Thomas Hamilton v. James Russell

• Decision Date: 01 February 1803
• Citation: 5 U.S. 309,1 Cranch 309,2 L.Ed. 118
• Parties: THOMAS HAMILTON v. JAMES RUSSELL
• Court: U.S. Supreme Court

5 U.S. 309

1 Cranch 309

2 L.Ed. 118

THOMAS HAMILTON v. JAMES RUSSELL.

February Term, 1803

ERROR to the circuit court of the county of Washington in the district of Columbia.

[Argument of Counsel from pages 310-314 intentionally omitted] Mr. Chief Justice MARSHALL delivered the opinion of the court.

On the 4th of January 1800, Robert Hamilton made to Thomas Hamilton an absolute bill of sale for a slave in the bill mentioned, which, on the 14th of April 1801, was acknowledged and recorded in the court of the county in which he resided. The slave continued in possession of the vendor; and some short time after the bill of sale was recorded, an execution on a judgment obtained against the vendor was levied on the slave, and on some other personal property also in possession of the vendor. In July 1801, Thomas Hamilton, the vendee, brought trespass against the defendant Russell, by whose execution, and by whose direction, the property had been seized; and at the trial, the counsel for the defendant moved the court to instruct the jury, that if the slave, George, remained in the possession of the vendor, by the consent and permission of the vendee; and if by such consent and permission the vendor continued to exercise acts of ownership over him, the vendee under such circumstances could not protect such slave from the execution of the defendant.

The court gave the instruction required, to which a bill of exceptions was taken.

The counsel for the plaintiff then moved the court to instruct the jury that a plaintiff in trespass, whose property is loaned to a friend, and is in that friend's possession at the time it is seized by a sheriff in virtue of an execution against the person so in possession, can sustain an action of trespass for a seizure upon such possession.

The court, being divided, refused to give the instruction required, and the jury found a verdict for the defendant. Judgment was accordingly rendered for the defendant, to which a writ of error has been sued out, and the question is, whether the court below has erred in the instructions given or refused.

In the opinion to which the first bill of exceptions was taken, it is contended on two grounds that the circuit court has erred.

1. Because this sale is, under the act of the Virginia assembly against fraudulent sales, protected by being recorded.

2. That if it be not protected by that act, still it is only evidence of fraud, and not in itself a fraud.

On examining the act of assembly alluded to, the court is of opinion that it does not comprehend absolute bills of sale among those where the title may be separated from the possession, and yet the conveyance be a valid one, if recorded within eight months. On this point one judge doubted, but he is of opinion that this bill of sale was not recorded within the time required by the act, and that the decision in the case of Eppes v. Randolph, which was made by the court of appeals of Virginia, on a different act of assembly, would not apply to this act.

On the second point there was more difficulty. The act of assembly which governs the case, appears, as far as respects fraudulent conveyances, to be intended to be co-extensive with the acts of the 13th and 27th Eliz. and those acts are considered as only declaratory of the principles of the common law. The decisions of the English judges therefore apply to this case.

In some cases a sale of a chattel, unaccompanied by the delivery of possession, appears to have been considered as an evidence, or a badge, of fraud, to be submitted to the jury, under the direction of the court, and not as...