representation it is sufficient to allege the substance of the representation. It is not necessary to set it out by a literal recital; the amount required in a criminal case is not necessary. Nor can the objection that the facts constituting an alleged fraud are not stated in the declaration or bill be first raised in a court of error.2 Though it is usual in actions for fraud to charge expressly a fraudulent intent, where the fraud is alleged to consist in intention, and the quo animo is the gist of the inquiry, still there is no rule requiring a fraudulent intent to be averred where the intent is a legal conclusion drawn from the facts alleged, and where the existence of those facts, and not the fraudulent intent, is the gist of the inquiry and the foundation of the rights asserted in the action. It has been said. however that, in cases of actual fraud, the fraudulent intent should be charged in express terms, and not left to inference from the facts stated. But if the facts which constitute fraud are set forth with an averment of the injurious result, the case is certainly sufficient on the pleadings; and a detail of the circumstances which tend to establish a dishonest intent in the conduct of the other party may be properly left for production in taking the evidence.5 So too it may not be necessary in an action for deceit to allege in terms the scienter, where the allegations made clearly imply it or show an equivalent; still it is unsafe to omit it. In an action for a false warranty, whether the action be in assumpsit or in tort, a scienter need not be averred, and, if averred, need not be proved. 659. 1 Montague v. Adams, 15 Vt. 237. 2 Mason v. Daly, 117 Mass. 403. 8 Carter v. Carter, 5 Tex. 93. 4 Bartholomew v. Bentley, 15 Ohio, But it has been said that if, in Bethell v. Bethell, 92 Ind. 318; Frenzel v. Miller, 87 Ind. 1. A fraudulent purpose will be an equivalent of the scienter. Roller v. Blair, supra. 7 Mahurin v. Harding, 28 N. H. 5 Tong v. Marvin, 15 Mich. 60; 128; Schuchardt v. Allen, 1 Wall. 359; McMahan v. Rice, 16 Tex. 335. 6 See Furnas v. Friday, 102 Ind. 129; Roller v. Blair, 96 Ind. 203; Williamson v. Allison, 2 East, 446; a suit to recover damages for a fraudulent representation of soundness of a horse, the plaintiff allege that the disease constituting the unsoundness is e. g. the glanders, he must prove the allegation; for though it was unnecessary to make it, it is not immaterial when made.1 A bill to set aside, or rather to prevent one from having the benefit of, a judgment on the ground that it was obtained by the opposite party's fraud, should be very specific in its allegations, since a judgment is a record of the highest authority. The plaintiff should accordingly, unless he can show some sufficient excuse for not doing so, set out as distinctly as possible the parties to the fraud, i. e. the names of all who were concerned in it, and the way in which the court was imposed upon.3 Courts of equity, acting on the principle of discouraging antiquated demands, refuse, as we have seen, to interfere to establish a stale trust, except first, where the trust is clearly proved; and secondly, where the facts have been fraudulently and successfully concealed by the trustee from the knowledge of the cestui que trust. And in such cases for relief the cestui que trust should set forth in his bill specifically what were the impediments to an earlier prosecution of his claim, how he came to be so long ignorant of his rights, and the means used by the respondent fraudulently to keep him in ignorance, and how and when he first came to a knowledge of his rights. Otherwise the court may refuse to consider his case, without inquiring whether there is a demurrer or Holman v. Dord, 12 Barb. 336; House v. Fort, 4 Black f. 293; Trice v. Cockran, 8 Gratt. 449; Laseter v. Ward, 11 Ired. 443. Contra if the suit is for false and fraudulent representations. Mahurin v. Harding, supra. See ante, p. 70. It is material therefore what is the foundation of the suit, and what is only alleged in support thereof. 1 Lindsay v. Davis, 30 Mo. 406. But compare Swinfen v. Chelmsford, 5 Hurl. & N. 890, ante, p. 116. 2 See Langdell, Equity Pl., p. 37, note, 2d ed. 8 United States v. Atherton, 102 U. S. 372. 4 Ante, p. 32. Badger v. Badger, 2 Wall. 87. formal plea of the Statute of Limitations contained in the answer.1 It seems that under the English practice, in the case of filing interrogatories or a bill of discovery based on allegations of fraud particulars of the fraud need not be alleged.2 In one of the cases cited it appeared that the plaintiffs had employed the defendant as their agent, to purchase goods, and were now suing for an account upon an allegation that the defendant had bought goods at prices above the market, and had secretly received from the vendors allowances or commissions. The charges were stated in general terms, no particulars being mentioned. Upon denial of the charges by the defendant the plaintiffs applied for a production of documents, which