CHAPTER II.

OF SALES BY PEDDLERS.

1854.

deemed a peddler.

SECT. 6. Any person, who is not a citizen of the United States, 1841. going from house to house, either on foot, or otherwise, in any town Who shall be in this state, of which he is not an inhabitant, carrying to sell, or exposing for sale therein, any goods, wares, or merchandise, which are the growth, production, or manufacture, of any foreign country, or of any other than this state, except sewing silk, cotton, and linen threads, woolen yarn, and stockings, knit from such thread and yarn, being the growth, production, or manufacture of the United States, shall be deemed a peddler.

1841.

SECT. 7. Any person, who shall be a peddler without having a license therefor, agreeably to the provisions of this act, shall forfeit Forfeiture. a sum not exceeding one hundred dollars, nor less than fifty dollars, one-half to him who shall sue therefor, and prosecute his suit to effect, and the other half to the treasury of this state.*

obtained from selectmen.

SECT. 8. Every peddler, before offering for sale any of the goods, License must be wares, or merchandise, the sale of which constitutes him a peddler as aforesaid, in any town in this state, shall obtain from the selectmen of such town, or a majority of them, a license for the term of one year from the date of the same; for which license he shall pay the sum of ten dollars, for the use of the treasury of the said town. SECT. 9. Such license shall be in the following form, to wit:

Form of license.

required to ex

SECT. 10. Every peddler, who shall offer for sale any of the goods, Peddlers may be wares, or merchandise, aforesaid, in any town in this state, shall, hibit licenses. when thereto required by any justice of the peace, grand juror, or constable, of such town, exhibit his license to such justice of the peace, grand juror, or constable; and on his failure so to do, shall forfeit to the treasury of such town the sum of fifteen dollars.

* Various points decided in the prosecution, qui tam, against a person selling goods as a peddler. Merriam v. Langdon, 10 C. R. 460.

TITLE XXV.

AN ACT FOR THE PREVENTION OF FRAUDS AND
PERJURIES.

What contracts

ing.

Be it enacted by the Senate and House of Representatives, in General Assembly convened:

SECTION 1. That, for the prevention of many fraudulent practices must be in writ- which are commonly endeavored to be upheld by perjury, and subornation of perjury, no suit in law or equity shall be brought or maintained upon any contract or agreement, whereby to charge any executor or administrator, upon special promise, to answer damages out of his own estate; or whereby to charge the defendant upon any special promise, to answer for the debt, default, or miscarriage, of another person; or to charge any person, upon any agreement made upon consideration of marriage; or upon any contract for the sale of lands, tenements, or hereditaments, or any interest in or concerning them; or upon any agreement that is not to be performed within the space of one year from the making thereof; unless the contract of agreement upon which such action shall be brought, or some memorandum or note thereof, shall be made in writing, and signed by the party to be charged therewith, or by some other person, 1859. thereunto by him lawfully authorized; but all parol contracts or one year or less, agreements, made for the hiring or leasing of any lands or tenements, after occupation or of any interest therein, for the term of only one year, or for any less time than one year, in pursuance of which the leased premises have been, or shall be, actually occupied by the lessee, or by any person claiming under him, during any portion of the period covered by such contract or agreement, shall be as valid and effectual as if the same were in writing, and signed by the parties thereto, and nothing herein shall be so construed as to prevent an action being brought or sustained thereon.*

Parol leases for

by lessee, to be

valid.

*Contracts within the second clause, viz: Promise to see a debtor forthcoming or to pay the debt. Thomas . Welles, 1 Root, 57; Of father to pay for tort of a son. Tur ner v. Hubbell, 2 Day, 457: Of indorser of a note to pay the note, when discharged by laches of the holder. Peabody v. Harvey, 4 C. R. 119; Huntington . Harvey, 4 C. R. 124. Within the fourth clause, viz: Agreement to lease land. James v. Finny, 1 Root, 549: Parol license to build on land of another, when title is in question. Benedict. Benedict, 5 Day, 464: Promise to pay for overplus or deficiency in deed of land. Bradley v. Blodget, Kirby 22; Northrop v. Speary, 1 Day, 23. Contra, Mott t. Hurd, 1 Root, 73. Promise to give a lease at a future day. Eaton v. Whitaker, 18 C. R. 222: Contract void by statute, cannot be used as defense. Comes v. Lamson, 16 C. R. 246: Defendant cannot avail himself of statute by general demurrer. Clark v. Brown, 1 Root, 77. What memorandum insufficient. Osborn v. Phelps, 19 C. R. 63.

