majority">Mellen C. J.

delivered the opinion of the court, at the ensuing term in Somerset.

By the report of the judge, the following facts appear. I. The jury, under his instructions, have decided that the goods replevied, were purchased by Reed, of the plaintiff, on the 18th day of August 1824, upon a credit of six months ; and that they were so purchased and obtained by means of the false representations made by said Reed, on the 9th oí July preceding; *315(at which time lie had obtained other goods of the plaintiff in the same manner;) and that at the time of this last purchase, the plaintiff acted under the continued influence of those false representations, not having been undeceived as to their falsehood. 2. That though Dingley, a few days afterwards, at Gardiner, took possession of said goods under the name of a purchase of them, and received a bill of sale of them from Reed-, yet that the above transaction ivas not a bona fide sale. 3. That the writ in this action was issued on the 24th of August 1824 ; that the replevin bond bore the same date ; and the officer’s return of service on the defendant by leaving a copy of the writ, bears date October IS, 1821. 4. That the facts relied on as shewing a demand of the goods, took place on the 25th of Avgust. 5. That the issue joined was upon the question of property. One or two other circumstances will be noticed and considered hereafter. On these facts, the question is whether the decisions and instructions of the presiding judge were correct, or in other words, whether the action is by law maintainable.

The case presents several points, which, in their nature, are preliminary to the consideration of the merits. 1. Is it essential to the maintenance of an action of replevin, that tlie plaintiff should prove a tortious or unlawful taking of the goods replevied ? 2. If not, is it not necessary for him to prove an unlawful detention of them ? 3. If so, do the facts in this case taken in connection with the declaration and plea, furnish proof of such detention ?

\s to the first point. This has been a subject of much inquiry and learned investigation, in the case of Badger v. Phinney, 15 Mass. 359; and again in Baker & al. v. Fales 16 Mass. 147; and we presume that all or most of the common law principles and authorities are there collected and examined. As those volumes are in the hands of every lawyer, we refer to those cases ; instead of going through a critical examination of them here, and stating their import and bearing. The court, in both those causes, after mature consideration, decided, that whatever might be the strict principles of the common law, the statute of 1789, of which our statute of 1821, ch. 80, is a transcript, had so altered the common law, that an action of replevin may be maintained in case of *316ítd Unlawful detention, though the taking was not tortious and unlawful- As by these decisions the law was settled in the Commonwealth of Massachusetts, while Maine was a portion of it,we are not disposed to disturb or question them, even if we entertained doubts as to their correctness.

As to the second point, there seems to be no reason for hesitation. A part of the charge or declaration in a writ of replevin is that the defendant “ unlawfully detains” the goods ; and the two decisions before mentioned were founded on this principle ; ffnd so in fact, are all our actions of replevin ; for, unless in case of detention, a suit would not be necessary, even where there had been a tortious taking. This point.has been stated and the question answered, not because involved in any doubt; but merely as introductory to the third point ; and this demands a particular examination ; for if it must be answered in the negative, it must also defeat the present action. What then, is the true answer ? What constitutes an “ unlawful detention ?” If goods are taken Unlawfully, the detention of them is unlawful. As in an action of trover, if the goods were taken illegally, it is a conversion and a demand of the property is not necessary before the commencement of the action ; but if the defendant came lawfully into possession of the goods, an action cannot be maintained until after demand and refusal, which are evidence of a conversion. For the' same reason no action of replevin will lie for goods, of which the defendant lawfully obtained the possession, until after a demand. From that time the detention is unlawful, and the case comes within the language of the writ of replevin. But it is not necessary in an action of trover tosíate in the declaration a demand and refusal ; it is matter of proof on the general issue, if SUch proof is necessary. It is implied and contained in the allegation that the defendant unlawfully converted the goods to his Own use. Our statute of 1821, ch. 63, prescribes the form of a Writ of replevin ; and, as before stated, the charge or averment in the declaration is general — that the defendant unlawfully detained (the goods) “to this day which averment must be considered as containing, by implication,those facts necessary to render such detention unlawful. In Buffington & al. v. Gerrish & al. *31715 Mass. 156, and in Cross v. Peters 1 Greenl. 376; both cases of rescinded contract on the alleged ground of fraud by the purchasers, it does not appear whether there was any previous demand or not; no question was raised about it. In the case of Baker & al. v. Fales, the writ, as usual, charged the defendant with having, “ unlawfully and without any justifiable cause taken the goods, &c. and them unlawfully detained,” The defendant pleaded in abatement, that the goods came lawfully into his possession ; but did not deny the unlawful detention alleged in the writ; and the case, of course, is silent on this point. In Badger v. Phinney, the issue was on the property ; and in that case a demand was proved before what was considered as the commencement of the action ; though afterwards in Baker & al. v. Fales, the eouit say that the facts in Badger v. Phinney, “ would have "warranted a decision for the plaintiff,on the ground of the original tortious taking under colour of a purchase which was fraudulent.” In the present case the plaintiff, in his writ, makes the allegations required by statute ; as to his own property in the goods, and the unlawful detention of them by Dingley, and the defendant pleads in bar of the action property in himself ; thun waiving all objection as to the regularity of the proceedings on the part of the plaintiff; not denying that he took and detained the goods; but denying that he did either unlawfully; because, as he stated in his plea, the goods were his own. But the jury have decided that the goods were not his; but that his obtainment, possession and detention of them were all fraudulent. As by the plea of non cepit, the question of property is not in issue. 1 Chitty's Pl. 490; so, by his plea of property in himself, he did not deny the plaintiff’s right to recover the goods, if they, by law,belonged to him,and as the jury have by their finding decided that fact in favor of the plaintiff, we are well satisfied that the defendant cannot now be received to urge the want of a previous demand of the goods, as an objection to the verdict. We do not perceive why a defendant in replevin, who has no merits, and pretends to none, might not plead in abatement, that the goods replevied came lawfully into his possession, and that he did not unlawfully detain them ; or he might be more particular, and say that no demand *318for the goods had ever been made upon him previous to the commencement of the action.

