
    Seaver vs. Dingley.
    The Slat. 1821, ch. 80, has so far altered the common law, that, an action of re-plevin may be maintained for goods unlawfully detained, though the original taking was lawful.
    In replevin of goods, the original taking of which by the defendant was lawful, if he plead property in himself, it is not necessary for the plaintiff to prove a demand of the goods previous to suing out the writ of replevin.
    Nor is a previous demand of the goods necessary, where the original taking was tortious.
    in order to entitle the seller of goods to vacate the sale, and reclaim the goods on the ground of fraud, it is not necessary that the fraudulent representations be made at the time of sale ; as in case of a warranty, which is part of the contract of sale ; — but it is sufficient if the goods be obtained by the influence and means of false and fraudulent representations, though they were made on a previous occasion.
    This was an action of replevin for goods and merchandize detained in the town of Gardiner; and was tried before Weston J. upon the issue of property in the defendant.
    It was proved by the plaintiff that on the 9th day of July 1824, one Reed applied to the house of Bartels & Baker in Portland, to purchase of them a quantity of goods on credit ; producing at the same time two recommendations, speaking well of him as an active arid capable man, but saying nothing of his property ; and that he also referred them to Gen. McLellan of Bath, then in Portland, who spoke of him as a smart, active man. It was also proved that Reed falsely stated to Bartels & Baker that he owned one or two farms and a clapboard machine in the town of Clinton, where he resided, which were free of incumbrance ; — that he had a considerable quantity of lumber, and other personal property ; — that he was not in debt more than one hundred dollars, and had other means of paying for the goods he wished to purchase, than the proceeds of their sale. Bartels & Baker, confiding in these assurances respecting his property, were thereby induced to give Reed credit for goods to the amount of $862, taking his promissory note for that amount, payable in six months. Reed then went to Mtwood, Crain & Co. of whom he obtained goods upon the same false statements. On the same day he went to the plantiff’s store, where he stated to the chief clerk the same falsehoods,adding that he had obtained credit of Bartels & Baker, and of Attwood, Cram & Co. and wished to purchase on the same terms of the plaintiff; and upon those representations, and reference to the merchants before named, the plaintiff’s clerk delivered to him goods to the value of $460 on his promissory note at six months.
    The counsel for the defendant objected to this evidence, on the ground that the goods in question in this suit were no part of that purchase ; but were bought of the plaintiff by Reed in August following, on a credit of six months. But the judge over - ruled the objection.
    It was then proved that Reed was insolvent, at the time of the false representations before stated; that his real estate and clapboard machine were incumbered with mortgages ; that a part of what he still occupied and impioved had been sold by him, and that he was also much involved by other debts, which were secured by mortgage ; that he had frequently been sued ; and that his credit was not good.
    Soon after the sale on the 9th of July, by the plaintiff’s clerk to Reed, the plaintiff was made acquainted with what had been transacted by his clerk, and with the representations and facts on which he made the sale ; at which he expressed no dissatisfaction. On the 4th of August 1824, Reed applied to the plaintiff personally for more goods to make up-his assortment, on the same terms ; and being introduced by the principal clerk as the person who had made the previous purchase, the plaintiff sold him goods to the amount of $640, taking his note, on the credit desired. On the 18th of August, Reed again applied to the same clerk in the absence of the plaintiff, for a further supply of goods on the same credit; stating that his business had been good ; that he had sold his goods faster than he expected, and had been obliged to sell them on credit ; that he had sold to the amount of a thousand dollars in one week ; that his sales had been to very good profit ; and that he intended to make a payment to the plaintiff of $400 before he left town. Upon these representations be obtained the goods which are replevied in this suit, to the amount of $43*7, on a credit of six months. After these goods were selected and laid out, the chief clerk, being abo'ut to leave the store, instructed the assistant clerk not to take Reed's note for the goods, but to charge them in account ; but on this being afterwards suggested to Reed, he declined taking them in that manner; insisting that the purchase was on a credit of six months, and that if they were charged in account, the plaintiff might attach his property for the amount forthwith. Accordingly, upon the return of the chief clerk he assented to the credit proposed, and took Reed's note for the amount ; he paying only fifty dollars, instead of the four hundred he had promised. Reed received the goods, and shipped them for the Kennebec; and on their arrival at Gardiner, on the 20th of August, they were taken into custody by the defendant, by virtue of an order from Reed.
    
