Pritchard v. Bagshawe & others. writ must be taken to be that on the record. My learned brother thought that the plaintiff had established the issue in the affirmative, and he had a verdict. Upon the argument of the rule, it was contended that this was a misdirection; that the plaintiff ought to have shown by evidence that the indorsement of the date of the first writ was made on the last writ, confining it to that, at the time when the last writ was served; and that it should have been proved that the indorsement was made by the attorney or party, this being non-bailable process. The view the court has taken of the case renders it unnecessary to decide some of the points urged in the argument. With respect to the first point made in answer to the rule, that the court was bound to take the date of the writ to be as stated on the record, the production by the plaintiff of the first writ is an answer to that argument, for the indorsement on that writ showed that it had not been served, but had been returned non est inventus. That writ, therefore, would not, prima facie, be available to prevent the operation of the statute, but it might be available if, as required by the stat. 2 Will. 4, c. 39, s. 10, such writ, and every writ issued in continuation of it, had been returned non est inventus, and entered of record within. a month, and if every writ issued in continuation of the preceding writ had been issued within one month after the expiration of the preceding writ, and had contained a memorandum, indorsed thereon, or subscribed thereto, specifying the day of the date of the first writ, &c. Now, it was not objected that the indorsement on the intermediate writs were not proved to have been properly made, but it was said that the last writ must be indorsed before the service by the plaintiff or his attorney, and that that must be proved. Now, that the writ must be indorsed before its service is clearly established by Medlicott v. Hunter, in which the matter came directly before the court. We are authorized and bound by that decision, and also by the statute, to hold that such is the rule of law. If so, was it proved at the trial that such indorsement was made before service? Was it proved by the production of the roll? The roll says that the writ "contains" the indorsement - that is, it contained it at the time of the enrolment. But this does not prove that the writ contained the indorsement at the time of its service; on the contrary, it was determined, in Walker v. Collick, that the roll there produced, containing this very entry, was not available for the purpose of establishing that fact. Then, if it does not appear by the production of the roll, does it appear by the production of the writ? The writ is produced a long time after the date of the service; it is plain that the mere production of the writ, from a hand which might have indorsed it at any moment, does not show that it contained that indorsement before the service. Therefore, upon this view of the case, that there is no evidence that the indorsement on the last writ was made before the service, it is unnecessary for us to consider whether that indorsement ought to be made by the attorney or party, or not. necessary to decide that point, we should take time to consider the matter, because the language of the act of Parliament upon the subject is somewhat obscure. White v. Garden & another. It is also unnecessary to determine whether the indorsements of 、the intermediate writs were properly made. One objection being, that the last writ was not proved to have been indorsed before the service, and that objection having prevailed, the defendants are entitled to have the rule made absolute for a new trial. Rule absolute.1 WHITE V. GARDEN & another.2 Easter Term, May 1, 1851. Sale-Fraud of first Vendee - Subsequent Sale to innocent Vendee. A sale of goods effected by the fraud of the buyer is not an absolutely void transaction, but the seller may elect to treat it as a contract. If he does not treat the sale as void before the buyer has resold the goods to an innocent vendee, the property will pass to that vendee. TROVER for a quantity of iron. Pleas― First, not guilty; second, not possessed. The cause was tried before Jervis, C. J., at the sittings in London after Hilary term, 1851. From the evidence given at the trial, it appeared that, in August, 1850, a person named Parker purchased of the defendants seventy tons of iron, for which he paid 837. in cash, and gave a bill for 1137. 