Williams, Ch. J.
The first question presented upon this motion, is, whether proof of the representations made by Denison to Elliott, the clerk of the plaintiffs, and not communicated by him to them before the sale, was properly admitted in evidence; and cases have been cited to show, that the plaintiffs must have acted under the fraudulent representations made, or they could not recover. That principle is not denied; but still it is claimed, that this evidence is admissible; and cases are cited to show, that fraudulent representations made to others are admissible, where there is a combination to deceive. Gardner v. Preston, 2 Day, 202. And similar fraudulent practices about the same time, have been admitted, where there was no combination, to prove the quo animo. Cary v. Hotailing, 1 Hill, 311. Hawes v. Dingley, 17 Maine R 340. How far those cases apply to this, we need not determine.
When we look at the facts in this case, we think that the evidence was admissible as part of the res gestæ. Denison had before been disappointed in obtaining these goods, in consequence of the information which this clerk, the witness, had obtained. Whether he knew this particular fact or not, does not appear; but he knew that this man was a clerk of the plaintiffs; and doubtless hoped, through his agency, to effect his object. He then came to the plaintiffs' shop, to obtain the article. He finds the witness; complains to him that his firm was not trusted before; represents that they could get credit elsewhere; that they were doing a safe business; and that their note was sure to be paid. If upon this Elliott had sold the goods, there could be no doubt that the plaintiffs could recover, if they proved the representations false and fraudulent; for it would be the same thing as if made to the plaintiffs themselves. Allen v. Addington, 7 Wend. 22. But after saying this to Elliott, he sees one of the plaintiffs in the adjoining room, the door being open, and goes up to him with similar representations. This, then, was in fact a continued conversation, by Denison, with the agents of the plaintiffs and the plaintiffs themselves carried on by him, to effect a single object—to get this tobacco upon credit.
The conversation with the clerk not being repeated to the principal, might not prove that the plaintiffs were deceived [81]*81by that communication; but it would tend to show, that the communication made to them, if false, was fraudulent: it was calculated to influence the opinion and to procure the aid of this clerk, or at least to throw dust into his eyes, and prevent his interference. If, instead of these representations, or with these representations, Denison had told this clerk, that he would make him a present, if he would not say any thing, was he enquired of; this surely would have been admissible evidence, though in fact it had no effect upon the sale, as he was not enquired of; but it would have been proper evidence to show the arts made use of, to effect the object.
The evidence in the case before us, is not so strong; but is, we think, of the same character, showing a set design to obtain these goods, by these false representations, made at the same time as those made to the plaintiffs, and to those persons, who otherwise would have been most likely to have undeceived him.
The next question is, if this sale was obtained by fraudulent representations, whether the plaintiffs can treat it as void? We believe, that the rule is now settled, that if a person purchases goods with a preconceived design not to pay for them, the vendor has a right to treat the sale as void. Reid v. Hutchinson, 3 Campb. 352. Noble v. Adams, 7 Taunt. 89. Earl Bristol v. Wilsmore, 1 B. & Cr. 514. (8 E. C. L. 146.) Kilby v. Wilson, Ry. & Moo. 178. (21 E. C. L. 178.) Hawse v. Crowe, Ry. & Moo. 414. (21 E. C. L. 477) Ferguson v. Carrington, 9 B. & Cr. 59. (17 E. C. L. 330.)
This principle has been often recognized in the state of New-York, and more than once in our superior court.
But it is said, that if goods so obtained are sold to a bona fide purchaser, the plaintiffs would have no right to retake them; and that the defendant stands in the light of a bona fide purchaser. In support of the first proposition, Parker v. Patrick, 5 Term Rep. 175. and Mowrey v. Walsh, 8 Cow. 238. are cited. The case of Parker v. Patrick seems to have been considered as law, and followed, by the courts in Maine and New-Hampshire, Gilbert v. Hudson, 4 Greenl. 345. Bradley v. Obeare, 10 N. H. 477.