Contracts not within first clause, viz: Submission by administrator of a claim to arbitration. Alling v. Monson, 2 C. R. 691. Promise of administrator, having assets, upon consideration of forbearance, to pay debt of intestate. Pratt v. Humphrey, 22 C.

of sale,

without accept

SECT. 2. No contract for the sale of any goods, wares, or mer-Certain contracts chandise, for the price of thirty-five dollars or upwards, shall be without not valid allowed to be good, unless the buyer shall accept part of the goods ance, earnestso sold, and actually receive the same, or give something in earnest, randum. to bind the bargain, or in part payment, or unless some note or memorandum, in writing, of the said bargain, shall be made and signed by the parties to be charged by such contract, or by their agents, thereunto lawfully authorized.*

R. 317. Not within second clause: Promise of principal to indemnify agent. Stocking . Sage, 1 C. R. 519: Promise in nature of indemnity. Marcy v. Crawford, 16 C. R. 549: Promise by assignees to execute the trust. Drakeley v. DeForest, 3 C. R. 272. Case in which the promise was held to be original. Loomis v. Smith, 17 C. R. 115. Blank indorsement. Perkins v. Catlin, 11 C. R. 213. Promise to plaintiff to pay debt due from plaintiff to another. Pratt v. Humphrey, 22 C. R. 317. Not within the third clause: Promise to marry in consideration of reciprocal promise. Clark v. Pendleton, 20 C. R. 495. Not within the fourth clause: Sale of things attached to, but to be separated from land. Bostwick v. Leach, 3 Day, 476: Promise not to run a mill. Same: Promise to account for profits made by trading in lands. Bunnell v. Taintor, 4 C. R. 568. Statute not applicable on a question of conspiracy. Bulkley v. Storer, 2 Day, 581: Nor to the conditions on which a note is to take effect. Couch v. Meeker, 2 C. R. 302. Not within fifth clause: Promise to give a lease for three years, to commence within one year. Eaton v. Whitaker, 18 C. R. 222: To pay for board of plaintiff's son two years, at plaintiff's request. Ives v. Gilbert, 1 Root, 89: Promise that may be performed within a year. Russell v. Slade, 12 C. R. 455; Clark v. Pendleton, 20 C. R. 495. When the terms of the contract will determine time of payment. Clark v. Terry, 25 C. R. 395. The provisions of this statute apply only to contracts of suretyship or guaranty. Reed . Holcomb, 31 C. R. 360. A promise by A. to B. to pay the debts of B. to other persons, in consideration of property delivered by B. to A. is within this statute. Clapp . Lawton, 31 C. R. 98.

And if such promise be in writing, no action can be sustained upon it. Same.

Part performance takes contract out of the statute, in equity. Chapman v. Allen, Kirby, 399; Downey v. Hotchkiss, 2 Day, 225; Cady v. Cadwell, 5 Day, 67; Watrous . Chalker, 7 C. R. 224; Crocker v. Higgins, 7 C. R. 342; Annan v. Merritt, 18 C. R. 478; Baxter v. Gay, 14 C. R. 119; Church v. Sterling, 16 C. R. 388; Eaton v. Whitaker, 18 C. R. 222. But it seems not at law. Same. Payment of earnest money, not part performance. Tainter v. Brockway, 1 Root, 59. Part performance not applicable to fifth clause. Comes v. Lamson, 16 C. R. 246.

What memorandum is sufficient. Hobby v. Finch, Kirby, 14; Case v. Worthington, 1 Root, 172; Nichols v. Johnson, 10 C. R. 192. Need not state the consideration of the agreement. Sage v. Wilcox, 6 C. R. 81; Edgerton v. Edgerton, 8 C. R. 6.

