delivered the opinion of the Court at the ensuing term in Penobscot.
This is an action of replevin for a carding machine ; and the question upon the issue joined is, whether, at the time it was taken by the defendant, it was the property of the plaintiff. His title is under á bill of sale from Solomon Bangs, who was the undisputed owner at the time the bill was given, viz. September 6, 1824. By this it appears that the value of the machine was $240, and by the report it appears that Bangs then owed the plaintiff $80, and no more; and that the machine was worth $250. Though the bill of sale is absolute in form, yet by the report of the evidence intro*101duced by both parties without any objection from either, it is apparent that the conveyance to the plaintiff was intended as his security for the $80 advanced to Bangs ; and that the plaintiff claimed nothing more than the amount of his demand against Bangs. The alleged inadequacy of the price is relied on to shew that the transaction cannot be sanctioned as a sale ; and that the bill of sale being absolute on the face of it, the plaintiff cannot be permitted to claim under it as a mortgage or a pledge ; and it is further contended that, as possession did not accompany the conveyance, whatever it was, it must be deemed fraudulent and void. Tho jury, however, under the instructions they received, upon view of all the evidence, have found that the conveyance was not fraudulent, but fair, honest and bona fide. The only inquiry, then, is whether the instructions given by the presiding judge were correct and proper. He stated to them that although a bill of sale, under the circumstances disclosed on the trial, might be regarded as strong evidence of fraudulent intention in the parties to it; yet that it was not conclusive; and that if they should be satisfied that the object of the-parties was only to secure the plaintiff for the money he had advanced, and not to prevent an attachment of the machine by the creditors of Bangs, or in any manner to delay or defraud them, they ought to return a verdict for defendant, as they did. If the instruction was correct as to their considering the bill of fale conditional, and intended merely as security, then the objection as to inadequacy of price is of no importance. To the principal point several cases have been cited in the argument. In New Eng. Mar. Ins. Co. v. Chandler 16. Mass. 275, the defendant had assigned and transferred, by an unconditional conveyance, certain shares of insurance stock to Burroughs, the trustee; but on his disclosure it appeared that the transfer was as collateral security for a debt due to the Union Bank, of which he was cashier, and for no other purpose; and though it was contended that the transfer was fraudulent as against creditors, on account of the absolute form, yet, as the whole transaction was fair and honest, the court sanctioned it; and adjudged Burroughs’ trustee only for the balance remaining in his hands, after payment of the debt to the bank. To this point see also the opinion of the court in Harrison & al. v. *102Trustees of Phillips Academy 12. Mass. 456, as to the intention of parties to make a conveyance merely a mortgage, though absolute in its ,form. To the same point also may be cited Jewett v. Warren 12. Mass. 300. Bartlett v. Williams 1. Pick. 295, and Badlam v. Tucker ib. 389. We would again observe that in the present case, both parties have proved that the bill of sale, though absolute on its face, was intended merely as security; and why should their intention be defeated ?
With respect to the question of possession, it is not necessary particularly to examine the facts detailed in the report. If there was, not as distinct a change of possession as títere might have been after the conveyance, it would seem that the machine was in such a place, and under such circumstances, as not to deceive others. But be that as it may* it is too late to question those principles of law which have so long and so uniformly been acknowledged and adhered to by the courts of the parent State; and by this court since its organization, upon this subject. ' For although English eases and those of the courts of the United States appear to have decided, that when possession of a chattel is continued by a vendor, after sale, and such possession is inconsistent with the terms of the bill of sale, it is fraud per se ; still that has never been received as law in Massáchusetts, or this State. It is only evidence of fraud to be submitted to a jury. It is often of a very decisive character; and from such evidence the jury may infer fraud, and pronounce the sale void. To this point we will only cite Brooks v. Powers 15. Mass. 247; the cases before cited from 1 .Pick. 295. 389. and Haskell v. Greely 3. Greenl. 425.
We perceive no error in the instruction to the jury. The defendant may be summoned as the trustee of Solomon Bangs; and in this manner the difference between the plaintiff’s demand and the value of the machine may be secured for the use of any creditor who may incline to adopt this mode of proceeding, as was done in the above case of N. E. Mar. Ins. Co. v. Chandler. There must be
Judgment on the verdict.