
    [Lancaster,
    June 7, 1826.]
    MARTIN against MATHIOT.
    IN ERROR.
    On a sale of chattels, if the vendor and vendee agree that the possession shall pass to the vendee, but the property remain in the vendor until the whole purchase money is paid, such agreement, as respects creditors and the sheriff; is fraudulent ; and it is immaterial whether it appear that the creditor trusted the debtor on the credit of the goods which were in his possession, or not
    Error to the Court of Common Pleas of Lancaster county.
    In the court below it was an action of trespass, ’ brought by David Martin, _the plaintiff in error, against John Mathiot, late-sheriff of Lancaster county, for seizing four wagon horses with the harness appurtenant to them. The defendant justified the seizure under a writ offi. fa. directed to him as sheriff, whereby he was commanded to levy .a certain debt, for which judgment had been obtained by Robert Croser against John Michael, on the goods and chattels of the said Michael. The plaintiff replied,, that the horses and harness were his property, and not the property of John Michael, and on that issue the parties went to trial. It was proved, that the horses and harness were, at the time of the levy, and for some time before, in the possession of John Michael, who was a wagonner. Before they came into his possession, they were the property of the plaintiff The defendant gave evidence, that Michael stood charged in the books of the plaintiff, with a debt amounting, to upwards of sixty dollars, and that the plaintiff, being asked, whether Michael was the owner of the team he was driving, answered, that it belonged to Michael provided he would pay him that debt. Several questions were proposed to the court on this evidence, which may be comprised within a small compass. The opinion of the court was, that if vendor and vendee agree, that the possession shall pass to the vendee, but the property remain in the vendor, until the whole purchase money is paid, such agreement as respects creditors, and the sheriff is fraudulent ; and it is immaterial whether it appear that the creditor trusted the debtor on the credit of the goods which were in his possession, or not.
    To this opinion the plaintiff excepted.
    
      Slay maker, for the plaintiff in error,
    cited 4 Mass. Rep. 405. Clow v. Woods, 5 Serg & Rawle, 286. per Duncan, J. Waters'’s Executors v. McClellan, 4 Dull. 208. 1 Crunch, 816. 9 Johns. 201.
    
      W. Hopkins, and Hopkins contra,
    cited- 5 Serg. & Rawle, 278, 285, 286, 287, 288. 2 Johns. 46.- Palmer v.Hand, 13 Johns. 434. Babb v. Clemson, 10 Serg. & Raiole, 419.
   The opinion of the court was delivered by

Tilghman, C. J.

I cannot say that I perceive any error in the opinion of the Court of Common Pleas.. Possession of personal property is the great mark of ownership. It is almost the only index which the world in general has to look to. But there are exceptions. There are certain necessary, and lawful contracts, by which the owner parts with the possession, and yet fraud cannot be presumed. Such are the 'contracts of lending and hiring, both very useful, and without which society could not well exist. It is of the essence of these, that the owner should give up the possession, for a time. Such too, are contracts by which an artisan, or manufacturer, has the possession of materials belonging to another for the purpose of making them up, or repairing them for the owner. No suspicion of fraud can fairly arise, where the transaction is in the usual course of business. But the case is very different where it is intended that the property should be apparently in one, while it is in fact, in another. This is out of they usual course of business, unnecessary, and directly tending to the, injury of those who are not in the secret. In the present'-instance*11 for example, there was a sale of four horses and harness, and pos- • session, delivered to a man who got his living by the use of his 1 team. All the world has a right to suppose that he was the owner of the horses which he drove, and a secret .agreement to the contrary was an injury to society, by giving the wagonner a false credit which might induce others to trust hint with their property. • The cases which have generally been brought before courts of\ justice, are those in which the seller has remained in possession. Those have been adjudged fraudulent. There are.innumerable-''"! authorities on this subject, but I will refer particularly to Clow v. Woods, 5 Serg. & Rawle, 286, and Babb v. Clemson, 10 Serg. & Rawle, 419, because they were in this court, well considered, and recently decided, ihe principle which governed them, was, that j a sale, where possession does not accompany and follow it, is ?j fraudulent as to creditors. It was the separation of the possession from the property which made the fraud ; and the principle ap-j plies to the case before us.y Here the seller did not retain the l possession, but was to retain the pi operty after he had transferred I the possession to the buyer. The mischief is the same — a false I credit is given; and whether given, to the buyer, or seller, is im-j material. Neither is it necessary,.that it should appear, that cre-ydit had been given by a third person inconsequence of the possession of the purchaser. A rule of law so restricted, would be of very little .value.' It rarely occurs that a man can prove, what it "was that induced him to give credit. It is a rule of general policy, which declares possession to be the evidence of property, and the presumption is, that every man is trusted according to the property in his possession. When the plaintiff put his horses into the possession of Michael, he knew that he was making Michael the ostensible owner, and was bound to abide the consequences. Between themselves there is no objection to the property remaining in the plaintiff. But as to the sheriff who knew nothing of the secret condition annexed to the sale, Michael, who was the apparent, is to be considered as the real owner.

I am of opinion that the judgment should be affirmed.

Judgment affirmed.  