3 Twyne's Case, 3 Coke, 80; s. c, reported under the name of Chamber-lane v. Twyne, Moore, 638. See also Shep. Touch. 66.
1 See Worseley v. De Mattos, 1 Burr. 482.
2 See Holbird v. Anderson, 5 T. R. 235; wherein it was held that a bill of sale will not be deemed fraudulent, merely because it was executed pending an action against the vendor.
3 2 T. R. 587.
§ 661. But this doctrine, that possession of goods sold under an absolute bill of sale affords a conclusive presumption of fraud, seems to have been modified in England by the general current of the late cases; and, although there are some cases which maintain the doctrine of Edwards v. Harben, yet the weight of authority preponderates to the modified doctrine, that possession in these cases, by the vendor, only affords a badge or primd facie presumption of fraud. This doctrine was asserted by Lord Eldon, in the case of Kidd v. Rawlinson;1 and afterwards affirmed by him in the case of Lady Arundell v. Phipps;2 in which, referring to his former decision, he said: "The mere circumstance of possession of chattels, however familiar it may be to say it proves fraud, amounts to no more than that it is primd facie evidence of property in the man possessing, until a title not fraudulent is shown, under which the possession has followed." Lord Mansfield also held, that possession was only a badge of fraud, and that whether the circumstances created a necessary presumption of fraud, was a question for the jury.3 Lord Tenterden also was of opinion, that continued possession was not conclusive evidence of fraud.4 And Mr. Justice Parke, in the case of Martindale v. Booth,5 where there was an assignment of the furniture, household goods, and fixtures of a tavern to secure payment of a debt, with a proviso for the grantee to take possession, on failure of payment of any of the instalments, and sell the property, and that the grantor until then should keep the possession, says: " I think the want of delivery of possession does not make a deed of sale of chattels absolutely void. The dictum of Buller, J., in Edwards v. Harben, has not been generally considered in subsequent cases to have that import. The want of delivery is only evidence that the transfer was colorable. In Benton v. Thornhill,6 it was said in argument, that want of possession was not only evidence of fraud, but constituted it; but Gibbs, C. J., dissented; and although the vendor there, after executing a bill of sale, was allowed to remain in possession, Gibbs, C. J., at the trial, left it to the jury to say, whether, under all the circumstances, the bill of sale were fraudulent or not." " It may be a question for a jury, whether, under the circumstances, a bill of sale of goods and chattels be fraudulent or not; and if there were any grounds for thinking that a jury would find fraud here, we might, this being a special case, infer it; but there is no ground whatsoever for saying that this bill of sale was fraudulent." In this case, however, it will be observed, that the possession was consistent with the terms of the deed, and therefore it was not fraudulent within the rule of the case of Edwards v. Harben. In Steward v. Lombe, it was said by Lord Chief Justice Dallas, that "the case of Edwards v. Harben has been dissented from often," and by Mr. Justice Park, that "doubts have arisen as to the extent of the doctrine there laid down."1 In Latimer v. Batson,2 Lord Chief Justice Abbott said, "I perfectly agree, that possession is to be much regarded; but that is with a view to ascertain the good or bad faith of the transaction." "Here the jury have affirmed the good faith of the transaction. The question for their consideration was properly, whether this was a bond fide transaction; and that fact being ascertained, the subsequent possession was unimportant." 3 In Hoffman v. Pitt,4 Lord Ellenborough said, speaking of an assignment of chattels made without surrender of possession: " The not taking possession was, in some measure, indicative of fraud; but was not conclusive. But to make it absolutely void, there must be something that showed the deed fraudulent in the concoction of it. It was incumbent on the person claiming title to show that the transaction was bond fide"
1 In Bucknal v. Roiston, Pr. in Ch. 285, it was stated by one of the counsel, arguendo, that it had been ruled forty times, in his experience, at Guildhall, that if a man sells goods, and still continues in possession of them as visible owner, the sale is fraudulent and void as to creditors.
2 Steel v. Brown, 1 Taunt. 382; Reed v. Wilmot, 7 Bing. 583; s. c. 5 Moo. & P. 564; Paget v. Perchard, 1 Esp. 205; Wordall v. Smith, 1 Camp. 332. See Parker v. Procter, 9 Mass. 390; Slater v. Dudley, 18 Pick. 373.
1 Kidd v. Rawlinson, 2 Bos. & Pal. 59.
2 Arundell v. Phipps, 10 Ves. 145.
3 Martin v. Podger, 2 W. Bl. 701.
4 Eastwood v. Brown, Ry. & Mood. 312; Martindale v. Booth, 3 B. & Ad. 505.
5 Martindale v. Booth, 3 B. & Ad. 505. 6 Benton v. Thornhill, 2 Marsh. 427.
§ 662. The conclusion to be drawn from these, and other English cases, asserting a similar doctrine, would, therefore, seem to be, that, by the modern rule, which obtains in England, the mere fact that there is no change of possession, after an absolute bill of sale has been made, would not, of itself, necessarily constitute such a fraud as to avoid the sale,- but that it is a badge of fraud, which, taken with the other circumstances of the case, may afford a conclusive presumption of fraud, or may be rebutted and explained, so as to render the sale valid.1 All its effect is to afford a prima facie presumption of fraud.
1 Steward v. Lombe, 1 Br. & B. 512, 513.
2 Latimer v. Batson, 7 Dowl. & Ryl. 110. See also s. c. 4 B. & C. 65-i.
3 Wordall v. Smith, 1 Camp. 332.
4 Hoffman v. Pitt, 5 Esp. 25.
§ 663. The rule of law applicable to this subject which obtains in America is by no means settled, and the question is embarrassed by decisions which are utterly contradictory and irreconcilable.