¶1A bill of sale from one Shackford to Paul, conveying the interest of the former in the business of Lynn & Shackford, together with Paul’s negotiable note for part of the consideration agreed on; were deposited with the defendant, upon an agreement between the parties that the latter should keep these papers in his possession until Paul should pay the balance of the purchase money, and then should deliver the note to Shackford and the bill of sale to Paul.
¶2On the day following this transaction, Paul obtained possession of the bill of sale, upon expressing á desire to see the papers, without paying or offering to pay the balance. The assault complained of was committed in the immediate attempt by the defendant to recover this paper. Paul testified at the trial that *219he believed some fraud had been practised on him in the sale of the property, and that he intended to carry away the bill of sale.
¶3The judge instructed the jury that the defendant had the right to use the force necessary to prevent Paul from keeping the bill of sale, if the same was rightfully in the possession of the defendant, or if the defendant was entitled to the possession of it. But he added that if, upon the evidence, they found the transaction between Shackford and Paul a fraud, or an attempted fraud, to which the defendant was a party, or of which he had knowledge, then Paul would have a legal right to retain the bill of sale for the purpose of preventing a consummation of the fraud.
¶4This last instruction was erroneous; for, assuming that there was evidence that the sale to Paul was accomplished by a fraud upon him, yet he could only avoid the contract by restoring or offering to restore the other party to his former position, and surrendering all claim to the bill of sale. He had no right to obtain possession of the paper without paying the price agreed, and then hold it for the purpose of compelling the defendant to give up the contract and surrender the consideration. The law does not allow to a party injured such a mode of redress. He is not permitted to defeat one wrong by practising another.
¶5If there was no evidence to warrant the jury in finding the alleged fraud, then the instruction was calculated to mislead the jury, and was erroneously given.
¶6It is not necessary to consider whether the act proved constituted an assault, or whether the assault proved was justifiable. These questions, upon a new trial, may come up in a very different form. Exceptions sustained.