This action was brought against the sheriff, to recover damages for the unlawful taking from the possession of the plaintiffs, and carrying away, of certain personal property, and for the detention of the same. The property was sold by the defendant before the commencement of this action; and the appellant—the defendant—makes the point that the property Avas not “detained” AA'hcn the suit Avas brought, and that the complaint is not sufficient in trover, because there is no averment of a conversion. But trover lay where trespass de bonis lay; and an unlawful taking, if followed by the carrying aAvay, was of itself a conversion. (Chitty’s Pleading, 154.) Under our system a statement of the facts, that defendant took and carried away, is equivalent to the averment, “ converted to his own use,” etc.
The allegation in the complaint, as to the detention, did not affect the judgment. The District Court found the value of the goods at the time they were taken, but allowed no damages for the detention, by way of interest or otherwise.
The answer is perhaps obnoxious to the criticism of counsel, that it neither states the facts constituting fraud, nor distinctly avers that the parties were guilty of actual fraud, independent of fraud conclusively presumed from the want of delivery and change of possession. But the plead*156ing was not demurred to, nor did the plaintiffs object to the evidence tending to prove the fraud, when it was offered, on the ground that it was inadmissible under the averments of the answer. There was a question addressed to the Court, which intimated an objection, and some conversation on the subject (which is carefully preserved in the transcript), but no specific objection. It is too late to make it in this Court for the first time.
I am inclined to think the Court below should have found upon the issue: "Was the sale made with intent to hinder, delay or defraud the creditor? But -I do not think the omission to find on that question is a reason for reversing the judgment, because the finding must have been adverse to the defendant.
The Court did find an immediate delivery and actual and continuous change of possession. Aside from the testimony bearing on the question of delivery and change of possession, fraudulent intent was attempted to be proved by the declarations of one of the vendors of plaintiffs, made after the sale and delivery (which were clearly inadmissible), and by those of one Atkinson, an agent of the plaintiffs. The declarations of Atkinson were admitted because the plaintiffs had testified to his agency. But, if their agent, his agency was limited to the bare custody of the goods after they passed to the possession of the plaintiffs. His opinion as to the rights of the parties—disconnected from the things done within the scope of his agency—was not evidence.
There was, therefore, no legal evidence sufficient to justify a finding that the sale was made to hinder, delay or defraud the creditor; and the omission to find that it was not made with such intent could not have prejudiced the defendant.
Judgment and order denying new trial affirmed.