Cox v. . Jackson

All the circumstances subsequent to the sale are to be taken into consideration as explanatory of the real state of the *Page 339 precedent transactions — the possession of John always continued; George gave nothing for the horse, though a valuable consideration was pretended and held up. The debtor having used the horse as his own, and disposed of him, are visible marks of fraud.

The jury found for the plaintiff.

See Hodges v. Blount, ante, 414.

The circumstances do not amount to proof of fraud. The possession which John had after the purchase by his brother (429) is not to be taken into consideration, the brother having a right to indulge him with the use of his property as he thought proper. As to the possession he had after the seizure by the constable, and before the sale, that was by the consent of the constable, who was answerable if the property was not afterwards forthcoming. It is the usual practice with officers in this country, who seldom remove the property before the day of sale, unless where they suspect the defendant will remove out of the way. As to the possession he had after the purchase by Collins' agent, that was without the privity of Collins. No part of his possession appears to have been continued by the consent of the creditor, and in that particular differs widely from the possession mentioned in Twigne's case and the other subsequent cases grounded upon it.

The goods are bound from the teste of the writ of execution, but that rule will not apply to the present case. John acted as the agent of his brother, who, having approved of what he did, ratified the transaction abinitio; so that the property of the latter horse passed to George Cox, and not to John, if the first horse really was George's. As to that the Court differed.