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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 3, Page 524   View pdf image (33K)
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524 HIGH COURT OF CHANCERY.
insolvent in fact, and that he did not then contemplate availing
himself of the benefit of the provisions of the insolvent laws.
Now, this answer being responsive to the averments of the
bill, cannot be overruled, unless contradicted by the testimony
of two witnesses, or by one sustained by pregnant circum-
stances. There is no pretence that be is contradicted by a
witness, and circumstances standing alone, the Court of Ap-
peals have said, will not destroy the answer. .Roberts et al. vs.
Salisbury, 3 Q-. & J., 426. It has been urged that there is a
contradiction or manifest inconsistency between the affidavit
made by Brown to the first conveyance, and his answer to the
bill. But although, strictly speaking, the whole consideration
of $800 mentioned in the conveyance, had not been paid in
cash at that time, I cannot bring myself to think that under
the circumstances detailed in the answers, the party intended
to commit perjury in that affidavit, or that he did not believe
that substantially the consideration was paid.
Indeed, it appears to me a circumstance not undeserving of
notice, and favorable to the fairness and frankness of the con-
duct of the defendants, that they have unreservedly stated the
actual nature of that transaction. It can scarcely be doubted,
that if they had designed a fraud, and to support that fraud
by perjury, their answers to the present bill would not have
exhibited any, the least difference from the affidavit. If per-
jury was committed in the affidavit taken before the magistrate,
both the defendants were guilty, the one of perjury, and the
other of subornation of perjury, and upon that supposition
there is, I think, very little doubt the answers to this bill
would have been formed in full accordance with the affidavit-
Fraud, it has been over and over decided, is not to be pre-
sumed but must be proved, but in this case, which involves the
charge of perjury as well as fraud, no witness has been pro-
duced to sustain it. If the answers speak the truth, the con-
sideration expressed in them was paid by the grantee in the
conveyances, and as they must be presumed to speak the truth,
being responsive to the bill, unless disproved by that degree of
evidence which the rule requires, I do not think there is any

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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 3, Page 524   View pdf image (33K)
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