The judge charged the jury, in this case, that if the defendant Pinner "procured the possession of the goods fraudulently, with the preconceived design of not paying for them," then the title to the goods never passed to Pinner, and the plaintiffs could redeem them, and to this the counsel excepted.
If the term "fraudulently," as here used, is to have its full and unrestricted meaning, the legal soundness of the proposition laid down by the judge cannot be disputed. No one will deny that fraud would vitiate and avoid the sale. The only objection to the charge in that aspect is, that in a case which turned upon a somewhat nice inquiry as to what would constitute fraud, the language thus understood would not tend very greatly to enlighten the jury. This, however, is not an objection which is available on exception. The defendants' counsel should have called upon the judge to state, in view of the evidence, what facts would be sufficient to charge the purchaser with fraud. His omission to do so probably arose from his understanding the words, "with the preconceived design of not paying for them," as a specification of the particular fraud which the *Page 303 judge had in his mind and which the evidence tended to show, and hence interpreting the charge as embracing simply the proposition that such a design would be sufficient to avoid the sale.
If we were at liberty thus to construe the charge, I should regard it as clearly erroneous. The law takes no cognizance of a naked design which is demonstrated by no act. If one does only that which is lawful, and violates in action no positive duty, his intentions cannot be reached. An intent to overthrow the government is not treason without an overt act. An intent to commit murder or any lesser crime is never punishable, and an intent to commit a fraud is governed by the same rule. The intention may exist at one moment and be changed the next. The party is in loco penitentiæ until he does some act in furtherance of the intent. The purchase of goods is a lawful act, and the validity of the purchase cannot be affected by the mere mental state of the purchaser.
But although it seems not unlikely, in view of the testimony given upon the trial, that the judge may have intended to say that the preconceived design not to pay would amount to a fraud, yet this is not the literal meaning of his language; and of two interpretations this court always adopts that which will sustain rather than one which will overthrow a charge. If, therefore, this were the only point in the case, I should not think it presented any error for which the judgment should be reversed.
But the judge was requested, by the counsel for the defendants, to charge that "if the jury should find the only fraud was Pinner's concealing his circumstances at the time of the purchase, that such concealment was not fraudulent, because he was not bound to disclose his circumstances," and the judge having declined so to charge the counsel excepted.
To this exception two answers are given. First, it is said that the proposition was an abstraction, that there was *Page 304 nothing in the case upon which the request could with propriety be predicated. The case itself, however, does not, I think, sustain this position. The request is to be viewed in connection with that part of the charge already noticed. We have construed the term "fraudulently," used by the judge, as not necessarily limited in its scope by the clause which follows it; and on that ground we overrule the defendants' exception. On looking into the case we find some foundation for the inference that Pinner was insolvent when he made the purchase, and that he must have known it. It was entirely proper, therefore, for the counsel to ask the judge to instruct the jury that that inference alone would not justify them in finding the purchase to have been fraudulent.
Another answer to the exception under consideration is, that the word "concealing," as used in the request, meant something more than a mere omission to disclose; that it implied some act or contrivance on the part of Pinner to cover up his insolvency, and that there was evidence in the case tending to show such contrivance. But the sense in which the word "conceal" was intended to be used is shown by the last clause of the request, viz., "because he was not bound to disclose," c. In the sentence, taken as a whole, concealment stands opposed to the obligation to disclose; and the obvious antithesis must control the interpretation. I understand the request, therefore, as calling upon the judge to instruct the jury that if they should find no other fraud in the case except the mere omission by Pinner to disclose the fact of his insolvency, this would not be sufficient to avoid the sale; thus presenting a point which, it seems to me, might very fairly arise upon the evidence in the case.
In declining to give this instruction to the jury I think the judge erred. It has never, that I am aware of, been held that a purchaser of property is bound, when no questions are put to him in regard to it, to disclose his own pecuniary condition and means of payment. If he makes *Page 305 no false statement and resorts to no arts or contrivances for the purpose of misleading the vendor, it is not, I think, a fraud to say nothing on the subject. There may be circumstances under which the concealment of a marked and sudden change in the pecuniary affairs of a purchaser, which he had reason to suppose unknown to the vendor, might amount to a fraud, but this does not appear to me to be such a case. To require of a purchaser, as a general rule, that he should volunteer a statement of his pecuniary affairs, if he knows or has reason to suppose himself insolvent, would lead to great embarrassment and inconvenience in the transaction of business and would prove a most fruitful source of unprofitable litigation.
For the error of the judge, in declining to charge as requested upon this point, the judgment should, I think, be reversed, and there should be a new trial, with costs to abide the event.