The view we have taken of the case before us does not re[82]*82quire us to examine those cases, in the same manner, as under other circumstances we might feel called upon to do. It is enough to say, that in England, the former case has been doubted, by high authority. Peer v. Humphrey, 2 Ad. & El. 495. (29 E. C. L. 495.) Tamplin v. Addy, 8 Cow. 239. note. So too the case of Mowrey v. Walsh is doubted in the state of New-York. Cary v. Hotailing, 1 Hill, 306. Lloyd v. Brewster, 4 Paige, 537. But however this might be, where an innocent person has been deceived, by the credit which the vendee may have acquired by goods so purchased, we cannot think, that the sheriff, (or those whose interests he represents,) who attaches the goods as the goods of such fraudulent vendee, stands in the relation of a bona fide purchaser. Some general expressions of this kind may have fallen from the court of Massachusetts, upon that subject. But we believe no case is to be found there or elsewhere, where there has been no fault on the part of the vendor of goods, except that he has been deceived, by the fraud of his vendee, that it has been holden, that the creditors of such vendee could seize the goods, when he himself could not hold them, except where the debt accrued after the purchase of the goods in question, and upon their credit. Gilbert v. Hudson, 4 Greenl. 345. Bradley v. Obeare, 10 N. H. 477. On the contrary, in the case of Tamplin v. Addy, above cited, which was a suit against the sheriff, Ch. J. Best says: “There is no principle of law better established, than that which declares, that no property passes by a fraud.” In such case, “the right remained in the original owner, no matter in what hands they found their way.” 8 Cow. 241. And a similar doctrine has been repeatedly holden, by the supreme court of the state of New-York, except so far as any exception may exist under the authority of Mowrey v. Walsh, 8 Cow. 238. Hitchcock v. Covell, 20 Wend. 167. And we are unable to see how, unless there be some unreasonable delay on the part of the vendor in reclaiming his property, the attaching creditors can obtain any thing by their attachment, except the right their debtor had. Had the property been stolen from the vendee, or were it in his hands as bailee or factor, there would be no question as to the right of the original owner.
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Williams, Ch. J.
The first question presented upon this motion, is, whether proof of the representations made by Denison to Elliott, the clerk of the plaintiffs, and not communicated by him to them before the sale, was properly admitted in evidence; and cases have been cited to show, that the plaintiffs must have acted under the fraudulent representations made, or they could not recover. That principle is not denied; but still it is claimed, that this evidence is admissible; and cases are cited to show, that fraudulent representations made to others are admissible, where there is a combination to deceive. Gardner v. Preston, 2 Day, 202. And similar fraudulent practices about the same time, have been admitted, where there was no combination, to prove the quo animo. Cary v. Hotailing, 1 Hill, 311. Hawes v. Dingley, 17 Maine R 340. How far those cases apply to this, we need not determine.
When we look at the facts in this case, we think that the evidence was admissible as part of the res gestæ. Denison had before been disappointed in obtaining these goods, in consequence of the information which this clerk, the witness, had obtained. Whether he knew this particular fact or not, does not appear; but he knew that this man was a clerk of the plaintiffs; and doubtless hoped, through his agency, to effect his object. He then came to the plaintiffs' shop, to obtain the article. He finds the witness; complains to him that his firm was not trusted before; represents that they could get credit elsewhere; that they were doing a safe business; and that their note was sure to be paid. If upon this Elliott had sold the goods, there could be no doubt that the plaintiffs could recover, if they proved the representations false and fraudulent; for it would be the same thing as if made to the plaintiffs themselves. Allen v. Addington, 7 Wend. 22. But after saying this to Elliott, he sees one of the plaintiffs in the adjoining room, the door being open, and goes up to him with similar representations. This, then, was in fact a continued conversation, by Denison, with the agents of the plaintiffs and the plaintiffs themselves carried on by him, to effect a single object—to get this tobacco upon credit.