But there is another point of view in which this preliminary question may be considered. Did the goods replevied ever come lawfully into the possession of Dingley. The jury have decided that they were delivered by the plaintiff to Deed ; but they have also decided that the delivery was obtained by means of the fraud and falsehood of Need; and that by fraudulent management, Dingley procured the goods,and the possession of them from Reed. The stream, in every part of it, is poisoned. Can the law pronounce a sale and delivery of goods as fraudulent and void, and allow the vendor at once to rescind it; and at the same time, say that such delivery and subsequent possession are lawful ? As has been before stated, the court in Baker & al. v. Fales say that, a taking under color of a fraudulent purchase, may well be considered as tortious. Reasoning from analogy, we should be conducted to this conclusion. It is a principle of criminal Jaw, perfectly familiar in our courts of justice, that if a person, on contract of hire, obtains the delivery and possession of a horse and chaise from the owner, but with a secret, fraudulent, and felonious intent at the time of hiring, and afterwards runs away with them, this is larceny ; notwithstanding the possession was obtained by the consent of the owner. Can it be that those facts which constitute an infamous crime, in the one case, and subject the offender to punishment in a dungeon, should in the other, constitute a legal defence in a civil action, and ensure him a verdict in his fa-for ? This would seem to be a blemish upon the purity, and a reproach upon the impartiality of the-law, neither of which it deserves. Viewing the question immediately under consideration, in the several lights in which we have considered it, we are of opinion that this action is legally maintainable without any previous demand of the goods replevied ; and of course it is not necessary for us to examine the facts,which have been reported with a view of shewing such demand, or what could be deemed equivalent. Having thus disposed of this preliminary objection, we now proceed to the consideration of those which have been made to the decisions and instructions of the judge, touching the merits of the cause.

*320The objection that this action was prematurely commenced, cannot be maintained. A fraudulent sale is voidable ; it changes no property, if the vendor, on discovery and proof of the fraud, rescinds the contract, or treats it as a nullity ; and though this is done within the term of credit given, it makes no difference. This same objection was taken and overruled by the court in the above cited case of Buffington & al. v. Gerrish & al.