    It further appeared that on the day and night of the 18th of August, while Reed was in Portland, his creditors entered his store at Clinton, and attached all the property there. While the officer was attaching the property, Dingley came with a writ of attachment in trover in his own name, against Reed, and requested the officer to make service of it; but he attached nothing but part of a clapboard machine. It also appeared that Dingley arrived at Reed's store, which was five miles from his own residence, about sunset ; that an officer was then about the store ; in which there were goods of the estimated value of 1700 dollars ; that when Dingley arrived there, attachments had been made to secure debts amounting to less than three hundred dollars ; that lie remained there all that night, during which the store was opened with his knowledge, and further attachments made ; that in the course of the night, and the next day, the residue of the goods were delivered by Reed's clerk, in payment of sundry debts; that Dingley declared to the officer to whom he gave his writ, that he had satisfied Reed and his clerk that the property might as well come into his hands, as go to other creditors; that he supposed that Reed had gone to Portland to get more goods ; and that if he was not able to get property in Clinton, he should take another writ and go towards Portland.
    
    On the morning of August 19th, Dingley and his brother sat off for Portland to find Reed ; whom they met at Richmond, and re turned with him to Gardiner ; where they requested him to secure the defendant in the sum which he claimed to be due, and which Meed declined, wishing the goods at Portland again, that he might return them. Dingley replied that if he would not secure him by the goods, he would go down to Swan Island, or Balk, or wherever they might be found, and attach them. The parties then retired into a private room, and after some conversation called a witness to their agreement, that Reed should sell to the defendant all his goods on board the vessel at Gardiner, amounting to 1500 dollars; that the defendant claimed of him 1200 dollars as a debt then due, the precise amount of which he could not tlier. ascertain, for want of his papers ; that upon a future adjustment of their dealings, the balance that might be found due to Reed should be paid to him by a reconveyance of real estate ‘which he had before conveyed to Dingley as security for debts due to him; but no receipt, obligation, or writing had passed between them at the time of that conveyance. Hereupon Reed made bills of sale of the goods, and gave to Dingley an order on the master of the vessel, by virtue of which he received and stored them at Gardiner, on their arrival.
    One witness testified that he had been formerly solicited by Reed to assume the same responsibility, as his surety, which Dinghy afterwards assumed, and to take the same security for his indemnity ; and that Dingley, in a conversation with the witness upon that subject, in July 1824, acknowledged that he was fully secured for a liability he had assumed to Benjamin Broun, for six hundred dollars ; and that Reed since he commenced trading, which was but a few days before, had paid him off what he owed him on other accounts. It also appeared that Reed had deposited with Dingley about half the goods he had purchased of the plaintiff on the fourth of August; and that he gave him a hill of sale of those goods, bearing dale Aug. 12, in which they were valued at $572, 35 ; but the defendant offered no proof of payment for them.
    It further appeared that on the 25th day of August the plaintiff’s agent, being sent to Clinton, stopped at the defendant’s store in Winslow,and asked him if he had any goods of Reed,s in his possession ; to which he replied in the negative. On being further asked whether he had in his possession any goods which Reed had purchased of the plaintiff, he said he had no goods of Reed's, nor any which ewer had been his,or which he had obtained in Portland, except a cask or two of spirits which he pointed out, then on tap. The agent, having obtained permission to search his store, then proceeded to the chamber, where he found a large proportion of the goods which Reed bought of the plaintiff on the fourth of August, packed in the same boxes, and claimed by the defendant as his own; though he had just before assured the agent that the chamber contained nothing but empty casks and boxes. The writ in this case was issued on the 24th day of August; on which day the replevin bond bears date ; and the plaintiff’s agent was accompanied by the officer who had received the writ for service. The defendant was fully informed on the 25th of August that the plaintiff was in pursuit of the goods which Reed had obtained of him ; and that his inquiries were not limited to any particular purchase. No other demand was made of the goods replevied, than appears in the foregoing transactions. The officer’s return was dated Oct. 13 ; that being the day on which he served the defendant with a copy of the writ.
    When Dingley received the goods at Gardiner from the master of the vessel, he desired the master to keep it secret from any one who might apply for information ; and he requested the keeper of the store where they were deposited to deny that he had any goods in his store belonging either to him or to Reed ; observing that he expected officers from Hallowell and Augusta in quest of the goods. He also obliterated Reed's name from the casks and packages, substituting his own.
    It further appeared that prior to July 9, 1824, Dingley had paid or was liable to pay ‡600 to Benjamin Brown for Reed ;— that he had received from Reed, as part security, a deed of some real estate, which had before been incumbered; and other property to secure the balance ; — and that after the sale of the goods to him at Gardiner he, at Reed's request, transferred to Bartels & Baker all his right in the real estate which had been conveyed to himself.
    The counsel for the defendant contended — first, that the false representations, made on the 9th of July, ought not to have been received as evidence of fraud on the 18th of August following ; and that the plaintiff having given credit to Reed on the 4th, and again on the 18th of August, without any repetition of the assertions made on the 9th of July, the jury ought to be instructed that no fraud was committed on the 18th of August. Upon this point the judge instructed the jury that if they were satisfied that Reed obtained the goods now in question, on the 18th of August, by reason of the false representations made by him on the 9th of July preceding ; and that the plaintiff, or his clerk, was not then undeceived with respect to his situation ; the plaintiff, as between him and Reed, by reason of the continued fraud practised on him, had a right to vacate the contract of ,« de, and reclaim the property, But that if it appeared to them that the plaintiff", or his clerk, was then undeceived, and elected, notwithstanding, to give Reed a credit, in the hope of getting payment, he could not prevail in this action. And the jury were further instructed, that the plaintiff had the same right, by law, to reclaim the property against Dingley, that he had against Reed; unless it appeared that the former had purchased them bona fide, of the latter, or had attached them for a debt or debts which had accrued subsequent to Need’s purchase.
    