The conversation with the clerk not being repeated to the principal, might not prove that the plaintiffs were deceived [81]*81by that communication; but it would tend to show, that the communication made to them, if false, was fraudulent: it was calculated to influence the opinion and to procure the aid of this clerk, or at least to throw dust into his eyes, and prevent his interference. If, instead of these representations, or with these representations, Denison had told this clerk, that he would make him a present, if he would not say any thing, was he enquired of; this surely would have been admissible evidence, though in fact it had no effect upon the sale, as he was not enquired of; but it would have been proper evidence to show the arts made use of, to effect the object.
The evidence in the case before us, is not so strong; but is, we think, of the same character, showing a set design to obtain these goods, by these false representations, made at the same time as those made to the plaintiffs, and to those persons, who otherwise would have been most likely to have undeceived him.
The next question is, if this sale was obtained by fraudulent representations, whether the plaintiffs can treat it as void? We believe, that the rule is now settled, that if a person purchases goods with a preconceived design not to pay for them, the vendor has a right to treat the sale as void. Reid v. Hutchinson, 3 Campb. 352. Noble v. Adams, 7 Taunt. 89. Earl Bristol v. Wilsmore, 1 B. & Cr. 514. (8 E. C. L. 146.) Kilby v. Wilson, Ry. & Moo. 178. (21 E. C. L. 178.) Hawse v. Crowe, Ry. & Moo. 414. (21 E. C. L. 477) Ferguson v. Carrington, 9 B. & Cr. 59. (17 E. C. L. 330.)
This principle has been often recognized in the state of New-York, and more than once in our superior court.
But it is said, that if goods so obtained are sold to a bona fide purchaser, the plaintiffs would have no right to retake them; and that the defendant stands in the light of a bona fide purchaser. In support of the first proposition, Parker v. Patrick, 5 Term Rep. 175. and Mowrey v. Walsh, 8 Cow. 238. are cited. The case of Parker v. Patrick seems to have been considered as law, and followed, by the courts in Maine and New-Hampshire, Gilbert v. Hudson, 4 Greenl. 345. Bradley v. Obeare, 10 N. H. 477.
The view we have taken of the case before us does not re[82]*82quire us to examine those cases, in the same manner, as under other circumstances we might feel called upon to do. It is enough to say, that in England, the former case has been doubted, by high authority. Peer v. Humphrey, 2 Ad. & El. 495. (29 E. C. L. 495.) Tamplin v. Addy, 8 Cow. 239. note. So too the case of Mowrey v. Walsh is doubted in the state of New-York. Cary v. Hotailing, 1 Hill, 306. Lloyd v. Brewster, 4 Paige, 537. But however this might be, where an innocent person has been deceived, by the credit which the vendee may have acquired by goods so purchased, we cannot think, that the sheriff, (or those whose interests he represents,) who attaches the goods as the goods of such fraudulent vendee, stands in the relation of a bona fide purchaser. Some general expressions of this kind may have fallen from the court of Massachusetts, upon that subject. But we believe no case is to be found there or elsewhere, where there has been no fault on the part of the vendor of goods, except that he has been deceived, by the fraud of his vendee, that it has been holden, that the creditors of such vendee could seize the goods, when he himself could not hold them, except where the debt accrued after the purchase of the goods in question, and upon their credit. Gilbert v. Hudson, 4 Greenl. 345. Bradley v. Obeare, 10 N. H. 477. On the contrary, in the case of Tamplin v. Addy, above cited, which was a suit against the sheriff, Ch. J. Best says: “There is no principle of law better established, than that which declares, that no property passes by a fraud.” In such case, “the right remained in the original owner, no matter in what hands they found their way.” 8 Cow. 241. And a similar doctrine has been repeatedly holden, by the supreme court of the state of New-York, except so far as any exception may exist under the authority of Mowrey v. Walsh, 8 Cow. 238. Hitchcock v. Covell, 20 Wend. 167. And we are unable to see how, unless there be some unreasonable delay on the part of the vendor in reclaiming his property, the attaching creditors can obtain any thing by their attachment, except the right their debtor had. Had the property been stolen from the vendee, or were it in his hands as bailee or factor, there would be no question as to the right of the original owner. And it is not unfrequently the case, that a man whose property has been stolen, has been guilty of as great negligence re[83]*83garding it, as the man who has been deluded by the arts of a swindler.
