The defendants’ first request was rightly re-
fused, because it assumed facts of which there was no evidence, and asked for a ruling in matter of law upon what was a question of fact. The judge, before whom the case was tried without a jury, found, as matters of fact, upon evidence which is not shown to have been insufficient in law, that the sale from the plaintiff to the defendants was conditional upon their giving a note on four months for the price, that the defendants, though requested, neglected for three days to give the note, and that the plaintiff had not waived the condition. These facts warranted the conclusion that the defendants never acquired any title in the goods, and had no right to retain them against the plaintiff. If such was the case, no demand for a return of the goods was necessary before suing out a writ of replevin. The judge therefore rightly refused to rule that, upon the evidence stated and the facts found, the plaintiff could not sustain his action. Hill v. Freeman, 3 Cush. 257, 260. Farlow v. Ellis, 15 Gray, 229. Hirschorn v. Canney, 98 Mass. 149.
Exceptions overruled.