Majority
p. 348M'Carty against Vickery.
Headnote
After a delivery of goods sold, the seller cannot, on account. of fraud In the contract, forbid the goods to be taken axvay, and bring an action of trespass against a person taking them away.*IN ERROR, on certiorari to a justice’s court.
Vickery, the plaintiff below, brought an action of trespass against JtfiCarty for cutting and taking away some wood. The defendant pleaded not-guilty, and the cause was tried before a jury.
_ On the trial, it appeared, that one Peter Fake had bought some wood of tire plaintiff, and gave a note, signed by himself and one Henry jl'PCar/y, as security, ■ The wood was delivered .to Fake, and the defendant below had been engaged in taking it away. The plaintiff afterwards forbade the defendant to take away the wood, alleging, that afraud had been practised upon him in thé purchase, and charging the defendant with being a party
p. 349
to it. Fake, and his security, Henry MlCarty, were generally reputed to be insolvent. The jury found a verdict for the plaintiff.
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-