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change of title, unless some apparent change in the possession and use of the property had occurred.

The ownership of property being a leading ground and inducement for credit, as well as for confidence, in dealing with and trading for it, in order to preclude the continued possession of property from inducing an unfounded credit, or leading to a fallacious confidence in making a purchase, the law adopts a kind of conclusive estoppel in pais, in favor of creditors and bona fide purchasers of the former owner, his continuing in the possession and use in a manner consistent with his continuing still to be the owner of it.

It does this in order, at once and entirely, to relieve the subject of the continued possession of property by the former owner, as a ground of credit and confidence, from the embarrassment that would be likely to, and often does, result from having to settle occult questions as to the real character of transactions between the parties to the pretended transfer of title, when not accompanied by a corresponding change of possession.

In this view it may be regarded as a kind of rule of title and assurance in the pretended vendee. The propriety of the rule is well justified by commercial, as well as by judicial, experience; and we may properly continue to abide by it, as intimated by Judge MATTOCKS, in Farnsworth v. Shepard, 6 Vt. Rep. 521, notwithstanding the doubt expressed by Chancellor Kent in his Commentaries, Vol. 2, p. 526 (ed. of 1840), in noting with commendation that intimation.

Now it is obvious that the policy and final cause of the rule cannot be predicated of the case in hand. The party to which the tax is owing is not a creditor. The state, the town, the school district, do not give credit by way of trust and confidence. They make an authoritative and arbitrary exaction, and are armed with all the power

of the state for its enforcement out of any, and all, of the property of the party taxed, extending even to the enticement of the prison walls, in lack of the property whereof to get satisfaction. In Johnson v. Howard and Trustee (Orange Co., March Term 1868), it was held that town taxes could not be deducted in diminution of the liability of the town as trustee of the defendant, under sec. 52, ch. 34, Gen. Stat.

In the present case, as before remarked, the tax was not on account of any property. It was only a poll-tax; that fact itself indicating it to be likely enough that, not property, but only the person of the party taxed, might be reached by warrant for its compulsory collection.

The view we take of the subject, in its reasons, as developed in its history, is fully sustained by the text-books and the cases. 2 Kent's Com., from p. 515 to 552, inclusive, contains the best summary of the law of the subject that I have seen. It will be found that all the cases in Vermont, beginning with Mott v. McNiel, 1 Aik. Rep. 162, and ending with Houston v. Howard, 39 Vt. Rep. 55, treat the matter of fraud in law-constructive fraud -predicated upon a lack of change of possession, as originating in policy, and limited to creditors and bonâ fide purchasers without notice. The doctrine has never been better stated, both as to its grounds and its limit, and its practical operation, than it was by HUTCHINSON, J., in Mott v. McNiel; and it has not been departed from in point of principle in any subsequent case that has come to our attention. He says: “A sale of personal property, without change of possession, though it may be valid, as between the parties, is void as to creditors. It is usually termed a fraud in law. * * * This must be a visible substantial change; so that the possession will no longer give a credit to the former owner.

If a man actually owns and possesses personal property, the world have a right to presume he remains the owner, so long as he retains the possession. People may well give him credit on account of this property, and when they attach it for his debts, they can hold it.”

The ground of the doctrine is strongly developed in Foster v. McGregor, 11 Vt. 595, by BENNETT, J., in which it was held that property exempt from attachment and execution was not subject to the rule of fraud in law, for the reason that it did not enable the vendor to acquire a false credit, nor was it against sound policy, as opening a door to fraud; and yet such property is not exempt from distress upon a tax-warrant.

As the present case does not fall within the reason of the doctrine and rule, and as no precedent is shown for applying the rule to such a case, we see no legal reason for subjecting the plaintiff's property to the compulsory payment of his father's poll-tax. No party in interest has been misled. No party in interest could be misled in such a case, by such possession and use of the property


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by the plaintiff's father, with the knowledge and permission of the plaintiff, as were shown in this case.

The fact that the defendant levied on it, because of such possession and use, is no element in the law of the subject. It was an experiment on his part to get the tax satisfied. What gives potency to the lack of a change of possession, is its tendency to induce a false credit in the creation of claims against the former owner, who still continues in possession,—not that it may induce a party to levy final process upon it in satisfaction of his claim. The case, in this respect, bears a close analogy to one feature of Turner v. Waldo, 40 Vt. Rep. 51.

The judgment below is reversed, and judgment rendered in this court for the plaintiff.

The foregoing opinion is certainly before judgment in his favor, is not entireasoned with great fairness and clear- tled to the benefits of being regarded as ness, and as the rule of law declared is a creditor of the tortfeasor. He could one of policy, not altogether dependent not avoid the effect of a conveyance either upon principle or analogy, it is made for the express purpose of avoiddifficult to form any very decided opinion ing his claim, which would be void in regard to its absolute soundness. It under the statute against fraudulent conis a question resting too much in the veyances as to creditors. And he could discretion of the court to admit of much not claim to recover a penalty inflicted controversy, either in regard to its wis- against debtors for fraudulent conveydom or its logic. By presuming to ances, to be recovered only by creditors. affirm the contrary one assumes to erect This point as to the claimant for damhis own judgment in opposition to that ages in tort being entitled to the benefit of the court, which, within its sphere, is of the provisions of the statute against final and therefore infallible. That is fraudulent conveyances was

