Dewart v. Clement

The opinion of the court was delivered, by

Read, J.

— It is clearly settled in this state that a sale of personal chattels, unaccompanied by possessipn, is fraudulent in law as to creditors of the vendor — as to them it is void. This is a question for the court and not for the jury.

In this case the pleas were non cepit and property in the defendant. As the whole question was one of title, and whether it was in the plaintiffs or defendant, it was really tried on the plea of property, although the plaintiffs began by showing a .taking by the defendant, but as on the plea of property the burthen, of proof was thrown on the plaintiffs, they should havfe proceeded with their proof, which would have consisted of the two bills of sale, which would then have been evidence, and made a primé facie case. Instead of this they permitted the defendant to go on with his case, which showed clearly that the possession of the vendors never was changed, and that no matter what paper title the plaintiffs had, it was fraudulent and void as to creditors of the vendors, of whom the defendant was one.

In this stage of the case the bills of sale were offered by the plaintiffs, but without any proposal or offer or attempt to show that the boat was delivered to the plaintiffs under the assignments, or that there was any change of possession. If admitted, the ■court must have declared them fraudulent in law, and void as to the defendant and other creditors. As, therefore, it could not have changed the case or the result of it if they had been admitted and read, we do not think we are called upon to disturb the verdict.

Judgment affirmed.