A contract for the sale of shares in a joint stock corporation, is within the second section of the statute. North v. Forest, 15 C. R. 400.

Discharge from such contract, not a sufficient consideration for promise by the releasee to pay money. Same.

What acceptance and receiving sufficient. Calkins v. Lockwood, 17 C. R. 154. Agreement to manufacture and deliver goods, not within the statute. Allen v. Jarvis, 20 C. R. 38.

When a part of the property sold is to be manufactured, the contract is within the statute. Atwater v. Hough, 29 C. R. 508.

money, or memo

TITLE XXVI.

AN ACT AGAINST FRAUDULENT CONVEYANCES.

Fraudulent con

Be it enacted by the Senate and House of Representatives, in General
Assembly convened:

SECTION 1. That all fraudulent and deceitful conveyances of lands veyances invalid. and tenements, or any interest in them, or of goods and chattels, and all bonds, suits, judgments, executions, or contracts, made with intent to avoid any debt, or duty, of others, shall be utterly void, as against those persons only, their heirs, executors, administrators, or assigns, whose debt, or duty, is endeavored to be avoided; notwithstanding any consideration upon which such contract may be pre

tended to have been made.*

* Possession by vendor is evidence of fraud. Burrows v. Stoddard, 3 C. R. 160; Burrows v. Stoddard, 3 C. R. 431; Patten v. Smith, 4 C. R. 450. Same. 5 C. R. 196; Ingraham v. Wheeler, 6 C. R. 277; Carter v. Watkins, 14 C. R. 240. This principle does not apply to real estate. Tibbals v. Jacobs, 31 C. R. 428. Merely formal change of possession insufficient. Bishop v. Warner, 19 C. R. 460; Kirtland v. Snow, 20 C. R. 23 Potter v. Payne, 21 C. R. 361; Beers v. Lyon, 21 C. R. 604. Other points in relation to possession. Calkins v. Lockwood, 16 C. R. 276; Meade v. Smith, 16 C. R. 346. This rule is not applicable to property exempt from execution. Patten e. Smith, 4 C. R. 450. Nor, generally, to assignments for the benefit of creditors. Osborne. Tuller, 14 C. R. 529; Strong v. Carrier, 17 C. R. 319; but see Peck v. Whiting, 21 C.

R. 206.

Vendor's possession is conclusive evidence of fraud, unless for reasons satisfactory to the court. Swift v. Thompson, 9 C. R. 63; Toby v. Reed, 9 C. R. 216; Talcott Wilcox, 9 C. R. 134; Crouch v. Carrier, 16 C. R. 505.

Including in a mortgage a provision for the future support of the grantor, renders the conveyance fraudulent. Pettibone v. Stevens, 15 C. R. 19. If the facts are admitted, the question is a question of law. Same. Where consideration for mortgage is inadequate, how far equity will sustain mortgage against creditors. Abbe v. Newton; 19 C. R. 20. A conveyance to a friend, to conceal property, fraudulent. Beers v. Botsford, 13 C. R. 146. Fraudulent conveyance valid against all but creditors. Barney v. Cuttler, 1 Root, 489; Chapin v. Pease, 10 C. R. 69. But such creditors must take the property and dispose of it by legal process. Owen v. Dixon, 17 C. R. 492.

A voluntary conveyance by one much indebted, is fraudulent. Merille. Meachum, 5 Day, 341; Kimballo. Hutchins, 3 C. R. 450; Benton v. Jones, 8 C. R. 186; Whittlesey . McMahon, 10 C. R. 137. Voluntary conveyance, though made by advice of grantor's creditor, void as against such creditor. Waterhouse v. Benton, 5 Day, 186. Voluntary conveyance void as against subsequent creditors. Merrill v. Meachum, 5 Day, 341. Voluntary deed, without fraud, by one not indebted, is good. Salmon. Bennett, 1 C. R. 525; Benton v. Jones, 8 C. R. 186. A voluntary conveyance to defeat a claim for tort, is fraudulent at common law. Fox v. Hills, 1 C. R. 295. A voluntary reconveyance of property fraudulently transferred, by a grantee much indebted, is fraudu lent. Chapin v. Pease, 10 C. R. 69. Otherwise, if applied to payment of debts. Middlebrook v. French, 4 C. R. 1. A voluntary conveyance not fraudulent in fact, is good against subsequent creditors. Converse v. Hartley, 31 C. R. 372. Grantee of fraudulent grantee acquires no title against the creditors of the fraudulent grantor. Preston *. Crofut, 1 C. R. 527, in note. Fraudulent grantee can acquire no title by possession, against creditors of grantor. Beach v. Catlin, 4 Day, 284. A conveyance will not be deemed void, because the grantee knew the grantor was in failing circumstances. Sisson v. Roath, 30 C. R. 15. Grantee must have knowledge of, and participate in the

