Bussing v. Rice

56 Mass. 48

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1848
• Status: Published

Opinion

Metcalf, J.

These exceptions cannot be sustained. The plaintiffs had a right to avoid the sale which was obtained from them by the false and fraudulent representations of Cooley, the insolvent debtor, and might have maintained an action of trover or replevin against him, without first demanding the goods; the original taking by him being wrongful. Thurston v. Blanchard, 22 Pick. 18; Ayers v. Hewett, 1 Appl. 281; Buffington v. Gerrish, 15 Mass. 156. In the latter case, it was also decided that when goods are thus obtained, the vendor may maintain an action of replevin against an officer who attaches them as the property of the vendee, on a suit against him by one of his creditors who has no knowledge of his fraudulent representations. As against the vendor, the taking of the goods by the officer was held to be wrongful. So, in the present case, the taking by the defendant, as messenger, was wrongful, as against the plaintiffs, and gave them a right to replevy the goods, without demanding a return of them. See also Acker v. Campbell, 23 Wend. 372.

We perceive no difference in principle between the case of an officer, who is commanded, by a writ, to attach the property of a defendant, and the case of a messenger, who is commanded, by a warrant, to take the property of au insolvent debtor. In either case, the taking, in order to be rightful, must be confined to the property of the party against whom the precept is issued; and the rights of third persons, whom such party has deceived and defrauded by false "representations, cannot be impaired by the writ or the warrant, or the proceedings thereon.

The ruling, at the trial, was right, and the plaintiffs are to have judgment on the verdict.