was granted by the vice-chancellor; and the Court of Appeal being divided, the decision of the vice-chancellor stood. And that decision was afterwards confirmed by the other case cited, though not without dissent. It is something surely in favor of the view of the majority that the party making the charges may be unable to state particulars, and that, even if he can, he is exposing his case to dangers by doing so. If charges of fraud in a bill in equity be made upon information and belief, they should be charged as true, so that, if taken as confessed, a decree may be rendered, granting relief.4 Where a plaintiff's action is so conceived that the matter of fraud, upon which he relies, may arise as a replication, he is not compelled, even under the Code system of New York, to allege it in his declaration by way of anticipating the defence likely to be made. Thus a creditor brings an action for the price of goods against his debtor who has been dis 1 Badger v. Badger, 2 Wall. 87. 2 Leitch . Abbott, 31 Ch. D. 374, C. A., Fry, L. J. dub.; Whyte v. Ahrens, 26 Ch. D. 717, C. A., Fry, J. diss. Whyte v. Ahrens. 4 Memphis R. Co. v. Neighbors, 51 Miss. 412. charged in bankruptcy. Now the creditor need not allege that the debt has been created or released by fraud, so as to obviate the effect of the discharge; if the defendant plead the discharge, the plaintiff may then avail himself of the fraud at the trial, with or without a replication, according to the local practice.1 § 2. DENIAL OF FRAUD. Just as a general allegation in a bill or declaration is insufficient to justify relief, so a general denial of proper allegations of fraud in a bill is not sufficient. Every sufficient allegation of fraud should be answered.2 And where an act charged upon a defendant is peculiarly within his own knowledge, as where it relates to the manner in which he had bid off property at auction, the general rule of equity pleading is that he must answer the charge positively, and not merely according to his remembrance or belief.3 But if such an improper answer be not excepted to, and a replication be made, the objection to its sufficiency is waived. Nor can the plaintiff treat the charges of his bill as proved; if he does not reply and so waive the defects, he should except to the answer for want of particularity.5 A plea in bar to a suit upon a note that it was given for land sold by the plaintiff under false representations is bad, unless it aver a reconveyance of the property or tender thereof, or something equivalent. And a plea of defence, that a contract sought to be enforced against the defendant was obtained by the plaintiff's fraud, should aver that the defendant has repudiated the contract by tendering to the plaintiff the benefit received under it.7 The maxim ex dolo malo non 1 Argall v. Jacobs, 87 N. Y. 110. 2 Gray v. Regan, 23 Miss. 304; Parkman v. Welch, 19 Pick. 231. 8 Slater v. Maxwell, 6 Wall. 268, 274. 4 Ib.; Story, Equity Pl., § 877. 5 Parkman v. Welch, 19 Pick. 231. 6 Post v. Shirley, 5 Blackf. 430. 7 Dawes v. Harness, L. R. 10 C. P. 166; Deposit Life Assur. Co. v. Ayscough, 6 El. & B. 761; Clarke v. Dixon, El., B. & E. 148; Bwlch-y-Plwm oritur actio' was at one time thought to lay down the general rule that a contract could not be the subject of an action, if it could be impeached for fraud or illegality; but the later cases have qualified the rule to the extent of. holding that fraud merely gives a right to rescind the contract.1 In an action against a shareholder for calls the plea, after stating that the defendant had been induced by fraud to become a shareholder, went on to aver that he had repudiated the shares, and that he had received no benefit from them. This was considered as sufficient within the above stated rule.2 Of course if a party can have derived no benefit from the contract, it is not necessary for him, when sued on the engagement, to aver a previous repudiation,3 Whether a plea of fraud to an action upon a sealed contract should set out the facts constituting the supposed fraud, as is necessary in the case of a declaration or a bill in equity, is 4 not clear. In some states no such defence can be made at law; in equity the defendant would doubtless be required to allege the facts fully. In New Hampshire, where the defence of fraud may be made at law, which is the better rule, it has been held unnecessary in a court of law to set out the facts constituting the fraud.5 Mining Co. v. Baynes, L. R. 2 Ex. 324; Anderson v. Costello, 5 Irish Rep. C. L. 544; Sanborn v. Osgood, 16 N. H. 112. 'The true doctrine is that fraud merely renders the contract voidable, that is to say, gives an option to the party defrauded to disaffirm the contract, but until he disaffirms, it remains good. . . . The forms of pleading allow fraud to be pleaded generally, but the plea must be taken to include an allegation that the defendant disaffirmed the contract, otherwise it would be a bad plea.' Brett, J. in Dawes v. Harness, supra. But the fraud may be shown to reduce the |