We are to keep in mind that Herrick stands in no better situation, in this case, than Smyth, his vendor. The jury have found that the purchase of the land by the defendant was induced by false and deceitful representations on the part of Smyth, and that the plaintiff either had notice of the fraud, or that there was such a secret trust and confidence between him and his vendor, as to exclude him from the position of an honest purchaser without notice. We are to consider the case then as if it were between Smyth and the defendant. From the depositions which are referred to in the report of the Judge it abundantly appears that the most gross misrepresentations were used by Smyth, in relation to the growth and quality of the timber on the land ; that, according to his representations, there was a fine growth, more than sufficient to pay for the land, and that the timber had not been destroyed or injured by fire ; — and that, being pressed by the purchaser on that point, he continued his asseverations that the land had not been burnt over, adding, “ if it had it is no sale.” The proof is, that the land had all been burnt over once and the greater part of it twice, excepting some low wet places where there was no timber save only a few cedars ; and that the timber had all been cut off or blown down and decayed on the ground. The jury have found that Smyth knew that these representations were false, at the time he made them. The land was at a distance from the parties, and the defendant relied upon the representations of Smyth as to the timber; and for the correctness of those representations, especially that no injury had been sustained by fire, he must be held answerable.

On ascertaining the deception that had béen practised upon him, the defendant offered to return the deed, and requested Smyth to return that portion of the consideration which he had received. Smyth not only declined to do this, but taking the carriage, which is the subject of this action, from the possession of the defendant, carried it away —■ the defendant resisting him and *282endeavoring to prevent its removal. We do not perceive what more Kingsley could well have done to rescind the contract. It is said the surrender of the deed would not have reconveyed the-land, so that its prior attachment as Kingsley’s would have been avoided. Neither would a reconveyance by deed. There is no evidence of any attachment or any incumbrance created by Kingsley. The deed remained unrecorded, and when the defendant notified Smyth that the bargain was rescinded, the latter virtually refused to acquiesce, making no objection to the mode, or .that the estate was encumbered, or that his rights were prejudiced by any thing the defendant had done ; but claimed a fulfilment of the bargain by carrying away the carriage, to which- h© could, acquire no title without the consent of Kingsley, the owner. This consent was never given, and consequently the property never vested in Smyth, or in the plaintiff his grantee. We might, perhaps, have found more difficulty in this casé, if the action had been brought to recover hack that portion of the consideration actually paid. But we view the conduct of Smyth, In taking the carriage from the defendant’s possession against his will, as clearly without legal justification. Even if the contract had been perfectly fair on the part of Smyth, and he had been promised the carriage in writing, Kingsley might have withheld it; and the property not having passed to Smyth, his -only remedy would be by an action for damages. And herein is this case distinguishable from Kimball v. Ounningham, and other similar cases, where the property, had been actually delivered, and consequently could be reclaimed only by annulling the contract.