Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1903-04-29

good sense of every juror il | were to
caution you against prejudice toward
a party residing out of the State or
favor to party by reason of his resi-
dence in this county. Much feeling has
doubtless arisen between the parties
by reason of frequent suits touching his
horse, but that feeling will not trust
enter the jury room. The evidence
only and the rules of law which may
give you will alone l trust determine
your verdict.
in order for the plaintiff to receive
verdict in his favor it is necessary
for him to show by fair preponder-
ance of the evidence that he was en-
titled to the possession of the animal
on the Goth day of March, 1902 The
plaintiff claims to have been thus en-
titled to the possession of the horse by
virtue of a transfer of the possession
of it to him by Mr.. Barrett, who was
the admitted owner on September 20,
1900. If this transfer of the right to
the possession of the horse was valid
then the plaintiff is entitled to recover
unless the defendant had a valid lien
claim upon the horse at the date of the
writ. The burden is upon the plain
tiff to prove his ownership or right to
the possession.
The plaintiff has undertaken to do
this by putting in evidence OF a bill of
sale of the horse to him and a written
notice to Folsom who had the horse.
of the sale by Barrel to him, on the
same day. 1t is commended by the de-
PENDANT that this transfer of the horse
to johnson was fraudulent and void
for that reason.
Now before you can determine that
the sale or transfer of the horse to
Johnson was so far fraudulent as to be
void there are several things to be con-
sidered. Fraud is never to be pre-
sumed. 1t must always be proved and
the burden is on the party who
charges fraud. If man is in debt or
intending to incur debt, and for the
purpose of putting his property beyond
the reach of his creditors gives it away
or conveys it merely for the purpose
of hindering and delaying his creditors,
it is void as to such creditors. The
defendant contends that the evidence
shows that such were the facts here
and cites the transfer of Mr.. BarrettS
bank account and other horses about
the same time.
THE reply is that he had plenty of
other property and that if the defen-
liant had a lien claim it could be en-
forced at any time by sale of the horse
and that the charge of fraud is now
raised for the first time. The issue of
fraud in the sale to Johnson does not
appear to have been raised in the Port
land suit by Mr.. Folsom so that the
inding of the court in that case that
the property in the horse was in john
son on March 81, 1902, cannot effect
The defendant in this case. He was
not a party to that suit and no evil
dence of fraud was introduced there.
AS between Barrett and Johnson the
conveyance was valid in any event.
Barrett could not maintain an action
as owner of the horse nor can he chal-
lenge the right of Johnson to do so.
It is a rule of law that if a creditor
have knowledge of a fraudulent tram
fer by his debtor and consents to it
or acouiesces in it, he cannot after
wards asail the transfer for fraud.
in the Cumberland case of Mrs Folsom
vs.. Johnson evidence was introduced of
/ written notice signed by MI. Folsom
through his attorney, Mr.. Runyon, ad-
dressed to both Barrett and Johnson
notifying them of the intended sale of
the horse to satisfy Mr.. Folsoms
lien for board of the horse. This no.
tfce was dated May -, 1901, some
eight months after notice was given 10
FOLSOM of the sale to Johnson. III was
claimed that the notice was served on
both Barrett and Johnson. but the
court certifes that he did not find such
service proved.
Although such notice and service,
if proven, might indicate an acqule-
sance in the transfer to Johnson pro-
vided Folsom believed ut the time that
it was fraudulent. Yet as there is no
evidence of that fact and no evidence
of the service of the notice on John-
son. | instruct you that you are not 10
regard that notice, if written with the
knowledge of Folsom, as sufficient PROOF
of the acquiescence in the transfer
The fact that a man transfers prop
erty at an Inadequate price or that
he gives it away is no fraud alone con-
sidered. 1t is only when transferred
for the purpose of preventing the prop
erty from being reached by creditors
or parties who have a right to 1t that
It becomes fraudulent. And in consid-
ering the motive all the circumstances
of the transfer, the remaining prop
erty of the grantor, and the result Oh
the transfer must be looked at. IL
he still has sufficient property remain
ing to satisfy his creditors, the fact
that he gave property away or trans
ferred it without adequate consldera-
ton is not evidence of fraud.
1T is further claimed that even II
the sale was honest that it is void be
cause there is no evidence of sufficient
delivery of the horse to johnson. 1t
is in evidence and undisputed that
bill Of sale was given to Johnson ana that
Johnson at once notified Folsom that
Barrett had conveyed to him all ms
interest in the horse. For the purposes
of this case | instruct you that that IS
sufficient evidence of delivery OF pos
session to entitle the plaintiff to MAIN
tain an action to recover possession of
the horse. If you shall determine that
the sale was not fraudulent then you
will come to the question of the de
PENDANTS right to possession OF the
horse at the date of the writ. lie
claims by virtue of a lien upon the