Cutting v. Jackson
Supreme Court of New Hampshire
From Sullivan Circuit Court. Replevin. The personal property which was the subject-matter of this action had been attached by the defendant, who was a deputy of the sheriff of the county of Sullivan, as the property of one Don 0. Smith, and which the plaintiffs claim to own by virtue of a sale from said Smith to the plaintiffs, and which sale the defendant alleged to be fraudulent and void as against the creditors of said Smith. This was the only matter in dispute.
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From Sullivan Circuit Court. Replevin. The personal property which was the subject-matter of this action had been attached by the defendant, who was a deputy of the sheriff of the county of Sullivan, as the property of one Don 0. Smith, and which the plaintiffs claim to own by virtue of a sale from said Smith to the plaintiffs, and which sale the defendant alleged to be fraudulent and void as against the creditors of said Smith. This was the only matter in dispute. The evidence tended to show, that on October 26,1874, the plaintiff, Shepherd H. Cutting, bought of Don C. Smith the steers and…
1Opinion of the Court
* Smith, J.
The plaintiff’s vendor retained possession of the steers and hay, although the sale was absolute. This was prima facie evidence of a secret trust. If they have failed to explain why this was done, . then it is conclusive evidence of such trust. Trask v. Bowers, 4 N. H. 309. When the fact of a secret trust is admitted or established, the fraud is an inference of law, which a court is bound to pronounce. A sale of goods by a person in debt, in order to be considered bona fide in respect to creditors, must be made -without any trust whatever, either express or implied. Coburn v.…
2Cases cited1 opinion
- Lang v. StockwellSupreme Court of New Hampshire · 1875
3Cited by1 opinion
- Flagg v. PierceSupreme Court of New Hampshire · 1878