President of the Portland Bank v. Stacey

A bona fide conveyance by deed, of a vessel and cargo abroad at the time, is valid against creditors, provided the vendee takes possession thereof without delay upon the return of the vessel. There is no difference m effect between the grand bill of sale used in England, and the bills of sale used in this country for the conveyance of vessels.

Replevin of the schooner Ann and appurtenances; also of one hundred and thirty-five bales of cotton, fifty-nine tierces and twenty-two half-tierces of rice. The defendants pleaded severally the general issue of non cepit as to the schooner, which was joined by the plaintiff; and as to the residue of the goods, they plead, in bar of the action, that the property thereof was in Joseph M'Lellan and Hugh M’Lellan, and they justify the taking, as deputy sheriffs, under several writs of attachment against the said Joseph and Hugh, in favor of sundry of their creditors. The plaintiffs reply property in themselves, on which issue is also joined. Upon trial of the several issues at the last April term at Ipswich, before the Chief Justice, a verdict was returned for [ * 662 ] * the plaintiffs, and nominal damages assessed, subject to the opinion of the Court on the following facts, viz.: — “ That Joseph M’Lellan and Hugh M’Lellan, mentioned in the pleadings, were, on the 26th of December, 1807, holden and in law bound to pay the plaintiffs the sum of 80,334 dollars 50 cents : that to secure the payment of that sum to the plaintiffs, the said Joseph and Hugh, by their bill of sale under their hands and seals of that date, bargained and sold, among other property, the schooner Ann, mentioned in the writ, with her appurtenances, and also the cargo, if any, which might be shipped on board the said schooner, for and on account of the said Joseph and Hugh, to consist of cotton and rice, which said deed was on condition to secure to the plaintiffs the payment of the money due to them as aforesaid, and was in due form of law ; that when the said deed was made, the said schooner was in Charleston, South Carolina, having two days before taken on board, for and on account of the said Joseph and Hugh, a cargo consisting of the cotton and rice mentioned in the writ; that the said schooner arrived at Gloucester, in the county of Essex, on the 4th of January, 1808, when her said cargo was attached, in due form of law, by the defendants, at the suits of the attaching creditors named in the pleadings, who are boná fide creditors of the said Joseph and Hugh, having no knowledge of the conveyance aforesaid; that the plaintiffs, as soon as they had knowledge of the arrival of the said schooner and cargo, took possession of the same without any negligence on their part, viz., on the 18th of January, 1808; and that no other conveyance was executed, instrument made, or act done, by the said Joseph and Hugh, to transfer the property of the said schooner and cargo to the plaintiffs, excepting the executing the bill of sale aforesaid.” If, on these facts, the Court should be of opinion that the property of the said cotton and rice was, when the writ of replevin was executed, in the plaintiffs, then it was agreed that the verdict should stand, and judgment be rendered thereupon ; otherwise the verdict as to the said issues should be set aside, and a verdict entered fat the defendants on the said issues; with one dollar damages.