
    [Philadelphia, March 19, 1838.]
    MACKINLEY against M‘GREGOR. MACKINLEY against HEWITT.
    IN ERROR.
    1. If husband .and wife live together, any business in which she may be engaged is presumed, unless the contrary be shown, to be conducted by her with his knowledge, and as his agent. If he know that she is conducting business in his, or her own name, and do not prohibit or prevent her, or make known his dissent, or disapprobation, he is liable on such contracts as she may make, and is liable, civilly, for such frauds or other torts as she may commit in the course of such business. If the wife buy goods without her husband’s knowledge, and he afterwards learns that she has purchased them, if he permit lier to use them, or to retain possession of them, he is liable for the price. In such a case the possession of the wife is the possession of the husband. If, when applied to for payment, he disavow all participation in her business, and deny that the purchase was made on his behalf, the seller may elect to treat such disclaimer as a disaffirmance and recission of the contract, and may retake the goods, or, if they be withheld from him, may bring trover or replevin for them. If either the husband or the wife procure the delivery of goods under the fictitious pretext of a purchase upon credit, without intending that the seller should be paid for them, this is such a fraud as would vitiate the sale, and prevent the property from being changed by the pretended purchase. In order to prove such a fraud, it is not absolutely necessary to prove a false pretence, or other direct artifice, in respect to the individual purchase sought to be avoided. It may be shown that the transaction immediately in issue was one of a scries of acts, which, *taken together, evince the existence of a preconceived design to obtain possession, without paying for them, of a quantity of goods of which those in question are a part. Thus it may be shown, that the quantity of goods purchased, on credit, from many persons was inordinately large, in proportion to the regular purposes of the apparent business of the party obtaining them ; that they were not kept or dealt with in a place or in a manner to indicate'that they had been fairly acquired, for the purposes of regular business ; that forced sales were made, at an undervalue, of goods bought shortly before on credit; that the subsequent conversations and deportment of the party.were indicative of a design to evade payment, and to make unjust appropriations of the property. The effect of such evidence is for the jury. It seems, however, that this doctrine ought not to be extended so far as to enable the original vendor, who has been imposed upon, to follow goods into the hands of purchasers who have become interested in them bona fide, in the regular course of business.
    2. If the vendor, after full knowledge of all material facts, has affirmed the sale, he cannot afterwards elect to disaffirm, and treat it as a nullity. But the vendor is not estopped from disaffirming the contract on the ground of fraud, by any acts of affirmance taking place before discovering the fraud, or its full extent and character. Nor is it an estoppel to have brought actions on other contracts of a similar character. But the delay to disaffirm the contract, or acts inconsistent with its disaffirmance, are circumstances proper for the consideration of a jury, who will decide whether the vendor has affirmed it with proper knowledge of the facts relied on for its disaffirmance.
    3. In replevin the plea of non-cepit admits the property to be in the plaintiff, and puts in issue only the taking and detention. Although the taking were rightful, or excusable, the plaintiff will recover if the detention by the defendant were wrongful; and, generally speaking, the property being admitted by the plea to be in the plaintiff, any detention will be wrongful. As to goods delivered to the plaintiff in replevin, and remaining with him, he can only recover damages for the caption and detention. But as to goods eloigned he may, in addition thereto, recover their value in damages,
    '4. If different persons, either before or after suits brought, agree to divide among themselves the amounts, if any, that may be recovered, each of them is liable to the defendant for costs. They cannot, therefore, be made witnesses for one another, by exchanging mutual releases. The costs of suit must be paid before any of them can be examined.
    5. If a party before he has opened his case, endeavor to introduce it to the jury by cross examining the witnesses of the opposite party, the judge before whom the cause is tried, may arrest such cross-examination, and prevent the questions from being put in that stage of the cause.
    6. A witness produced to show, that certain goods which he sold to the defendant on credit, in New York, were sent by defendant to auction in Philadelphia, and sold for cash, cannot be asked, for the purpose of identifying the goods sold at auction with the goods sold by the witness to the defendant, whether tickets, resembling those which were on the . goods when sold to the defendant, were not sent to the witness in a letter written to him by a correspondent in .Philadelphia. It must be shown by the writer of the letter, or by some other competent means, that those tickets had been attached to the goods sold at auction.
    7. Against a party demurring to evidence, every fact is taken pro confesso which the jury might, with the least degree of propriety, have inferred from the evidence.
    These two cases were writs of error to the District Court for the City and County of Philadelphia. In the first of them Edward Mackinley, plaintiff in error, was defendant below, and Robert M'Gregor, defendant in error, plaintiff below.
    It was an action of replevin. The sheriff’s return was “ eloigned.” The defendant pleaded, 1, non-eepit; 2, property in Mary Mackinley. The plaintiff on the plea of non-eepit joined issue, and to the other plea replied, that the said Mary Mackinley was at the time of the *taking and detention, and is now, the wife of the defendant. To this replication the defendant demurred, but afterwards withdrew his plea of property in Mary Mackinley. On the remaining issue of non-eepit the cause came on for trial before Jones, J. on the 10th of October, 1836. After the closing of the evidence, it was submitted to the jury by consent of parties, without any charge from the Court. The jury found a verdict for the plaintiff below. In the course of the trial a number of exceptions were taken by the counsel of the defendant below, to the admission and rejection of evidence. Upon these exceptions the subjoined assignments of error were made. As these points of evidence cover the whole merits of the cause, it is necessary to make a statement of the facts upon which they arose.
    The defendant in the summer of 1834, married Mary Snyder, a widow, who had been for some years engaged in the corset making and retail haberdashery business. After the marriage, the same business was still conducted in her new name of Mary Mackinley. The defendant and his wife lived together in a boarding house, kept under the same roof in which the above-mentioned business was conducted in her name. He himself conducted a different business in an adjoining house, from the back part of which there was a private communication into the house in which they boarded, and in which her business was conducted. The whole amount of the cost of the stock necessary for the business in which she was apparently engaged, was from $10,000 to $20,000; and it could all have been contained in the apartments in which the business was conducted, and which were well adapted for containing it.
    Shortly after the marriage the wife began increasing to a very great extent the amount of her purchases of goods, upon credit, from different persons, and continued to do so for about a year. Her credit was exceedingly good, and persons in trade sold to her very freely: there was nothing in the manner in which her purchases separately were made, calculated to excite doubt or distrust of her. They were apparently purchases of goods intended for use in the business in which she was engaged. The aspect of her business remained externally the same as before. The credits, and the prices at which she bought were such as were usual in the market. All the entries and bills of sales were made by the sellers in her name alone, without any mention of her husband; and in some instances promissory notes signed by her alone were taken for the price.
    The goods which she thus accumulated after her marriage becoming too numerous and bulky for the apartments in which the business was conducted, were removed into a wood cellar underneath them. The cellar was rough and damp ; and many valuable articles were the worse for being kept there. As the quantity there increased, and the ventilation was consequently diminished, *the dampnesss became very great, and caused still further injury to the goods. The cellar becoming too full of goods, a back building was hired, into which from $40,000 to $50,000, worth of goods were conveyed, while a portion were allowed to remain in the cellar. The goods in the back building were piled there in great confusion, in a manner ill calculated for their proper preservation, and for the purposes of the business which she was apparently engaged in conducting. Between the back building, the cellar, and the original apartments, the quantity of merchandise which had been thus accumulated was very great. The quantity still remaining undisposed of was in the autumn of 1835, not less than (at cost) $78,000; and the amount of engagements in her name then outstanding and unpaid, exceeded $90,000; all of which had been contracted within the space of one year, from August, 1834, to August, 1835.
    It appeared that the defendant was aware of the general character, if not of the details of his wife’s transactions; that he had never interfered to prohibit or prevent them; but on the contrary, had negatively, if not positively, countenanced them.
    In the early part of the autumn of 1835, the debts of the business conducted in the name of Mary Mackinley were suffered to remain unpaid. She and the defendant were applied to by several of the creditors, to whom he disclaimed all liability for her engagements; while she denied all liability for them, on the ground that she was a married woman. Negotiation was after-wards opened for the assignment or surrender of the property on hand, to or for the benefit of the creditors, but it resulted in nothing.
    Some of the creditors brought suits on promissory notes, and actions for goods sold and delivered against the defendant; others against his wife; some sued them both as co-defendants in the same action. In some of these various cases, from what took place at the hearings, on questions of bail, and from the contents of affidavits of defence, filed under the provisions of the act of 1835, establishing the District Court for the City and County of Philadelphia, it became manifest that the defendant disclaimed all participation in his wife’s business, and all liability upon the contracts which had been made in her name. About this period information was communicated to the creditors that there was a large quantity of goods concealed in the above-mentioned back building. Having gained access to this building, and ascertained what goods were there, most of the sellers who had not previously instituted actions for the -price of the goods, brought actions of replevin on the ground of a disaffirmance of the sales. The present was one of these actions. The plaintiff sought to avoid the sales for three reasons, viz., 1st. That the defendant had disclaimed the existence of any contract, for the purchase of the goods, and thereby disclaimed the only ground on which the property could have vested in himself; his wife, a married woman, *being incapable of acquiring property otherwise than for him. 2nd. That the plea of non cepit, the only one in the cause, was in itself a disclaimer of property by the defendant, and an admission on the record that the property of the goods was in the plaintiff. 3d. That there had been fraud on the part of the defendant’s wife in obtaining possession of the goods under the fiction of a purchase as her husband’s agent for the purposes of the business which she was apparently conducting with his sanction, her transactions having been in reality an accumulation of goods for some secret but different purpose, without any intention whatever of paying for them.
    It was proved that Mrs. Maekinley was, before her present marriage, the owner of property, real and personal, all of which had been settled before the marriage, in trust, for her separate use. Fart of the real estate was incumbered with mortgages, and mechanics’ liens. Some of the liens were paid off with funds raised, as was shown, upon the credit of the business conducted in her name. One of the mortgage creditors was her father. On her bond for $12,000, secured by the mortgage to him, judgment had been entered under a warrant of attorney, before her present marriage. Just after the issuing of some of the above-mentioned replevins, this judgment was revived by consent, with an agreement that execution might be issued forthwith. To this agreement both the defendant’s wife and himself were parties. An execution was issued under it accordingly, and levied, or attempted to be levied, on personal property in Mrs. Mackinley’s store; but proceedings under it were after-wards stayed by the plaintiff’s order.
    Evidence was also given, tending to show that the defendant’s wife, among other transactions, had bought goods on credit at New York in February, 1835, which she had in March caused to be sold at auction in Philadelphia on her behalf, but in another person’s name, for cash, at a great sacrifice, and that she had afterwards repurchased the same articles in Philadelphia, upon credit, for a higher price than she had originally bought them for at New York, and had received the cash, and had neither paid the original seller in New York, nor the person in Philadelphia who sold them to her the second time. The discovery of this circumstance by the original seller, and what passed upon the subject afterwards between him and Mrs. Mackinley, were given in evidence. It was contended, on the part of the plaintiff) that the course pursued by her, as to these goods, indicated her intention as to her purchases generally; and it was urged as probable, that the dread of similar detection in other cases had prevented her from making other forced sales at auction; and that this accounted for the circumstance of so large a quantity of the goods having remained so long on hand, privately stored in the cellar and back-building.. There was also proof, that to some of those from whom she had made purchases of goods, she had sometimes represented that she had made up into corsets, or otherwise used in her business, all that she had bought from them on former occasions : but that the very goods which she had represented to have been thus used by her had been found in the original packages unopened, at the time when the replevins were executed several months after-wards. But nothing of this sort was shown to have taken place in respect to the particular purchase from the plaintiff below. It was further proved, that when the sheriff’s officers came to execute the replevins, and while he was on the premises, Mrs. Mackinley, and persons in her employment, had concealed some goods, and cut off the private marks from many others, in order to prevent the sheriff from finding the goods mentioned in the respective writs. The sheriff took under the replevins, and delivered to the respective plaintiffs, goods worth at cost $35,340; and left her in possession of goods worth, at cost, $42,T62, which could not be identified with those described in the writs.
    On the 14th of September, 1835, the plaintiff, and seventy other individuals and firms, including the witnesses named in the first assignment of error, subscribed a paper of the following-tenor, viz.
    “ The undersigned, creditors of Mary Mackinley, (late Snyder,) do mutually agree to and with each other, that they will immediately take such lawful measures as may be necessary to investigate the pecuniary affairs and transactions of the said Mary Mackinley, and to discover and apply her property to the payment of her just debts, without preference or distinction. And should it appear, upon such investigation, that she has been guilty of any frauds or unfair practices, which, in the opinion of counsel, are cognizable by law, they will institute such proceedings as may bring her and her accomplices (if she have any,) to condign punishment. And the undersigned do further mutually agree to contribute in the ratio of their respective debts to such expenses as may be necessary to carry the premises into effect.”
    And on or after the 8th of the following month, the plaintiff and forty-two others, including the same witnesses, signed a paper of the following tenor.
    “ At a meeting of the creditors of Edward Mackinley, held on Thursday afternoon, the 8th of October, 1835, at the Indian Queen Hotel, it was resolved, that it is the sense of this meeting, that all replevins and all other process which have been issued, are for the common benefit of those who have, or may sign the agreement of the 14th day of September, 1835.
    Resolved, that all creditors who have not refused to sign that ^agreement, be invited to do so, and participate in its obligations and advantages,”
    On the production of these witnesses, their competency being objected to, mutual releases were executed between xhem and the plaintiff, but the costs were not paid into Court. The witnesses were admitted by the Court, although objected to by the counsel of the defendant below, who excepted to the decision of the Court. E. E. Mitchell, one of the firm of A. T. Stewart & Co., of New York, being offered to prove that a quantity of black shawls, bought of them on credit by the defendant’s wife, were sent to auction and sacrificed for cash, and afterwards repurchased by her for a higher price, proved the sale of the shawls, describing them and their prices, he, the plaintiff, offered to prove that the tickets on the shawls were sent to the house of the witness, who could identify them. The defendant’s counsel objected to such proof, but the Court admitted it. The witness then testified, that “ a ticket like tickets on the shawls which she had bought, was returned to them in a letter; that the ticket was such an one as had been on the shawls sold at $11.” He was then asked, By whom was the ticket returned ? which was objected to by the defendant’s counsel: and the judge permitted the witness to be asked by whom the letter purported to have been signed and sent, and from what place. The defendant’s counsel then excepted to this evidence.
    The printed paper-books in the cause occupied eighty-five pages. The reporter has merely stated such an. outline of the evidence as will render intelligible the points which arose in this Court.
    The plaintiff in error assigned for error:—
    