making the con

SECT. 2. All the parties to such fraudulent contract, knowing the Forfeiture for fraud, who shall wittingly justify the same, as being made bona fide, veyance. and on good consideration, shall forfeit one years' value of the land, and the whole value of the goods and chattels, and as much money as shall be contained in such fraudulent bond or contract, one-half to the party aggrieved, who shall sue for the same, and prosecute his suit to effect, and the other half to the treasury of the state.*

1882.

1838. 1846. 1858. When mortgages

&c., shall not be

ulent, although

&c.

SECT. 3. Whenever the owner of any manufacturing or mechanical establishment shall mortgage the same for any debt or duty, and the mortgage shall convey the machinery, engines, or implements, of machinery, situated and used in such establishment; or, whenever the owner of considered fraudany building, in which any presses, types, cases, stereotype plates, thenortgagor reor copper plates, of, or pertaining to, any printing or publishing tains possession, establishment, are situated and used, shall mortgage the same, and the mortgage shall convey the presses, types, cases, stereotype plates, or copper plates; or whenever the owner of any dwelling-house, having a family, shall so mortgage the said dwelling-house, and the mortgage shall convey the household furniture belonging to the owner of said dwelling-house, and used therein by him in housekeeping; or whenever the owner of any building, in which hay is deposited, shall so mortgage said building, and the mortgage shall convey said hay; and the mortgage deed shall contain a particular description of such machinery, engines, implements, presses, types, cases, stereotype plates, copper plates, furniture, or hay, and shall have the condition or defeasance within or upon the same, such mortgage shall be as good and effectual to hold such mortgaged property, against subsequent purchasers or attaching creditors, as if the same were a part of the real estate, although the mortgagor shall retain possession of the same; and the mortgagee and the mortgagor, in every such mortgage, shall have the same remedies, and be subject to the same liabilities, as if such mortgaged property were a part of the real estate.

SECT. 4. Whenever the owner of the machinery, engines, or im- Same subject. plements, situated and used in any manufacturing or mechanical establishment, shall mortgage the same without the real estate; or whenever the owner of any presses, types, cases, stereotype plates, or copper plates, of, or pertaining to, any printing or publishing establishment, shall mortgage the same without the real estate, or whenever the occupant of any dwelling house, having a family, shall mortgage, without the real estate, the household furniture used by him in housekeeping; or whenever the owner of hay, deposited in any building, shall mortgage such hay, without the real estate; for the security of any debt or duty, by a deed in which such machinery, engines, implements, presses, types, cases, stereotype plates, or copper plates, furniture, or hay, shall be particularly described, and which shall be executed, acknowledged, and recorded, in all respects as mortgages of lands are required to be, such mortgage shall be good and effectual, although the mortgagor shall retain possession

fraud. Partello v. Harris, 26 C. R. 480. See also Utley v. Smith, 24 C. R. 290, and Harvey v. Mix, 24 C. R. 406.

Executory agreement made to aid a person in delaying his creditors, cannot be enforced between the parties. Gaylord v. Couch, 5 Day, 223. Fraudulent conveyance void as against subsequent bona fide purchaser from fraudulent grantor. Kimball v. Hutchins, 3 C. R. 450; but see Owen v. Dixon, 17 C. R. 492. Judgment assailed as fraudulent, sustained in part, when. Ayres v. Husted, 15 C. R. * Conveyance to defeat a claim in tort, not within the statute. R. 320.

504.

Fowler v.

Frisbie, 3 C.