Fellows agt. Hyring. which judgment was entered, and the defendants appealed to the county court. The county judge having been consulted, he certified the cause into the supreme court, where the same was argued in the fourth district at general term, July, 1857, by A. POND, for the defendants. E. F. BULLARD, for the plaintiff. I. The plaintiff contended that the chattel mortgage to the defendants was void, and that the defendants, with a full knowledge of that fact, assigned the same to Clute with the expectation that he would take the property, and that such an assignment was an implied warranty of the validity of the mortgage. That if the plaintiff had recovered against Clute, he could have recovered over against the defendants, and therefore this action should be sustained to avoid circuity of action. II. The statute makes the copy of the chattel mortgage thus certified, evidence, and therefore it was properly admitted in evidence. How far it was evidence, or what it proved, is another question. At all events, its admission in this case should not reverse the judgment. By the court, JAMES, Justice. The evidence was ample to warrant the jury in finding that the mortgage to the defendants was void as having been obtained of Earl while under duress, as hush-money to cease a prosecution for felony; still, the papers transferred to Clute the nominal legal title to the mortgage, and as such owner he had perfect authority to act under it, and to avail himself of all its provisions. The proof is undisputed that Clute took the colt from Earl, and nothing appears in the case to connect the defendants, or either of them, with that act before or at the time, or with the property since. In fact, Clute testifies" that he took the colt on his own responsibility, and without any authority from the defendants." There is no Kellogg agt. Wilkie. sufficient proof to connect the defendants with that taking, or to make them responsible for Clute's acts. The verdict was therefore against evidence, not against the weight of evidence simply; but there is no evidence to support it. For this reason the judgment should be reversed. The justice also erred in receiving in evidence the certified copy of what purported to be a chattel mortgage, as introduced by the plaintiff. There was no proof that an original of said mortgage, executed by Earl the alleged mortgagor, ever existed. Until it was affirmatively established that there was such original, a pretended copy was not admissible in evidence for any purpose whatever. The town clerk's certificate did not aid the plaintiff, nor give to his pretended copy any additional force or effect until the original was legally proved, and then the certified copy was admissible in evidence as proof that such instrument or copy was received and filed according to the indorsement of the clerk thereon. (2 R. S., 71, 2d ed.) The other questions it is not necessary to consider. Judgment of the justice reversed. NEW YORK COMMON PLEAS. WILLIAM KELLOGG agt. JAMES WILKIE, JR. and others. A sale of chattels is not absolutely void as against creditors when unaccompanied by a change of possession. The continuing in possession by the vendor after the sale affords the strongest presumptive evidence of fraudulent intent, and amounts to conclusive proof unless rebutted and overthrown by testimony showing the sale to have been made in good faith, and without intent to defraud creditors. But when any proof bearing upon the question of intent or good faith is given, it must be submitted to the jury or the justice who tries the cause, to be determined like any other question of fact. The court cannot determine the question as one of law. Kellogg agt. Wilkie. General Term, June, 1862. DALY, BRADY and HILTON, Judges. APPEAL from judgment of district court. By the court, HILTON, J. The counsel for the defendants. is mistaken in supposing that "a sale of chattels is absolutely void as against creditors when unaccompanied by a change of possession." The statute declares that every such sale, unless accompanied by an immediate delivery and followed by an actual and continued possession of the things sold, shall be presumed fraudulent and void, as against the creditors of the vendor, and shall be conclusive evidence of fraud, unless it shall be made to appear on the part of the person claiming under such sale that the same was made in good faith and without any intent to defraud such creditors. (3 R. S., 5th ed., 220, § 5.) Thus, the continuing in possession by the vendor after the sale, affords the strongest presumptive evidence of fraudulent intent, and amounts to conclusive proof, unless rebutted and overthrown by testimony showing the sale to have been made in good faith, and without intent to defraud the creditors. But when any proof bearing upon the question of intent or good faith is given, it must be submitted to the jury to be determined by them like any other question of fact. The court cannot withhold it from them, and determine the question as one of law. (Smith & Hoe agt. Acker, 23 Wend., 653; Cole agt. White, 26 id., 511; Hanford agt. Archer, 4 Hill, 271; Vance agt. Phillips, 6 id., 433; Thompson agt. Blanchard, 4 Comst., 307.) In this case the proof on the part of the plaintiff shows that he purchased the contents of the store at its full value, giving for it his own note at three months for $300, and a note of a son of one of the owners for $25, with two years' interest. That the purchase was made on the evening of Janury 14; that the next day the vendors remained in the store, selling goods as usual, but for his account; but on Kellogg agt. Wilkie. the 16th he took possession wholly, and so continued up to the following day, when the sheriff, under the direction of the defendants, entered the store and took the goods found there, upon an attachment in their favor against the parties of whom the plaintiff purchased. Of the property thus taken, $34 in value was put in by the plaintiff after he acquired possession. It also appeared that his note had been passed away to one of the creditors of the vendors in extinguishment of their debt to him for a less amount, he paying them the difference in cash, and it was not shown that the plaintiff at the time of his purchase had any knowledge of the pecuniary difficulties of the vendors, or participated in any intent on their part to defraud their creditors. Under these circumstances, the question of intent was particularly one for the justice who tried the cause to pass upon, and we cannot interfere with his judgment. We do not deny that upon the printed evidence before us the case is one not wholly free from suspicion of fraud, and had the justice found the other way we would not have felt disposed to disagree with him; yet we must presume that, having the witnesses before him, he was much better qualified to determine as to their credibility and the good faith of the transaction, than we could possibly be from a mere reading of the evidence. And we may make the same remarks respecting his conclusion as to the value of the property, with this addition, however, that after having found the transaction free from fraud, he could not well have fixed the value at less than the plaintiff paid at the time of his purchase, which was at most but two days prior to the taking of the same property under the defendants' attachment. Judgment affirmed. Birkbeck agt. Stafford. SUPREME COURT. ABRAHAM W. BIRKBECK, respondent agt. WILLIAM R. STAF FORD and JOHN DAVIDSON, appellants. An attorney is liable to a sheriff for his fees and compensation on attachments and all other process delivered to him for execution. And in cases of attachments it includes such additional compensation for his trouble and expenses in taking possession of and preserving the property attached, as the officer certifying the warrant shall certify to be reasonable, as well as the fifty cents for serving the attachment. Where judgment by default has been entered against defendants, and they are permitted to come in and answer on the condition that they shall waive the objection of the non-joinder of the defendants, they cannot subsequently, in the progress of the cause, raise and rely upon such objection. A sheriff may assign his claim to fees and compensation for services rendered, but not for those to be earned. Poughkeepsie General Term, May, 1862. APPEAL from judgment rendered on trial before a referee. W. R. & S. H. STAFFORD, for appellants. By the court, LOTT, Justice. The material facts found by the referee are sustained by the evidence in this case, and warrant the conclusion of law to which he has arrived. It has long been settled that an attorney is liable to a sheriff for his fees and compensation, on process delivered to him for execution. This principle, although anomalous, was established in Adams agt. Hopkins, (5 John., 252.) It was extended by the chancellor to examiners in chancery, in The Trustees of Watertown agt. Cowen, (5 Paige, 510,) and was there said by him to apply to the different officers of courts of record, and was recognized as a settled rule of law in this state in Judson agt. Gray, (1 Kern., 408.) The sheriff is by statute declared to be entitled for serving an attachment to the sum of "fifty cents, with such additional |