      “ 1. That the judge admitted as witnesses severally Peter W. Wiltbank, Philip Kelly, Edmund E. Mitchell, John H. Obertuffer, Frederick Thorspecken, John Stokes, Alexander M‘Clurg, Abner Pollard, Jr., and William M£Kee; those'individuals being interested in the action, and therefore incompetent to give testimony.
    2. That the judge admitted to go to the jury the matters given in evidence by the several witnesses named in the foregoing exception, concerning various sales of goods to Mrs. Maekinley by the said witnesses, the same not touching the issue joined in this action; and other matter out of the said sales arising equally irrelevant.
    3. That the judge admitted to be read 'in evidence the affidavit of Mrs. Maekinley, made in a certain action in the District Court of Philadelphia, to June Term, 1836, No.-
    4. That the judge refused tto permit the defendant’s counsel to ask Philip Kelly, a witness of the plaintiff then under cross-examination, *the following question: “From whom have you heard anything in relation to that offer, if an offer was made?” meaning an offer by Mrs. Maekinley to surrender all her goods to her creditors, namely, to the said witnesses and others; he having already proved he had heard of such an offer.
    . 5. That the judge admitted evidence by Edward E. Mitchell, and John H. Obertuffer of tranactions irrelevant to the issue, viz. of purchases of merchandise by Mrs. Maekinley, of the firm of Alexander T. Stewart & Co. of New York, on the 3d and 7th February, 1835, and of sales and purchases of the same as a part thereof at auction in Philadelphia, on the 5th March, 1835.
    6. That the judge admitted evidence by the said Edward E. Mitchell of what Mrs. Maekinley said, in the absence of the defendant, of the said merchandise, or a portion thereof, going into the hands of Edward Cunningham, and of his sending it to auction.
    7. That the judge admitted evidence by the said Edward E. Mitchell of his inferences from certain supposed tickets or marks as to certain black shawls being part of the said merchandise, and being sent to auction.
    8. That the judge admitted the said Edward E. Mitchell to prove the contents of a letter not in the defendant’s keeping or possession — to say by whom the same purported to be signed and sent, and from what place.
    9. That the judge refused to allow the defendant’s counsel to cross-examine the said Edward E; Mitchell, to the end to prove that the witnesses for the plaintiff were actuated by feelings of strong resentment against the defendant and Mrs. Mackinley, and to contradict the opening of the plaintiff’s counsel, and the evidence of the plaintiff’s witnesses — and to stigmatise certain proceedings by the witness and others in New York, against Mrs. Mackinley — and then to establish a combination of the witnesses and others against the defendant and Mrs. Mackinley.
    10. That the judge admitted the plaintiff’s counsel to prove by a witness of the plaintiff, Robert Cornelius, the contents of a certain check, said to have been seen in the possession of Edward Cunningham, no connexion with which charge, or with the matter to which it related, was traced to the defendant — the same being also in proviso identified.
    11. That the judge refused to permit the defendant’s counsel to cross-examine John Stokes, a witness of the plaintiff, to the end to prove that the auction sales, given in evidence by the plaintiff, of the goods bought by Mrs. Mackinley from Alexander Stewart & Co. was the only sale at auction made by her; and that it was made *under the pressure of a threatened execution — thus to repel the plaintiff’s allegation of fraud founded on that sale — and the of fraud.
    12. That the judge permitted the plaintiff’s counsel to ask one of their witnesses, John B. Meyers, whether there was any old stock at a certain sale by Thomas, Grill & Co.; the whole matter of the alleged sale being irrelevant.
    13. That the judge permitted the plaintiff’s counsel to examine one of their witnesses, Abner Pollard, jr., as to his offer to Mrs. Mackinley to take seventy-five cents, or fifty cents of the dollar, for her debt to him, and also as to his finding on her premises certain wares; the same being wholly irrelevant.
    14. That the judge permitted the plaintiff’s counsel to examine one of their witnesses, William M‘Kee, as to merchandise sold by him to Mrs. Mackinley, in March and June, 1835, and as to his subsequently finding the same upon her premises; such matter being wholly irrelevant.
    15. That the judge admitted in evidence conversations with, and acts and words of Mrs. Mackinley at which the defendant was not present, and to which he was not privy.
    16. That the judge refused to allow the defendant to adduce testimony of his good character.
    17. General errors.”
    The case was argued by Mr. O. Ingersoll and Mr. J. R. Ingersoll, for the plaintiff in error, and by Mr. Solcomb and Mr. F. W. Subbell, for the defendants in error.
    It was held under advisement, in order that before any decision the Court might hear the argument of the case of
    
      The SAME PLAINTIFF in error, against HEWITT, defendant in error.
    This case differed from M'Gregor v. Mackinley, in the following particulars, viz.
    1. The sheriff’s return, as to part of the goods, was, that he had delivered them to the plaintiff; and, as to the residue, only “ elongatur —Consequently
    2. The narr. which, in M'Gregor v. Mackinley, was in the detinet only, was in this ease, as to part of the goods, in the detinet, and, as to the residue, in the detinuit.
    
