8 Pa. 82 | Pa. | 1848
There was nothing concealed in the amicable confession of judgments. They expressed on their face the consideration and their object. One was to secure the plaintiff in a judgment as bail of the defendant in the Savings Institution and Farmers’ and Mechanics’ Bank, and to McManus and certain
The plaintiffs in error, who were plaintiffs below, insist that this was an illegal and fraudulent transaction, and had a direct tendency to hinder, delay, and defraud them, because these confessions of judgments and the executions postponed the executions on their judgment, which was given prior with a stay for one day. There is no allegation of actual fraud, but it is said to be fraud per se, to give a friend confession of judgment that will cut out the first judgment, and especially in issuing execution for more than the actual liability, and before the liabilities were ascertained; and that it was error in the court to leave the question of fraudulent intention to the jury, to be judged of by the facts proved in the case. It has never been deemed a fraud in Pennsylvania, or elsewhere, that I know of, for a debtor honestly to prefer one creditor to another, by giving a judgment; and certainly a judgment may be legally confessed to secure bail. I agree that all deceit, deceptions, tricks, or artifices, by which the rights or interests of another are injured, are fraudulent.
Fraud is never presumed — it is to be proved; and whenever it appears it is deemed odious in the eye of the law, Co. Lit. 36. Covin is the same as fraud. Lord Coke defines covin to be a silent assent, determined in the hearts of two or more to the defrauding and prejudice of another. Co. Litt. 357.
If the plaintiffs in the executions had claimed' more money than the amount they were actually bound for, it would have been actual fraud.
We think the court was right in refusing to instruct the jury that the confession of judgment in the case under this evidence was
Judgment affirmed.