      Secondly. It was contended that the goods not having been re-plevied until the 13lh of October, the contract was not attempted to be rescinded within a reasonable time ; and that by the delay of the plaintiff, the sale was by law confirmed. But the judge instructed the jury that the plaintiff had not forfeited his rights by any delay apparent in the case.
    
      Thirdly. It was objected that the goods were not demanded of the defendant before they were replevied ; and that therefore the action could not be maintained. But this objection the judge overruled.
    , Fourthly. It was insisted that all the evidence relating to the sale of the goods by Reed to Dingley on the 12th of August, and the evidence of what was said and done at the store of the latter on the 24th of August, when the goods were replevied, ought not to be received by the court. But the judge admitted this evidence, as tending to shew that the connection between 
      Reed and Dingley was collusive and fraudulent against the plaintiff and others, who had been deceived by Reed.
    
    
      Fifthly. It was contended that Dingley having been summoned as the trustee of Reed, at the suit of .Brown & Humphries, before the goods in this case were replevied, and while they were in Dingley’s possession, he must be adjudged trustee in that action, and therefore is entitled to retain the goods. But the judge instructed the jury otherwise ; more especially as it appeared that the debt of Broion & Humphries, upon which their action was instituted, accrued prior to the time when Reed obtained the goods in question.
    A verdict was thereupon returned for the plaintiff; which was taken subject to the opinion of the court upon the points raised at the trial. '
    
      Boutelle, for the defendant,
    contended that no proof of false declarations was admissible in evidence, unless they were made at the time of sale ; 2 Com. on Contr. 264, 5 ; which, in the present case, was not the fact. If the plaintiff was deceived on the ninth of July, he had opportunity to ascertain the truth, before the sale of the goods in August. If he neglected this, both the fault and its consequences are his own.
    
