Samuels v. Gorham

Decided July 1, 1855

California Supreme Court · decided 1855-07-01

The action was replevin for wrongfully taking from the custody and possession of the plaintiff a large amount of personal property. The answer alleges that the defendant attached the property in his official capacity as Sheriff, in a suit brought by Dexter Taft against Mitchell & Nunes. That the property, although sold to the plaintiff, had not been delivered to him, but remained in the possession of-Mitchell & Nunes.

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Decided 1855-07-01

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Cited by 4 later decisions — most recently May 1912

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Murray. C. J., delivered the opinion of the Court.

¶1Heydenfeldt, J., concurred.

¶2To constitute a valid sale of personal property against creditors, there must, according to the provisions of the statute of this State, be “an immediate delivery thereof, accompanied with an actual and continuous change of possession.” By an immediate delivery is not meant a delivery instanter; but the character of the property sold, its situation, and all the circumstances must be taken into consideration in determining whether there was a delivery within a reasonable time, so as to meet the requirement of the statute; and this will often be a question of fact for the jury.

¶3The record in this case does not purport to set out all the testimony, and we cannot determine from the meager statement whether the verdict was contrary to evidence or not. The instruction of the Court was correct, and the jury having passed upon the facts, we will not disturb their verdict.

¶4Judgment affirmed.