    3. The defendant never put in any other plea than that of noncepit; upon which the issue was joined and tried.
    *4. The plaintiff in this case, was a party to the same agreements of creditors to which Mr. McGregor had been a party ; but in this case, besides the execution of mutual releases, as in M'Gregor v. Mackinley, a sum of money, of suf- , ficient amount to cover the costs, had been paid into Court, before any of the other parties to those agreements had been admitted as witnesses.
    5. The marriage settlement of Mrs. Mackinley’s property was not given in evidence in this case as it had been in the other case.
    6. On the trial of M‘Gregor v. Mackinley, much evidence had been given tending to prove that the business carried on in the name of Mrs. Mackinley had been conducted fictitiously and fraudulently, and that its real extent and character, and the designs of those who conducted it, were different from those which were permitted to appear to the world; whereas, on the trial of this case, a very small portion only of evidence of this tendency was produced on the part of the plaintiff. After proving the delivery of the goods in question to the defendant’s wife, under colour of a purchase on credit, made by her in her own name, he produced evidence tending to show that the defendant had disclaimed and repudiated the purchase, as constituting no contract binding on him; and it was contended that this either showed that the purchase by the wife had been unauthorised, and therefore was no contract, or at all events might be accepted by the seller as a rescission of the sale if there had ever been one. The plaintiff urged that there was enough in the case to entitle him to a verdict independently of any question of fraud, but also urged that the evidence tended strongly to prove such a fraud in the defendant’s wife, as would in itself alone prevent him from acquiring any property by means of a purchase made through her agency.
    
