#### Jonathan Buffington and Another *versus*Joseph M. Gerrish and Another.

Merchandise was purchased upon a credit, through the false representations of the vendee; and after the delivery to him the same was attached by his creditors. It was held, that 111" vendor had not so parted with his property in the merchandise but that he ought reclaim it in the hands of the officer who had attached it.

Replevin for two pipes of brandy, and sundry other articles of merchandise. The defendants pleaded property in one *Ezekiel Walker,*traversing the property of the plaintiffs, and issue was joined on the traverse.

At the trial of this issue before *Wilde,*J., at the last October term in this county, it was admitted by the plaintiffs that the articles in question were sold by them to *Walker,*and that his notes for the stipulated price were received by * them, payable in two and four months from the date; but they contended that the sale was void, on the ground of fraud and deception practised upon them by *Walker.*

It was in evidence that *Walker*was an inhabitant of *Portland,*and in April, 1816, applied to the plaintiffs, merchants, in *Boston,*to whom he was a stranger, for the purchase of goods; and that he represented himself as a merchant engaged largely in business, having one store in *Portland*and another in the country, and of undoubted ability to pay. The plaintiffs then wished for the recom*145mendation of some one known to them, and *Walker*referred them to a *Mr. M’Lellan,*a merchant in Boston, for information—of whom, however, for some reason whicli did not appear, the plaintiffs made no inquiry, but, confiding in the representations made by *Walker,*completed the sale, and delivered the goods: whereupon *Walker*immediately transported them to *Portland,*where they were attached by the defendants, being deputy-sheriffs of this county, at the suit of divers creditors of *Walker,*to whom he had been indebted for several years.

The plaintiffs then proved that the representations made by *Walker*were false and fraudulent; that he had no store in *Portland,,*although he had one there a number of years ago, but soon failed, and had since been wholly without visible property or credit, and deeply involved in debt. The plaintiffs, finding that they had been imposed upon by *Walker,*pursued him to *Portland,*where they found the goods in question, which had been attached by the defendants, as above stated; whereupon they commenced this suit.

The judge instructed the jury that, if they should be of opinion that the sale of the goods was effected by the fraudulent misrepresentations and deception of *Walker,*it would be sufficient to render the sale void; and that it might be avoided by the plaintiffs, notwithstanding the attachments of the *bond fide*creditors of Walker, without notice of the fraud ; and the jury returned their verdict for the plaintiffs accordingly.

* If the said directions to the jury were, in the opinion of the whole Court, substantially correct, judgment was to be rendered upon the verdict; otherwise, the plaintiffs were to become nonsuit.

*Mellen*and *Todd,*for the defendants.

Here was a perfect sale and transfer of the property in the goods, and there could be no stoppage *in transitu,*for the *transitus*was at an end ; and, indeed, if this action is maintainable, every sale may be avoided, if the purchaser misrepresents his circumstances, or the vendor is ignorant of them; and the whole doctrine of stoppage *in transitu*may be expunged from the books. (1)

The plaintiffs could not maintain this action against *Walker*him self, if the goods were still in his possession. A vendor may waive the term of his credit, where he has been imposed upon, but not the sale itself. (2) An unconditional delivery of goods to the vendee *146was held to vest the property in him, although it was part of the bargain that security should be given, which was not done. (3)

But the defendants represent *bona fide*creditors, who had no notice of the fraud. The plaintiffs have no right to the goods, as against them. (4) The rights of those creditors are the same as those of *bona fide*purchasers of *Walker*would be.

*Longfellow*for the plaintiffs.

(1)

7 *Mass. Rep.*453, *Stubbs*vs. *Lund.*— 1 *East,*524, *Inglis & Al.*vs. *Usherwood.*— 3 *D. & E.*464, *Ellis*vs. *Hunt.*— 5 *D. & E.*402, *Smith & Al.*vs. *Field.*— 5 *East,*449, *Hunt*vs. Silk.— *Cowp.*117, *Harman & Al.*vs. *Fisher.*

(2)

 1 *Esp Rep.*430, *De Symons*vs. *Minchwich.*— 2 *Esp. Rep.*522, *Hogan*vs. *Shec.*— 6 *Johns.*110, *Wilson*vs. *Foree.*

(3)

4 *Mass. Rep.*405, *Hussey & Al.*vs. *Thornton & Al.*

(4)

4 *Mass. Rep.*405. — See, also, 13 *Mass. Rep.*498, *Dana*vs. *Newhall & Al.*— *Sid*134. — 6 *Mass. Rep.*438, *Thurston*vs. *M’Kown.*

*Per Curiam.*

It is not necessary, in this case, to consider whether the property could be reclaimed by the plaintiffs, out of the hands of a *bona fide*purchaser ignorant of the fraud by which *Walker*obtained possession. As the possession of the goods by *Walker,*with the appearance of ownership, was with the consent of the plaintiffs, it is probable such sale would be held good, *(a)*

The case here is very different. The plaintiffs endeavor to recover their merchandise, as soon as the fraud practised upon them is discovered. It never had become the property of *Walker,*and the right of the plaintiffs to reclaim it against him is indisputable. He had done no act * by which any of his creditors had been deceived with respect to this property; for their debts all existed before he acquired the possession. They claim title to it as his, not as their property; yet they cannot, under the circumstances proved, and the fact of fraud found by the jury, establish it as his. They are in the same condition, as to their debts, they were in before the commission of the fraud; and they ought not to reap the fruits of it, no credit having been given on account of this property. (b)

*Judgment on the verdict.*

(a)

*а)*Vide *Parker*vs. *Patrick,*5 *T. R.*175. — *Harwood*vs. *Smithy 2 T. R.*750.— *Parker*vs. *Gillies,*2 *Camp.*336, n.

(b)

*Noble*vs. *Adams, 7 Taunt. 39.*— *Kilby*vs. *Wilson, R. & M.*178.— *Taylor*vs. *Plumer,*3 *M. &*562. — *Helps*vs. *Glenister,*8 *B. & Cr.*553. — *Hawse*vs. *Crow,*1 *R. & M.*414.— *Gladstone*vs. *Hawden, 1 M & S.*517. — *Earl of Bristol*vs. *Wilmore, l B. & C.*514. — *Rapp*vs. *Lapham, 2 B. & A.*795. — *Parker*vs. *Gillies,*2 *Camp.*336 — *Fergusson*vs. *Carrington,*9 *B. & Cr.*59. — *Palmer*vs. *Hand,*13 *Johns.*454.