
    Simon Hombeck v. Daniel Vanmetre.
    "Where the vendor in a bill of sale or mortgage of goods retains the possession, that circumstance is prima fade evidence of fraud, but is not fraud per se.
    
    In such case, the question of actual fraud is one to be left to the jury.
    Replevin. From Pickaway. The plaintiff, in support of his title, gave in evidence a bill of sale or mortgage from one Richardson, to himself, including the property in dispute, and a note made by Richardson to Isaac Hombeck, and endorsed to the plaintiff, which remained unpaid, and proved that after the time mentioned in the bill of sale for it to become absolute, viz. in December, 1838, the property remained in the possession of Richardson until April, 1839, and that between those periods, he frequently applied to Richardson for payment, who promised to pay, or arrange the debt by giving personal security ; and that the property continued in possession of the defendant, until replevied.
    The defendant’s title consisted in a sale to him by Richardson, in April, 1839, for the consideration of seventy-five dollars; and proof that before his purchase, some of the other property included in the "bill of sale had been advertised and sold on execution, as the property of Richardson, but it did not appear that the plaintiff knew of it.
    The court instructed the jury that Richardson’s continuing in possession of the property after the execution of the bill of sale, and after the bill became absolute, was prima facie evidence of fraud, but if upon the whole evidence, they believed the transaction between the plaintiff and Richardson was fair, and without any intention to defraud Richardson’s creditors, or others who might purchase of him, the plaintiff would be entitled to recover, notwithstanding Richardson’s possession, as, if the transaction was shown to be fair, the prima facie fraud was done away. The jury found for the plaintiff, and the defendant now moves for a new trial, because the court misdirected the jury.
    H. N. Hedges, for plaintiff.
    J; Olds, for defendant.
   By the Court,

Grimke, Judge.

The rule governing eases of this ■kind, has been subject to the greatest fluctuations in the United States. The decisions in this state, have, perhaps, been more uniform than in any other. 'In Pennsylvania it has been held that on an absolute or ^conditional sale of chattels, possession must follow and accompany the sale, or it is fraudulent in law, although there is no fraud in fact. 5 Serg. and R. 275; 1 Penn. 57. The same has been declared tobe the law in New Jersey, Connecticut; and Vermont. On the other hand, it has been held in New York, that the retaining possession of the property, is only prima facie evidence of fraud. 5 Johns. 258 ; 8 Johns. 452. In a later case in that state, the court appeared disposed to establish a more severe and inflexible rule. They held that if the party executing the bill of sale, was permitted to remain in possession, whether the sale was absolute or conditional, it was fraudulent in law; but that decision was again entirely overruled, Bissell v. Hopkins, 3 Cow. 166, where it was again held, that possession was Only prima facie evidence of fraud. This last doctrine has been declared to be the law in Massachusetts, New Hampshire, and North Carolina. 15 Mass. 244; 5 Pick. 59; 5 N. Hamp. 545; 2 Hayw. 126. In this state but one rule has been declared, which is, that the retaining possession of property after the execution of a. bill of sale, whether absolute or conditional, is a question of fact for the jury. Unexplained, the retaining of possession after sale, would be held fraudulent, but such possession is not regarded as conclusive evidence of fraud in itself.

We do not see how the court could properly have charged the ju.ty different, without taking the case from them altogether. The jury were instructed that the circumstance of possession being retained, was’prima facie evidence of fraud, and it was left to them to determine whether there was actual fraud in the transaction. Our reports are full of cases declaring the same doctrine.

Motion overruled.  