      When the plaintiff had closed Ms evidence, the defendant demurred to the evidence, and the plaintiff joined in demurrer.
    Upon the demurrer to evidence, the Court below gave judgment for the plaintiff below; and Jones, J. delivered the following as their opinion :—
    “ The demurrer to the evidence must be deemed an admission of the following facts.
    1. That the plaintiff sold Mrs. Mary Mackinley four different bills of goods, including the goods mentioned in the writ of repleAdn, and the declaration.
    2. That the goods were delivered to Mrs. Mackinley at her store in Chestnut street.
    3. That Mrs. Mary Mackinley is the wife of Edward Mackinley, the defendant in this action, and was so at the time of the sale and delivery of the goods to her.
    4. That Mr. Mackinley, disclaimed participation in his wife’s and denied his for her in the way of her business.
    5. That Mr. Mackinley, the defendant, lived with his wife, (and carried on his own business at the next door,) and knew that she was doing business, and buying and selling goods in her own name.
    These facts, it seems to me, without more, authorise the replevin of the goods thus sold and delivered to Mrs. Mackinley, and a recovery in damages of the value of the goods eloigned. The plaintiff, under the circumstances of this case, might have brought an action upon the contract against the husband, and have recovered the price of the goods: for his allowing her to carry on business under his eye, is evidence of an authority from him to her to do so upon his responsibility ; which would in law estop him from showing the contrary. Langfort v. Tyler, (1 Salk. 113. 6 Mod. 162); Barlow v. Bishop, (1 East, 432); 2 Roper, Baron & Feme, 172, 3. But when the defendant disavowed participation in his wife’s business, and disclaimed his liability upon her contracts, he gave to the plaintiff the right to an action of replevin, or upon the contract, at his election. For his disavowal of the contract is an election on his part to treat the contract as the contract of his wife, and therefore void; and his plea of non-eepit in this case admits that the property of the goods is vested in the plaintiff; which cannot be true, if the contract is not void.
    Whether this action of replevin could be maintained if Mr. Mackinley had not disclaimed the contract, need not be decided. But having disclaimed it, he is estopped from saying that the contract is not the contract of his wife merely, and therefore inoperative to pass the property in the goods. Assuming, then, that the property in these goods belongs to the plaintiff, the next fact in the case is, that they came to the possession of Mr. Mackinley. In point of law, the possession of a wife is the possession of the husband; and the evidence therefore is, that they came to the defendant’s possession on the 26th day of March, 24th of April, 6th of May, and 15th of July, 1835. As to those which were replevied and delivered, the return of the sheriff connected with the plea is conclusive; as to those which were not found, the inference is that they are still detained; and if detained, unjustly, because they are admitted to be the property of the plaintiff.
    As to the question of damages, the rule is, that the value of the goods is the measure of damages, unless there be a tort committed in the taking, But I see no evidence which justifies the inference, of an unlawful caption. The assessment of damages, therefore, must be set aside, and a writ of inquiry awarded, unless the plaintiff will agree to remit the excess of the value, making a reasonable allowance for the delay and trouble of litigation.
    The argument of the defendant, that this sale must be deemed a gift, I cannot adopt: a gift is a contract; and a contract cannot be *different from what it was intended to be. The plaintiff intended to sell the goods, and Mrs. Mackinley was supposed .by him to intend to purchase them; and she did intend to buy them, if a feme covert can be deemed to intend any thing. Certainly she did not intend to receive them as a gift. It is not therefore a gift, but an abortive act, intended as a sale, but on account of Mrs. Mackinley’s disability to contract, in fact a nullity.
    This view of the transaction rests upon the essential fact, that Mr. Mackinley disclaimed the contract, and the plaintiff’s right on that ground to treat it as her act merely.”
    The plaintiff below remitted the excess of the amount of the verdict above what the Court below deemed the value of the goods eloigned, and a reasonable allowance for the delay and trouble of litigation. Whereupon judgment was entered in his favour.
    The plaintiff in error assigned for errors.
    “1. That the evidence was insufficient to sustain a judgment for the plaintiff below; the same clearly showing a sale of the goods to Mrs. Mackinley, and showing no subsequent acts vitiating that sale.
    2. No evidence was given from which the jury could legally have inferred fraud.
    3. No evidence was given from which the jury could legally have inferred a participation by the defendant in the business of Mrs. Mackinley — o«r in any of her transactions given in evidence.
    4. No evidence was given from which the jury could legally have inferred the unlawful taking or detention by the defendant of the plaintiff’s goods.
    5. The evidence was too vague to found a judgment upon.
    6. The evidence showed that the plaintiff below parted with his goods to Mrs. Mackinley, well knowing her disability as a married woman; and that he dealt with her as a married woman, and took upon himself any hazard in such dealings consequent upon her coverture; and the evidence showed no subsequent change of the relation between the plaintiff and Mrs. Mackinley, authorising the assumption of the Court below, of a contract between the plaintiff and Edward Mackinley, the defendant, and the other assumptions, there made.
    7. General errors.”
    *This case o-f Mackinley v. Hewitt, was argued by the same counsel for the plaintiff in error, and by
    Mr. F. W. Hublell and Mr. Oadwalader, for the defendant in error.
    The counsel for the plaintiff in error in these cases contended, that as he had not been the party trusted by the plaintiff below, in either case, he was not liable for the contracts or for the torts of his wife in the business in which she was engaged. The evidence showed that she was alone concerned in that business, to his entire exclusion; and that those who had dealt with her in it had given credit to her alone, and not to the defendant.. In such cases, the rule of law was, that a sale of goods to the wife was tantamount to a gift of them to her. Manly v. Scott, (1 Mod.138); Bentley v. Griffin, (5 Taunt. 356); Metcalf v. Shaw, (3 Camp. 22); Montague v. Benedict, (3 Barn. & Cressw. 631). On the part of the defendant’s wife, there was nothing to which the name of fraud could be legally applied. On the contrary, every thing had been fair and honest. The sales had been rather forced upon her by the vendors, than sought by herself. She had not been shown to have made any representations to them to induce them to trust her; and in the absence; of any such evidence, the rule applied, that fraud was to be proved, and could not be presumed : that it was contrary to the settled rules of evidence, to go into testimony of what had taken place in respect to distinct collateral transactions with other sellers, in order to raise a presumption of fraud in respect to the particular purchases in question. On this point, not only was the court below in error generally, but there was ground of reversal .of the judgment in particular under the second, fifth, sixth and fourteenth errors. The Court below had admitted evidence of irrelevant matters with strangers. This was contrary to Share v. Anderson, (7 Serg. & Rawle, 59,) and Conard v. Nicoll, (4 Peters, 297). To return to the question between the parties. There could be no such thing as fraud in the absence of any direct artifice or manoeuvre practised at the time when the party alleged to be defrauded was induced to give his assent to the contract. The utmost that could be made of the matter was, that the defendant’s wife might have allowed herself to be led into over-trading, owing to the improvident credits which had been so freely volunteered to her by the parties who now complained of her having availed herself of them. For this she was perhaps less to blame than they. At all events, the defendant himself was not to blame, for he had not in any manner participated in her business. The course-pursued by her creditors had been a conspiracy, and would have been indictable as such. The agreements made among them on the 14th' of September and 8th of October, 1835, amounted to and were such as to receive the *strongest condemnation. The effect of them must necessarily be to reverse the judgment under the first error assigned. Witnesses had been allowed to testify, who had agreed te eombine together in prosecuting this suit in the name of the plaintiff below, and to divide the proceeds of recovery among them. It is true, that mutual releases were executed. But after, and notwithstanding these releases, thé objection remained, that each of these persons was liable to the defendant below for the costs of suit, under the doctrine of Gallagher v. Milligan, (3 Penn. Rep. 177).
    As to the goods in respect to which the sheriff has returned eloigned, replevin is not the proper remedy. The plaintiff below should have brought trover for damages. But supposing that replevin in the detinet is a proper remedy, in any case, it will not prevail here. If maintainable at all, it can only be upon the ground of a disaffirmance of the contract. Now, here it appears that the creditors with whom the plaintiff below was acting in concert, and with whom he is identified, affirmed the contracts of sale made to the defendant’s wife by claiming the price in various ways, and that some of them actually brought suits for the price. They cannot affirm and disaffirm the same contracts, and at the time of the issuing of the replevins, they had so decidedly affirmed the sales that it was out of the question to attempt to disaffirm them.
    It is said on the other side, that the plea of non-cepit has admitted the property of these goods to be in the plaintiff' below. This we deny. It may be true to a certain extent, that this plea amoxxnts to a disclaimer of property in the defendant himself; and to this we do not object; for in all purchases by his wife, and in her entire business, the defendant below has always disclaimed, and still wholly disclaims, all manner of interest or participation. But. not to claim property in himself, is by no means an admission that the property is in the opposite party. The plea of noncepit is a general issue which puts it upon the plaintiff in replevin to prove property in himself affirmatively, as a necessary foundation of his title to recover. Pier v. Marsh, (4 Rawle, 283); Clarke v. Davies, (7 Taunt. 72); Meany v. Head, (1 Mason, 319); Badger v. Phinney, (15 Mass. 359).
    Under the ninth and eleventh errors assigned we admit Ellmaker v. Buckley, (16 Serg. & Rawle, 72,) to sanction to some extent the decision of the Court below, in excluding the introduction in the course of cross-examination, of new evidence in chief, in support of the future case of the party cross-examining. But Ellmaker v. Buckley, has been found inconvenient in practice : its principle 'has been doubted, and it requires reconsideration.
    Under the. seventh and eighth assignments of error; the Court below in effect allowed parol evidence of the contents of writings, the non-production of which was neither accounted for nor excused.
    *In Mackinley v. Hewitt, the demurrer to evidence cannot produce a different result. The effect of a demurrer to evidence is merely to admit what might be legally inferred by a jury. Here there was nothing whatever from which fraud could have been legally inferred. A jury is not at liberty to make random inferences, justified by no rational view of the evidence; nor are they at liberty to make inference from inference, or deduction from deduction, to such an extent that the court cannot follow them in the process. Without doing this, and more than this, the jury upon the evidence in this case could not have inferred fraud; and in the absence of fraud there was no pretext for the recovery of the plainsiff below. On this point of the demurrer to evidence, the counsel cited Gibson v. Hunter, (2 H. Bl. 188); Crawford v. Jackson, (1 Rawle, 431); Fowle v. Common Council of Alexandria, (11 Wheat. 320).
    The counsel for the defendants in error considered — ■
    1. The objections to the remedy and form of proceeding in respect to the goods eloigned. 2. The objections to the defendant’s liability on his wife’s transactions. 3. The plaintiff’s right to recover, independently of the question of fraud. 4. The question of fraud.
    1. Where the sheriff returns that the defendant has eloigned the goods, the plaintiff in replevin may either issue a capias in withernam, or waive his right to do so, and proceed to recover in damages the value of the goods eloigned, with further damages in some cases for their wrongful taking or detention.
