Legal Opinion

Ash v. Putnam

New York Supreme Court

Decided May 15, 1941Published

Trespass de bonis, &c. tried at the Schenectady circuit, October 15th, 1838, before Cushman, C. Judge. .The action was against the sheriff of Schenectady, for seizing three boxes of books, under a fi. fa. against Alfred Dawmas and A. T. Raoul. Dawmas purchased these boxes, with three other boxes of books, in November, 1836; of the plaintiffs, who were merchants in Philadelphia.

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Trespass de bonis, &c. tried at the Schenectady circuit, October 15th, 1838, before Cushman, C. Judge. .The action was against the sheriff of Schenectady, for seizing three boxes of books, under a fi. fa. against Alfred Dawmas and A. T. Raoul. Dawmas purchased these boxes, with three other boxes of books, in November, 1836; of the plaintiffs, who were merchants in Philadelphia. The purchase was made by Dawmas, as a member of the then insolvent firm- of A. Dawmas The books were purchased by Dawmas under a misrepresentation of the circumstances of the firm, on a credit of six months, and soon…

1Opinion of the Court

By the Court, Cowen, J.

Dawmas held his firm out to the plaintiffs as of ability to pay, when he probably knew it to be insolvent. A purchase, with intent not to pay, is such a fraud as will avoid the sale, (Bristol v. Wilsmore, 1 Barn. & Cress. 514; Kilby v. Wilson, Ry. & Mood. N. P. Rep. 178, 181;) and if the plaintiffs had a right to set up the fraud as against the defendant, the question should have been submitted to the jury.

When a sale- is procured by fraud, nd title passes to the vendee. (Root v. French, 13 Wendell, 570.) The vendor still retains his legal right in the goods, unless,…

2Cases cited7 opinions

  1. Saltus & Saltus v. EverettNew York Supreme Court · 1838
  2. Root v. FrenchNew York Supreme Court · 1835
  3. Hoffman v. CarowCourt for the Trial of Impeachments and Correction of Errors · 1839
  4. Buffington v. GerrishMassachusetts Supreme Judicial Court · 1818
  5. Thorp v. BurlingNew York Supreme Court · 1814

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