Page:Federal Reporter, 1st Series, Volume 7.djvu/460

 ii^ FEDERAL REPORTER; �of Forbes. Assummg that the jury may have found fraud on the part of Forbes, the vendor, the counsel for defendant in- Toked the doctrine that "the protection to which a honafide holder after notice is entitled extends only to the amount that has been actually paid, " and insisted that the portion of the priee which was settled by assuming the bank debts was not actually paid by the plaintiff. The court, however, chargea the jury, as already stated, that payment might be made, by assuming and agreeing to pay outstanding debts of the vendor. The proof showed that the agreement by which plaintiff assumed and agreed to pay the bank debts was made or at least repeated, in the presence of the cashier of the bank, to whom a list of the debts was exhibited, with the statement that plaintiff had agreed to pay them. There was no proof of any agreement of the bank to look to plaintiff or to release Forbes, except the proof that the cashier was advised of, and asaented to, the arrangement. The court held this to be sufBcient to bind plaintiff to pay said bank debts, and there- fore a payment by him of so much on the purchase price of the goods. This is the ruling now oomplained of. Wilson & Gale and Rogers e Rogers, for the motion. C. K. Davis, contra. �McGbaby, C. J. 1. I have grave doubts as to the propriety of attempting to apply to a case at law the principle invoked by counsel for defendant in this case. That principle is that where the vendee buys in good faith, and without notice of fraud on the part of the vendor, and pays a part only of the consideration, agreeing to pay the remainder at a future day, if, before such remainder is paid, he recoives notice of the vendor's fraud, he will be protected only to the amount act. ually paid before notice. No doubt this is a sound principle of equity ; but can it be applied by a court of law ? Cari such a court reseind the contract pro tanto, and place the parties in statu qm ? If so, can it be done in a case like the present, ja which no issue is made except upon the validity of the sale ? If the sale was held void, so as to leave the title in Forbes, against whom the attaehments were issued, judgment at law eould be rendered for defendant ; but where the sale is found ��� �