    As to goods taken by the sheriff under the writ, and delivered to the plaintiff, where he is suffered to retain the possession of them, his remedy is to declare in the detinuit, with a view to a judgment for the affirmance of his right to the goods, and for such damage, if any, as he may have sustained by means of the taking and detention of them. But when the goods have been eloigned, he can declare in the detinet for damages. There is no difference in principle or in practice, in this respect, between the issue under a return of ‘eloigned,’ and the issue where goods taken by the sheriff have been delivered back to the defendant, under a claim of property, a.nd security given by him to the sheriff. Accordingly, the decisions in Pennsylvania, place the two proceedings substantially upon the same footing as to the recovery of the value, &c., in damages; except that upon the return of ‘eloigned,’ the plaintiff has no other security than the personal liability of the defendant, but in the other case, he has the security of the property-bond and of the liability of the sheriff. Easton v. Worthington, (5 Serg. & Rawle, 131)Warner v. Aughinbaugh, (15 Serg. & Rawle, 9, 12); Etter v. Edwards, (4 Watts, 68). In England, there is no practice of delivering goods back to the defendants, on a claim of property; but the practice there is the same as here on the return of *“ eloigned,” viz,, to declare in the detinet, and claim damages. Dalison, 84, pl. 36.; Fitz. Nat. Brev. 69, (L); Bull. N. P. 52; 1 Saund. 347, (b) note. (2); Gilbert on Replevin, 173, 174; 2 Lutw. 1150, 1151; Wilkinson on Replevin, 85, 43. This is also proved by the language of the statutes 7 H. 8, c. 4, s. 3, and 21 H. 8, c. 19, s. 3. In Com. Dig. Pleader, 3, K. 10, the practice is stated thus: “If the cattle taken are returned, the declaration shall say quare cepit, c., et ea detinuit contra radios et plegios quousque, ¿-c. If they are not returned it shall be quare cepit, c., et ad hue detinet, contra radios et plegios, omitting quousque, c. Rast. Ent. 560; Co. Ent. 610, b. So if only part are returned, it shall say as to that detinuit quousque, and for the residue, ad hue detinet. Co. Ent. 611, (b.), 613 (d). If the declaration is in the detinet the plaintiff shall recover the value of the cattle, damages for the taking, and co'sts. E. N. B. 69, L. But he cannot recover the cattle in specie, but only the value.” Dal. 84. The proceedings in these cases have been precisely conformable to these rules.
    2. The wife might have joined with the husband as a co-defendant in this action. But the husband is also liable to be sued alone for his wife’s torts committed during the marriage. It is therefore, unnecessary to notice, two other grounds, upon either of which he would be compellable to answer in this action. These are, 1st. His actual participation in or connivance at her acts, of which evidence was given, and which, after verdict must be taken to have been satisfactorily established. 2. The wife could only have conducted the business as her husband’s agent; as will more clearly appear under the next head. He is therefore liable, as every principal is liable for the acts of his agent committed in the business of the agency.
    3. Independently of the evidence of fraud the plaintiff was entitled to a verdict.
    The only plea was non-cepit. Under the legal construction of this plea, the defendant asserts that the detention of the goods was rightful, as well as the original taking of them:.. Otherwise the plea would he no answer to the writ and narr:, which complains of the detention as ivell as of the caption.. Every minute’s detention is, in itself, a new and distinct taking;of the goods, like a continuando in cases of trespass, nuisance, or other tort.. That it is necessary for him, under this plea, to excuse- the detention, as well as the caption appears from Arundell v. Trevill, (1 Sid. 81, 2; 1 Keb. 279, 317, 8; Gilbert on Replev.182,) in which case it was decided that the plea of non-cepit infra sex annos was bad. The plea should have been either causa- actionis nonaccrevit infra sex annos, or non-cepit nec detinuit unjuste, ¿fe. infra sex annos. If, therefore, the detention of these goods was unlawful, it is not material whether the original taking of them were lawful or unlawful. Moreover, for the reason *under the second head, it is immaterial whether the detention, if wrongful, was the act of the defendant or of his wife. Her detention. of them would be a tort, for which he would be responsible, as he would be in trover, for her conversion of them. Her detention is in law his detention.
    Was there an unlawful detention of the goodfe by the defendant, or his wife? That the--goods have been detained from the plaintiff is net disputable.. Then was the detention unlaivful ? It must have been unlawful, if the goods detained were-the plaintiff’s property. That they were his property is admitted on the record, by the plea of non-cepit. To this point, that non-cepit admits property in the plaintiff, the authorities are uniform. Br. Replev. 5; 1 Ventr. 249; 3 Salk. 307; Bull. N. P. 54; Gilb. Replv. 181; 1 Mass. 153; 11 Johns. 196; 12 Wendell, 286. Nor are they contradicted by the authorities cited on the other side. In 7 Taunt. 72, there was no plea of non-cepit, the plea was non-tenuit. The general reasoning of the Court strongly supports our view of this case. The dictum of Burrough, J. cited on the other side, if ever uttered as reported,* was irrelevant, and is opposed by all the authorities. Of 1 Mason, 319, the syllabus of the reporter is not warranted by any thing in the case, and is opposed to the case in 1 Massachusetts’ Rep. 153. The reasoning of the Court, on the plea of non-cepit, is in our favour. The dicta, as to the necessity of a previous taking, do not correspond with the settled law of Pennsylvania, and are opposed in Massachusetts by the decision in Badger v. Phinney, (15 Mass. Rep. 359). In Pennsylvania, when it is meant to put the plaintiff to the proof of his property, it has been usual for the defendant to plead property in himself, or in some other person. The dicta in Pier v. Marsh, (4 Rawle, 283,) cited on the other side, apply to the plea of property, and their accuracy is not disputed, but we deny their applicability to the plea of non-cepit. One point in Pier v. Marsh seems to have been discussed on the mistaken supposition, that the plea of “ property,” is an affirmative plea. It asserts property in the defendant, or a third person, as affirmative introductory matter, but the burden of the plea is a traverse of-property in the plaintiff.
    It is in substance and effect ¡admitted, on the other side, that the plea of non-cepit is a disclaimer -of property in the defendant himself. This disclaimer is, in the present case, tantamount to an admission of property in the plaintiff. The goods were once the plaintiff’s, and if they have not become the goods of some one else, they are his goods still. But of whom else can they have become the property ? Not -of the -wife. She, as a married woman, is incapable of owning property separately from her husband. Any acquisition by her would make the subject of such acquisition instantly the property of her husband. If it did not do this it could not change the property at all. The transaction between the plaintiff and Mrs. Mackinley, purporting to be a sale, was either an absolute nullity, or it was a purchase by him. As she cou-ld -not be a party to any contract in her own right, she could only purchase for him, and as his agent. Smith v. Sheriff, (15 East, 610, 612); Barlow v. Bishop, (1 East, 432); Dorrance v. Scott, (ante, 309); Roach v. Miles, (2 Conn. Rep. 638); Fenner v. Lewis, (10 Johns. 38; 1 Cowen 96). If, therefore, the husband on the record, disclaims property in himself, it follows that he is estopped from saying that the property v/hich was formerly in the plaintiff, is now in any one else.
    But if the defendant had filed a plea, putting the question of property in issue, the plaintiff would still, upon the evidence, have been entitled to recover. In whom would he have pleaded property ? The plea of property in his own wife, originally filed in M‘Gregor v. Mackinley, was frivolous and absurd, and was accordingly withdrawn and abandoned. Then, if he had pleaded property in himself, how could the plea have been sustained ? He could only claim property through the medium of a contract with the former owners of the goods. The only contract which can be pretended to have existed was that which was made through his wife’s agency. But he has repeatedly disavowed her agency, and disaffirmed her contract, and has disclaimed all participation, or liability, in respect to the business carried on in her name; and by his counsel still does so here. How, then, can he derive property in himself, through any act of hers ? It has been asked from the bench, whether he may hot be liable, in an action of ex contractu, nothwithstanding this disavowal and disclaimer, and whether a 'mere mistake, or misrepresentation, on his part, of the law on this subject, can have the effect of changing his footing of legal responsibility, and of impairing the legal obligation on him o'f the contract. The answer to this question is, that if a man disavows the authority of any agent in making a contract, whether he act truly or falsely in making the disavowal, it is at the option of the other party to take him at his word. Although the disavowal be in itself a falsehood, yet, if assented to on the other side, it will constitute an effectual rescission of the contract. It is immaterial, then, whether the contract between the plaintiff and the defendent ever existed or not. If it never existed, the property never for a moment ceased to be the plaintiff’s. If it existed, it was rescinded, and the act of rescission reinvested it in him as if it had never existed. In either case the detention of it from him was wrongful, and could have been shown to be so if the question of property had been raised upon the record.
    • 4. But the plaintiff’s right to recover, on the ground of fraud, is not, after verdict, to be questioned. It has already been shown that, although the moral guilt had been that of the wife alone, the husband *must in law, bear the responsibility. But the evidence fixed a participation in her guilt upon the defendant, morally as well as legally.
    From the case of Petty v. Anderson, (3 Bingh. 170,) particularly the opinion of Park, J. in that case, it appears that, however gross a fraud may have been practiced by a husband in permitting his wife to hold herself out to the world, as engaged in a business in which credit is given to her for the price of goods, the seller may waive his recourse against them for the tort, or fraud, and may sue him in an action for goods sold and delivered. That case and Langfort v. Tyler, (1 Salk. 113; 6 Mod. 162,) show that the husband, who, when informed of his wife’s purchases upon credit, does not at once disavow them, is liable for the price. Although he disavow her contract, yet, in reason it is clear that a mere disavowal does not suffice if he retain the goods, or what is- the same thing, permit her to retain them. He cannot withhold the goods from the sellers without being liable to be treated as a purchaser’, if they elect so to treat him.
    The cases of presumed gifts to the wife, cited on the other side, were cases of necessaries furnished to a wife, and turned upon a different principle. The authority of Manly v. Scott, as reported in 1 Mod. and in other books, is now understood to be confined to cases in which the wife has misbehaved herself, in leaving her husband without just cause, Hunt v. De la Blaquiere, (5 Bingh. 550); Honliston v. Smith, (3 Bingh. 127,) and some of the dicta in Manly v. Scott, in relation to infants, are inconsistent with the decisions of Badger v. Phinney, (15 Mass. Rep. 359); Bentley v. Griffin, (5 Taunt. 356,) is commented upon and'explained in Honliston v. Smith. (3 Bingh. 127); and the same commentary and explanation may be applied to the other cases cited of Metcalf v. Shaw, (3 Campb. 22,) and Montague v. Benedict, (3 Barn. & Cress. 631). In all of them the goods were delivered under circumstances which evinced a knowledge on the part of the sellers, that the purchases were unauthorised by the husband. They were cases of wearing apparel, or things for the personal use of the wife, which were unsuitable to her condition in life, and were delivered clandestinely, under circumstances which negative the knowledge or assent of the husband. But although the seller may thus, as in many other cases of tort, waive the fraud and proceed on the footing of affirming the contract, yet he may disaffirm it if he see proper. Where there has been fraud in procuring the delivery of goods under the fictitious pretext of a pretended purchase, it must always be at the election of the party injured to disaffirm the contract, and proceed on the ground of its nullity, as has been done here. Then it only remains, to inquire whether there was evidence from which a jury would have been justified in finding fraud.
    The definition of fraud given by Le Blanc, J. in 2 East, 108, is *“ an intention to deceive.” This definition has been much admired. See Ames v. Milward, Taunt. It had been substantially given in Plowden, 46. “ Covin is a secret thing contained in the heart.” To the same effect may be cited Co. Litt. 357, a. b.; Twyne’s Case, 3 Co. and 4 Pet. 295, 6. In The Earl of Bristol v. Wilsmore, (1 Barn. & Cresw. 514,) this definition is stated, and suitably applied. The Court say, “ If Miller contracted for, and obtained possession of the sheep in question, with a preconceived design of not paying for 
      
