Page:Federal Reporter, 1st Series, Volume 5.djvu/323

 CHAPUAN V. SUCCESSION OP •WILBOK, SU �tnate as to the validity of the mafriage settlement. He says he discovered the fraud in 18T0. , He should bave repudiated the settlement at once, and taken proceedings to have it set aside whilst the facts were still fresh in the minda of ail par- ties. He evidently preferred to speculate on the resuit. If the marriage settlement was sustained, he -would stand by the settlement with Bradley, Wilson & Co. ; if not sustained, he would fall back on the charge of fraud and concealment. By electing to await the resulta, and postponing for so many yearsany proceedings for establishing the fraud and setting aside the settlement, the complainant bas allowed bis claim to become stale, and bas waived bis right to assert it. �But I am not satisfied from the evidence that any misrep- resentation or concealment was practiced on the complainant. As to the alleged representation of insolvency, the weight of evidence is that the pecuniary affaira of Bradley, Wilson & Co. were in such a state of embarrassment and uncertainty in May, 1867, that tbey might well have supposed, aS Mr. Bibb, one of the partners, testifies they did suppose, that they vyere really insolvent, and could only bope to sëttle with their «reditors by compromise and the transfer of such assets as they had. If,.by such compromises and a favorable turn in the value of their property, they afterwards succeeded in sav- ing a considerable surplus, this circumstanoe would not only not be Bufficient to set aside the compromise made' by them when they really supposed they were insolvent, but it would liot be a just ground for any rôflection on their conduct as men of business. If this vie,w is correct,' the case tipon its merits is reduced to à consideration ©f the questions relating to the Prewitt security contained in the marriage settlement. The question of the alleged concealment in not disclosing the iact that a suitwas.pending at the time of the settlement, calling in questiiai ,th© honafides of the Prewitt marriage set- ilement, bas already been adverted to. ."We bave; only the evidence of Govemor Chapman himself to establish. such con- -cealment, and that evidence only amounta to thia:, that he was notaware of the existence of the suit, and; tbatit was not jûentionedin the transaction. ihis does not showthat there ����