By the statement of facts in this case, it appears, that the Agnews, the creditors on whose suit these goods were attached, sold the goods on which their debt was founded, on the 29th day of January, 1842; and the plaintiffs sold the goods in dispute to Denison, on the 10th of February, following; and these goods were forwarded to Suffield, without any particular mark, by public conveyance; and were attached upon the day of their arrival, and after the Denisons’ business had been broken up. The attaching creditor must, therefore, assume the broad ground, that in all cases, the rights of an attaching creditor must prevail against the rights of an owner who has been cheated out of his goods, by false representations. For here no false credit was held out, like the case supposed by Ch. J. Parsons, in Hussey v. Thompson, 4 Mass. R. 407.; or as existed in Gilbert v. Hudson, 4 Greenl. 347. The cases cited do not, therefore, support the position of the defendant. On the contrary, in a recent case in New-Hampshire, where the court adopted the principle in Parker v. Patrick, as it respects a bona fide purchaser, they expressly decided, that an attaching creditor, who had not parted with his property upon the credit of these goods, did not stand upon the same ground as a bona fide purchaser. Bradley v. Obeare, 10 N. H. 477.
Another objection to the charge, is, that the court did not tell the jury, that the demands were insufficient, because the title of the plaintiffs was not made known to the defendant. In answer to this, it is said, in the first place, no demand at all was necessary, as the taking was tortious. It is true, that where there is a tortious taking, a demand can no more be necessary than if the action was trespass for the same taking.
We are not satisfied, however, that this case is of that character. Denison must have had a qualified interest in these goods, liable to be defeated—as a contract made with an infant—until his election is made, we see not why it might not be legal, or even perhaps the duty of the sheriff to secure that interest. If so, the seizure was not a tortious act. Of course, to establish the plaintiffs’ claim, a demand must be made.
The court below proceeded upon that idea, but told the [84]*84jury, that if upon such demand, there was an unqualified refusal to deliver the property without requiring any evidence of the plaintiffs’ title, or expressing any doubts about the same, they might presume a waiver of his claim to such information; and we concur entirely in this opinion.
The defendant was an officer, whose situation is frequently one of much difficulty, from the conflicting claims by which he is surrounded; and he is entitled to a liberal construction of his acts. But he must act fairly and reasonably. If property, which came rightfully into his hands, is demanded, by a stranger, he will be protected in requiring reasonable information as to the rights of the person making demand, if he has any reasonable doubt upon the subject; and should be protected in any reasonable delay necessary to procure information. But when he asks for no delay; when he does not profess to have any doubt; but gives an unqualified refusal; he assumes upon himself the responsibility of deciding, and without enquiry and without hesitation, that his rights are superior to the plaintiffs’.