      them, that would be such a fraud as would vitiate the sale, and according to the cases which have been cited, would prevent the property from passing to him”
    
    But this definition is, perhaps, for practical purposes, too abstract. Courts and juries cannot dive into the secret recesses of men’s hearts. (10 Ves. 476). They can therefore judge of men’s intentions only from their acts; and as to these, the presumption is, that they are fair and honest, until the contrary is made to appear; fraud must he proved and is not to he presumed ; i. e. is not to be presumed, except upon proof of facts which justify the presumption. Hence the evidence of fraud forms, for all practical purposes, a part of its definition; and perhaps its best definition, is a compound one, made up of the intention to deceive, and the means whereby it may be proved. It consists in any deceptive acts or omissions by which another is misled to his disadvantage. An act per se innocent, may be fraudulent, if intended as a part of the machinery of a deception. Hence the law has never attempted to define what shall or shall not amount to evidence of fraud. Such evidence is to be allowed as the nature of the case will admit of, provided the facts proved have, in the eye of legal reason, a fair tendency to raise the presumption of the secret intention to mislead.
    The fraud imputed in the present case, the defendant or his wife, or both of them give the business which he was conducting pearance different from its reality. The things was a fictitious aspect; and she acquired possession of the immense mass of concealed goods of which these formed a portion, by means of a series of successful endeavours to give the external show and appearance of regular contracts to transactions which are since ascertained to have been nothing but mere wrongful contrivances, to get possession of, and accumulate the property of other people without paying for it; nay, without giving even a debtor, or party liable for the price of it. This was done under the pretence of regular purchases upon credit. They were externally fair, proper, and regular sales; and from the nature of the case, were not likely to be attended with any incidental or collateral false pretence or artifice in respect to each individual purchase. In the case of an isolated purchase, unless is mainly that what did, was intended to in her name, an apapparent aspect of there be proof of some false statement, or *of the wilful concealment of some truth, of which the seller has a right to expect the disclosure, it is very difficult to impute to any buyer a fraudulent design to get the possession of goods without paying for them. And yet this can sometimes be done by proving that he at once applied the goods to purposes inconsistent with the existence in his bosom, of honest designs in respect to them; as where they are afterwards the subject of forced at au under value, or otherwise used in a manner which shows that the buyer’s designs were not to avail himself of the credit given, for the fair or legitimate purposes of sound and honest business. A narrow view of the case of Noble v. Adams, (7' Taunt. 59,) has induced some to think, that a fraudulent intent in buying goods upon credit could only be proved by acts of the buyer in the nature of false pretences, anterior to, or cotemporaneous with the sale. But a careful examination of the case will convince any lawyer, that such was not the opinion of the Court. Eor this we have the warrant of one of the judges by whom it was decided. (See Irving v. Motley, cited below.) Be this as it may, the cases of Ferguson v. Carrington, (3 Carr. & Payne, 457; S. c. 9 Barn. & Cress. 59,) and Irving v. Motley, (7 Bingh. 543,) establish a broader and more liberal doctrine. The last case proves that if a series of purchases upon credit, although made separately of different persons at different times, can be shown to have been the common subject of designs unfair towards those who gave the credits, evidence of these transactions is not considered so far collateral as to be inadmissible. One mode of showing such unfair designs is to prove that the buyer was in the practice of selling at a sacrifice the goods bought on credit, by forcing sales for cash or on shorter credits. The proof of this species of misconduct need not be confined to the ' individual goods in controversy, but may be shown in respect to other goods. The number of a person’s purchases, and the inordinate quantity purchased, its entire disproportion to the legitimate wants of his business, may be a very strong indication of fraud. Here the maxim quce singula non prosunt juneta juvant, may often be fairly applied. It is a mistake to suppose that this would thus apply to cases of mere overtrading, or accumulation of large stocks of goods for contemplated speculations. In such cases the use and application of goods purchased, however unfortunate the result, could not be confounded with cases in which the uses to which the goods are applied were unfair and dishonest towards sellers, who gaye credit for the price of them.
    It is one of the many remarkable features of the present case, that the defendant, though he does not pretend that these goods were required for his regular business, has never even suggested any honest purpose for which they were accumulated. We allege that the business conducted in the name of the defendant’s *was wholly fictitious, .involving fraud upon a stupendous scale; that the fraud consisted in holding her out to those who dealt with her as engaged with her husband’s sanction in a safe and moderate business, which it was natural and regular, that he should conduct in her name and through her agency ; while in reality she was not buying goods for that business, but for other purposes of a character which afforded the defendant an opportunity of disavowing her acts, and leaving the sellers without the goods, and without any debtor for the price of them. The law may be, and we say is, sufficiently strong to frustrate these designs ; but it only frustrates them in the mode in which it frustrates all fraud, and its competency to frustrate them, does not make them the less fraud. Besides this ground of fraud, we showed the use of the goods purchased to have been such as to evince a wanton disregard of the duties of purchasers upon credit, towards those who trust them. The manner in which the goods accumulated were stored — the striking circumstances of the auction sales — the evasive and improper behaviour of both the defendant and his wife, w’hen applied to after their failure — the manner in which they set at defiance all ordinary rules and observances of persons in trade, under such circumstances — the time and manner of' procuring the levying of the execution at the suit of her father, — every thing combining to show covin, — “ the secret thing contained in the heart.” On this point of fraud, and also on the admissibility of evidence of collateral and cumulative instances of fraud, the counsel cited the following authorities, in addition to those already particularly noticed, viz., Reinhard v. Keenbartz, (6 Watts, 93); Allison v. Matthieu, (3 Johns. 235); 1 Paige, 493; 2 Paige, 169; 4 Mason, 289; 1 Esp. 430; 3 Espinasse, 524; 15 Johnson, 147; 4 Campb. 355; 1 Campb. 399; 4 Greenl. 172, 306, 318; 15 Mass. 156; 2 H. Blackstone, 288; 11 Wend. 83; 16 Wend. 574, 654. It by no means follows from these doctrines, that bona fide vendees who purchase from the fraudulent buyer, may not be protected in their title to the goods, on a principle of equity, explained in Dyer v. Pearson, (3 Barn. & Cress. 38); Haggerty v. Palmer, (5 Johns. Ch. 438); Copeland v. Bosanquet, (4 Wash. C. C. R. 594; and alluded to in 7 Bing. 543, and 1 Paige, 493). This point was decided in Parker v. Patrick, (5 Dunf. & East, 175); but the authority of that case has been questioned. 3 C. & P. 457; 2 A. & Ellis, 495.
    Although most of these points under the head of fraud arose more directly in the case of Mackinley v. M'Gregor, than in Mackinley v. Hewitt, yet in the latter case the counsel argued that the demurrer to evidence had such an effect as warranted them in taking the same ground on the question of fraud, as in Mackinley v. M‘Gregor. They contended that the only case in which a demurrer to evidence should be allowed to is that in which it can be shown as *matter of law that the plaintiff, as a condition precedent to his recovery, is under the necessity of proving affirmatively some fact in regard to which he offers no evidence whatever. Such were the cases of Duerhagen v. United States Insurance Co., (2 Serg. & Rawle, 187,) Morrison v. Birkey, (7 Serg. & Rawle, 245,) and Crawford v. Jackson, (1 Rawle, 431).
    But even in a case of that sort, so jealous are the Courts of sustaining the demurrer, that a venire de novo has sometimes been directed, instead of an entry of judgment for the party demurring. Gribson v. Hunter, (2 H. Bl. 188, 205). When a party offers to demur to his adversary’s evidence, the latter has a right to require the party demurring to. make distinct admissions on the record, of any facts which his evidence had the slightest tendency to prove. Gibson v. Hunter, (ubi supra); Maus v. Montgomery, (11 Serg. & Rawle, 328). But he may, if he please, waive this privilege of requiring admissions, and join instantly in the demurrer tendered. By thus joining in demurrer, he loses no benefit of any thing which he might at the trial have called upon the party tendering the demurrer to admit. The Court in bank, or a Court of error, will afterwards infer whatever he could have been called upon to admit, before compelling his adversary to join in demurrer. The law was thus settled in England, by the cases of Middleton v. Baker, (Cro. Eliz. 752,) and Cocksedge v. Fanshaw, (3 Brown’s Parl. Cases, 690, 706, 7, 709; s. c. 1 Dougl. Rep.) It may perhaps have been a little unsettled in that country, since the revolution, by the dicta to be found in the report of the above cited case of Gibson v. Hunter. But this has had no influence upon the course of Pennsylvania decisions on the subject, although made since Gibson v. Hunter, and with the report of that case before them. See particularly Ross v. Eason, (4 Yeates, 62); Duerhagen v. United States Insurance Company, (2 Serg. & Rawle, 187).
    The inferences which the Court will make will be of the strictest kind against the party demurring, and of the most liberal kind in favour of the other party. “ Every fact is taken pro confesso, which the jury might, with the least degree of pro-, priety, have inferred from his evidence.- The Court is not nicely to weigh the evidence, and decide according to the turn of the balance.” Dickey v. Schreider, (3 Serg. & Rawle, 416). Although the evidence be impugned or contradicted, it must nevertheless be taken to be true. Feay v. Decamp, (15 Serg. & Rawle, 227, 228, 231). So although it be such as is in itself incompetent or wholly insufficient to establish the fact which has been introduced as tending to prove, still, if the opposite party will withdraw the case from the jury, by demurring to the evidence, even such facts must be considered as admitted by the demurrer. Caldwell v. Stileman, (1 Rawle, 215); Newis v. Lark, or Scholastica’s Case, (Plowd. 411); Fitzharris v. Boiun, (1 Lev. 87); Lewis v. Few, (5 Johns. 28, 29); United States Bank v. Smith, *(11 Wheat. 179); Jacob v. United States, (1 Brockenb. 526, 527). Moreover, if one fact tend, however remotely, to the induction of another fact, the last fact must be considered as admitted in the strongest manner against the party demurring ; and that, too, without any scrupulous inquiry whether the inference or induction be correct or not. Duerhagen v. United States Insurance Co. (2 Serg. & Rawle, 187); Morrison v. Berkey, (7 Serg. & Rawle, 245); Patrick v. Mallet, (1 Johns. 245); Thornton v. Bank of Washington, (3 Pet. 40, 42); Chinoweth v. Haskell, (1b. 96).
    Under these principles, if the plaintiff’s evidence which was demurred to, had in any possible manner a tendency, however slight, to prove the fraud which the plaintiff alleged, it must be taken to have been admitted by the demurrer. The question of fraud is so peculiarly within the province of the jury, (6 Watts. 93; 7 Bing. 543,) that it would be very .unsafe to withdraw it from their consideration. .
    The question of the competency, as witnesses, of creditors, parties to the agreements of the 14th of September, and resolution of the 8th of October, 1835, did not arise in Mackinley v. Hewitt, both because the costs of suit had been paid into Court during the trial, and because the demurrer to evidence was admitted to be a waiver of the right to a bill of exceptions to its admission. In Mackinley v. M‘Gregor, the counsel of the defendant in error and plaintiff below contended, that the witnesses were not incompetent, because, 1st, The liability to costs was only a liability for the defendant’s and officer’s costs. The liability to the plaintiff was confessedly discharged by the release. This liability, if it existed, was imposed or declared by the act of the 23d of April, 1829. Stroud’s Purdon, 49. 2dly. The agreement of the 14th of September, 1835, applies only to .actions pertaining to the property of “Mary Mackinley,” and it was in evidence, that she had a large separate estate. This action is brought to recover the property of Robert M'Gregor, and has no relation to the property of “Mary Mackinley.” 3dly. The resolutions of the 8th of October, 1835, are not an agreement, but a declaration of opinion. But if an agreement, as it was manifestly contemplated that all the parties to the agreement of the 14th of September, 1835, should sign it; and as twenty-eight of them neglected or refused so to do, it was imperfect, inchoate, and without obligation. 4thly. That the case of Gallagher v. Milligan, (3 Penn. Rep. 177,) confines the rule of exclusion to an interest in the suit, and consequent liability for costs at the time the action was commenced. This suit was commenced the 7th of October, 1835 ; and the agreement which it is contended confers the interest, is dated the 8th day of October, 1835.
    
