others however in which the position is taken that the jury may find that a statement, apparently in itself alone, such e. g. as one of the solvency of parties to a promissory note, was intended to be a representation of a fact' or 'the expression of an opinion merely.' That cannot be sound; what the party intended must be found in his words, if there be no modifying facts.2 § 3. PREPONDERATING EVIDENCE. The party who alleges fraud must make good his allegation, as we have stated, by clear and satisfactory evidence, such as will preponderate over presumption or evidence on the other side.' The law does not, generally speaking, require more. Parties engaged in fraudulent schemes resort to the use of legal forms, as far as possible, to cover their purposes; and it would be expecting too much to look for undisputed evidence 1 Homer v. Perkins, 124 Mass. 431. See also Stubbs v. Johnson, 127 Mass. 219. If in this case 'good as gold' had been written on the note, would the court have left the question to the jury Comp. the case of certifying a check or accepting a bill of exchange. 2 Arkwright v. Newbold, 17 Ch. D. 301, 322; 1 Story, Equity, 209, note, 13th ed. On the issue of fraudulent intent on the part of a grantor he may be asked (except in answer to a conclusive presumption of fraud) whether he had a fraudulent intent in the transaction. Seymour. Wilson, 14 N. Y. 567; Bedell v. Chase, 34 N. Y. 386; Starin v. Kelly, 88 N. Y. 418. But that is a different thing; it involves the meaning of a doubtful act, not of plain language, to which, it must be understood, the text refers. 8 Ante, p. 123; Lynn v. Baltimore R. Co., 60 Md. 404; Cummins v. Hurlbutt, 92 Penn. St. 165; Mead v. Conroe, 113 Penn. St. 220; Burnham v. Noyes, 125 Mass. 85; Allen v. Wheeler, 4 Gray, 123. The language of Cummins v. Hurlbutt, in declaring that the evidence must be 'indisputable' and that of McShane v. Hazlehurst, 50 Md. 107, that there must be clear and conclusive proof,' is incautious and too strong, even when applied to the contradiction of written evidence. See Young v. Edward, 72 Penn. St. 287; Lynn v. Baltimore R. Co., 60 Md. 404. The language of Ruff v. Jarrett, 94 Ill. 475, in objecting to the word 'satisfactory' of the required evidence, goes too far the other way. The evidence need not be 'conclusive' or leave no doubt; but it ought to be so clear and satisfactory as to preponderate. See Lynn v. Baltimore R. Co., supra. Of course a party cannot make his own evidence, however clear. Thus an affidavit of fraud under attachment laws cannot be read in evidence upon the question of fraud; it is preliminary only. Lewy v. Fischl, 65 Tex. 311. of fraud. The law at any rate does not require it. This is especially true upon motions for new trials based on the ground that the evidence does not support the verdict of fraud; but it is equally true upon exceptions to instructions to the jury. A jury should then be instructed that they ought to find fraud upon mere preponderance of evidence. It is not necessary for the evidence to show beyond doubt that a party is guilty of fraud.2 It is settled law that, upon the trial of a civil action in which the claim or defence is based on alleged fraud, the issue may be determined in accordance with the preponderance or weight of evidence, except in cases of resulting trusts arising on verbal agreements to buy for another. In other cases of fraud nothing more is required than that the evidence should be sufficient to satisfy the mind of a common man, although the evidence does not amount to absolute certainty. Evidence of fraud indeed is not required to be more direct and positive than that of facts and circumstances tending to the conclusion that it has been committed. Hence an instruction to the jury that the fraud in question could not be found by them except upon clear and undoubted proof of it, is erroneous. If the party alleging the fraud produce such evidence as the jury could reasonably and safely rest their consciences upon, it is sufficient. But it should be clear; and this is especially so where there is strong prima facie evidence against it, as where the attempt is to prove that a deed absolute on its face is only a mortgage, or where the terms of any written instrument 1 Gill v. Crosby, 63 Ill. 190. 2 Cases supra, note 3; also Ford v. Chambers, 19 Cal. 143; Young v. Edwards, 72 Penn. St. 257; Abbey v. Dewey, 25 Penn. St. 413; Lee v. Pearce, 68 N. Car. 76; Gordon v. Parmelee, 15 Gray, 413; Schmidt v. New York Fire Ins. Co., 1 Gray, 529; Jones v. Greaves, 26 Ohio St. 2; Adams v. Thornton, 78 Ala. 489 (overruling Steele v. Kinkle, are impeached.1 In such cases the facts should be 'clearly and abundantly established.' 2 It follows however from the rule requiring preponderating evidence, or rather it is only another way of stating that rule to say, that where the parties stand upon an equal footing, that is, where no relation of confidence or the like exists, circumstances attending a transaction which are consistent equally with a fraudulent intent or with an honest purpose will not be treated as fraudulent. That a party does not remember signing a contract bearing his name is not evidence that the signature is fraudulent. And of course mere suspicion of fraud is not proof.5 There is some conflict of authority upon the degree of evidence required to prove the commission of a fraud which is indictable. Under an indictment the evidence must be more than simply preponderating; there must be such evidence as shall leave no reasonable doubt of the commission of the act, in order to justify conviction. In some cases it has been held that the same degree of proof is required in a civil action upon the issue of the commission of the act.6 In most cases however it is held to be sufficient if the evidence be preponderating. And this is the better opinion. It has 1 Parlin v. Small, 68 Maine, 290; Schmidt v. New York Ins. Co., 1 Gray, Brown v. Hunt, 72 Maine, 415. 