The judge presiding at the trial was not bound to determine whether the plaintiff could maintain his action until all the evidence was in ; and his refusal to rule upon the plaintiff’s case only is no ground of exception. Bassett v. Porter, 4 Cush. 487.
It was decided, when this case was before us last year, that the false and fraudulent representations offered to be proved would support the action ; and that the fact that the note taken from a third person for the price of the goods had not been surrendered did not defeat the plaintiff’s right to recover against *9this defendant. Manning v. Albee, 11 Allen, 520. The ruling requested by the defendant, “ that if the plaintiff had ceased to be the owner of the note before the replevin, but had passed it away for value, and had never reclaimed it, then he could not maintain this action,” was rightly refused, and the special finding of the jury that the note was the property of the indorsee at the time of the replevin was immaterial.
The question whether the note had been negotiated by the plaintiff with such knowledge or under such circumstances as to amount to an affirmance of the sale does not appear to have been raised or ruled upon at the trial, and is not therefore open to the defendant in this court. Exceptions overruled.