      
       On comparing the report in Taunton with the report of the same case in 2 Marshall, 386, it may be doubted whether the report in Taunton, of this dictum of Burrough, J. be correct.
    
   Separate opinions of the Court, in each case, were delivered as follows, by

*Rogers, J.

By the civil law, husband and wife are considered as persons capable of distinct and separate rights, and of making separate contracts, and they may even sue each other, as independent individuals; but by the common law, they are looked upon as one person; the legal existence of the wife, is to all civil purposes, merged in that of her husband; and, consequently, generally speaking, any contract made with her, is absolutely void. How far a court of chancery could reach her, in certain cases, in respect to her separate estate, does not enter into this controversy; and nothing we now say can be construed as having any bearing upon a point which may hereafter arise. But although a married woman is not personally liable on her contract, yet she may act, and frequently does act, as the agent of her husband, and in that capacity may charge him with the payment of goods, purchased by her, although she cannot buy goods so as to charge him, without his assent, either express or implied. If goods come to the use of the husband, or to the use of his family, with his knowledge, he is chargeable; as if they are brought to his house, and used there. If the wife be allowed by the husband, as is generally the case, to be housekeeper, and to buy for him, or buy necessary apparel for herself, or necessaries for herself and family, or goods to carry on a trade conducted by her, during her cohabitation with her husband, his consent is presumed. In all such cases, the contract is with him, through the agency of the wife. When the husband dissents from such acts of the wife, beforehand, no such presumption can arise; and, consequently, in such cases, he is not liable on contracts made with her. Even where a man and wife are living, apart, if the husband has any control over goods, improvidently ordered by his wife, so as to have it in his power to return them to the vendor, and he does not return them, or cause them to be returned, he adopts her act, and renders himself responsible. Nor can a husband and wife, by any private understanding or agreement between them, of which others are ignorant, change their legal capacities and characters. It follows from these principles, which are supported by reason, as well as by the authorities that have been cited at the bar, that if the husband assents, or knowing of the contracts of the wife, does not expressly dissent, he is chargeable with her agreement; or if a contract be made by the wife, of which he is afterwards informed, and he acquiesces in it, by using the goods, and treating them as his own, he cannot avoid the legal responsibility which the law throws upon him. Where the husband is cognisant of the contract, the legal liability is incurred; and if he wishes to avoid responsibility, it is his duty expressly to dissent; and if the goods come into his possession, with a knowledge of the contract, to take the earliest opportunity to return them to the vendor. It is very clear from the evidence, that Edward Mackinley was perfectly acquainted with the course of dealing with his wife, before, at the time, and after *the several contracts made with her. His consent will therefore be and he can only avoid his legal responsibility, by an express disavowal of her acts, before, at the time, or after the contracts made, or by an immediate return of the goods to the vendor. But it is contended, that where credit is given to the wife, the husband is not liable, although the-wife lives with her husband, and he sees her in the possession of the goods. For this position, the plaintiff in error relies on Manby v. Scott, (I Mod. 138); Bently v. Griffin, (5 Taunt. 855); Metcalf v. Seaw, (3 Campbell, 22), and Montague v. Benedict, (3 Barn. & Cress. 631). In delivering the judgment of the court, in Manly v. Scott, Chief Justice Hale says, “ If a man takes my wife, and clothes her, this amounts unto a gift of the apparel unto her. 11 Hen. 4, 83. And I may take my wife, with the apparel, and no action lies against me. By the same reason, when a man delivers stuff, or other .wares, to my wife, knowing her to be a feme covert, to make apparel, without my privity or alloivanee, this shall be construed to be a gift of the stuff unto her, and I shall not be charged in an action for it.” In Bently v. Griffin, the question was, whether the general liability of the husband was not repelled by the circumstances, which showed that the credit was given to the wife. The wife purchased some fashionable dresses, unsuited to her condition in life; and the only fact, from which a knowledge of the sale could be brought home to him, was that some of the articles furnished by the plaintiff, were worn by her in the presence of her husband. But to rebut the fact of knowledge by the husband, and his consequent acquiescence, circumstances were shown which rendered it clear to the mind of the Court, that the plaintiff gave credit to the wife alone, without any idea that recourse should be had to the husband. The bills drawn on her, with a full knowledge that she was a feme covert, were accepted and paid by her. She also gave directions to the servant, when the articles were brought home, to put them away so that her husband might not see them. It is difficult to resist the conclusion, that the tradesman and wife were well aware of their relative situations, and that he was willing to take the chance of payment by her. Stone v. M’Nair, (7 Term Rep. 166,) is the Case of a loan to the wife, without any authority of the husband, express or implied, for which the husband was held not to be liable. Metcalf v. Shaw, (3 Campbell, 27,) recognizes the general principle, that where credit is given to the wife, and not to the husband, he is not chargeable. Wearing apparel was supplied to a married woman, in quantities unsuitable to her husband’s degree, and without his knowledge; for which the credit was given to her, and her promissory note was taken in payment. “The action clearly cannot be maintained on the promissory note,” says Lord Ellenborough, “ as the wife had no authority, general or special, from her husband as his agent; and I think, he is not liable for any part of the goods, on this plain ground that they were not supplied on his credit, *and the plaintiff looked to the wife only for payment.” Montague v. Benedict, it appeared that the plaintiff had,- in the course of two months, furnished to the defendant’s wife, jewellery to the amount of 83?. and had always, when called on, avoided seeing the defendant; that goods to that amount were in no respect necessary to the defendant’s station in life. It was held, that as there was no evidence of any assent of the husband to the contract made by his wife, an action for the price of the goods, could not be maintained. In order to avoid the responsibility which the law throws upon the husband, there must be a want of knowledge of the transaction, an absence of assent, either express or implied, and moreover, the credit must be given to the wife, and not the husband. And this unquestionably is the amount of the cases which have been cited. With this qualification, I fully subscribe to the soundness of the principles stated. They are necessary to protect husbands from the folly or fraud of tradesmen on the one hand, and the improvidence of wives on the other; but this principle cannot apply, where the contract is made with his knowledge and assent. Where he assents beforehand, or knows of it, and does not expressly forbid it, or either uses the articles himself, or permits his family to use them, it would be a gross fraud to attempt to shield himself from payment. Whether the credit is given to the wife, is a question of fact for the consideration of the jury; but I cannot believe, that where a husband is well acquainted with the course of dealing in which his wife is engaged, when he does not forbid it, nor take any steps to put others on their guard, these cases can be made to apply. Mrs. Mackinley denies her liability, because she is a feme covert; and Edward Mackinley, because he did not make the contract; but the plain answer to this subterfuge, for I can view it in no other light, is, that it is the contract of the husband through the agency of the wife. His consent is presumed, and the presumption can only be rebutted by an express prohibition on the part of the husband. The fact that the contract was made by the wife, and that she is charged with the goods, is, under the circumstances, of but little weight. It affects the form, but not the substance, of the contract. It by no means of itself discharges him from liability, which is the legal consequence of his assent to her acts. If a man obstinately and perversely furnishes a wife with articles, unsuitable to her condition in life, in opposition to the known will of her husband, this is a gift to her; and this principle is asserted in Manby v. Scott, and in the other cases cited. When it assumes the form of a contract, it creates a moral obligation; but the policy of our law forbids that it should be treated as a legal obligation, affecting the liability of the husband or wife.

Such, we think, are the principles which must govern in an action on the contract of sale. But this is an action of replevin, which disaffirms the contract.

*The plaintiff contends that the suit can be maintained on three grounds:

1st. That the property has never been changed; the goods having been obtained under such circumstances of fraud, as vitiated the sale.

2. Because the parties rescinded the contract.

3. Because, by the plea of non-cepit, the property is admitted to be in the plaintiff.

It would be a dangerous doctrine to establish, that where a person purchases commodities which, at the time, he is conscious he shall be unable to pay for, though these goods may have after-wards passed through other hands, in the fair way of purchase, or third persons may have become, in the regular course of business, interested in them, the original seller shall have the right to recover them, in whomsoevér’s hands they may be. But whatever may be the limitation of the right of the vendor, it is certain, as a general principle, that when a person purchases goods, with a preconceived design of not paying for them, it is a fraud, and the property in the goods does not pass to the vendee. Replevin, or trover, will lie by the vendor, against the vendee, although not against a bona fide purchaser without notice ■of the fraud. It is a question of fact, whether the vendee has made an improvident sale, or the defendant has fraudulently obtained the possession of the goods. If the jury believe the defendant formed a deliberate plan to obtain the goods, intending that they never should be paid for, with a preconceived resolution to embezzle the money, or to become insolvent, or to pass them over to a favoured creditor, the defendant has been guilty of fraud, and the property in the goods does not pass. It is alleged, that the defendant did not buy the goods in the regular course of trade, but that he bought them for the fraudulent purpose of having them resold at a less price. If this was the intention of the vendee, and this purchase was the result of a general plan to defraud, the vendor may reclaim his goods, whatever appearance of fairness may attend the particular transaction of sale itself. What act of affirmance of the contract by the vendor may preclude him from asserting a right to the specific articles sold, it is not necessary to. determine; that right, however, may be maintained at any distance of time after the sale, where the fraud has been concealed, provided third persons may not have acquired an interest in the goods. But although the lapse of time will not of itself, without more, prevent the vendor from re-asserting his right to the property sold, yet he should be prompt in disavowing the contract, after coming to a knowledge of the fraudulent conduct of the vendee. He must do no act in affirmance of the contract, particularly when others may have credited the vendee, on the faith that he was the owner of the goods, or when the vendee has committed a notorious act of insolvency. That there should be some limit, on *the ground of policy, to the power of the vendor, in this respect, is plain, but the difficulty is to lay down any precise and definite rule. Each case must depend on its own circumstances: but in coming to a conclusion that fraud exists, in a particular case, the jury should be careful of the weight to be attached to transactions long subsequent in point of date.