      2. The plaintiff, if he was defrauded, has lost his lien on the goods by delay. He should have rescinded the contract, and pursued his remedy, forthwith ; but here was a lapse of fifty six days, before the replevin, which was too late. Gloucester Bank v. Salem Bank, 17 Mass. 33. Buffinlonv. Gerrish 15 Mass. 156. Marston v. Baldwin 17 Mass. 06. ,
    
      3. Here was no demand of the goods. Replevin lies only where trover would lie, for an unlawful detention. 5 Mass. 280. The original sale was not void, but voidable merely, and this only against Reed. But the defendant, without notice of any fraud, was the innocent bailee of the goods in pledge to secure him against his liability to Brown. Hence his possession was lawful, at least until the goods were formally demanded, upon notice of the fraud. 5 D. fy E. 175. Badger v. Phinney 15 Mass. 359. Baker v. Fales 16 Mass. 147.
    
      4. Any evidence, except as to the goods in dispute, xvas irrelevant and improper. All the exceptions to this rule apply to previous, and not to subsequent transactions ; and this only for the purpose of ascertaining motives. 1 Phil. Ev. 139. To admit evidence of other acts, is to surprise the party with testimony which he cannot be supposed to be prepared to meet.
    5. Ho contended that the service of the trustee process ope. rated an attachment of the goods, and fixed the rights of the parties; entitling the defendant to hold them, until his liability was discharged. 1 Mass. 117. Bissel v. Briggs 9 Mass. 480 tl 264» 4-90. Burlinghame v. Bell 16 Mass. 318.
    
      Allen and Sprague, for the plaintiffs,
    replied to the first objection, that the evidence xvas admissible to shew a fraudulent purpose in Reed. Had the action been in assumpsit, against him, fos false affirmation in the sale of goods, the objection would have force. But it is rather in the nature of case' for deceit, in which the proof is not restricted to the time of sale. Yet if it xvere so, here is evidence of false representations at that time, in the statement that he had sold out his previous purchases, at, a good profit, in the ordinary course of trade.
    2. If there is a period when the oxvner of goods thus defrauded must pursue the wrong doer or lose his remedy, it cannot be -aid to commence before he has knowledge of the fraud. But hi the present case the defendant himself was confederate with the cheat, in concealing the goods, obliterating the marks, falsely declaring that he had none of them and endeavoring to persuade the store keeper at Gardiner to become a party to the same iniquity. The plaintiff replevied the goods as soon as the place of their concealment was discovered.
    3. No demand was necessary tobe proved, the issue being the naked question of property. If it were otherwise, the case shews a sufficient demand, in the plaintiff’s inquiry after the goods, and the defendant’s denial that he had any which ever belonged to Reed, Baker «. Fales 16 Mass. 1.51. The question o fa lien in favor of the defendant wa-. not raised at the trial ; nor h A open upon the pleadings ; in xvbmh the defendant claim*; thg. absolute property in the goods, and not merely a right, sub modo, to retain them. But it is manifest that here was no lien, it having been discharged by the previous delivery of other goods at. Winsloio.
    
    4. As to the trustee process, the defendant cannot be adjudge ed the trustee of Reed, if the finding of the jury in the present case is true ; for it shews that the goods in question were never the property, either of Reed, or of the defendant. '
    
      Orr, in reply,
    argued that fraud, to vitiate a contract, must be such as was indictable, involving the intent to cheat the party out of his property, by false tokens and representations, out of the reach of detection by the party injured. A naked falsehood is not sufficient; much less a merely colored statement of the' buyer’s circumstances, which he has made himself believe to be true.
    There being ho evidence of indictable fraud, the case stands upon the ground of false affirmation made at the time of sale. But where one is thus defrauded, it is well settled that before he can rescind the contract and reclaim the goods, he should restore all which he has received, and demand his property. But here he has done neither. In felony it is otherwise ; for there the property is not changed. In fraud, the contract is only voidable ; and if the party would avoid it, he must make his election in reasonable time. Here he was alarmed on the 18th of August, and put upon his guard ; yet he afterwards ratified the contract, taking a note at six months for the price.
   Mellen C. J.

delivered the opinion of the court, at the ensuing term in Somerset.

