It is evident, from the manner in which this motion has been argued, that all, or nearly all, the points that have been contended for here were urged at the trial, and submitted to the consideration of the jury who tried the cause.

The question of fraud was left altogether to the jury to *82determine from the evidence; they were not even directed that, if they believed particular facts to be as stated, they were to declare it void, nor that the whole of them, collectively, would necessarily lead to this inference 5 they were left free to determine it fraudulent or honest from the evidence, as it was laid before them. This, in my opinion, Was the proper course.

I am unable to bring my mind to assent to the proposition that a conveyance intended to prevent a forfeiture to Great Britain, on account of acts arising from a resistance to the usurpations and unjust claims made by that government, cao [70] ever, in our courts, be pronounced fraudulent for that reason. We had the same right to defeat the forfeitures which, had they succeeded, they would have had to exact them — the same right as to resist by force their other unjust claims. In my .opinion, the secreting a purse from a highwayman may, with equal reason, be denominated fraudulent.

It is said that this deed would have been fraudulent as against the king ha’d he succeeded. This expression is improper in the mouth of an American. Unquestionably that government would have called it so, as they would also have called our resistance rebellion; but neither of these terms can with propriety be applied in this manner by us. They would have put us to death for the one act, and seized upon our property for the other ; both must be right, or neither, and to me it appears rather a novel idea in this country tc> say that the first was illegal, or the second fraudulent. In a court deriving all its authority, and its existence, from the principles of the Revolution, these positions cannot be rendered plainer by language — -they are self-evident.

I have no inclination .at present to enter further into the questions involved in this ease. Other ejectments are depending on the same title, which we have no desire to prejudge. I am against a new trial.

Smith, J., dissented.

*83Chetwood, J., concurred with the Chief Justice.

Motion refused

Cited in Den v. DeHart, 1 Hal. 450 ; Den v. Tomlin, 4 Harr. 82.