majority">By the Court, Emott, J.

This case has been before us on a former occasion, on an application by the plaintiff to set aside a nonsuit which was granted at the first trial of the cause at the circuit.- The judge before whom the cause was then fried held that the assignment under which the plaintiff claims was void upon its face, and dismissed the complaint. Upon consideration at the general term, however, we were of a different opinion, under the doctrines laid down by the court of appeals in the most recent cases, and the cause was sent back for a new trial. In the opinion delivered on that occasion, the materiality of certain facts and considerations upon the question of an actual fraudulent purpose in the assignor was indicated, (a)

At the second trial, the judge who presided refused to permit any evidence to be given of these facts, or of any others bearing upon the good faith of the assignment, and expressly excluded the question of fraud or good faith from the con*388sideration of the jury. The learned judge thus held in conformity to what he supposed to be the doctrine of this court in the two cases of Hall v. Stryker, (9 Abb. 342,) and Rinchey v. Stryker, (not reported.) In this, however, he fell into an error. The present case is clearly distinguishable from either of those cited. In Hall v. Strykerno judgment had been recovered, and the whole justification, both in pleading and in evidence, was by an attachment issued at the commencement of a suit against the assignor. We have seen no reason to alter or depart from the views expressed by us in that case, although they have been dissented from by a co-ordinate tribunal in the city of 3STew York, of high character and eminent ability, (b)In the case of Rinchey v. Strykerthere had been a judgment recovered since the suit against the sheriff, but it was not set up in the answer, and we held that without being pleaded it could not be proved. The point in that case was a question of pleading only, and the decision was not intended to go beyond the case of Hall v. Stryker. In the case at bar, the defendant justified, in his answer, under an attachment by which he seized the goods, and a judgment and execution subsequently recovered in the attachment suit, by which he held them. The facts are thus different from the first case cited, and the pleading avoids the difficulty presented in the second.

This is an action to recover damages for the taking and conversion of property. The answer sets up an original taking by attachment, and a subsequent judgment and execution in the attachment suit, with a levy on the property. The judge at the trial excluded the judgment record, and refused to permit the defendant to question the good faith of the plaintiff’s title. Even if the first taking could not be justified, the justification of the subsequent holding at the time of the commencement of the suit would be very material in any action, upon the question of damages.

This, however, was an action to recover the value of the *389property, and not merely a suit for a trespass by interfering with it. It would be a complete answer to such an action, to plead and prove a title in the defendant at the time of the commencement of the suit. The defendant offered evidence which would go to such a justification—that is, he offered to show that the plaintiff had no title—and that he, representing a judgment creditor of the person who had the title, was lawfully in possession. The evidence should have been received, and the case should have been sent to the jury upon the question of fraud in the assignment by Weichel to Jacobs.

[Kings General Term,December 9, 1861.

The verdict is set aside, and a new trial ordered; the costs to abide the event.

Emott, Brown and Scrugham, Justices.]

The following sentence is probably the one referred to: “ The solvency or insolvency of Frederick Weichel, and his pecuniary condition, and whether he had other property at the time he executed the deed of assignment, are material to the principal question involved.”

i) See Thayer v. Willett, (9 Abb. 325.)

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