Divver & Gunton v. McLaughlin
New York Supreme Court
Error from the New-York common* pleas. McLaughlin sued Divver & Gunton in an action of trespass for taking an^ carrying away ten pipes of brandy, ten pipes of gin, (and sundry articles of merchandize which were enumerated,) the weights, measures and scales of a grocery store, &c. The defendants pleaded the general issue, and gave notice of justification under a judgment and execution in favor of Divver against one Thomas Stephens, Gunton acting as a deputy s¡lerjff.
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Error from the New-York common* pleas. McLaughlin sued Divver & Gunton in an action of trespass for taking an^ carrying away ten pipes of brandy, ten pipes of gin, (and sundry articles of merchandize which were enumerated,) the weights, measures and scales of a grocery store, &c. The defendants pleaded the general issue, and gave notice of justification under a judgment and execution in favor of Divver against one Thomas Stephens, Gunton acting as a deputy s¡lerjff. On the trial of the cause it appeared that the plaintiff was surety tor the rent of certain premises occupied by Stephens…
1Opinion of the Court
By the Court, Savage, Ch. 3.
There is less difficulty in laying down the rule of law in cases of this description, than in the proper application of it to the circumstances of each case. The possession of personal property by the vendor or mortgagor, inconsistent with the face of the deed, is prima facie evidence of fraud, but subject to explanation. In other words, such possession is, “ except in special cases and for special reasons, to be shewn to and approved of by the court, fraudulent and void as against creditors.” The mortgage in this case, after forfeiture without explanation, must be…
2Cited by27 opinions
- Curtis and Others v. . LeavittNew York Court of Appeals · 1857
- Wood v. LowryNew York Supreme Court · 1837
- Butts v. PeacockWisconsin Supreme Court · 1868
- Tully v. HarloeCalifornia Supreme Court · 1868
- Place v. LangworthyWisconsin Supreme Court · 1861
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