Comly v. Fisher

6 F. Cas. 207

• Court: U.S. Circuit Court for the District of Maryland
• Decided: November 15, 1847
• Status: Published

Opinion

TANEY, Circuit Justice.

1. It being admitted that the goods in question were the property of Samuel Comly, of Philadelphia, from the 13th of March 1840, to the 2üth of April in the same year, and that, during that time,, the plaintiff, as agent of Samuel Comly, resided at the factory mentioned in testimony, and held possession of the said goods, and carried on the business of the factory for- and in the name of the said Samuel Comly —the possession of the plaintiff, during that time, was the possession of Samuel Comly. And if the jury find that the sales by Samuel Comly to Folwell, and by Folwell to the-plaintiff, were bona fide and upon the valuable consideration stated in the plaintiff’s testimony, still the said goods were liable for the debts of Samuel Comly, unless the jury find that the plaintiff had, in some mode or other, made known to the public the change of possession, and manifested that he no longer held the property as the property of Samuel Comly, and for him, but in his own right. The sale and delivery to Folwell, and by him to the plaintiff, being private, and without witnesses to either, and producing no visible change in the possession or ownership, the said sales were fraudulent and void as against the creditors of Samuel Comly, until the change in the title and the character of the possession was made known as above stated.

2. If the jury find that the sales alleged to have been made by Samuel Comly to Fol-well, and by him to the plaintiff, were collusive, and intended to hinder, delay or defraud the creditors of Samuel Comly, then the said sales were fraudulent and void as against the creditors of Samuel Comly, and the plaintiff is not entitled to recover.

3. If, under the above directions of the court, the jury find that the plaintiff is entitled to recover, the measure of damages is the value of the property at the time it was attached, with interest to this time, and such further damages, if any, as the jury may find was actually sustained by the plaintiff, by breaking up the business in which lie was engaged, deducting from the amount the rent due on the premises at the time the attachment was laid.

Judgment of nonsuit.