By the report of the judge, the following facts appear. I. The jury, under his instructions, have decided that the goods replevied, were purchased by Reed, of the plaintiff, on the 18th day of August 1824, upon a credit of six months ; and that they were so purchased and obtained by means of the false representations made by said Reed, on the 9th oí July preceding; (at which time lie had obtained other goods of the plaintiff in the same manner;) and that at the time of this last purchase, the plaintiff acted under the continued influence of those false representations, not having been undeceived as to their falsehood. 2. That though Dingley, a few days afterwards, at Gardiner, took possession of said goods under the name of a purchase of them, and received a bill of sale of them from Reed-, yet that the above transaction ivas not a bona fide sale. 3. That the writ in this action was issued on the 24th of August 1824 ; that the replevin bond bore the same date ; and the officer’s return of service on the defendant by leaving a copy of the writ, bears date October IS, 1821. 4. That the facts relied on as shewing a demand of the goods, took place on the 25th of Avgust. 5. That the issue joined was upon the question of property. One or two other circumstances will be noticed and considered hereafter. On these facts, the question is whether the decisions and instructions of the presiding judge were correct, or in other words, whether the action is by law maintainable.

The case presents several points, which, in their nature, are preliminary to the consideration of the merits. 1. Is it essential to the maintenance of an action of replevin, that tlie plaintiff should prove a tortious or unlawful taking of the goods replevied ? 2. If not, is it not necessary for him to prove an unlawful detention of them ? 3. If so, do the facts in this case taken in connection with the declaration and plea, furnish proof of such detention ?

\s to the first point. This has been a subject of much inquiry and learned investigation, in the case of Badger v. Phinney, 15 Mass. 359; and again in Baker & al. v. Fales 16 Mass. 147; and we presume that all or most of the common law principles and authorities are there collected and examined. As those volumes are in the hands of every lawyer, we refer to those cases ; instead of going through a critical examination of them here, and stating their import and bearing. The court, in both those causes, after mature consideration, decided, that whatever might be the strict principles of the common law, the statute of 1789, of which our statute of 1821, ch. 80, is a transcript, had so altered the common law, that an action of replevin may be maintained in case of ítd Unlawful detention, though the taking was not tortious and unlawful- As by these decisions the law was settled in the Commonwealth of Massachusetts, while Maine was a portion of it,we are not disposed to disturb or question them, even if we entertained doubts as to their correctness.

As to the second point, there seems to be no reason for hesitation. A part of the charge or declaration in a writ of replevin is that the defendant “ unlawfully detains” the goods ; and the two decisions before mentioned were founded on this principle ; ffnd so in fact, are all our actions of replevin ; for, unless in case of detention, a suit would not be necessary, even where there had been a tortious taking. This point.has been stated and the question answered, not because involved in any doubt; but merely as introductory to the third point ; and this demands a particular examination ; for if it must be answered in the negative, it must also defeat the present action. What then, is the true answer ? What constitutes an “ unlawful detention ?” If goods are taken Unlawfully, the detention of them is unlawful. As in an action of trover, if the goods were taken illegally, it is a conversion and a demand of the property is not necessary before the commencement of the action ; but if the defendant came lawfully into possession of the goods, an action cannot be maintained until after demand and refusal, which are evidence of a conversion. For the' same reason no action of replevin will lie for goods, of which the defendant lawfully obtained the possession, until after a demand. From that time the detention is unlawful, and the case comes within the language of the writ of replevin. But it is not necessary in an action of trover tosíate in the declaration a demand and refusal ; it is matter of proof on the general issue, if SUch proof is necessary. It is implied and contained in the allegation that the defendant unlawfully converted the goods to his Own use. Our statute of 1821, ch. 63, prescribes the form of a Writ of replevin ; and, as before stated, the charge or averment in the declaration is general — that the defendant unlawfully detained (the goods) “to this day which averment must be considered as containing, by implication,those facts necessary to render such detention unlawful. In Buffington & al. v. Gerrish & al. 15 Mass. 156, and in Cross v. Peters 1 Greenl. 376; both cases of rescinded contract on the alleged ground of fraud by the purchasers, it does not appear whether there was any previous demand or not; no question was raised about it. In the case of Baker & al. v. Fales, the writ, as usual, charged the defendant with having, “ unlawfully and without any justifiable cause taken the goods, &c. and them unlawfully detained,” The defendant pleaded in abatement, that the goods came lawfully into his possession ; but did not deny the unlawful detention alleged in the writ; and the case, of course, is silent on this point. In Badger v. Phinney, the issue was on the property ; and in that case a demand was proved before what was considered as the commencement of the action ; though afterwards in Baker & al. v. Fales, the eouit say that the facts in Badger v. Phinney, “ would have "warranted a decision for the plaintiff,on the ground of the original tortious taking under colour of a purchase which was fraudulent.” In the present case the plaintiff, in his writ, makes the allegations required by statute ; as to his own property in the goods, and the unlawful detention of them by Dingley, and the defendant pleads in bar of the action property in himself ; thun waiving all objection as to the regularity of the proceedings on the part of the plaintiff; not denying that he took and detained the goods; but denying that he did either unlawfully; because, as he stated in his plea, the goods were his own. But the jury have decided that the goods were not his; but that his obtainment, possession and detention of them were all fraudulent. As by the plea of non cepit, the question of property is not in issue. 1 Chitty's Pl. 490; so, by his plea of property in himself, he did not deny the plaintiff’s right to recover the goods, if they, by law,belonged to him,and as the jury have by their finding decided that fact in favor of the plaintiff, we are well satisfied that the defendant cannot now be received to urge the want of a previous demand of the goods, as an objection to the verdict. We do not perceive why a defendant in replevin, who has no merits, and pretends to none, might not plead in abatement, that the goods replevied came lawfully into his possession, and that he did not unlawfully detain them ; or he might be more particular, and say that no demand for the goods had ever been made upon him previous to the commencement of the action.

