majority">McAllister, J.

It was a controverted, material question of fact upon the trial, whether or not Conkey made the false representation as to the ability of his firm to pay for the cheese which plaintiffs below claimed that he did make, and which induced the sale. But, by the third instruction given to the jury at the instance of the plaintiffs, the court is made to assume as fact, the making of such representation. Such assumption by the court, in an instruction, of the existence of a particular, material, but controverted fact, has been so repeatedly condemned by the Supreme Court, that it is needless to cite the cases. That of itself must be regarded as prejudicial error. But the instruction announces the rule of law, that if the purchasers of the cheese had, 'after the sale, become insolvent and unable to pay for them, but that if, with knowledge of such insolvency and inability to pay for them, they received the cheese at the railroad depot, took them to and placed them in their store with their other goods, this would constitute such a fraud as would enable the plaintiffs to rescind the contract of sale and recover the goods in replevin.

The fourth instruction is, in substance, that if Fay & Con-key, at the time they received the first shipments of the cheese, thought they were able to, and expected to pay for them, but that at the time they received and placed in their store the last shipment in controversy, they knew they could not pay for that shipment, or did not intend to pay for that shipment,- then the jury might find 'for the plaintiffs as to that shipment, even if they found for the defendants as to prior shipments.

The plaintiffs’ own evidence shows that all these shipments were made under, and in pursuance of previous contracts of sale between them and Fay & Conkey.

Ho authorities have been cited in support of the rule embodied in either of these instructions, and we venture the assertion that none can be found.

In Catlin v. Warren et al., at this term, the question was before us as to the true rule in such case, and we found from the cases, that to constitute the fraud there must be a preconceived design never to pay for the goods. That the only intent that renders the sale fraudulent, is a positive and predetermined intention entertained and acted upon, at the time of going through the form of an apparent sale. Burrill v. Stevens, 73 Maine, 395. Or, as the rule is stated by some'courts, the purchase of goods with the intention, at the time, not to pay for them, is fraudulent, and such intent may be found from the acts of the purchaser after the sale. Bowen v. Schuler, 41 Ill. 192. Had the instructions in the case at bar directed the jury that they might take into consideration the acts of Fay & Conkey, after the sale which was referred to, in determining the question whether, at the time of the sale, they had a preconceived design never to pay for the cheese, or whether they bought the same with the intention, at the time of the sale, not to pay for them, the instructions would have been correct. But as they were given, the acts subsequent to the sale, which were specified, were declared by the court to he fraudulent and to entitle the plaintiffs to rescind a previously made contract of sale. For the giving these instructions, the judgment must he reversed and the cause remanded.

Judgment reversed.

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