2 Ib. 8 Funkhauser v. Lay, 78 Mo. 458; Jordan v. Osgood, 109 Mass. 457; Drummond v. Couse, 39 Iowa, 442; Lymau v. Cessford, 15 Iowa, 229; Schofield v. Blind, 33 Iowa, 175; Hamilton v. Lishop, 22 Iowa, 306. Jack v. Brown, 60 Iowa, 271. 5 Jewett v. Bowman, 29 N. J. Eq. 174. 6 McConnel v. Delaware Ins. Co., 18 Ill. 228; Thurtell v. Beaumont, 8 Moore, 612; s. c. 1 Bing. 339. 7 Jones v. Greaves, 26 Ohio St. 2; Munson v. Atwood, 30 Conn. 102; 529; Blaeser v. Milwaukee Ins. Co., 37 Wis. 31, explaining and modifying Pryce v. Security Ins. Co., 29 Wis. 270; Washington Ins. Co. v. Wilson, 7 Wis. 169; Wright v. Hardy, 22 Wis. 348; Ellis v. Buzzell, 60 Maine, 209; Etna Ins. Co. v. Johnson, 11 Bush, 587; Wightman v. Western Ins. Co., 8 Rob. (La.) 442; Hoffman v. Western Ins. Co., 1 La. An. 216. See also Burr v. Wilson, 22 Minn. 206; Bradish v. Bliss, 35 Vt. 326; Gordon v. Parmelee, 15 Gray, 416; Freeman v. Freeman, 31 Wis. 235, explained in Blaeser v. Milwaukee Ins. Co., supra. well been said that, where civil rights are to be ascertained, a less degree of probability may be safely adopted as a ground of judgment than in criminal cases which affect life and liberty.1 It is a general rule in matters of account that where there has been a settlement, and the account has either been signed or a security executed on the footing of it, equity will not open it, unless the evidence produced (and that evidence founded upon charges in the plaintiff's bill) show the transaction to be so iniquitous that it ought not to be brought forward at all to affect the party sought to be bound.2 Settled accounts may be opened also when fraud is reasonably to be inferred from the mode of taking the accounts, though no facts of positive fraud be distinctly proved. Thus it would be dangerous if accounts settled between two stewards, without vouchers produced, should be deemed conclusive against their principals.3 And the absence of the vouchers would be sufficiently suggestive of fraud to require the parties seeking to sustain the accounts to prove their accuracy. But while it is not necessary, in order to sustain an allegation of fraud, that the evidence should be so decisive as to leave no doubt, unless it be in the case of an attempt to overturn a writing, the rule requiring clear and satisfactory evidence appears to mean more than is meant by satisfactory evidence of other facts not involving turpitude. There is, it seems, in the case of a charge of fraud a presumption of honesty to overcome, and stronger evidence will accordingly be required than would be necessary in a case in which no presumption to be met existed. The case first cited was replevin 1 2 Russell, Crimes, 727 (7th Am. opened for any improper act or concealed.). ment which operates to the prejudice of the parties directly interested in the estate. 2 Drew v. Power, 1 Schoales & L. 192; Chambers v. Goldwin, 9 Ves. 266. See Clyce v. Anderson, 49 Mo. 37, holding that the final settlements of executors or administrators may be 8 Beaumont v. Boultbee, 7 Ves. 617. 4 Hatch . Bayley, 12 Cush. 27. See also Long v. West, 31 Kans. 298; of flour against an officer, who had attached the same as the property of a third person. The plaintiff claimed under a previous sale by that person, which sale the defendant alleged to have been fraudulent. The court instructed the jury that there was a presumption that the plaintiff had acted honestly, and that the evidence on the part of the defendant must be sufficient not only to establish an innocent act but also to overcome this presumption of honesty; and the instruction was upheld. § 4. CIRCUMSTANTIAL EVIDENCE.1 It seldom happens that fraud can be proved by direct evidence; if it could not be shown by circumstantial evidence, justice must often fail. Hence the law may be satisfied without direct and positive evidence. And it is said that no rigid rule can be applied to determine the admissibility of circumstances, so diversified are the conditions, relations, and conduct under which they arise. Hence,' - and this rather than the admissibility of circumstantial evidence is the strik ing fact peculiar to the subject, it has grown into a maxim that great latitude is to be allowed in the trial of questions of fraud.' And this maxim has itself in the case cited received a very liberal interpretation. Morris v. Talcott, 96 N. Y. 100; 2 Conant v. Jackson, 16 Vt. 335; Stanfield v. Stiltz, 93 Ind. 249; Brower v. Goodyear, 88 Ind. 572; Massey v. Young, 73 Mo. 260; Smalley v. Hale, 37 Mo. 102; Burck v. Smith, 15 Tex. 219; Thompson v. Shannon, 9 Tex. 536; Graham v. Roder, 5 Tex. 141; Parrott v. Parrott, 1 Heisk. 681; Strong v. Hines, 35 Miss. 201; O'Donnell v. Segar, 25 Mich. 367; Southern Ins. Co. v. Wilkinson, 53 Ga. 535. 8 Stauffer v. Young, 39 Penn. St. 455. The meaning of which maxim I take to be that every circumstance in the condition and relation of the parties, and every act and declaration of the party charged with the fraud, shall be competent evidence, if in the opinion of the judicial mind it bears such a relation to the transaction under investiga tion as in its nature is calculated to persuade the liberal men in the jury-box to the belief that the allegation of fraud |