From a very early period it has been holden, that it is good evidence prima facie to prove a conversion, that the plaintiff required the defendant to deliver the goods, and he refused; and thereupon it shall be presumed he converted them to his own use. Chancellor of Oxford’s case, 10 Co. 56. Agar v. Lisle, Hutt. 10. And Holt, Ch. J. went so far as to say, that the very denial of goods to him who has right to demand them, is an actual conversion. Baldwin v. Cole, 6 Mod. 212. The true principle, however, is given in Isaac v. Clark, where the court all agreed, that prima facie a denial, when demanded, is good evidence to a jury of a conversion; but if the contrary be shown, then the same is no conversion. 2 Bulst. 314. This principle is recognized, by Judge Story, in Watt v. Potter, where a question was made as to the authority of the persons making the demand. The learned Judge, admitting that such persons must have authority, adds, but if the refusal does not turn upon the supposed want of authority,—if the party waives any enquiry into the authority, or admits its sufficiency, and puts his refusal upon another distinct ground, which cannot, in point of law, be supported,—then the refusal, under such circumstances, is presumptive evidence of a conversion. 2 Mason, 81. Here, [85]*85though he did not state his grounds for refusal, yet he made an unqualified refusal. This, then, unexplained, is evidence of a conversion. He does not attempt to explain it;—he asks no information, nor any delay, that he may enquire;—he does not pretend, that he does not understand the nature of the plaintiffs’ claim, or has a lien for which he seeks indemnity, but contents himself with a cool unqualified refusal. The fair presumption then is, that he relied upon the indemnity of the creditors, or knowing the nature of the plaintiffs’claim, he was ready to put them at defiance. Thus he denied the plaintiffs’ right, and waived any claim in support of it.
Another exception taken to the charge, is much of the same character, viz. that the court should have told the jury, that the defendant had right to detain the goods until the freight was paid, which the officer had paid to the common carrier. To this the plaintiffs reply, that the defendant could not, by his wrongful act, acquire any lien upon the goods; nor could such lien be assigned. It has been adjudged, that a lien could not be acquired, by a tortious act. McCombie v. Davies, 7 East, 5. Everett v. Saltus, 15 Wend. 478. But, we have held, that in the situation this property was in, the defendant might attach it; and if he might seize it, it would seem to follow, that he must take legal measures to secure it. This could not well be done, but by taking it into his possession; and he could not do this, without regard to the rights of those who had some superior interest in it. It would seem, therefore, as if upon this attachment, the officer must, to secure the benefit of it, pay the lien, and take the property into his possession; and if so, we think it would follow, that he must stand in the place and have the rights of the person whom he has, as it were, been involuntarily compelled to indemnify. But here again, the defendant is met, and we think conclusively, with the fact, that he set up no such claim at the time, but made an unqualified refusal. Had this refusal been qualified, by this claim of lien, the plaintiffs might have met it, and obviated it; but the defendant keeps it a secret in his own breast, and now seeks to defeat the plaintiffs’ action, by a claim before unknown.
In Thompson v. Trail, 2 Car. & Pa. 334. (12 E. C. L. 156.) where goods had been delivered on board a vessel, and a receipt taken, the vendee having failed, the shipper de[86]*86manded the goods, but made no offer of freight or compensation. The captain, upon demand, merely said, he had signed a bill of lading. Ch. J. Abbott said, this was a conversion; though it was insisted, that he had a right to compensation. The Ch. J. added, if the captain says, “I can’t deliver the goods to you, but will deliver them to A, B, or C; that is a conversion.” And in Everett v. Saltus, 15 Wend. 474. 478. where the defendants claimed, upon demand, to be purchasers of the property, and upon the trial claimed a lien, the supreme court held, that if the defendants had a lien, they waived it, by not putting themselves on that ground, when the property was demanded. They denied the plaintiff’s right, and set up a title in themselves, independent of the lien.
Whoever, says Judge Story, undertakes tortiously to deal with the property of another as his own, or tortiously detains it from the owner, is, in contemplation of law, guilty of a conversion of it. 2 Mason, 81. When, then, the defendant had in his possession the property of the plaintiffs, and refused to deliver it up, on demand, he assumed to deal with it as his own, and in effect denied the right of the plaintiffs.
If he had a claim unknown to the plaintiffs, fair and correct dealing required that he should make it known, that the plaintiffs might be apprised of the right which he claimed, and have opportunity to cancel it, or contest it. The defendant chose to place himself upon other grounds, by this unqualified refusal; and we are all of opinion, that he must abide the issue which he chose to take; and that there should be no new trial.
In this opinion the other Judges concurred.
New trial not to be granted.