In the opinion first given in this case we said : “ It is true, that however fraudulent the conduct of the defendant may be shown to have been, the plaintiff cannot recover without showing that he has really sustained damage. The record shows, that Cirode & White are insolvent, and have been declared bankrupts. In this last assertion it appears we were mistaken, only one of the partners having been decreed a bankrupt under the late act of Congress ; and upon a suggestion of this error, a re-hearing was granted.

We have again reconsidered the whole case, and weighed the arguments adduced to us on the re-hearing. Although only one of the partners is shown to be a declared bankrupt, yet the evidence satisfied us, that the firm was insolvent. Its whole property was covered by an attachment sued out by the defendant himself in Mobile, who had previously obtained the greatest part in payment of his own claim, and received a part of the dry goods which the' plaintiff, to the knowledge of the defendant, had sold them on credit. Independently of the fact, therefore, that only one of the partners of Cirode & White had been decreed a bankrupt, we consider that the plaintiff has made out his case.

The judgment first rendered will remain undisturbed.