#### John Howell *v.*Martin Elliott.

From Rutherford.

Possession retained by the vendor of chattels, does not, *per se,*make the sale fraudulent in law. It is but presumptive evidence of fraud; proper to be left to a Jury. To repel this presumption, the ven-dee may shew what consideration passed, though none be stated in the bill of sale.

Trover for a horse, tried before Daniex Judge. The Plaintiff claimed title under a bill of sale, from one *Spurlin,*the material parts of which were as follows:— *ii*Í, *Jesse Spurlin,*have this day bargained, sold, &c. unto *John Howell, sen.*one bay horse, one.cow and calf, two feather beds and furniture, for which sáid property *77I acknowledge myself fully satisfied and paid, and I do therefore warrant and defend the said property to the * said *John*Howell, &c.

The subscribing witness proved that the bill of sale was given, upon the Plaintiff becoming surety for *Spurlin*to one *Wilson*for fifty-seven dollars, with an agreement, that if *Spurlin*paid the debt to Wilson, the property mentioned in the bill of sale should be Spurlin’s: that the property was delivered to the Plaintiff, and then left by him in the possession of *Spurlin. Spurlin*paid to *Wilson*six dollars in part of the debt, and the residue, amounting, with the interest, to fifty-six dollars, was paid by the Plaintiff, and the value of the property conveyed, did not exceed that sum.

On the part of the Defendant, it was shewn, that the property continued in the possession of *Spurlin*from November, 1816, the time when the bill of sale was executed, until August, 1822, when the horse was seized under an execution against *Spurlin,*at the instance of the Defendant, sold and bought by the Defendant. It was also proved that in the month of August 1822, *Spurlin*having claims upon the Plaintiff for work and labor done, and they differing as to the amount due, submitted that question to arbitrators, who assessed the sum due *Spur-lin,*at one hundred and thirty dollars, and awarded the payment thereof to him. *Spurlin*afterwards assigned his interest under this award, to one *McEntire,*who sued *Howell*in the name of *Spurlin,*and collected the money.

The presiding Judge instructed the Jury, that possession being retained by *Spurlin,*was not in itself a fraud, but was presumptive evidence of fraud, as was also the circumstance of taking a bill of sale absolute on its face, when a security for a debt was only intended; but that both were capable of being explained, and the presumption thence arising repelled by other facts and circam-stanoes, that if the transaction was *honafiAe,*the Plaintiff’s title was not affected by the arbitration, for he was *78not bound to set off his claim in the action brought on the award; and that the Plaintiff was not precluded from shewing the consideration on which the bill of sale was p0U1Kie(], though it was not stated on the face of the bill of sale.

Under these directions, the Jury found a verdict for the Plaintiff; and a motion for a new trial on the ground of misdirection, having been overruled, and judgment rendered on the verdict, the Defendant appealed.

This case was submitted without argument by *Manly*for the Plaintiff, no counsel appearing on the other side*

The opinion of the Court was delivered by

Hade, Judge:

Whatever of fraud may have been designed or prac-tised in this case, w'as fairly left to the Jm’y; they have passed upon it, and it is not within the limits of our duty to review their decision.

The title to the horse in question, passed, by the bill of sale to the Plaintiff; whether the levy and sale took place before or after the arbitration between the Plaintiff and Sfurlin, does not appear; if before, certainly, the Defendant could derive no right from the purchase made by him at that sale; if after, the result must be the same, for it appears, (viewing the bill of sale as a mortgage) that the debt it was given to secure, has not been paid or satisfied. I therefore think the rule for a new trial should be discharged.

Judgment aetirmed.