14s. He afterwards sold the iron to the plaintiff, to whom it was delivered. On the 1st of October Parker purchased another quantity of iron, (fifty tons,) for which he gave a bill. He sold that quantity also to the plaintiff, and directed the defendants to forward it to the plaintiff's wharf, which the defendants accordingly did, on the 4th of October, in a barge belonging to one of their own lightermen named Riddell. Riddell handed over the delivery order to the plaintiff's clerk, and left the barge alongside the plaintiff's wharf. On a subsequent day, while the plaintiff's men were engaged in unloading the barge, Riddell came to the plaintiff's wharf and removed the barge, which then contained twenty-nine tons of the iron, and the defendants then gave notice to the plaintiff not to deal with any portion of the iron then in his possession and purchased of Parker. The plaintiff had paid a fair market price for the iron, and 1 In this country it has been held that, if an action is commenced before the statute bar has run, the cause of action is saved, although such writ be not served until long after the time of limitation has elapsed, and although no reason is given for such delay. Gardner v. Webber,17 Pickering, 407.(1835.) Bunker v. Shed, 8 Metcalf, 150. (1844.) And in most states the issuing of the writ is, for this purpose, the commencement of the action, of which the date of the writ is prima facie evidence; Day v. Lamb, 7 Vermont, 426, (1835;) but it may be disproved by parol, and the true day shown. Johnson v. Farwell, 7 Greenleaf, 370. (1831.) In order to have the effect of saving the statute, however, the writ must be filled up with the then existing intention of using it; Ib.; and if it be filled provisionally, and delivered to an officer with instructions not to serve until after a certain time, or the happening of a certain event, the time of service will be the commencement of the action. Seaver v. Lincoln, 21 Pickering, 267. (1838.) 2 20 Law J. Rep. (N. s.) C. P. 166. 15 Jur. 631. White v. Garden & another. the transaction on his part was bona fide. Parker had given to the defendants a false address, and had represented that the acceptor of the bills which he gave in payment of the iron was a seedsman of Rochester, whereas no such person could be found; but it appeared that the defendants had not made any inquiry concerning the respectability of Parker, or the person whose name appeared on the bills, till after the iron had been sent in the barge to the plaintiff's wharf. The jury, in answer to the questions left to them by the learned judge, found that the plaintiff had purchased the iron bona fide; that the iron was delivered to the plaintiff; that Parker did not obtain it from the defendants animo furandi; that, as to the question of fraud, the jury were not agreed, but they were of opinion that Parker did not intend to pay for the iron. A verdict was entered for the plaintiff for 75., with leave to enter a verdict for the defendants, if, under the circumstances, this court should think that no property in the iron passed to the plaintiff. A rule nisi having been obtained, — Byles, Serj., and Hugh Hill, now showed cause. In Parker v. Patrick, 5 Term Rep. 175, the pawnee of goods, without notice of fraud, was held entitled to recover in trover, although the pawnor had obtained them by false pretences, and had been convicted of so doing. The court there said that in a case of felony, where the owner prosecutes and convicts, he is entitled by statute to the restitution of his goods; but that does not extend to a case where the goods have been obtained by fraud. The soundness of the decision in that case has been doubted, but in Load v. Green, 15 Mee. & W. 216; s. c. 15 Law J. Rep. (N. s.) Exch. 113, Parke, B., in the course of the argument, makes the following observations: "The case of Parker v. Patrick has been doubted; but I think it may be supported on the ground that the transaction is not absolutely void except at the option of the seller. He may elect to treat it as a contract, and he must do the contrary before the buyer has acted as if it were such, and resold the goods to a third party. Wright v. Lawes, 4 Esp. 82, is another authority to the same effect." Now, applying that principle to the present case, the defendants not having elected to rescind the contract with Parker till an innocent party had been permitted to become the purchaser of the iron, they are precluded from saying that no property in the iron passed by the contract between them and Parker. If that were not so, the consequence would be that, in all cases where goods have been obtained through a fraudulent contract, the original vendor might bring trover against any remote vendee. In Sheppard v. Shoolbred, Car. & M. 61, it is said that although a fraudulent vendee may be sued in trover by the vendor, yet the right of action does not exist against every person into whose hands the property may have passed subsequently. In White v. Spettigue, 13 Mee. & W. 603; s. c. 14 Law J. Rep. (N. s.) Exch. 99, a felony had been committed. The case of Davis v. Morrison, Lofft, 185, is not inconsistent with the argument urged on the part of the plaintiff. Humfrey and Willes, contra. The general rule on this subject is, White v. Garden & another. that where goods have been fraudulently obtained without any inten tion of paying for them, no property in the goods passes, and the only exception to that rule is, where the vendor has done any act to affirm the contract. A vendor cannot give a better title than he himself has. Noble v. Adams, 7 Taunt. 