To show fraud in the defendant and his wife, the evidence referred to in the second, fifth, sixth and twelfth exceptions, was properly received. There was some evidence, namely, the articles of agreement between Mackinley and wife, which were concealed, the sudden expansion of business, and accumulation of goods, much beyond the wants- of her ordinary and legitimate business, the immediate sale of some of the goods at a reduced price, and their repurchase, and the refusal to pay for goods, under the pretences stated, which tended to show a systematic plan and combination between Mackinley and wife to purchase goods, among which this parcel was one, with the fraudulent preconceived design of not paying for them. For this purpose, all the transactions of Mrs. Mackinley, and her declarations, in connection with the business in which she was engaged, as the agent of her husband, were properly admitted in evidence. It is true, that a disposition to cheat one person, cannot be called in to aid evidence of fraud in a subsequent, or prior and distinct transaction. But when it is one of a series of acts, although with distinct and different persons, it may be received to prove a general combination, or preconcerted plan, to cheat and defraud, of which the one in controversy may be the result. The evidence was properly admitted, to show a general design in these parties to obtain the possession and control of a large amount of goods, under the false eover and pretence of a regular business, whereas the real, but concealed intention was, to dispose of them in a clandestine manner, with a view of converting them into cash, and by this means eluding the just claims of creditors.

2d point. That the defendant has disclaimed the contract. And this is a question for the jury; for if the defendant has disavowed all property in the goods, the vendor may reclaim them and recover the specific articles, or their value, in this action. From the return of the contract of sale, it is obvious, that when once entered into, it cannot be rescinded by either of the contracting parties, without the consent of the other; but an agreement .may be rescinded with the consent of both. When the vendee disavows all property in the goods, and refuses to pay for them, the vendor may elect to consider the contract at an end. If the defendant disavows the contract, and disavows all property in the goods, the vendor may elect, either to proceed on the contract of sale, or by action of replevin, which disaffirms the contract. The of Mrs. under the circumstances of this case, his possession; *and it matters not whether he or she, or both of them, refuse to return the goods to the owner; in either case he is liable for their detention. Husband and wife are so identified, that he is liable, as well for her torts or frauds, as for contracts made by her as his agent. When the sheriff returns that the goods are eloigned, the vendor may recover the value of the goods in this action. It may also be proper here to add, that we do not think, that because the creditors have brought actions on the contract, the plaintiff is thereby prevented from supporting an action of replevin. These actions are not brought on the same, but different contracts, and although the parties may be the same, yet the actions are not inconsistent.

But it is said, and this brings me to the consideration of the third point, that not only has the vendee disclaimed property in the goods, but that he has admitted on the record, that the property belongs to the plaintiff: and so unquestionably are the authorities, all of which have been collected by the industry of the counsel, with the exception of a solitary dictum of Justice Burroughs, in Clarke v. Davies, 7 Taunt. 72. By the plea of non: cepit, the caption and detention only are put in issue, and not the property which is admitted. Grilb. on Rep. 165, and the other authorities cited. The only point to which the evidenco applies under that plea, is whether the defendant took the goods or not, or whether, if he came rightfully into possession, he has, and continues wrongfully to detain them. The plea of non-cepit, as is said in Wilkinson on Replevin, has been improperly called the general issue in replevin, for it only puts in issue the caption and detention. In point of form, it denies the taking only, and is pleaded without any suggestion for a return, and, consequently, there cannot be judgment for a return on that plea. But although it denies the taking only, yet, on that plea, the unlawful detention may also be inquired into; and this has been the invariable and constant practice, not only in England, but in this state, from the first settlement of the province. In England, the action of replevin has been generally confined to goods dis-trained for rent, but with us it has been used in all cases, where chattels in the possession of one person have been claimed by another. Where the defendant wishes to put the right of property in issue, it is- done by a plea of property, which throws the burthen of proof upon the plaintiff in replevin, to prove property in himself. And this was the opinion of Justice Kennedy in Marsh v. Pier, (4 Rawle, 283,) with which, for the reasons there stated we fully concur. Clemm v. Davidson, (5 Bro. 399); 6 Harris & John. 471.

Eor the reason stated in a preceding part of this opinion, we think that the affidavit of Mrs. Mackinley, which forms the third specification of error, was correctly admitted, nor do we see any thing exceptionable in the refusal of the permission to ask the as contained in the fourth error.

*The seventh and eighth errors were considered together. The object of the evidence which was admitted, was to show that the goods of one of the vendors, were sold at auction, at an under value, and this was one of the means of identifying the goods. But this was not the best evidence, for Mr. Eassit, by whom the letter was written, should have been examined, and from him, or in some other way, it should have been ascertained, whether the ticket which was enclosed in the letter by him to the vendor, was attached to the goods sold at auction.

The ninth and eleven errors, are intended to question the decision of the Court, in Ellmaker v. Buckley, (16 Serg. & Rawle, 72.) We have examined the judgment of the Court, as delivered by Chief Justice Gibson, and see no reason to doubt the soundness of the» principle asserted by him, in relation to the order of the examination of witnesses. We therefore see no error in this part of the case, even if such an exception was the subject of review in error.

I have carefully examined the remaining errors, and with the exception of the first error, we are of the opinion they have not been sustained.

The first error is that the judge admitted as witnesses severally, Peter W. Wiltbank and others; those individuals being interested in the action, and therefore incompetent to testify.

By the agreement of the 14th September, 1835, the creditors of Mary Mackinley bound themselves to each other, to take such lawful measures as maybe necessary to investigate her pecuniary affairs and transactions, and to discover and apply her property to the payment of her just debts, without preference or distinction. They also agreed to contribute in the ratio of -their respective debts, to- such expenses as may be necessary to carry the agreement into effect.

At a subsequent meeting of the creditors of Edward Mackinley, (and in this transaction his and her creditors are the same,) it was resolved, as the sense of the meeting, that all replevins and other process which had been issued, were for the common benefit of those who had or might sign the agreement of the 14th September, 1835.

The parties to these agreements, as is very clear, make common cause with each other. As they are entitled to all the benefits as equal participators in the amount recovered in the replevin, so they are liable to contribute to its expenses and costs; and a refusal to do so would be a gross fraud on the plaintiff on record. He could not discontinue the suit without their assent, nor could they refuse without breach of the agreement, to contribute to the expense of the suit, in the ratio of their’respective debts. The fact that their names do not appear on the record is immaterial. In Gallagher v. Milligan, (3 Penn. Rep. 177,) it was held, that any person, who, *at the time of the commencement of the is entitled to a of the money sued for, is liable to costs; and is, therefore, incompetent to give evidence, although he may release his interest to the plaintiff on record. On the authority of this case, we are of the opinion, that the Court erred in admitting the witness without payment of costs.

Judgment reversed, and a venire de novo awarded.

The opinion of the Court in Mackinley v. Heivitt, was also delivered by

Bogers, J.

The point ruled in Mackinley v. M'Gregor, renders a minute investigation of this case wholly unnecessary. It would lead to a repetition of the principles there stated; for in all the essential features, the cases are the same. It is, however, an act of justice to acknowledge the aid we have derived from the industry and research of the counsel who argued this cause. This, unlike Mackinley v. M'Gregor, and in this only they differ comes before us on a demurrer to evidence. “ He who demurs to parol evidence,” says Chief Justice Tilghman, in Dickey v. The Administrators of Putnam, (3 Serg. & Rawle, 416,) “engages in an uphill business. Every point is taken fro confesso which the jury might, with the least degree of propriety, have inferred from the evidence. The defendant admits every fact which the jury could have found upon the evidence.” Now, whether the jury could have found fraud, is immaterial, as they could without doubt,, have inferred with propriety, the several points on which the District Court founded their judgment; and these we concur with them in thinking, and for the reasons given by Justice Jones, who delivered the opinion of the Court, entitled the plaintiff to judgment on the demurrer.

Judgment affirmed.

Cited by Counsel post, 492; 4 Wharton, 502; 6 Id. 421; 3 Watts & Sergeant, 480 ; 6 Id. 348 ; 2 Barr, 155 ; 3 Harris, 187 ; 5 Id. 312; 1 Casey, 198 ; 2 Grant, 200 ; 1 Wright, 216 ; 2 P. F. Smith, 532: 2 Miles, 453.

Cited by Court 7 Watts, 307 ; 2 Harris, 277 ; 4 Id. 199 ; 8 P. F. Smith, 457.

Explained 9 Harris, 369, and commented on 2 Miles, 239. 
      
       As to contracts of married women under the act of 1848, see 8 Casey, 433; 11 Id. 389 ; 1 Wright, 254 5 P. F. Smith, 386.
     
      
       See 3 Harris, 513; 5 P. F. Smith, 177.
     
      
       See 7 Wright, 442.
     