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35 Vt. 644

Moore v. Smith

Supreme Court of Vermont

Decided February 15, 1863

Supreme Court of Vermont · decided 1863-02-15

Trespass for taking certain articles of personal property. Plea, the general issue with notice of special mal ter in defence. The following statement of facts was agreed upon by the parties: On the 2nd of September, 1861, one Moore made at Rupert, in this state, an assignment to the plaintiff of his property, consisting of real and personal estate, for the benefit of his creditors, in pursuance of the statute in relation to such assignments.

Relies on Vail v. J. & J. H. Peck & Co.

Decided 1863-02-15

Barrett, J.

¶1The only question presented by the facts agreed Upon is, whelherany thing'morewas necessary tobe done than was ‘done, in order to protect the assigned property in the assignee, ■against the attachment of the creditors of the assignor. In ■other words, whether the law will imply fraud, as against ‘such ■creditors, from the facts reported. No question of fraud in fact •is involved ; but only one of what is called fraud in law, as ■depending on the facts as to possession.

¶2On this point, the provision of the statute of 1857, No. 11-, sec. 3, seems explicit and conclusive. It is iu terms, that after the copies of the assignment and boud have been filed, as required by the statute, the assigned property shall not be liable to attachment and execution at the suit of the creditors of the assignor. The statute prescribes what is to be done iu order to a valid assignment of the property, and when that is done, the assignee is invested with a valid title, unless it be affected with fraud in fact. The principle of Vail v. Peck et als., 27 Vt. 764, is directly applicable to this c ise.

¶3Judgment reversed, and judgment for the plaintiff, for the value of the property, as agreed.

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