
    James Dugan vs. Daniel A. Nichols.
    Essex.
    November 8, 1878.
    Endicott & Lord, JJ., absent.
    Testimony of an assignee in bankruptcy that he would not have given up to the purchaser certain goods, sold by the bankrupt before the bankruptcy, but remaining in his possession, even if demanded, unless ordered so to do by his counsel, will warrant a jury in finding an unlawful detention of the goods such as will support replevin against him.
    Replevin of 13 barrels of oil. Writ dated July 10, 1874. After the former decision, reported ante, 43, the case was tried in the Superior Court, before Colburn, J., who allowed a bill of exceptions in substance as follows":
    The plaintiff offered evidence tending to prove that he purchased the oil of the firm of Shaw & Bruce, of which the defendant was the assignee in bankruptcy, and paid for the same; and that the oil was, when purchased, in a shed belonging to the firm, where it remained until it was replevied. The plaintiff also offered evidence tending to prove a demand upon the defendant before the date of the writ.
    The defendant testified that he found the oil in question on the premises of Shaw & Bruce ; that he never heard that the oil belonged to the plaintiff, until the plaintiff told him so about a week before the date of the writ; that the plaintiff never made any demand upon him; and upon cross-examination, in reply to the question, “ If you had understood Dugan demanded the oil, should you have given it up ? ” answered, “ I should not, unless my counsel had ordered me to.” Upon reexamination, he testified that he had no recollection that the question of what he might have done had ever entered his mind until he was asked the question as above.
    The defendant requested the judge to rule that it was not a question of what the defendant now thought he might have done; that if the defendant’s testimony was taken as true, it would not exempt the plaintiff from making a demand before bringing his action; and that there was no evidence of a conversion. The judge declined so to rule; but ruled that, if the jury believed the defendant’s testimony, there was evidence upon which they might find a conversion. The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.
    
      C. Sewall, for the defendant.
    
      S. B. Ives, Jr., for the plaintiff, was not called upon.
   By the Court.

The testimony of the defendant warranted

the jury in finding an unlawful detention of the goods, which was all that was necessary to support replevin by the rightful owner. Gen. Sts. c. 143, § 10. Whitman v. Merrill, ante, 127.

Exceptions overruled.  