
    Green vs. Russell.
    B, having purchased a span of horses of R. on Credit by false pretences, afterwards transferred them to G., who took with knowledge of all the circumstances; whereupon R., without waiting for the term of B.’s credit to expire, caused the horses to be seized under a void attachment issued by a justice for the purchase money, and obtained judgment, no one appearing to defend. Held, in tro. ver by G. against R., that these proceedings did not amount to such an absolute affirmance of B.’s purchase as to preclude R. from objecting its invalidity by way of defence.
    The attachment proceedings, however, afforded some evidence of an intent to affirm the sale after notice of the fraud; but it was not so conclusive as to warrant the court in refusing to submit the question to the jury. Per Nelson, Ch. J.
    Trover for a span of horses, tried at the Madison circuit in September, 1841, before Gridley, C. Judge. The plaintiff proved that he purchased the horses of his brother, B. A. Green, on the 28th of May, 1841, and that they remained in his (the plaintiff’s) possession from that time until they were taken from him by order of the defendant in July thereafter. After giving evidence of the value of the horses, the plaintiff rested. The defendant’s counsel, in opening the cause to the jury, stated the defence to be that B. A. Green bought the horses of the defendant in the month of May, 1841, giving two notes for the purchase money, one for $75 and the other for $80; that the purchase was made under such fraudulent, false and deceitful representations as would subject the said B, A. Green to a conviction for the crime of obtaining goods by false pretences; that the horses were soon afterwards sold to the plaintiff by B A. Green; that the plaintiff had full knowledge of the fraud when the horses were sold to him, and purchased with a view more effectually to consummate the fraud; and that B. A. Green 1 eft the country immediately afterwards. The defendant’s counsel also stated that the horses were taken from the plaintiff’s possession under two attachments from a justice’s court in favor of the defendant and against the said B. A. Green.
    It appeared, in the course of the trial, that the horses were taken on the 5th of July, 1841, by a constable who held the attachments ; that the defendant was present at the time; that the constable professed to be acting in virtue of the attachments ; and that judgments thereon were afterwards obtained, no one appearing to defend. It also appeared that the attachments were void hy reason of a defect in the affidavits upon which they were issued; and further, that the attachments were founded upon the defendant’s claim for the purchase money of the horses, which had not yet become due. After the foregoing facts were shown, the defendant’s counsel proposed to go into evidence of the circumstances under which the horses were sold to B. A. Green; but the circuit judge decided that, even admitting the purchase of the horses by B. A. Green to have been void by reason of the false pretences and representations made by him at the time, still, as the defendant had deliberately affirmed the validity of the contract of sale by instituting legal proceedings to recover the purchase money, he could not avail himself of the alleged fraud, or be permitted to deny the validity of the sale.
    The jury rendered a verdict in favor'of the plaintiff for $ 145; and the defendant now moved for a new trial on a case.
    
      D. Wright, for the defendant.
    
      J. Ruger, for the plaintiff.
   By the Court, Nelson, Ch. J.

I am of opinion that the learned judge erred in the disposition of this case at the circuit. The attachments and proceedings under them, including the judgments, being utterly void and of no effect, did not necessarily or legally conplude the defendant from setting up, by way of additional defence, the fraud perpetrated by B. A. Green. These proceedings could not operate as an estoppel either technically or in any other way. They bound nobody; certainly not the defendant in them, B. A. Green. And, as a general rule, estoppels must be mutual. (Welland Canal Co. v. Hathaway, 8 Wend. 480, 483, 4, and the cases there cited.)

The utmost effect to which the proceedings under the attachments were entitled, considered in reference to that branch of the defence depending upon the invalidity of the sale to B. A. Green, was to regard them as some evidence tending to rebut the allegation of fraud, or to show an acquiescence in and confirmation of the sale after full notice of the fraudulent means by which it was procured. The evidence, therefore, like all other material evidence relating to a disputed fact in the cause, should have been submitted to the jury. It might have been, and undoubtedly was, very material and pertinent evidence of confirmation; but it could not have been so decisive or conclusive, under the circumstances offered to be proved, as to Avarrant the court in withholding it from the consideration of the jury.

There Avould have been much in this case open to observation before the jury, had the proof turned out as offered, going to explain aAvay the apparent effect of the attachment proceedings, and to rebut all idea of an intent on the part of the defendant to ratify the sale. A very strong argument to this effect arises from the fact that the proceedings themselves were instituted for the purchase money, though not yet due, under a mistaken notion probably that the fraud opened the Avay for an immediate collection of the debt. They Avent upon the assumption that the sale was void. Something is due, moreover, to the situation and feelings of a party acting under the belief that an attempt has been made, by deliberate artifice, to defraud him of his property. Legal proceedings unadvisably instituted for the pmpose of arresting tire consummation of the fraud, which turn out to be void and no better than blank paper, should be regarded with considerable allowance. It seems to me rather a forced conclusion to say, that by the proceedings in question the defendant intended absolutely to confirm the transaction. At all events, the conclusion is certainly not one of law; and the circuit judge therefore erred in not receiving the evidence and putting the point to the jury.

New trial granted.  