The Empire County argus., 1854-12-09

| give the decision entire:
State of California, District Court Sixth Judicial
| District:
| c. Chandler ct al. vs. Frank s. Malone--This is
an action to recover possession of billiard table.
The evidence introduced by plaintiffs discloses that
in the month of August last, Mrs. Chandler, one
of the plaintiffs loaned to Que Mrs Jones the sum
of $500; and to secure the repayment of il, took
bill of sale of the said table. AT the time Mrs
Jones was the proprieress of the hotel in Sacra-
mento known as Jones' Hotel The table was then
standing in the bar-room ana used by the boarders
and others. One Charles Dram testifes that pre-
vous to, and at the time of the sale he was and is
yet the barkeeper and in the employ of Mr.. Jones
When the bill of sale was executed to Mrs. c. she
directed witness to take charge of it for her. and
keep an account of the proceeds and pay the same
over to her. Witness testified that he did so. Mrs
&. at the time was and is yet boarder in the ho-
tel The table after the sale was not removed from
the room or place where it was standing previous
to, and at the time of the sale; but used by
the boarders the same as before. No public notice
of the transfer was given, nor does the evidence
show that Mrs. c. paid any rent for the privilege
of keeping the table in the barroom, that she
contributed in any way to delray the necessary ex
penses of the room, such as lights, &c, that Mr..
Dram received any compensation from Mrs. for
his services in taking charge of the table and keep
inc the accounts, sc.
stable of this city--that he levied upon the table
under and by virtue of writ of attachment prop
erly issacd by Justice of the Peace Of this county,
in a suit against Mrs Jones. That the plaintiffs
in the suit before the Justice creditors of Mrs
Jones, and subsequently to the attachment obtained
judgment against her.
The only question raised in this case is whether
the possession of the table in controversy was su-
ciently changed from Mrs. Jones to Mrs Chandler
as to vest the same and render the sale complete
against the creditors of Mrs. Jones. The Stat
ute provides that every sale made by vendor
cf goods and chattels in his possession or under his
control, and every assignment Of goods and chat
tells, unless the same be accompanied by an mme-
diatc delivery and be followed by an actual and
continued change Of possession of things sold or
assigned shall be conclusive evidence of fraud as
against the crediotrs of the vendor or the creditors
OF the person making such assignment of subse-
quent purchasers in good faith"
mo mortgage of personal property hereafter
made shall be valid against any other person than
the parties thereto unless possession of the mort
gagged property be delivered to and retained by the
rtgagee'
IT. in the sale or mortgage of the table in contro-
versy, there was no such change of possession as
contemplated and required by the statute, it be-
comes unnecessary to enquire into the intent Of the
parties whether the sale or mortgage was malo
amino or bona fde. If there was no legal change
or transfer OF possession, against the creditors of
Mrs. Jones, the sale mortgage was fraud in
law and to them it matters not whether, in the
transaction, there was fraud in fact or not. What
change OF possession in the sale and mortgage of
personal property does the statute require? To as
certain this 1T becomes necessary to enquire and as
certain the object and purpose of the statute-what
1t designs to prevent The statute intends to guard
against and prevent, all such contracts, which,
though not originating in any actual fraud or evil
TO fro,, ,,1 op1,p
upon otbers-such contracts tend to deceive and
mislead others-which violate public and private
confdence--which impair and iniure the public in
terest'--which impose upon mankind by false APP
pcarances. Possession of personal property is
prima facia evidence of ownership--to the world
the possessor appears as the owner--and upon the
strength of it he inspires confidence in his means
and obtains faith and credit
In order, therefore, to prevent injury to Others
in order that the public may not be mislnd or de-
ceived; in order that the community may not be
imposed upon how necessary is it, in all sales and
mortgages of personal property that there should
be an actual, immediate and continued change of
possession Is it sound policy to suffer and permit
the owner of personal property, capable of manual
delivery to create transfer interest in or to
another, either by mortgage or absolute sale, and
yet continue to be the visible owner. The statute
answers 1t says to all owners of personal prop
erty you shall create no secret incumberanccs--
you shall not practice deceit upon the community,
or obtain credit upon false apprenticeship all
transfers OF your property you must be open and
honest-"appearance must agree with the real
state of things and the real state of things must
be honest and consistent with public policy" or all
your sales and transfers shall be imperative and
void, as against creditors. The change of posses
sion must be visible and substantial one, of such
character as to indicate to others--to the commu-
nity-that sale or mortgage has taken place--a
change sufficient to excite inquiry in the mind of
reasonable man--such change rs would not easily
be misapprehended by an attentive creditor; does
the evidence in this case disclose any such change
of possession, was there any visible change; the
table was suffered to remain in the same room and
to stand in the place after as before the SALE
used in the same way, in charge of the same per.
son, to wit the barkeeper, the employee of Mrs
Jones. He testifes that after the sale he took
charge Of it for Mrs Chandler; but did the public
know of this!; could they have known it,; was
there in the change anything which was calculated
to put them upon inquiry! was any public notice
of the transfer given? To the public the change
of possession a secret To all appearances the
position of the affairs was the same after as before
the sale, and as against the defendant who seized
upon the table under, and by virtue of legal pro-
cess issued at the suit of creditor of Mrs tones,
the sale or transfer was imperative, fraudulent in
law and void. The sale or mortgage between the
parties may have been bona fde They may have
been innocent of all intent to perpetrate wrong,
yet their acts were calculated to mislead and de-
ceve others which by the statute is considered as
reprehensible as positive fraud. The motion for
new trial is denied with costs