Bacon v. Scannell

Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring. This is a case where the vendor of a stock of goods was employed by the purchaser as a clerk to sell them. The goods [273] were attached as the property of the clerk, by his creditors, and sold by defendant Scannell as sheriff. This suit was brought to recover the value of the goods; and the Court below instructed the jury that if they believed the testimony of plaintiff's witness (the clerk,) they must find for the defendants. The instruction of the Court was correct. This case falls within the principle settled in the cases of Fitzgerald and Brown v. Gorham, (4 Cal. R., 289; Stewart v. Scannell, 8 Cal., 80, and Vance v. Boynton, October, 1857.) The present case only differs from the first cited above in the fact that the vendor in that case was immediately employed as a clerk to sell the goods, while in this he was away from the store about one month, and was then employed. But this difference in the time of employment constitutes no difference in the actual principle. The statute requires not only an actual but a continued change of j>ossession of the things sold or assigned. The change of possession must be continued; and the statute does not fix any limits when this change may cease. The language of the statute is very clear and explicit. If we could put any limits to it, we could do away with the clear language of the law. The rule is one expressly created by the statute, and not by the decisions of the Courts; and as the statute puts no limit to the duration of this “ continued change of possession,” we can make none. If the rule be oppressive, the remedy must be found with the Legislature. Judgment affirmed.