M'Carty v. Vickery

12 Johns. 348

Opinion

Per Curiam.

Although it is pretty evident that the plaintiff -below was deceived in the sale of his wood to Fake, yet there is no principle upon which an action of trespass can be sustained against the defendant. The wood had actually been delivered to Fake; the plaintiff was, therefore, devested of the possession, which is necessary to the support of an action of trespass. Had not the plaintiff parted with the possession, the insolvency of the purchaser might have justified a refusal to deliver ; but, by the delivery, the property was changed, and, trespass could not be maintained.

Judgment reversed-