
    James Patten versus Joseph Clark.
    Fhe plaintiff furnished one C, an insolvent, with goods, to be sold at a shop kept by C. C was to pay for them at certain prices, as fast as he sold them. Whatever he might obtain ox'er those prices, xvas to be his profits. The goods were to re* main the plaintiff’s, and at his risk, until sold. Such articles as should not be sold were to be returned to the plaintiff; such as should be sold on credit, xvere to be at C’s risk; and for all goods sold, he was to account with the plaintiff at the prices fixed. Held, that such a consignment was not fraudulent in law in respect to C’s creditors, and that whether it xvas in fact bond fide, or only a color for a sale, was a question for the jury.
    Replevin. The defendant traversed the plaintiff’s property in the goods replevied, and issue was joined thereon.
    At the trial, before Wilde J., it was testified on the part of the plaintiff, that he was a West India goods trader, and that he furnished one Chanly, from time to time since De cetnber 1824, with divers goods in the same line, to be sold at a retail shop kept by Chanly, which goods were marked at certain prices, such as were usually charged to purchasers by the plaintiff; that it was agreed between them, that Chanly should pay for the goods at those prices, as fast as he could make sale thereof, and whatever he might ob'am over was to be his profits; the goods were to remain the plaintiff’s, until sold, and such articles as should not be sold were to be returned to the plaintiff; and if any were lost by fire or otherwise, the plaintiff was to bear the loss ; but whatever was sold was to be at Chanly’s risk, if credit were given, and for all the goods sold he was, at all events, to account with the plaintiff, at the prices marked. It appeared in evidence, that at the time when the plaintiff began thus to furnish goods, he took from Chanly and his wife a lease of certain tenements belonging to the wife, as security for the perform anee of the agreement on the part of Chanly. Chanly failed in business before this agreement with the plaintiff, and in September 1823, took the poor debtor’s oath. During the abovementioned transactions no account had been settled between the plaintiff and Chanly, who at the time of the trial was indebted to the plaintiff in a large balance. On the part of the defendant it was proved, that he, being a constable, attached the goods in question on the 10th of June, 1826, on a writ against Chanly, to secure the payment of a debt contracted in 1822, and before Chanly’s failure. Evidence likewise was introduced to show, that during the period ol Chanly’s dealings with the plaintiff, there was nothing indicating to the public that he did business otherwise than on his own account.
    The jury were instructed, that if the' goods in question were consigned by the plaintiff to Chanly to be sold on the terms before stated, and were not actually sold to him, the property remained in the plaintiff at the time of the attachment, and the action might be maintained ; that such a consignment was not fraudulent in law, especially as to the prior creditors of Chanly ; that the case did not present a question of fraudulent sale, but whether any sale had been in fact made; that the questions, whether the word “agent” were written on Chanly’s sign, or whether he sold in his own name, or whether the plaintiff had security for the fulfilment of the agreement, were immaterial, except so far as they might affect the general question, whether there was in fact a sale to Chanly or not ; that the purchasing of other goods by Chanly, with or without the knowledge of the plaintiff was not material, provided the goods in question were the same that were consigned by the plaintiff, as above mentioned, for sale; and that of this the plaintiff was bound to satisfy them, otherwise they should find for the defendant. The jury found a verdict for the plaintiff, and the defendant excepted to these opinions of the judge.
    The case was argued by Morey and Fuller, for the defendant, and D. A. Simmons and Gay, for the plaintiff.
   Parker C. J.

delivered the opinion of the Court. This case was entirely for the jury to determine, and there is not sufficient reason to suppose their verdict was not well founded on the ev'dence."' Whether the possession of the goods by Chanly was by virtue of a consignment by the plaintiff, or a sale, depended altogether upon the question, whether the transaction proved was colorable or genuine. Certainly a person may place properly in the hands of a poor man, to enable him to "trade with it and gain a subsistence from the profits, without exposing it to seizure by his creditors. The terms upon which the goods were taken by Chanly, as proved by the plaintiff’s witnesses, were consistent with the plaintiff’s claim of property in them, and a consignment of them to Chanly for sale, and it is equally true that all this may have been only ostensible, while the real purpose was to nrotect Clianly’s goods from his creditors. But it is for the yury alone to distinguish the character of these transactions, and they having pronounced them to be honest and fair, there is no legal ground for the Court to interfere.

Judgment according to verdict.  