so deterall that is fairly implied in the infalli- mined at an early day in Connecticut by bility of any person or tribunal, that its a divided court: Fox v. Hill, i Conn. judgments are final and not subject to 295; Fowler v. Frisbie, 3 Id. 321. revision. And where, in addition to But after a tort goes into judgment it the judgment of any court being final, becomes a debt, and we see no good reait is made to rest upon so undefinable a son why the relation of debtor and crebasis, as policy, it becomes impossible to ditor may not fairly be regarded as measure its soundness, since we have no thereafter existing between the parties to common standard of policy in the law such judgment. That is expressly deuntil it has been established by common cided in Pelham v. Aldrich, 8 Gray 515, consent, which is not the fact as to the in regard to a bill of costs recovered by matter in hand.

defendant in a writ of entry. It may be true that the person or power

We think, indeed, that no one can in whose favor a tax is assessed is not to question that the sheriff may levy an be regarded strictly in the light of a execution issued upon a judgment in an creditor of the tax-payer. So too a action of tort, upon personal property party upon whom a tort is committed, not so transferred as to vest the title as against creditors. We do not think any English rule in regard to distress is far court would be inclined to make any more sweeping than in regard to the distinction between the rights of judg. levy of a fieri facias. A distress ment-creditors on the ground of the ori- attaches to all property in the possession ginal cause of action. This rule of law, of the party in default. That is cerregarding the sale of personal property tainly so in regard to distress for rent in as incomplete until after a visible sub- arrear, and there is no reason why the stantial transfer of possession to the rule should not extend to distress for vendee, is for the security of officers as taxes. The distinction made in favor well as creditors, that there may be some of creditors in the principal case may be known evidence of title by which they founded upon valid considerations. But may be able to determine the duty which we generally feel averse to making disthe law imposes, as to levying on it. tinctions in the law, unless upon grounds

Whether the same rule should be ex- which commend themselves to the comtended to officers making distress for

mon mind.

I. F. R. taxes is perhaps not equally clear. The

Supreme Court of Alabama.


It is not the absolute duty of a railroad company to furnish a safe engine. Its duty is to use care and diligence to furnish such an engine.

When an injury has occurred to a servant in consequence of a defect in an engine, the burden is on the servant to show negligence in the master, and it is not shifted by the fact that an injury has resulted from a defect.

Notice to the proper officers or servants of the company is notice to the company, and will render it liable unless it uses proper diligence in repairing the defect ; but if it has made an effort by a competent servant to repair, it is not liable. Failure to remedy the defect does not conclusively prove negligence on the part of the workman, and if it did, he is a fellow-servant of the plaintiff, for whose negligence the company is not liable.

The defendant in error, who was plaintiff below, was a fireman in the railroad company's employ. While on duty on a train, the engine broke down from some defect in itself, and the plaintiff was injured. Evidence was given at the trial tending to show that the engine, which was run on a “Mason side-bearing truck,” was of a kind known to be unsafe; that this particular one had broken down several times before, and that the assistant-superintendent and master mechanic of the shop had been informed of this when it occurred.

The defendant offered evidence that the side-bearing truck was safe, and that the foreman of the workshop, a competent mechanie, bad repaired this engine, and pronounced it safe.

The jury rendered a verdict for the plaintiff under a charge which is sufficiently set out in the opinion of this court.

Geo. N. Stewart and P. Hamilton, for appellant.

Robert H. Smith, for appellee.

The opinion of the court was delivered by

A. J. WALKER, C. J.— The first charge given by the court below was as follows: “It was the duty of the defendant to have on the road suitable and proper engines, and to keep them in such condition that unusual risks would not attend those who were employed to perform service on them; and if they did not in this case have such an engine, and the plaintiff was ignorant of any defect in the engine, the burden is on the defendant to show that they used due caution and diligence in the matter.” The defendant was liable to its servants for injuries resulting from its negligence. When passengers on a railroad are injured in consequence of a defect in any instrument employed by it, it is a presumptiondisputable, but not conclusive — that the injury resulted from negligence : 2 Redfield on Railways 190, $ 11; H. & S. Railroad Co. v. Higgins, 5 Am. L. Reg. 715; 8. C., 1 Redfield on Railways 533, $ 131; Edgerton v. N. Y. Railroad Co., 35 Barb. 193; Curtis v. R. S. Railroad Co., 18 N. Y. 534. But the same principle does not prevail in reference to servants of a railroad, as we shall see. The established doctrine of the law unquestionably is, that the onus of proving negligence is upon vant: 2 Redfield on Railways 200, $ 15; Perkins v. E. Railroad Co., 29 Maine 307 ; 8. C., 1 Am. Railway Cases 144. Our own decision in M. f 0. Railroad Co. v. Jarboe (not yet reported), and Steel f Burgess v. Townsend, 37 Ala. 247, are not opposed to that proposition. In those cases, the question was, whether a loss of goods, or injury to them, was within an exception to a contract of affreightment; and it was held that the onus of proving that the loss or injury came within the exception, was upon the common carrier; that it did not fall within the exception, unless due care and diligence had been used, and that therefore the onus of proving such care and diligence was upon the carrier.

The charge here, however, was not that the onus of proof of

the ser

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