The pilot and transcript. [volume] (Baltimore, Md.) 1840-1841, 1841-01-15
From the NJ Y Commercial advertiser.
IMPORTANT DECISION.

The case of Smith & Hoe Us. Acker, resently
decided in the Court Of Errors, settles the ques-
tions relative to mortgages on personal property
unaccompanied by possession.
The Supreme Court, by repeated decisions
within the last three or four years, decided that,
bv the Revised Statutes, all chattel mortgages,
unless the mortgage took actual possession Of
the property, were in law fraudulent, and as
against creditors of the mortgagor, void The
Chancellor of the State took the same view oil
the matter, and in two cases at least which came
before him, gave the law construction similar
to that given it by the Supreme Court Under
these decisions, numerous cases have occurred
throughout the State where mortgages given in
good faith to secure bona fde debts have been
totally disregarded by judgment creditors, solely
ON the ground of the mortgagor remaining IN
possession.
This decision in the Court of Errors estab-
fishes the doctrine that where the party to whom
a mortgage is given produces evidence OF good
faith and the absence Of any fraudulent intent in
the transaction, the possession OF the property is
immaterial, and the question OF fraud is ques-
ton of fact. and should be submitted for the de-
cislon of the judges.
The case Of Smith s. Hoe vs. Acker was
action of replevin, originally brought in the
New York Common Pleas Acker, the sheriff,
by virtue of an execution against j. w. Bell, le-
| We'd upon certain printing presses in the posses
sion Bell, which were mortgaged by him to
Smith & Hoe.
| The cause came en- for trial before his Honor
Judge UIlshoetfer, and frsm the testimony intro.
duced by the plaintiffs, it appeared that ON the
25th of March, 1887, mortgage had been exc
cuted in their favor, the property III question,
with other property, TO secure the payment Of
the sum of $40, 600; that the property remained
in the possession of the mortgagor; that the in
debtedness of the mortgagor ia Smith & Hoe a.
rose in the regular course of their business, the
plaintiffs being extensive manufacturers OF prin-
ting materials, and Bell extensively engaged In
the business of printing; that the mortgage had
been duly filed and that if the property had been
sold at public sale, by virtue ofthe mortgage be-
tween the time of the execution thereof and the
time of the commencement of the SUIT, 1T would
not have brought twenty per cent on its value.
The plaintiffs also assigned as reason forper-
hitting the property to remain in the hands OF
the mortgagor, that if it had been taken posses
sion of by them, and sold, they would have sus-
tanned great loss, whereas, by leaving it in pos
session OF Bell, he would be enabled, by the use
of 1t, eventually to discharge the whole debt
Upon this evidence the Court OF Common
Pleas nen-suited the plaintiffs, OH the ground that
the property being left in the hands OF the mort
| gagor rendered the mortgage fraudulent IN law,
| and refused to LET the case 20 to the jury on the
question of fraud in fact or fraudulent intent.
The counsel for the plaintiffs excepted to this
decision, and took up the case to the Supreme
| Court, where the decision Of the court below
was affirmed.
The case was then taken to the Court OF Err
rors-the court Of last resort, where it was argu-
ed chiefly on the point that the plaintiffs having
| produced evidence to show good faith and the
absence Of any fraudulent intent, fhe Judge err
ed in non-suiting them, and should have left the
question of fraud for the jury to determine.
The Court OF Errors reversed the decision OF
the Supreme Court by vote Of % to a.
.MeElrath & Bloomfield counsel for Smith x
Hoe, plaintiffs-JioH for defendant.
The BRIG TIGRIs.-Capt. Frye and Mr..
Burnham, the mate of the brig Tigris, whose
examination at Boston has been going on for
several days past, have been put under bonds
of $1,000 and $4,000 to answer the charge Of
Selling native of Africa, on the coast with in
tent of making him slave, Judge Davis deem
ing the charge sufficiently established to war
rant a trial by the Circuit Court which sits in
May next The crew were released. The
hoy Home made a statement in the Portuguese
language which was translated for the use OF
1.-THE Court, that he was native OF the interior
Iof Benguele, and passed through various hands
Into the possession of merchant named AL
media, and when left alone one day had been
seized by boats crew and carried on board a
foreign ship, from which four days after ne
was transferred to the Tigris. Capt. Frye. ii
also appeared, had made contradictory state
ments in respect to the manner in which the
boy came on board the boat.
NEW YosE-Ths valuation Of real and per
4 =. L.. 49,. - qraf