But there is another point of view in which this preliminary question may be considered. Did the goods replevied ever come lawfully into the possession of Dingley. The jury have decided that they were delivered by the plaintiff to Deed ; but they have also decided that the delivery was obtained by means of the fraud and falsehood of Need; and that by fraudulent management, Dingley procured the goods,and the possession of them from Reed. The stream, in every part of it, is poisoned. Can the law pronounce a sale and delivery of goods as fraudulent and void, and allow the vendor at once to rescind it; and at the same time, say that such delivery and subsequent possession are lawful ? As has been before stated, the court in Baker & al. v. Fales say that, a taking under color of a fraudulent purchase, may well be considered as tortious. Reasoning from analogy, we should be conducted to this conclusion. It is a principle of criminal Jaw, perfectly familiar in our courts of justice, that if a person, on contract of hire, obtains the delivery and possession of a horse and chaise from the owner, but with a secret, fraudulent, and felonious intent at the time of hiring, and afterwards runs away with them, this is larceny ; notwithstanding the possession was obtained by the consent of the owner. Can it be that those facts which constitute an infamous crime, in the one case, and subject the offender to punishment in a dungeon, should in the other, constitute a legal defence in a civil action, and ensure him a verdict in his fa-for ? This would seem to be a blemish upon the purity, and a reproach upon the impartiality of the-law, neither of which it deserves. Viewing the question immediately under consideration, in the several lights in which we have considered it, we are of opinion that this action is legally maintainable without any previous demand of the goods replevied ; and of course it is not necessary for us to examine the facts,which have been reported with a view of shewing such demand, or what could be deemed equivalent. Having thus disposed of this preliminary objection, we now proceed to the consideration of those which have been made to the decisions and instructions of the judge, touching the merits of the cause.

The objection that this action was prematurely commenced, cannot be maintained. A fraudulent sale is voidable ; it changes no property, if the vendor, on discovery and proof of the fraud, rescinds the contract, or treats it as a nullity ; and though this is done within the term of credit given, it makes no difference. This same objection was taken and overruled by the court in the above cited case of Buffington & al. v. Gerrish & al.

