorsed by Etting. After the bank had obtained security in full, and not till then, McCullough was immediately removed from the office of cashier. As soon as Etting discovered what the transactions of the directors had been, he refused to pay the note, on the ground that he had been misled, deceived and defrauded by their conduct, and the concealment of the facts from his knowledge. A verdict was returned in favor of the defendant. The Circuit Court instructed the jury that if they should find that the directors contemplated, though they did not promulgate, the removal of the cashier as soon as security should be furnished ; that Siting indorsed the note in ignorance of the fraud of the cashier, or probability of his removal; and that he would not have indorsed the note had he known the circumstances; and that the bank did not disclose their intention to remove the cashier, lest it should increase the difficulty of his procuring security or prevent it; yet if Stiing indorsed the note at the request of the cashier, without making any inquiries of the bank, or having any communication with them, the plaintiffs were entitled to recover; and that the note was binding on the defendant, unless he had shown such inquiries or communication, and a misrepresentation or concealment on the part' of the bank. The court were requested by the counsel of Siting to instruct the jury that if they should find that the directors knew of McCullough’s fraud and insolvency; that thereupon they resolved to remove him, but concealed the facts and continued him in office for the purpose of obtaining security, and that Siting was ignorant of the above facts; that then the plaintiffs were not entitled to recover. But the court refused to give this instruction, unless the jury should be further of opinion that the defendant was led into .this state of ignorance in consequence of inquiries made of the plaintiffs, or some previous communication between them and him. Etting’s counsel filed a bill of exceptions, and thereupon a writ of error was brought. After long and learned argument, the court, consisting of six of the judges, were equally divided; and though by the rule of the court in such cases, the judgment was affirmed, yet the case shews that the court did not sustain the opinion of the Circuit Court, that inquiry or communication for the purpose of information was necessary to create the obligation to disclose material facts. “ The fraud, said the counsel, “ consists, in such cases, in dealing with the party in ignorance, and leaving him so. It is not necessary that the other party should have created the false impression or intended it; it is sufficient that he knows it, and takes advantage of it.” In support of this general principle may be cited, Stuart v. Wilkins, 1 Dougl. 18; Cockshot v. Bennet, 2 D. & E. 763; Jackson v. Duchaire, 3 D. & E. 551. In the instruction of the judge to the jury in the case at bar, a part of it was that if La- ■pish saw lha mistake, but look the deed with intent to defraud Me-Glathry, it would vitiate the deed as to the acre. The question of fraudulent intent was properly submitted to the jury, aud they have found the fraud. Upon authority we cannot perceive any incorrectness in the instruction. Lapish was instrumental in giving it effect; because the deed could have no operation as to any part of the land, until delivery, aud acceptance of it; and he received and accepted the deed, knowing there was a mistake in it, important in its nature,, and that the committee had, through mere inattention, committed the mistake. The laws of morality can never give sanction to such a proceeding ; and it surely cannot be the duty of a court ofjustice to be more indulgent in its judgment, it would be a reproach to our laws aud tribunals which administer them, to permit fraud to accomplish its designs, when those designs are detected and disclosed. In the case before us the jury, who are the exclusive judges of facts, have by their verdict pronounced that the deed in question was fraudulently obtained from the committee. The objection therefore, to the instruction to the jury on the point we have been considering is not sustained.

6. The last objection is to the refusal of the judge to give certain requested instructions. The cases cited in support of it shew that it is the duty of a judge to instruct the jury upon any point which is pertinent to the issue ; though not as to abstract principles which are irrelevant. The inquiry, therefore, is whether the instructions requested, were pertinent to the issue ? The judge was requested to instruct the jury that if the committee perceived the exception of the acre sold to McGlathry, as stated in the deeds from Budge down to Lapish and his associates, but considered McGlathry as not entitled to any land under the resolve, and intentionally excluded him, meaning to convey the whole to Lapish and his co-tenants, it was not a fraud in the latter to receive such a deed. On this part of the cause there has been some vibration of opinion ; but on consideration we are satisfied that the requested instruction had been virtually and essentially though not formally given, and was included in the instructions which we have just been examining. He presented to the consideration of the jury a number of particulars respecting the deed, and the conduct of Lapish at the time of its execution and delivery ; and instructed them that if they should find all those particulars true, then the deed was void as to the acre. This amounted to a distinct expression of his opinion that if they should not find them all true, then the deed was not void. The implication is so strong that it could not be misunderstood. The jury had no authority from the court to consider the deed as void, except in one case and under certain specified circumstances. They have found that all those circumstances existed, viz. the committee’s knowledge of McGlathry’s title to the acre; their forgetfulness of the fact when the deed was executed; the knowledge of Lapish of the mistake in the deed; and his silence and acceptance of the deed with intent to defraud McGlathry. All these are totally repugnant to t'he'facts assumed as the basis of the requested instruction, and the verdict proves that if given, it could not have changed the aspect of the cause, or been productive of any legal consequences in relation to either of the parties. It cannot therefore be considered as relevant. The instruction called for, in fact," amounted to no more than this, that if Lapish received just such a deed as the committee intended to give, in the honest execution of their supposed powers, it was no fraud in him. This seems to bear a strong resemblance to an abstract proposition, and even to a self-evident one. We think the judge was justified in declining to give the instruction, for the reasons we have mentioned.

Knowing, as we have reason to know, that this cause, and others on the docket, growing out of the same transactions, are important in a pecuniary point of view, and interesting to the feelings of all the parties connected; we have been disposed to assign the reasons of our opinion more at large than usual. And though from the evidence disclosed by the report, we cannot readily perceive the advantages of another trial, or any peculiar equity in the claim of the demandant; still we should promptly have set aside the verdict and submitted the cause to another jury, had legal principles demanded it. But those principles render such a course improper.

Judgment on the verdict.  