The first instruction of the judge given to the jury, of which the defendant complains, is that which relates to the effect of the false representations made to the plaintiff on the 9th day of July preceding, several weeks before the purchase of the goods in question. But upon examination of those instructions, they appear so distinct and guarded as that they conld not mislead. He instructed them that if the goods now in dispute ivere obtained by Reed on the 18th of Jlugust,by reason of the false representations made on the 9th of July, and the plaintiff was not then undeceived, nor his clerk, as to the situation of Reed; the plaintiff had a right to vacate the contract as between him and Reed, by reason of the continued fraud practised on him. The simple question was whether the goods were fraudulently obtained ; not how many days or weeks after the falsehood and fraud were practis-ed on the plaintiff. We perceive nothing incorrect in this direction. The following direction is equally unexceptionable; which was that unless Dingley was proved to their satisfaction to have fairly and bona fide purchased the goods of Reed, the plaintiff’s right to vacate the contract was as good and perfect against him as against Reed. The defendant’s counsel has compared a false and fraudulent representation to a warranty ; which, to be binding, must be made at the time of the sale,or upon the sale. Such is the law as to a warranty, because it is a part of the contract of sale ; but the false and fraudulent representations by means of which a man gains an undeserved credit, and obtains possession of property under the name and colour of a purchase, must from the nature of the thing precede the sale, because the sale is made in consequence of them. The time of the false and fraudulent representation is not of so much importance; the main question always is, were the credit and the possession of the property ob~ *319tained by means of tho fraud and falsehood ; whether at the moment they were practised, or under their continued influence upon the deceived owner of the property '?

The second instruction to the jury, and overruling the objection of the defendant, was, that tho plaintiff had not forfeited his righ». to reclaim the goods by his delay. The objection to this is an - swered by the fact, that only six days after the sale, the plaintiff' purchased his writ of replevin and prepared the proper bond ; and by virtue of this writ the goods were replevied as soon a« they were afterwards found at Gardiner, viz. on the IStb of October following. This objection must fail. The third objection related to the want ofproof of a demand, but this point we have already considered.

The fourth objection stated in the report is, that the judge ad - fitted proof of conversations between Reed and Dingley, as to the sale of goods, on the 12th of August; and also proof of con - duct and conversation between the plaintiff’s clerk and Dingley, on the 24th of August. The answer to these objections is ver}' plain; those conversations were the declarations or confessions of the defendant, and so far, were certainly admissible; and although one of those conversations related to a sale of goods, other tharr those in question in this case; yet as such conversation had a tendency to show, and was offered for the purpose of showing, & collusive understanding between Reed and Dingley^as to the purchase of goods, we think the evidence was properly admitted The conversation was only a few days before the fraud was prac-tised on the plaintiff. It is always proper in the trial of an indictment against a person for passing counterfeit money, particularly described in the indictment, to offer proof that the defendant, about the same time, was in possession of, or passed, other counterfeit money though, not charged in the indictment,for the purpose of shewing;», scienter and criminal intention on the part of the accused.

The fifth and last instruction of the judge complained of, relates to the trustee process. It was contended that as that process-was instituted before the commencement of the present action, it ought to be considered as a bar to it. It is difficult to pet" *321ooi ve how the question of property, which was the only one in trial before the jury, could possibly he affected by the pendency of the trustee action. But if, by any form of pleading, the question had been brought before us, as to the effect of that process <m this action, the answer to the defendant’s objection is very plain and obvious. As it now appears by the verdict of the jury that the property of the goods replevied is in the plaintiff; it is very clear that he has no interest in the question whether Dingles/ is the trustee of Reed or not ; nor can he be affected by the decision of that cause whatever it may he. If Dingley stood indebted to Reed on account,or otherwise, except on a negotiable -¡oenrity, at the time of the service of the trustee process, he «• ¡11 be adjudged trustee. But if the object of the plaintiffs in that action is to charge him as trustee in virtue of having the goods in possession then, which are now the subject of this suit, ho may disclose the fact,that the verdict and judgment in this action have established the property of those goods to be,and to have been,in the plaintiff Seaver ; and then he must, of course, be discharged. Bat, it is unnecessary to pursue this idea any further.

It has been further urged in the argument that the defendant had a lien on the property, which, as pawnee, he had a legal right o maintain, notwithstanding the circumstances under which it was procured by Reed; and some authorities have been relied ou in support of this position ; but the position itself is not sustained by the facts of the case. The bill of sale to Dingley was absolute, and he always claimed the property as owner, and in no other character, and the jury have decided against his claim, and by their verdict, involved him in the consequences of Read’s fraud, equally with Reed himself.

Oa view of all the facts of the case, the court are of opinion iliat the law is clearly with the plaintiff ; and accordingly there must be

Judgment, on the. verdict,

Citation profile

Relationships

How this case has been treated — in progress