Page:Federal Reporter, 1st Series, Volume 6.djvu/476

 464 FEDERAL EKPOBTEB. �Mrs. Matthews was not examined as a witness. Books which were kept for her by the clerk of Mr. Matthews are not produced. The witnesses, except to the paper title, are Ed- ward Matthews and his son, who, having given these bonds to the defendants, testify that they had no authority to do so. �It was not seriously denied, in the argument of the counsel who closed the case, that the faets show full authority for Edward Matthews to deal with ail the bonds in his wife's safe as he chose; nor could it be denied with any hope of success. It seems, then, that the witnesses who testified to the want of authority must baye intend ed to say merely that there was no express authority, There was as much right to take the bonds eut of the safe as there ever was to put them in. �To my mind the evidence proves more than a right by Edward to use the bonds. It proves that they were his for ail purposes for whioh he chose to use them. The case, therefore, must be decided upon the amended bill, which alleges th'at, considered as a contraot and dealing with Edward Matthews himself, the defendants have no title. The con- tention from this point of view is that Edward Matthews was induced by the fraud of his brother to consent, as he did consent, in writing, to the assignment of the bond and mort- gage tq Upham, and that Upham had knowledge of the fraud; or that the mortgage was void because it was given to secure notes tainted with usury; or that, being given to secure cer- tain notes, it was of no value when separated from them. It is clear that Upham had lent a great deal of money to Nathan Matthews, and that he held valuable securities for its repay- ment, which he surrendered in exchange for the bond and mortgage of Edward Matthews; and that he had no notice or knowledge of any dealings between the brothers which would injuriously aflfect his title. Upon the preponderance of evidence I find that Edward made the mortgage with knowledge that it was to be used to secure whatever debts Nathan owed Upham ; or that it was so made and aasigned that Upham had, as against Edward, the right to believe so. �The alleged fraud does not attack the mortgage itself, but ��� �