Acker v. Campbell

23 Wend. 371

• Court: New York Supreme Court
• Decided: May 15, 1840
• Status: Published

Opinion

Nelson, Ch J.

By the Court, There can be no doubt but that a gross fraud was practised upon the plaintiffs below in the purchase of the flour; and that upon principles well settled, and repeatedly appflied in like cases, arising out of the usual course of dealing in the city, there was, in judgment of law no change of property or possession by the delivery to Hooker. Russell v. Minor, 22 Wendell, 659. 7 Taunton, 59. 1 Barn. & Cres. 514. 4 Bingham, 476.

*The law abhors and avoids every sale infected with fraud, and [ *374 ] disables the guilty .party from setting up the contract, or deriving any advantage from the fruits of it. It vitiates every act, however fair in appearanefe, and though clothed with the forms of law. 3 Bacon, tit. Fraud, 284.

It was insisted on the argument that trespass would not lie, and therefore replevin in the cepit would not. Several eases were referred tó, and, among others, Marshal v. Davis, 1 Wendell, 109, and Nash v. Mosher, 19 id. 431; but the principle of these and like cases does not apply. There the goods were delivered understandingly to the defendant by one who had the possession and a special property in them ; and the law would not regard ‘his possession wrongful any more than that of. the bailee. Not being originally torlious, it could become so only by a wrongful detention. In both these cases it is conceded, if the property had been taken by the defendant without the consent of the bailee, trespass might have been sustained. Here, in judgment of law, the goods were taken without the consent of the plaintiffs; for that cannot be urged if obtained by fraudulent contrivance. So firmly is this principle rooted, that, notwithstanding the manual tradition of property, the party may be guilty of a felonious taking. 4 Bing. 476. 8 Cowen, 238. 14 Wendell, 31. Wherever an injury has been received from an act which w'as in the first instance unlawful, trespass lies, there being in every such case an implied force. 5 Bacon, tit. Trespass, (A). 1 am satisfied the remedy would have been appropriate against Hooker, and, for this purpose, the sheriff stands in no better condition. Bacon, tit. Trespass, (B). He took the property of a third person not liable to the process.

Judgment affirmed.

*

Sec the case of Furniss v. Hone, 8 Wendell, 247, et seq. as to conditional delivery, and the opinions of Senators Allen and Tallmadge as to the time within which goods may be reclaimed.