59; Horwood v. Smith, 2 Term Rep. 750; and Campbell v. Fleming, 1 Ad. & E. 40; s. c. 3 Law J. Rep. (N. s.) K. B. 136, seem to show that no valid contract can arise out of a fraud. The case of Parker v. Patrick has been overruled. In Peer v. Humphrey, 2 Ad. & E. 495; s. c. 4 Law J. Rep. (N. s.) K. B. 100, a felony had been committed; but Lord Denman, C. J., there says, "If the question of goods fraudulently obtained were before us, I cannot help thinking that the case of Parker v. Patrick would not bear examination. The Earl of Bristol v. Wilsmore, 1 B. & C. 514; s. c. 1 Law J. Rep. K. B. 178, seems to me to be quite inconsistent with it." If the observations made by Parke, B., during the argument of the case of Load v. Green, are to be taken to their full extent, then it is submitted that there is no authority in law to support them. CRESSWELL, J. I am of opinion that the rule in this case must be discharged. It appears that the plaintiff made a contract with Parker for the purchase of some iron, and Parker, perhaps not having sufficient iron to satisfy the contract, purchased some of the defendants, and gave them a bill of exchange for it, purporting to be accepted by a person described to be a seedsman of Rochester; and upon inquiry afterwards, no person could be found to answer that description, and perhaps no such person existed. The transaction, therefore, on the part of Parker was not free from suspicion. Some doubt has been expressed with respect to the case of Parker v. Patrick, but I think that case and Wright v. Lawes, which is to the same effect, may be supported on the ground suggested by my brother Parke, in Load v. Green. I quite agree with my brother Parke's observations there; and I think that although in this case, perhaps, Parker could not have enforced the contract by reason of the fraud, yet the plaintiff, an innocent vendee, who purchased from Parker in the manner in which he did, is entitled to the iron. WILLIAMS, J. I quite agree with the observations made by my brother Parke in Load v. Green. They appear to me to be good law, and I think the case of Parker v. Patrick may be supported on the ground there suggested, though I do not think that the case can be explained in that way, inasmuch as in Parker v. Patrick the court seemed to suppose that, even had it been a case of felony, the plaintiff would have needed to rely on the statute of Hen. 8 in order to maintain the action. I think, as between the plaintiff and the defendants, under the circumstances of this case, that the property in the iron did pass to the plaintiff, and that he is entitled to retain the verdict. TALFOURD, J. I am entirely of the same opinion. I think that, both upon principle and upon authorities, the verdict is right. The original contract was good at the option of the defendants, and after they White v. Garden & another. have permitted the plaintiff to become the purchaser of the iron, I think they cannot set up as a defence the fraud practised on them by Parker. JERVIS, C. J. This is a question of great importance to all persons engaged in mercantile transactions. At the trial I acted on the observations of my brother Parke, in Load v. Green, and I am glad to find that they can be upheld and reconciled with the other cases on the subject. In many of the cases which have been cited, the contest has been between the actual parties to the fraudulent transaction, and the question generally has been, What was the interest taken by a party to the fraud? In this case, an innocent vendee seeks to obtain possession of the goods he has purchased, and the defendants resist the action on the ground of fraud practised on them by Parker. In Sheppard v. Shoolbred, it was said that although a fraudulent vendee may be sued in troyer by a vendor, yet the right of action does not exist against every person into whose hands the property may have passed subsequently. For these reasons, I think the plaintiff is entitled to the judgment of the court. 1 The principle is well established in this country also, that a fraudulent purchaser of goods may transfer them to an innocent vendee, and pass the property as against the original owner. Rowley v. Bigelow, 12 Pickering, 307. (1832.) Trott v. Warren, 11 Maine, 227. (1834.) And an innocent consignee of the goods, who has advanced money thereon before any interposition by the original owner, will hold the property in the same manner as an absolute bona fide purchaser. Hoffman v. Noble, 6 Metcalf, 68. (1843.) The same rule applies to sales of real estate. Somes v. Brewer, 2 Pickering, 184. (1824.) Subsequent purchasers and attaching creditors stand on the same ground in this respect, at least, as to credits Rule discharged.1 given to the fraudulent vendee after the pur- |