The first instruction of the judge given to the jury, of which the defendant complains, is that which relates to the effect of the false representations made to the plaintiff on the 9th day of July preceding, several weeks before the purchase of the goods in question. But upon examination of those instructions, they appear so distinct and guarded as that they conld not mislead. He instructed them that if the goods now in dispute ivere obtained by Reed on the 18th of Jlugust,by reason of the false representations made on the 9th of July, and the plaintiff was not then undeceived, nor his clerk, as to the situation of Reed; the plaintiff had a right to vacate the contract as between him and Reed, by reason of the continued fraud practised on him. The simple question was whether the goods were fraudulently obtained ; not how many days or weeks after the falsehood and fraud were practis-ed on the plaintiff. We perceive nothing incorrect in this direction. The following direction is equally unexceptionable; which was that unless Dingley was proved to their satisfaction to have fairly and bona fide purchased the goods of Reed, the plaintiff’s right to vacate the contract was as good and perfect against him as against Reed. The defendant’s counsel has compared a false and fraudulent representation to a warranty ; which, to be binding, must be made at the time of the sale,or upon the sale. Such is the law as to a warranty, because it is a part of the contract of sale ; but the false and fraudulent representations by means of which a man gains an undeserved credit, and obtains possession of property under the name and colour of a purchase, must from the nature of the thing precede the sale, because the sale is made in consequence of them. The time of the false and fraudulent representation is not of so much importance; the main question always is, were the credit and the possession of the property ob~ tained by means of tho fraud and falsehood ; whether at the moment they were practised, or under their continued influence upon the deceived owner of the property '?

The second instruction to the jury, and overruling the objection of the defendant, was, that tho plaintiff had not forfeited his righ». to reclaim the goods by his delay. The objection to this is an - swered by the fact, that only six days after the sale, the plaintiff' purchased his writ of replevin and prepared the proper bond ; and by virtue of this writ the goods were replevied as soon a« they were afterwards found at Gardiner, viz. on the IStb of October following. This objection must fail. The third objection related to the want ofproof of a demand, but this point we have already considered.

The fourth objection stated in the report is, that the judge ad - fitted proof of conversations between Reed and Dingley, as to the sale of goods, on the 12th of August; and also proof of con - duct and conversation between the plaintiff’s clerk and Dingley, on the 24th of August. The answer to these objections is ver}' plain; those conversations were the declarations or confessions of the defendant, and so far, were certainly admissible; and although one of those conversations related to a sale of goods, other tharr those in question in this case; yet as such conversation had a tendency to show, and was offered for the purpose of showing, & collusive understanding between Reed and Dingley^as to the purchase of goods, we think the evidence was properly admitted The conversation was only a few days before the fraud was prac-tised on the plaintiff. It is always proper in the trial of an indictment against a person for passing counterfeit money, particularly described in the indictment, to offer proof that the defendant, about the same time, was in possession of, or passed, other counterfeit money though, not charged in the indictment,for the purpose of shewing;», scienter and criminal intention on the part of the accused.

The fifth and last instruction of the judge complained of, relates to the trustee process. It was contended that as that process-was instituted before the commencement of the present action, it ought to be considered as a bar to it. It is difficult to pet" ooi ve how the question of property, which was the only one in trial before the jury, could possibly he affected by the pendency of the trustee action. But if, by any form of pleading, the question had been brought before us, as to the effect of that process <m this action, the answer to the defendant’s objection is very plain and obvious. As it now appears by the verdict of the jury that the property of the goods replevied is in the plaintiff; it is very clear that he has no interest in the question whether Dingles/ is the trustee of Reed or not ; nor can he be affected by the decision of that cause whatever it may he. If Dingley stood indebted to Reed on account,or otherwise, except on a negotiable -¡oenrity, at the time of the service of the trustee process, he «• ¡11 be adjudged trustee. But if the object of the plaintiffs in that action is to charge him as trustee in virtue of having the goods in possession then, which are now the subject of this suit, ho may disclose the fact,that the verdict and judgment in this action have established the property of those goods to be,and to have been,in the plaintiff Seaver ; and then he must, of course, be discharged. Bat, it is unnecessary to pursue this idea any further.

It has been further urged in the argument that the defendant had a lien on the property, which, as pawnee, he had a legal right o maintain, notwithstanding the circumstances under which it was procured by Reed; and some authorities have been relied ou in support of this position ; but the position itself is not sustained by the facts of the case. The bill of sale to Dingley was absolute, and he always claimed the property as owner, and in no other character, and the jury have decided against his claim, and by their verdict, involved him in the consequences of Read’s fraud, equally with Reed himself.

Oa view of all the facts of the case, the court are of opinion iliat the law is clearly with the plaintiff ; and accordingly there must be

Judgment, on the. verdict,  